presumed; as in an instance where a judgment was above twenty years standing.(j)

SECTION VIII.

MISCELLANEOUS POINTS OF THE GENERAL SUBJECT.

A PERSON devised certain real estates to trustees, who were also the executors of the will, in trust to sell and to discharge certain incumbrances. The overplus of the money arising by the sale was, on the intention, held to be charged by the testator with the payment of his simple contract debts. (k) Where a person devised all his real and personal estate to trustees, and their heirs, &c., in trust by application, sale, or mortgage thereof, to pay thereout whatsoever he should thereafter by will or codicil appoint, and then appointed the trustees executors of his will, and directed that his debts should be paid by his executors; the will was held to authorize a sale of the real estate for the payment of debts; although it was contended, that the direction being for the payment of debts by the executors, this showed that the intention of the testator was, to confine it to payment out of the personal estate. In making this decision, Sir W. Grant said," The testator has given his real estate to certain persons, whom he also appoints executors of his will, upon trust to sell for such purposes as he shall afterwards appoint; and then directs his debts to be paid by his executors. In a late case of the same kind, I held that such a direction authorized a sale for the payment of debts; and I continue of that opinion." His Honor accordingly decreed a specific performance of a contract to purchase from the executors a part of the real estate. (1) A *person, who had during his infancy borrowed 1301. to buy, and there with bought, necessaries, de- [ *54 ] vised his real estate to trustees for the payment of his debts, with interest; and it was held, that this money lent to the testator, although during his infancy, was within the trust, and ought to be paid. (m) In Verney v. Verney, a will contained this devise;-I give my estate at O., chargeable nevertheless with my debts, to my wife for life; with remainders over. But by a codicil, the testator devised all his lands, tenements, &c., which he held in fee simple in Great Britain, to H., his heirs and assigns, upon trust, by mortgage or sale thereof, to raise such money as should be necessary for the more easy and effectal payment of his debts. A question was made, whether the codicil did not amount in equity to a revocation of the devise in the will, as to the estate at O. The Court declared, that the codicil was, in equity, a revocation of the devise, so far only as to enable H., the trustee, to mortgage or sell the same, to raise money for payment of the testator's debts; and that the surplus thereof passed by the devises in the will. (n) An anonymous case is thus stated:—“ A man devised his debts to be paid out of his real and personal estates; the exe

(j) Curties v. Fitzpatrick, 2 Peake Rep. 92; Flower v. Earl of Bolingbroke, 1 Stra. 639.

(k) Kidney v. Coussmaker, 1 Ves. jun. 436, 2 Ves. jun. 267, 7 Bro. P. C. ed. Toml. 573.

(1) Barker v. Duke of Devonshire, 3 Mer.

310.

(m) Marlow v. Pitfeild, 1 P. W. 558. (n) Belt's Supplem. to Ves. sen., 189, 2nd ed. 200.

cutor paid more than his personal estate; he shall be reimbursed out of the real estate."(0) T. W. devised, subject to his debts, all his property real and personal, to his widow. J. W., the father of T. W., by his will gave an annuity for her life to the widow of T. W., and made the son of T. W. his residuary devisee and legatee. The estate of T. W. was insufficient for the payment of his debts; and J. W., by a codicil to his will, directed his trustees and executors to pay the debts of T. W. The true construction of the father's will was decided to be, that, by the direction to pay his son's debts, he intended only the payment of such part as, after the due application of the son's estate, should remain unsatisfied. (p) A person devised real estates, in trust to sell for payment of his debts; and subject thereto, he gave the same estates to F. for life, without impeachment of waste, with remainder to her first and

[ *55 ] other sons *in tail. The trustees sold part only of the esstates, and cut down and sold timber and other wood on other parts of the estates, and applied the proceeds in payment of the debts. It was decided, that "by the act of the trustee, the wood and timber, which would have belonged to the tenant for life, have been applied in relieving the inheritance from a burthen, to which it was subjected by the testator. And therefore the tenant for life is entitled to a charge on the inheritance, for the sum for which the timber and other wood were sold."(q)

OF A CHARGE OF DEBTS, OR DEBTS AND LEGACIES ON REAL ESTATE.

SECT. I. The Trust created by a Charge.

II. Wills in which Real Estate has been held to be charged with the payment of Debts, or Debts and Legacies.

III. Wills in which Real Estate has been held not to be charged with the payment of Debts, or Debts and Legacies.

IV. Copyholds charged.

V. Exemption of the Testator's personal Estate.

VI. Responsibility of a Purchaser.

VII. Miscellaneous Points of the general Subject.

SECTION I.

THE TRUST CREATED BY A CHARGE.

LAND is frequently devised, in trust for the payment of debts, or debts and legacies; and is as often charged with the payment of them. A difference between a devise and charge seems to be, that, on a devise, the will expressly creates a trust for the payment intended; and where a (0) 2 Ch. Cas. 109.

(P) Walker v. Lodge, 3 Russ. 459.

(9) Davies v. Wescomb, 2 Sim. 425

charge only is created, a trust for payment is not expressed in the will, but is, in a Court of Equity, implied in the charge. (a)

The land charged sometimes descends to the testator's heir at law, (b) and is more frequently devised by the will. And equity

*fastens on the land a trust, available against the heir if the [57] land descends, and against the devisee if it is devised.(c)

If the will charges the land with either debts, or debts and legacies, a Court of Equity will, if a mortgage or sale of the estate is necessary for the payment of them, accordingly decree a mortgage or sale for the purpose. (d)

SECTION II.

WILLS IN WHICH REAL ESTATE HAS BEEN HELD TO BE CHARGED WITH THE PAYMENT OF DEBTS, OR DEBTS AND LEGACIES.

THE language of a will is often too clear to admit a doubt, if real estate is or is not charged with the payment of debts, or debts and legacies. But in many instances this clearness is wanting; and the question is then raised if debts, or debts and legacies, are by the will charged on the real estate. The fact that they are, or are not, so charged, depends on the intention, which, on an examination of the whole will, is to be collected from it.(e)

Where this inquiry has been occasioned, land, copyhold at the will of the lord, (f) customary,(g) and freehold, has been held to be charged, in many instances, with debts, (h) and in *other instances with debts and legacies. (i) In Alexander v. Holland, a debt was

(d) Clarke v. Smith, 1 Lutw. 793, 797, 798; Elliot v. Merryman, Barn. Ch. Rep. 78; Silk v. Prime, 1 Bro. C. C. 138, n.; Bailey v. Ekins, 7 Ves. 323.

(b) Freemoult v. Dedire, P. W. 429; Young v. Dennet, 2 Dick, 452; Hargrave v. Tindal, 1 Bro. C. C. 136, n.; Bailey v. Ekins, 7 Ves. 223. See also Clarke v. Smith, 1 Lutw. 793, 797, Com. 72.

(c) See, besides the authorities in the last note, Shallcross v. Finden, 3 Ves. 739.

(d) Hughs v. Collis, 1 Ch. Cas. 179; Stubbs v. Stubbs, Cas. T. Finch, 415; Newman v. Johnson, 1 Vern. 45; Clowdsley v. Pelham, ib. 411; Berry v. Askham, 2 Vern. 26; Wareham v. Brown, ib, 153; Harris v. Ingledew, 3 P. W. 91; Anon. ib. 389, n. A.; Elliot v. Merriman, 2 Atk. 41; Finch v. Hattersley, 3 Russell, 345, n. See also Green v. Belchier, 1 Atk. 506.

(e) Thomas v. Britnell, 2 Ves. 313; Noel ▾. Weston, 2 Ves. & B. 269; and see 1 W. BL. Rep. 544.

(f) Newman v. Johnson, 1 Vern. 45; Stanger v. Tryon, 2 Vern. 3d ed. 709, n. (2); Harris v. Ingledew, 3 P. W. 91; Tudor v. Anson, 2 Ves. 582; Car v. Ellison, 3 Atk. 73, 76; Coombes v. Gibson, 1 Bro. C. C. 273; Kentish v. Kentish, 3 Bro. C. C. 257;

[ *58

]

Growcock v. Smith, 2 Cox, 397; Pennington v. Pennington, 1 Ves. & B. 406; Noel v. Weston, 2 Ves. & B. 269; Rowley v. Eyton, 2 Mer. 128; Ronalds v. Feltham, I Turn. & R. 418.

(g) Earl of Godolphin v. Penneck, 2 Ves.

271.

(h) Stubbs v. Stubbs, Cas. T. Finch, 415; Cloudsley v. Pelham, 1 Vern. 411, cited, and said to be affirmed in H. L., Nels. Rep. 178, and 2 Vern. 229; Kay v. Townsend, 2 Vern. 3d ed. 709, n. (2); Foster v. Cook, 3 Bro. C. C. 347; Bradford v. Foley, ib. 351, n. See also Webb v. Webb, Barn. Ch. Rep. 89; Anon. 2 Freem. 192; Thomas v. Britnell, 2 Ves. 313; Clarke v. Sewell, 3 Atk. 96, 100; Muddle v. Fry, 6 Madd. 270; and see, farther, the cases on other points cited in the course of this section.

(i) Hughs v. Collis, 1 Ch. Cas. 179; Wareham v. Brown, 2 Vern. 153; Dolman v. Smith, or Weston, 2 Vern. 740, Prec. Ch. 456, 1 Dick. 26; Lumley v. May, Prec. Ch. 37; Astley v. Powis, 1 Ves. 483, 495; Ellison v. Airey, 2 Ves. 568; Bridgman v. Dove, 3 Atk. 201; Williams v. Bishop of Landaff, 1 Cox, 254; Coxe v. Basset, 3 Ves. 155; Stapleton v. Stapleton, 2 Ball & B. 523.

held to be charged on the testator's copyhold only, and not on his freehold land.(j)

Some additional cases claim more particular notice, as the terms of the wills, and the construction put on them, seem to constitute precedents of ready practical application on interpreting future wills of the same kind.

A charge, then, of debts on real estate, after in the will devised, has been held to be created by the following words:

"As for my lands, tenements, goods, and chattels, I give and bequeath as followeth: After my debts paid, to my five daughters 1001. a-piece. Also I give to my wife, whom I make my executrix, all the rest of my lands and temements, goods and chattels."(k)

"My debts and legacies being first deducted, I devise all my estate both real and personal, to A."(1)

"As to all my worldly estate, my debts being first satisfied, I devise the same as follows."(m)

"As for my worldly goods, with which it hath pleased God to bless me, after my debts paid, and funeral expenses discharged, I dispose thereof as follows."(n)

"After payment of all my just debts, funeral expenses, and the expenses of the probate hereof, I give," &c.(o)

*As to my temporal estate, I give and dispose thereof as [ #59 ] followeth. First I will that all my debts be justly paid: Also I devise all my estate in G. to A."(p)

66

Imprimis, I will and devise that all my debts, legacies, and funeral, shall be paid and satisfied in the first place. Item, I give and devise," &c.(g)

"I do by this my will dispose of such worldly estate as it hath pleased God to bestow upon me. First, I will that all my debts be paid and discharged; and, out of the remainder of my estate, I give and bequeath unto my wife 300l. My mind and will is, that my wife have one moiety of what is left after my debts paid."(r)

"As to my worldly estate, which it hath pleased God to bestow upon me, I give and dispose thereof in manner following; that is to say, Imprimis, I will that all the debts, which I shall owe at the time of my decease, be discharged and paid. Item" I give, devise, and bequeath, &c.(s)

(1) Newman v. Johnson, 1 Vern. 45. (m) Harris v. Ingledew, 3 P. W. 91. (n) Hill v. Bishop of London, 1 Atk. 618, 621. See also on the words "worldly goods," Miles v. Leigh, I West Cas. T. Hardw. 710.

(0) Shallcross v. Finden, 3 Ves. 738. See also King v. King, 3 P. W. 358; Tompkins v. Tompkins, Prec. Ch. 397; and Kidney v. Coussmaker, 1 Ves. jun. 440.

(p) Bowdler v. Smith, Prec. Ch. 264. (4) Trott v. Vernon, Prec. Ch. 430, 1 Eq. Cas. Abr. 198, 2 Vern. 708, Gilb. Eq. Rep. 111.

(r) Beachcroft v. Beachcroft, 2 Vern. 690.

(s) Legh v. The Earl of Warrington, 1 Bro. P. C. ed. Toml. 511, cited 2 Ves. 272, 314, and stated from MS. in Belt's Supplem. to Ves. sen. 341, 2d ed. 361; Lord Warrington v. Leigh, or Lee, S. C., 2 Eq. Cas. Abr. 372, Ca. 19, Sel. Ca. Ch. 39. In Mr. Belt's MS. note of this case the will says, "As to my worldly estate, &c., I will, &c., be discharged and paid out of my worldly estate.” If, however, after the words “discharged and paid" followed, in the will, the words "out of my worldly estate," there would, it is certain, be an express charge on the testator's real estate (Beachcroft v. Beachcroft, 2 Vern 690; Clark v, Sewell, 3 Atk. 96, 100; Aw

As to the worldly estate with which it hath pleased

God to bless me, I give, devise, and dispose thereof as fol- [*60 ] loweth: Imprimis, I will that the charges of my funeral, and all debts which shall be owing by me at the time of my death, be justly paid and satisfied. And I will that all my debts be discharged within one year after my decease, or so soon after as can possibly be performed."(t)

"I will that my debts and funeral expenses be first paid and discharged.”(u)

"I will that all my just debts and funeral expenses be paid and satisfied."(v)

"In the first place I will that all my just debts and funeral expenses be fully paid and satisfied."(w)

"First I will that all my just debts shall be in the first place paid and satisfied."(x)

"First I will and direct that all my legal debts, legacies, and funeral expenses, shall be fully paid and discharged."(y)

"I will and direct that my just debts, funeral and testamentary expenses, be paid and satisfied."(z)

"First I direct all my just debts and funeral expenses to be fully paid and satisfied."(a)

"First I will that all my debts, to the value of 20s. in the *pound, and my funeral expenses, shall be paid by my executrix hereinafter named."(b)

[ *61 ]

"First I will and direct that all my just debts and funeral expenses be fully paid and satisfied by my executor hereinafter named."(c)

In these examples of a charge on real estate, after in the will devised, two kinds of charge occur; one, where the will omits to mention the

brey v. Middleton, 4 Vin. Abr. 460, 2 Eq. Cas. Abr. 497, Ca. 16.) But it is observable that, on the appeal to the House of Lords, no part of the argument of counsel turned on the construction of the words "worldly estate" in the expression "out of my worldly estate." And Lord Hardwicke, who, in 2 Ves. 272, cites the case in question, not from Bro. P. C., but probably from a MS., clearly makes the decision depend, not on a meaning of "worldly estate," in the words "out of my worldly estate," but on the effect of the introductory clause, interpreted by Lord King in the Court of Chancery, and by the House of Lords, to run over the whole will, These circumstances alone might perhaps establish, beyond all doubt, the accuracy of the report in Bro. P. C., and of the short note in 2 Eq. Cas. Abr., and, with reference to the same words, also the report in Sel. Ca. Ch. As, however, the case of Legh v. The Earl of Warrington is cited on all occasions, and is confessedly the leading authority on the subject, and in a late case was cited by counsel from Mr. Belt's MS. note (Clifford v. Lewis, 6 Madd. 37,) the difference between the reports and that MS. appeared to be of sufficient importance, to lead to an examination of the will, at Doctor's Commons. The author is accordingly able to state, that he has there

read the original will of Mr.Langham Booth, the testator in the suit, and that the words of the clause in question are,-As to my worldly estate, which it hath pleased God to Bestow upon me, I give and dispose thereof in manner following; that is to say, "Imprimis I will that all the debts, which I shall owe at the time of my decease, be discharged and paid." Then immediately follows the word "Item," introductory to the devise of the annuity to Mary Saxon. The report in Bro. P. C. is therefore correct, with the unimportant exception of the words "my debts," the expression in the will being "the debts.”

(t) Hatton v. Nichol, Cas. T. Talb. 110. (u) Colley v. Mickleston, cited 2 Ves.582; Williams v. Chitty, 3 Ves. 545.

(v) Tudor v. Anson, 2 Ves. 582. (w) Stanger v. Tryon, 2 Vern. 3d ed. 709, n.

(x) Kentish v. Kentish, 3 Bro. C. C. 257. (y) Kightley v. Kightley, 2 Ves. jun.328, 330.

(z) Clifford v. Lewis, 6 Madd. 33.
(a) Ronalds v. Feltham, 1 Turn. & R.

418.

(b) Finch v. Hattersley, cited 7 Ves. 210, 211, and stated from Reg. B. 3 Russell, 345, n.

(c) Henvell v. Whitaker, 3 Russell, 343.