decreeing that the leasehold ought to be considered as personal estate undisposed of, *and to be first applied towards payment of the [351] testator's debts, funeral expenses, and pecuniary legacies. (j) A like decision was made by Sir Thomas Clarke, in Negus v. Coulter; (k) and, where a testatrix bequeathed all her leasehold estates to charitable uses, and gave the residue of her estate to the same uses, "to such uses, intents, and purposes, as aforesaid," by Sir Thomas Clarke, in Attorney General v. Tyndall;(7) and, where a mortgage passed by a residuary bequest in the will of the mortgagee, by Sir Thomas Sewell, in Attorney General v. Caldwell,(m) and Attorney General v. Martin. (n)

This doctrine, however, of marshalling assets, in the case of leasehold, for years, or mortgage money, bequeathed to a charity, appears to be overruled by several later decisions. It was, perhaps, first shaken by Lord Northington's opinion, expressed in Attorney General v. Tyndall, where his Lordship reversed the decree of Sir Thomas Clarke; although there, it is observable, the reversal did not take place on the point of marshalling only; for Lord Northington decided, not only that the specific bequest of the leasehold for years was void, but that the bequest of the residue was itself likewise void;(0) and consequently there was, under these circumstances, no room left for marshalling. Lord Hardwicke's principles of marshalling, in the case of leaseholds for years, or mortgage money, bequeathed to a charity, seem to have been, that the property was undisposed of, and belonged to the testator's next of kin; and, as assets applicable to the payment of debts and legacies, resembled land descended to a testator's heir at law, and which land Lord Hardwicke took, in Galton v. Hancock, (p) to pay a debt secured by mortgage of lands devised.(g) It may be doubted if these principles occurred to Lord Northington, in Attorney General v. Tyndal, where his Lordship said he did not understand the marshalling of one *fund.(r) It is [*352] clear that Lord Hardwicke saw two funds; namely, the property undisposed of, and the residue.(s)

Sir T. Sewell's decree in Attorney General v. Martin was, it appears, reversed by Lord Thurlow.(t) And the Court has refused to marshal assets in Waller v. Childs, where a person devised all his real and personal estate to trustees, upon trust to sell and pay debts and legacies, and to place out the surplus money at interest, and disposed of this surplus to charitable uses; in which case part of the personal estate consisted of leaseholds for years:(u) and in Attorney General v. Hurst, or Earl of Winchelsea, where a residue of personal estate was bequeathed to charitable uses, and part of such residue consisted of mortgages.(v) In Attorney General v. Earl of Winchelsea, Sir R. P. Arden, by whom the decision was made, " conceived this case to stand upon the same ground, as if the testator had specifically bequeathed his mortgage to one person,

and the other part of his personal estate to another. In such a case they should contribute to the payment of the debts and legacies, rateably according to the amount of what they took. The next of kin, in this case, he considered as if he had been a legatee of the mortgages; and therefore decreed that the payment of the debts and legacies should be made out of the mortgages, and out of the rest of the personal estate, rateably according to the amount of each of them respectively."(w) It was in form declared, that the debts, legacies, and costs of suit, ought to be paid out of the testator's general personal estate, and out of the monies secured upon mortgage, or other real securities, pro rata; that the surplus of the personal estate, exclusive of such part thereof as shall appear to have been secured by mortgage (after bearing the proportion of the testator's debts, &c.,) be applied for the several charitable purposes mentioned in the will; and that one moiety of so much of the personal estate as shall have arisen from mortgages, or any other real securities, (after pay[ *353 ] ment of debts,) doth belong to R. D.; one of the next of kin, and the other moiety to E. C., as the representative of the other next of kin.(x) This apportionment of the charges between the different funds has been followed in other decisions. (y)

The conclusion that must be drawn from the modern authorities on marshalling assets for a charity, either by paying debts or legacies out of real estate, or by paying them out of leaseholds for years, or mortgage money, or certain other kinds of property, appears to be, that a Court of Equity, in general cases, certainly will not, and probably in no case will, marshal assets in favour of either a residue or legacy bequeathed to charitable uses. (z) Sir Lloyd Kenyon, in Ridges v. Morrison, said, that "whatever difference of opinion there might have formerly been upon the subject, he considered it to have been the established law of the Court, from Lord Northington's time, not to marshal or arrange assets in favour of a charity."(a) And in Makeham v. Hooper, it was, to the like effect, said by Lord Commissioner Ashhurst, that "he thought they were bound by the recent cases, with respect to the question of marshalling; that it did not appear what was the reason of the turn in the cases, but as the decisions had taken that course, they could not alter them."(b)

SECTION IV.

OF MARSHALLING ASSETS FOR A WIDOW, IN RESPECT OF HER PARAPHERNALIA.

AFTER the death of a husband, his creditors cannot take, in satisfaction of their debts, his widow's necessary apparel. (c) But, with this

(w) 3 Bro. C. C. ed. Belt, 380, n. (3.) (x) 3 Bro. C. C. ed. Belt, 380, 381, 2 Cox, 366.

(y) Howse v. Chapman, 4 Ves. 542; Paice v. Archbishop of Canterbury, 14 Ves. 364, 372; Curtis v. Hutton, ib. 537.

(z) Middleton v. Spicer, 1 Bro. C. C. 201; Ridges v. Morrison, 1 Cox, 180. (a) 1 Cox, 181.

(b) 4 Bro. C. C. 156.

(c) Noy's Max. ch. 49; 2 Bl. Com. 436; 2 Ves. 7.

exception, a widow's paraphernalia are, as before *it has been [ *354 ] seen, (d) subject to the payment of her husband's debts, (e) as by recognizance,(f) specialty, (g) or simple contract. (h) Yet, to preserve paraphernalia for a widow, and to empower her to retain them, or, if they have already been taken by her husband's creditors, to compensate the widow for the loss of them, a Court of Equity will marshal the husband's assets. (i) Where they had not been taken by the creditors, a Court of Equity has preserved for the widow her paraphernalia, by turning a creditor by covenant on real assets descended to the husband's heir at law;(j) and a creditor by recognizance on real estate devised by the husband; (k) and, in other instances, by turning creditors on the real estate, where the husband by his will subjected his real and personal estate to the payment of his debts, (1) and, in another case, where he by his will empowered his wife (whom he made executrix) to raise, by mortgage of a particular real estate, a sufficient sum of money for payment of his debts, in aid of his personal estate, and bequeathed to his wife the use of her jewels for her life. (m)

When creditors have already taken paraphernalia in satisfaction of their debts, a Court of Equity will compensate the widow for this loss, in instances where the personal estate has been exhausted by specialty creditors, by decreeing her to stand in their place, and, to the value of the paraphernalia taken,(n) to receive satisfaction out of the real estate descended to the husband's heir at law, (0) and perhaps, also, but this point is not *free from doubt, out of real estate devised by the hus

[ *335 ] band, and which he has not by the will devised in trust for, or charged with, the payment of his debts.(p) And in instances where the personal estate has been exhausted by either specialty or simple contract creditors, the Court will decree the widow to stand in their place, and to receive satisfaction for her paraphernalia out of real estate, devised by the husband in trust for the payment of his debts,(9) or by his will charged with the payment of them.(r)

(d) Chapter X.

(e) Viscountess Bindon's case, Mo. 213, 216; Stubbs v. Stubbs, Cas. T. Finch, 415; Wilson v. Pack, Prec. Ch. 295; Burton v. Pierpoint, 2 P. W. 78; Nicholas v. Southwell, Mos. 177; Ridout v. Earl of Plymouth, 2 Atk. 104; Lord Townshend v. Windham, 2 Ves. 1, 7.

(f) Tynt v. Tynt, 2 P. W. 542. (g) Tipping v. Tipping, 1 P. W. 729; Snelson v. Corbet, 3 Atk. 369.

(h) Willson v. Pack, Prec. Ch. 295; Snelson v. Corbet, 3 Atk. 369.

(i) Northey v. Northey, 2 Atk. 78, 79; Aldrich v. Cooper, 8 Ves. 397.

(5) Tipping v. Tipping, 1 P. W. 729. (k) Tynt v. Tynt, 2 P. W. 542. (1) Bingham v. Erneley, 2 Eq. Cas. Abr. 250, in marg.

(m) Boynton v. Parkhurst, 1 Bro. C. C.

576; Boyntun v. Boyntun, S. C., 1 Cox, 106. See Parker v. Harvey, 11 Vin. Abr. 181, 2 Eq. Cas. Abr. 627, 4 Bro. P. C. ed. Toml. 604.

(n) 2 Atk. 79; 3 Atk. 438.

(o) Probert v. Clifford, 1 West Cas. T. Hardw. 638, 2 P. W. 5th ed. 544, n., Amb. 6; Probert v. Morgan and Clifford, S. C., 1 Atk. 440; Snelson v. Corbet, 3 Atk. 269. On a widow's title to satisfaction for paraphernalia out of assets fallen in after the paraphernalia have been applied to pay debts, see Burton v. Pierpoint, 2 W. 78.

(p) Tynt v. Tynt, 2 P. W. 542; Probert v. Clifford, above; Ridout v. Earl of Plymouth, 2 Atk. 104; Aldrich v. Cooper, 8 Ves. 397.

(q) Incledon v. Northcote, 3 Atk. 430,

438.

(r) 3 Atk. 438.

*CHAPTER XXIX.

OF EXONERATION OF REAL ESTATE.

SECT. I. Of Exoneration of Land Mortgaged.

[ *356 ]

II. Of Exoneration of Land charged; where the Principle, on which mortgaged Land is exonerated, as inapplicable.

III. Of Exoneration of Land devised, charged with Debts or Legacies; where the Devisee gives a Bond, or Promissory Note, to pay a Debt or Legacy charged.

IV. Of Exoneration of Land descended; where a Bond Debt is paid by the Heir.

SECTION I.

OF EXONERATION OF LAND MORTGAGED.

1. Of Exoneration out of the Assets of the original Mortgagor.2. Of Exoneration out of the Assets of the Heir at Law, or Devisee, of the original Mortgagor.-3. Of Exoneration out of the Assets of a Purchaser of the mortgaged Land.-4. Of Exoneration out of the Assets of one, whose Covenant to pay the Mortgage Money is a Surety only for the Land.-5. Of Exoneration out of the Assets of a Husband, who has mortgaged his Wife's Estate.6. Of the Title of a Devisee of Mortgaged Land to Exoneration out of Freehold Land descended, or Land devised, in trust for, or charged with, the payment of Debts.-7. Of the Title of a Devisee of mortgaged Land to contribution from other Land devised.8. Of the Title of an Heir at Law of mortgaged Land to exoneration out of Real Estate, charged by the Ancestor's Will with the payment of Debts.-9. Miscellaneous Points of the General Subject of Exoneration of mortgaged Land.

*1. On a loan of money on mortgage, the mortgagor contracts a debt; by specialty, if the mortgagor enters into a [ *357 ] bond, or covenant, to pay the money, and by simple contract, if there is no such bond or covenant.(a) The mortgage creates a debt, and, in a Court of Equity, the land mortgaged is a pledge only for the money borrowed. (b) And because the loan creates a debt, and the land mortgaged is a pledge only, the mortgagee is, in equity, entitled to be paid the debt out of the personal assets of the mortgagor, although the latter has not entered into a bond or covenant for the payment of it.(c) And

(a) Waring v. Ward, 7 Ves. 336; Aldrich ▼. Cooper, 8 Ves. 394; Ex parte Earl Digby, Jacob, 239.

(b) Bartholomew v. May, 1 Atk. 487; Waring v. Ward, 7 Ves. 336.

(c) Cope v. Cope, 2 Salk. 449; Lloyd v. Thursby, 9 Mod. 5th ed. 463, and stated from MS. 2 Cruise Dig. 2d ed. 163; Waring v. Ward, 7 Ves. 336.

for the same reasons, because the loan creates a debt, and the land is a pledge only, (d) if a mortgage of land of inheritance is made, and the mortgagor also gives a bond or covenant to pay the money borrowed, and the land descends to his eldest son, or other immediate heir at law, such heir is entitled to have the mortgaged land exonerated, by payment of the debt out of the mortgagor's personal assets. (e) And, contrary to an old decision, (ƒ) a devisee of such mortgagor is now held to be entitled to the same benefit. (g) And when there is no bond or covenant to pay the mortgage money, and the debt is a simple contract debt, in this case also the money *is, for the benefit of a devisee, (h) or heir at [ *358 ] law, payable out of the mortgagor's personal assets. (i)

But it is observable, that against this exoneration of the real estate by payment of a mortgage debt out of the mortgagor's personal assets, a Court of Equity will protect the other creditors of the mortgagor;(j) a legatee, to whom a specific legacy is bequeathed by the mortgagor; and (a point which, at a distinct period, was "not yet settled,")(k) a legatee, to whom a general legacy of part of his personal estate is bequeathed by him;(1) and, farther, the mortgagor's widow's paraphernalia.(m)

But such exoneration is allowed, although it may wholly defeat the claims of the next of kin of the mortgagor on his intestacy, (n) or the customary or orphanage part by the custom of London;(0) and, perhaps it may be stated, notwithstanding it may partly defeat a legacy of all the mortgagor's personal estate, in a case where it does not appear to be the testator's intention to bequeath this legacy specifically.(p) And the

(d) 1 Atk. 487; 7 Ves. 336.

(e) Cope v. Cope, 2 Salk. 449; Cornish v. Mew, I Ch. Cas. 271; Anon. 2 Ch. Cas. 4; Popley v. Popley, ib. 84; White v. White, 2 Vern. 43, and 3d ed. 44, n. (2); Wood v. Fenwick, 1 Eq. Cas. Abr. 270; Evlyn v. Evlyn, Sel. Ca. Ch. 80; Fox v. Fox, 1 West Cas. T. Hardw. 162, 1 Atk. 463; Hill v. Bishop of London, 1 Atk. 621; Galton v. Hancock, 2 Atk. 435; Waring v. Ward, 7 Ves. 336; Noel v. Lord Henley, Dan. 329. See also Hardr. 512, and Lucey v. Bromley, Fitzg. 41.

(f) Cornish v. Mew, 1 Ch. Cas. 271, cited 2 Atk. 436. See also Lovel v. Lancaster, 2 Vern. 183, cited 1 Atk. 487.

(g) Pockley v. Pockley, 1 Vern. 36; Popley v. Popley, S. C., 2 Ch. Cas. 84; Starling v. Drapers' Company, Cas. T. Finch, 401; Johnson v. Milksopp, 2 Vern. 112; Anon. 2 Freem. 204, Ca. 278 b.; Evlyn v. Evlyn, Sel. Ca. Ch. 80; Parsons v. Freeman, Amb. 115; Bartholomew v. May, 1 Atk. 487, 1 West Cas. T. Hardw. 255; Galton v. Hancock, 2 Atk. 424, 426, 437; Philips v. Philips, 2 Bro. C. C. 273; Hale v. Cox, 3 Bro. C. C. 322; Astley v. Earl of Tankerville, 3 Bro. C. C. 545; Noel v. Lord Henley, Dan. 329, 336.

(h) King v. King, 3 P. W. 358.

(i) Cope v. Cope, 2 Salk. 449; Howell v. Price, 1 P. W. 291, 2 Vern. 701, and 3d ed. n. (4), Prec. Ch. 423, 477, Gilb, Eq. Rep.

106; Balsh v. Hyham, 2 P. W. 455; Meynell v. Howard, Prec. Ch. 61; Earl of Tankerville v. Fawcett, 1 Cox, 239; Waring v. Ward, 7 Ves. 336.

(j) Anon. 2 Ch. Cas. 4; Rider v. Wager, 2 P. W. 335; Bartholomew v. May, 1 Atk. 487; Robinson v. Gee, 1 Ves. 252; Tweddell v. Tweddell, 2 Bro. C. C. 107; Hamilton v. Worley, 2 Ves. jun. 65, 4 Bro. C. C. 204.

(k) White v. White, 2 Vern. 43.

(1) Cope v. Cope, 2 Salk. 449; Rider v. Wager, 2 P. W. 335; Tweddell v. Tweddell, 2 Bro. C. C. 107; Earl of Tankerville v. Fawcett, 1 Cox, 237, 2 Bro. C. C. 57; Hamilton v. Worley, 2 Ves. jun. 65, 4 Bro. C.C. 204.

(m) Tipping v. Tipping, 1 P. W. 729; Puckering v. Johnson, ib. 731, n.

(n) Rider v. Wager, 2 P. W. 335; Hale v. Cox, 3 Bro. C. C. 322; Waring v. Ward, 5 Ves. 670.

(0) Rider v. Wager, 2 P. W. 335; and Ball v. Ball, ib. 5th ed. n. (a). See also Pockley v. Pockley, 1 Vern. 36, Popley v. Popley, S. C., 2 Ch. Cas. 84, on the widow's customary moiety in the province of York.

(p) See, nevertheless, Bishop v. Sharp, 2 Freem. 276, cited ib. 278; in which case, however, from the report of it in 2 Vern. 469, the bequest appears to have been, after legacies bequeathed, of the residue of the testator's personal estate. See Howe v. Earl