testator directed his real estate to be sold for the payment of his debts, but did not say who should sell it; and the executors were held to take under the will a power of sale, and the Court decreed the property to be sold; it also ordered that the executors and the heir should join in the sale. (n) It appears that when a will contains a bare power to sell real estate, which until the sale descends to the heir of the testator, such heir is at law entitled to the intermediate rents and profits until a sale;(0) but if the power is to sell to pay debts, or debts and legacies, or legacies only, such rents and profits do not, it seems, in equity belong to the heir, if they are required for the purposes of the trust.(p) SECTION VI. MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. SIR Edward Coke seems to have been of opinion, that "when a man devises his tenements to be sold by his executors, it is all one as if he had devised his tenements to his executors to be sold."(q) The soundness of this opinion may however be doubted. And it may be thought that a devise, namely, an expression of the testator's will ] or mind,(r) in the words, "I devise my lands to be sold by [ *84 my executors," is equivalent to the words, "I devise that my executors shall sell my lands," and, like the latter words, will not pass to the executors an estate in the lands, but a bare authority only.(s) A testator provided in his will, that "if my personal estate, and my house and lands at W., should not pay my debts, then my executors to raise the same" out of certain copyhold premises before devised by him. On the question, whether this proviso would entitle the executors to sell the copyhold estate, Lord Hardwicke held that it would ; "for as the rents are not near enough to discharge the testator's debts, these words will give the trustees [executors] a power to sell, to satisfy the testator's intention of paying his debts."(1) An executor or other party, to whom a bare power of sale of real estate is given by a will, is not able to release the power to the heir at law: such release is held to be void. (u) Unless the contrary is expressed in a bare power to sell, the authority conferred by it is personal, and cannot be delegated, and consequently cannot be exercised by a deed executed by attorney. (v) Although on a sale under a bare power, the trustees or executors, donees of the power, necessarily, since the testator is dead, sell and convey in their own names to the purchaser, yet the purchaser is in by the devisor, and not by the (n) 1 Atk. 420, 1 West Cas. T. Hardw. 322, cited 2 Russ. 496. See also Carvill v. Carvill, 2 Ch. Rep. 301, 303, and White v. Vitty, 2 Russ. 484. (6) Co. Litt. 113 a., 236 a. (p) Lancaster v. Thornton, 2 Burr. 1031; Yates v. Compton, 2. P. W. 308, 311; Uvedale v. Uvedale, 3 Atk. 118. (9) Co. Litt. 236 a. VOL. VIII.-G (r) 2 Burr. 1031. (s) Bro. Abr. tit. Devise, 5, 32, 36; Co. Litt. 236 a., Lord Nott. n. (1); Co. Litt. 265 b.; Yates v. Compton, 2 P. W. 308. (t) Bateman v. Bateman, 1 Atk. 421. (u) Co. Litt. 265 b. (v) Combes' case, 9 Co. 75 b., 1 Rol. Abr. 330. trustees or executors.(w) When a will contains either a devise, or a bare power to sell, it appears that the devisee, or donee of the power, may sell part of the land at one time and part at another, as purchasers may be found.(x) [ *86 ] *CHAPTER VI. OF LEGACIES PAYABLE OUT OF REAL ESTATE. SECT. I. Of Legacies payable out of Real Estate, in aid of the Personal Estate. II. Of Legacies payable out of Real Estate, in exoneration III. Of Legacies payable out of certain Real and Personal IV. Of Legacies held to be payable out of the Personal V. Of a Devise on condition to pay Legacies. VI. Of charging by a Codicil, not executed according to the VII. Of withdrawing one of two Funds charged with Lega cies. VIII. Of revoking by a Codicil, not executed according to the XII. Of Legal and Equitable charges. XIII. Of the failure of Real Estate charged with Legacies. XIV. Of the sinking of a Legacy into the Inheritance, on the death of the Legatee before the time of payment. XV. Miscellaneous Points of the General Subject. OF LEGACIES PAYABLE OUT OF REAL ESTATE, IN AID OF THE PERSONAL ESTATE. A TESTATOR's personal estate is the natural fund for the payment of (w) Fitzh. Abr. tit. Devise, pl. 3; 9 Co. (x) Co. Litt. 113 a.; 1 Co. 173 b. 77 a.; 1 Rol. Abr. 330, F. 3; Beal v. Shep herd, Cro. Jac. 199. legacies bequeathed by him. And his real property is not liable to pay them, unless an intention to create this liability can be collected from some part of the will.(a) Legacies have, in several cases, been construed to be payable out of the testator's real estate, in aid of his personalty; when, consequently, the latter property was first liable to pay them.(b) This construction has been put on the following wills: "As to all my worldly estate, I give and dispose thereof in manner following." Then the testator gave several pecuniary legacies, and several annuities for lives, to be paid by his executor; and then he devised all the rest and residue of his goods, and chattels, and estate, to his nephew M., the testator's heir at law, and made him sole executor.(c) "I give and dispose my worldly estate as follows." The testator then gave some general legacies, and concluded his will in these words:"Lastly, I give the remainder of my estate at N. and D., and all my freehold and personal estate whatsoever, not herein otherwise disposed of, after payment made of my just debts and legacies, to my brother S. B., whom I also appoint my executor to this [ *87 my last will.”(d) Amongst other legacies, a testator made this bequest," I give to J. D. the sum of 1000l., to be due and payable to him by my executor, whom I shall herein appoint, after the expiration of one month next after my decease." Then followed some general legacies, and this farther disposition," Also I give, devise, and bequeath to T. H., and to his heirs for ever, whom I do hereby make and appoint my only and sole executor of this my will, all my goods, lands, and chattels, except what is herein before given."(e) "As to my worldly estate I dispose of as follows." The testator then gave 1007. to his daughter S., which he directed to be paid by his executor within a month after the decease of his widow. The testator devised his real estate to his wife for life, and, after her decease, to his son J. C., in fee. He also appointed two trustees and overseers of his will, and desired them to see it duly performed. And all the rest and residue of his goods, chattels, and personal estate, not before disposed of, he gave to his son J. C., and made him executor. (ƒ) "As touching and concerning my worldly estate, I give, devise, and bequeath as follows. I give, devise, and bequeath to my daughter F., 300%. at twenty-one. Item, I give, devise, and bequeath to my sons W., F., and J., each 2207., to be paid at twenty-one, with benefit of survivor (a) 4 Madd. Rep. 188. (6) Lord Grey v. Lady Grey, 1 Ch. Cas. 296; Hyde v. Hyde, 3 Ch. Rep. 155; Alcock v. Sparhawk, 2 Vern. 228; Jones v. Selby, Prec. Ch. 288; Whaley v. Cox, 2 Eq. Cas. Abr. 549, as to the legacy of 2001.; Lloyd v. Williams, Barn. Ch. Rep. 224, 228; Lord Inchiquin v. French, Amb. 33, 41; Hannis v. Packer, ib. 556; Ironmonger v. Lassells, 1 West Cas. T. Hardw. 143; Bridgman v. Dove, 3 Atk. ed. Sand. 201, and n. (2). Minor v. Wicksteed, 3 Bro. C. C. 627. See likewise Lord Pawlet v. Parry, Prec. Ch. 449, Gilb. Eq. Rep. 123; Webb v. Webb, Barn. Ch. Rep. 86; Hone v. Medcraft, 1 Bro. C. C. 261, on the legacies which immediately follow the viz.; Jackson v. Jackson, 2 Cox, 35; Holford v. Wood, 4 Ves. 76; and Willox v. Rhodes, 2 Russ. 452; also Tompkins v. Tompkins, Prec. Ch. 397. (c) Awbrey v. Middleton, 4 Vin. Abr. 460, 2 Eq. Cas. Abr. 497. There was, it appears, an express devise in the will to another relation of the testator. (d) Brudenell v. Boughton, 2 Atk. 268, 273. (e) Edgell v. Haywood, 3 Atk. 352, 358. (f) Lypet v. Carter, 1 Ves. 499. ship. Item, my will is, that my executor, with the advice of my trustee, shall place out my sons apprentices, and pay out of their aforesaid fortunes proper sums on that account. Item, my executor is to pay to my trustee 30%. a year for the education of the children. Item, I give, devise, and bequeath to my son H. H., all and singular my real and personal estate, not herein disposed, to him, his heirs, and assigns. And I appoint my brother H. overseer of my will." From the argument in it appears that the son H. H. was appointed the executor of the the case, will.(g) [ *88 ] *C. P. devised certain freehold chambers to trustees and their heirs, upon trust to sell, and to apply the money arising by such sale towards payment of the legacies by his will bequeathed; and the rents and profits thereof, until sold, to be applied to the same uses. And after giving two pecuniary and some specific legacies, as to, for, and concerning all the rest, residue, and remainder of his personal estate, after payment of his debts, legacies, and funeral expenses, he bequeathed the same unto his trustees, upon trust to convert such residue into ready money, and to lay out the same in the purchase of freehold property, which the trustees were to settle in the manner mentioned in the will.(h) J. H. gave all his real and personal estate to his wife for life; and after her decease gave various legacies; and all the rest, residue, and remainder of his real and personal estate, he gave, devised, and bequeathed, to P. W. and W. B. (i) "As to my worldly estate, I will that all my lawful debts be paid first. I give and bequeath unto," &c. The testator here gave numerous general legacies of small sums of money. And then continued-" It is further my will, that the daughter of the said W. F., and the daughters of the said R. F., shall not receive their money, until they shall have attained the age of twenty-one years." And at the end of the will he said, "And it is further my will, that in case there should be any bad debts, that is to say, not recoverable, then each person shall receive in proportion according to such loss. And if my worldly estate should amount to more than here bequeathed, then it is my will that each person shall receive his proportion according as heretofore bequeathed." The will contained no devise or mention of real estate, except under the words "worldly estate" in the passages transcribed. Sir J. Leach, on deciding that the testator's real estate was charged with the legacies, said, "The words My worldly estate,' unless qualified by other expressions, necessarily comprise both real and personal estate, and there is nothing in this will which amounts to such a qualification."(j) 6 *In Spong v. Spong, pecuniary legacies, charged on real [ *89 ] estate in aid of the personalty, were held not be charged on real estate specifically devised by the will.(k) (g) Hassel v. Hassel, 2 Dick. 527. See Joyce's case, Nels. 155. (j) Muddle v. Fry, 6 Madd. 270. (h) Maugham v. Mason, 1 Ves. and B. C. 365; reversing the decree of the Court of 410. (i) Bench v. Biles, 4 Madd. 187. Exchequer, 1 Y. & J. 300. SECTION II. OF LEGACIES PAYABLE OUT OF REAL ESTATE, IN EXONERATION OF THE PERSONAL ESTATE. As real estate may, in aid of the testator's personal estate, be made liable to the payment of legacies, so it may, in exoneration of the personal estate, be made the first or only fund applicable to pay them. Either kind of exemption will take place, if, on an examination of the whole will, such intention can be collected from any part of it.(7) An exoneration of the personalty has been held to be effected in the cases named in the margin.(m) In several other cases the real estate seems to have been held to be the only fund applicable to pay the particular legacies. (n) Where, however, it is the intention, the personalty may be liable as an auxiliary fund in aid of the real estate first charged.(0) In Harrison v. Naylor, the testator's general personal estate was exonerated from the payment of certain legacies; which were held to be payable out of real estate, by the will directed to be bought with the testator's personal estate, remaining after payment of debts and other legacies.(p) Although the whole terms of the wills, on which it has. [ *90 ] been held, that the real estate was the only fund applicable to pay the legacies, may not, it is probable, often, if ever, occur again in practice, yet it may be allowed here to make use of them, as the ground of the following observations: 1. That the personal estate may be wholly' exonerated, notwithstanding the legacy is given by a bequest, that, without the aid of the context, would be a gift out of the personalty; and that accordingly a legacy, so given out of the personalty, has by the context been made a charge on the real estate only.(q) 2. That, in other cases, the particular legacy was, independently of any context, given out of the real estate; as by the words, "I bequeath 1000l. to T., to be paid to him when he shall have arrived at his age of twenty-one, out of the manor of B."(r) And again, "I give to W. C. 100%., to be paid to her out of my said freehold and copyhold estates."(s) And 3. That, in other instances, the legacy was, independently of context given out of the real estate, but the intent to exonerate the per () Miles v. Leigh, 1 Atk. 575, 1 West Cas. T. Hardw. 709, (m) Walker v. Pink, cited 1 Cox Rep. 5; Ward v. Lord Dudley and Ward, 2 Bro. C. C. 316, 1 Cox, 438. See also Ex parte Morgan, 10 Ves. 101, and White v. Vitty, 2 Russ. 484. (n) Anon. 12 Mod. 342; Jennings v. Looks, 2 P. W. 276; Heath v. Heath, ib. 366; Phipps v. Annesley, 2 Atk. 57; Amesbury v. Brown, 1 Ves. 482; Lowther v. Condon, Barn. Ch. Rep. 327, 329; Lawson v. Hudson, 1 Bro. C. C. 58; Lawson v. Lawson, S. C., 3 Bro. P. C. ed. Toml. 424, on the 1001. legacy; Gawler v. Standerwick, 2 Cox; 15, 18; Crowder v. Clowes, 2 Ves, jun. 449; Shirt v. Westby, 16 Ves. 393; Abrams v. Winshup, 3 Russ. 350; Rickets v. Ladley, ib. 418; Kirke v. Kirke, 4 Russ. 435. (0) Whaley v. Cox, 2 Eq. Cas. Abr. 549; Strode v. Ellis, Nels. 203. (p) 3 Bro. C. C. 108, 2 Cox, 247, (9) Phipps v. Annesley, 2 Atk. 57; Crow, der v. Clowes, 2 Ves. jun. 449. (r) Jennings v. Looks, 2 P. W. 276. (8) Lawson v. Lawson, or Hudson, 3 Bro. P. C. ed. Toml. 424, 1 Bro. C. C. 58. See also Anon. 12 Mod. 322, and Seal v. Tiche. ner, 2 Dick. 444. |