contrary to law, by the same statute; for it would be a fine thing to make a law by which one has a right, but no remedy but in equity; and the action must be against the terre-tenant."(g) On this opinion Lord Ellenborough has made the observation,That in the case of a legacy payable out of land, unless the legatee had his remedy by action of debt, founded on the statute, he would be wholly without remedy in the Courts of Common Law."(h) A charge of a legacy seems to be merely equitable, or a charge only in equity, when, on non-payment of the money, the legatee has no remedy except in a Court of Equity.(i), An example of an equitable charge seems to be furnished by a case, in which an equity of redemption in fee of an advowson in gross was devised on condition to pay a legacy, and the devisee of the advowson died in the lifetime of the testator. (j) And if a reversion in fee, expectant on an estate for life, is devised to the testator's heir at law, on condition to pay a legacy, such legacy is, during the life of the tenant for life, an equitable charge only.(k) If land is devised to A. in fee, on condition to pay certain legacies, and, by a right of entry given to the legatees, the devise is made a conditional limitation, and A. dies in the testator's lifetime; here, although the devise to A. lapses in favour of the testator's heir at law, yet, if the legacies are not now a charge on the land at law, they are, it is decided, in equity, and a Court of Equity will decree the heir to pay them.(7) OF THE FAILURE OF REAL ESTATE CHARGED WITH LEGACIES. REAL estate charged with legacies may fail to pay them, 1. When the testator's personalty is charged on failure of that real fund; and 2. When the real estate alone is charged. 1. Legacies charged on land, made the first fund liable to pay them, have, on the intention collected from the whole will taken together, been held to be payable out of the testator's personal property, as an auxiliary fund in aid of the real estate, partly failing to pay them.(m) When legacies charged on land are meant to be, what in the Civil Law are called demonstrative legacies, the legatees may, on failure of the land, be entitled to be paid out of the testator's personal assets. (n) A demonstrative legacy seems to be a general legacy of this kind; namely, one that is payable first from a particular fund, to which the testator points as the first security to pay it, and which legacy, failing this (k) Bacon v. Clerk, Prec. Ch. 500, 1 P. W. 478. (1) Wigge v. Wigge, 1 West Cas. T. Hardw. 677, 1 Atk. 382. (m) Strode v. Ellis, Nels. 203; Whaley v. Cox, 2 Eq. Cas. Abr. 549. (n) Fowler v. Willoughby, 2 Sim. & St. security, is payable out of the testator's general personal assets. (o) An example of a demonstrative legacy is, a sum of money bequeathed, and to pay which a particular debt owing to the testator, as on bond, is in the will pointed at as the first security or fund for the purpose; and, failing this fund, as by payment of the debt in the testator's lifetime, or by the insolvency of the debtor after the testator's death, the legacy so secured by the debt is payable out of the general personal assets of the testator.(p) A legacy of a sum, that is the full amount of the debt, may be demonstrative; (g) and so may a legacy of a sum less than the debt, or of a sum out of it. (r) When, however, the full amount of a debt is bequeathed, the terms of the bequest are often held [*122 ] to make the legacy specific. (s) And it may be specific, although in the bequest the sum of money, which constitutes the debt, is expressly named. (1) A legacy of a sum of money out of a debt may also be specific.(u) Between the two kinds of legacy, specific and demonstrative, the distinction is extremely important. For when a debt, or part of a debt, is bequeathed, and the legacy is construed to be specific, here, although, by some circumstances which affect the debt, the legacy may not be construed to be adeemed, (v) yet if the money owed, and so specifically bequeathed, is, either by the voluntary act of the debtor, or by demand or compulsion from the testator,(w) paid in the testator's life-time, by this payment the legacy is adeemed;(x) and if the debt was paid by demand or compulsion, a Court of Equity will not look at the intention with which it was called in, but simply inquires if the legacy is specific, and if it is, construes it to be adeemed by such payment of the debt.(y) In the case of a demonstrative legacy, although the fund pointed at as a security to pay it fails, as where *this security is a debt [ *123 ] which in the life-time of the testator is paid, and paid either by the voluntary act of the debtor, or by demand or compulsion from the testator,(z) yet, notwithstanding this failure of the security, the legacy () 2 Bro. C. C. 109; 4 Ves. 565; 2 Sim. & St. 358. (p) Pawlet's case, T. Raym. 335; Roberts v. Pocock, 4 Ves. 150. (9) Pawlet's case, above. See also Le Grice v. Finch, 3 Mer. 50. (r) Theobal v. Wynn, and Squibb v. Chicheley, cited in Pawlet's case, T. Raym. 335; Savile v. Blacket, 1 P. W. 779; Ford v. Fleming, 2 Stra. 823, 2 P. W. 469, 1 Eq. Cas. Abr. 302; Ellis v. Walker, Amb. 310; Roberts v. Pocock, 4 Ves. 150. (a) Lord Castleton v. Lord Fanshaw, 1 Eq. Cas. Abr. 298, cited 4 Ves. 566; Ashburner v. Macguire, 2 Bro. C. C. 108; Stanley v. Potter, 2 Cox, 180; Chaworth v. Beech, 4 Ves. 555; Innes v. Johnson, ib. 568. (t) Ashburner v. Macguire, 2 Bro. C. C. 108, 111; Stanley v. Potter, Cox, 180; Chaworth v. Beech, 4 Ves. 555. (u) Hambling v. Lister, Amb. 401; Badrick v. Stevens, 3 Bro. C. C. 431. See Smith v. Fitzgerald, 3 Ves. & B. 5. (v) Ashburner v. Macguire, 2 Bro. C. C. 108; Coleman v. Coleman, 2 Ves. jun., 639, cited 4 Ves. 574. (w) A distinction once existed between a voluntary and compulsory payment. Earl of Thomond v. Earl of Suffolk, 1 P. W. 464; Crockat v. Crockat, 2 P. W. 165; Rider v. Wager, ib., 331; Ashton v. Ashton, 3 P. W. 385; Partridge v. Partridge, Cas. T. Talb. 228; Birch v. Baker, Mos. 375; Hambling v. Lister, Amb. 401; Lawson v. Stitch, 1 Atk. 508, 1 West Cas. T. Hardw. 226; Drinkwater v. Falconer, 2 Ves. 624; Coleman v. Coleman, 2 Ves. jun. 640. But this distinction seems to be now exploded. Ashburner v. Macguire, 2 Bro. C. C. 110; Innes v. Johnson, 4 Ves. 574. (x) Ashburner v. Macguire, 2 Bro. C. C. 110; Stanley v. Potter, 2 Cox, 180; Humphreys v. Humphreys, ib. 184, 185; Badrick v. Stevens, 3 Bro. C. C. 431; Fryer v. Morris, 9 Ves. 360. These cases appear to overrule Hambling v. Lister, Amb. 401, cited from Reg. B. 13 Ves. 336. (y) Stanley v. Potter, 2 Cox, 180; Barker v. Rayner, 5 Madd. 217, 218. (z) Attorney General v. Parkin, Amb. 569; Ashburner v. Macguire, 2 Bro. C. C. 110. is not lost to the legatee, but is payable to him out of the testator's general personal assets. (a) In Fowler v. Willoughby, a person, who had contracted for the purchase of an estate, by his will gave to trustees a sum of 140071., to be raised by the sale of that estate, describing it as the estate which he had lately purchased of Mr. F.; upon trust to place the 14007. out upon good security; and, out of the interest thence arising, to maintain and educate his grandson, J. F., until he should attain the age of twenty-one years; and when he should attain that age, he willed that his grandson should receive 8007. as his share of the 14007. And he gave to his grandson T. F., when he should attain the age of twenty-one years, the remaining sum of 6007., and all the interest and profits which should have arisen from the 14007., over and above the maintenance and education of his grandson, J. F. And he gave all the residue of his personal estate to his son, T. W., whom he appointed sole executor of his will. After the testator's death, it was found that the contract for purchase could not be enforced against his assets; and it then became a question whether the legacy to J. F. could take effect, although it could not be raised in the manner directed by the testator. Sir J. Leach decreed the legacy to be paid out of the testator's general estate; stating that this was neither a legatum nominis, nor a legatum debiti, but a pecuniary legacy with a particular security, which in the Civil Law was termed a demonstrative legacy, and that our law followed the Civil Law in giving effect to such a legacy, where the particular security intended by the testator happened to fail. (b) *2. When legacies are not demonstrative, and real estate [ *124 ] alone is charged with them, then if this fund partly or wholly fails, the legatees are not entitled to be paid out of the testator's personal assets. (c) Accordingly it is said, "If a man gives a legacy, and chargeth it upon Black Acre; although this be not sufficient to answer the full value of the legacy, yet it shall not be charged upon the personal estate."(d) And in Colchester v. Lord Stamford it was said by Trevor, "If a man hath two daughters, and deviseth to one 10007. out of his real estate, and to another 1000/. out of his personal estate, there if the real estate be evicted, that legacy is lost, and shall never come into an average with the other upon the personal estate."(e) In Gittins v. Steele, a legacy of 7000l. was charged on certain freehold and leasehold estates, which the testator devised in trust for sale, and in trust to pay that legacy out of the purchase-money. After making his will, the testator sold some of the estates; and the money produced by a sale of the remainder, was insufficient to satisfy the legacy of 7000l. And Lord Eldon, on the intention to be collected from the whole will taken together, decided that the testator's general personal estate was (a) Pawlet's case, T. Raym. 335; Savile v. Blacket, 1 P. W. 779; Orme v. Smith, I Eq. Cas. Abr. 302, Gilb. Eq. Rep. 82, 2 Vern. 681; Roberts v. Pocock, 4 Ves. 150. Sce likewise Pettiward v. Pettiward, Cas. T. Finch, 152; Attorney General v. Parkin, Amb. 568, cited 2 Bro. C. C. 113, 2 Cox, 182, Ves. jun. 640, and 4 Ves. 566; also Coleman v. Coleman, 2 Ves. jun. 639, and Le Grice v. Finch, 3 Mer. 50, (b) 2 Sim. & St. 354. (c) Arnald v. Arnald, 1 Bro. C. C. 401; Brydges v. Phillips, 6 Ves. 571; Gittins v. Steele, 1 Swanst. 29, 30. See also Amesbury v. Brown, 1 Ves. 482; Spurway v. Glynn, 9 Ves. 483; and Hancox v. Abbey, 11 Ves. 185. (d) 2 Freem. 22, Ca. 21. not subject to pay it. "Entertaining," said his Lordship, "no doubt that the intention of the testator has been frustrated by a subsequent sale of a part of his estates, I am not authorized to advert to that fact as affecting the construction of the will. I am bound, as a judge, to assume, that the testator supposed that he should leave, at his decease, freehold and leasehold estates sufficient for the payment of the legacy of 70007.; and I protest against being understood to give my judgment on the ground of the subsequent sale. My duty is, to apply the funds which at his death are applicable, by the operation of the will, to the payment of this legacy. If they are insufficient, the Court, whatever may be the hardship of the case, cannot supply other funds."(f) OF THE SINKING OF A LEGACY INTO THE INHERITANCE, ON THE DEATH OF THE LEGATEE BEFORE THE TIME OF PAYMENT. WHEN, out of personal estate, (which includes leaseholds for years), (g) a legacy is bequeathed to A.; it is given to him on a condition precedent, if the bequest is to him at the age of twenty-one, (h) or to him if,(i) or when, (j) or as soon as,(k) he attains twenty-one. And, because these expressions, or the like terms of contingency, create a condition precedent, if A. dies before the age of twenty-one, his legacy will sink into the estate, and will not pass to his personal representative. (1) But in these cases the legacy will not sink into the estate, and, on A.'s death before twenty-one, will go to his personal representative, if the context of the bequest qualifies the condition, and makes the legacy vested before his death. (m) If, out of personal estate, a legacy is bequeathed to A. at a future day, as to A. at his age of twenty-one, or when he attains twenty-one, with interest until that time, the bequest of interest is evidence that the legacy is intended to be a present gift, to be paid hereafter, and the legacy is interpreted to be vested at the death of the testator, (n) unless clearly intended to be contingent, notwithstanding the bequest of interest. (0) There is, however, a distinction between in- [ *126 ] (f) 1 Swanst. 24. Atkins v. Hiccocks, 1 Atk. 500; Yates v. Fettiplace, 1 Ld. Raym. 508, 12 Mod. 276. (h) Clobberie's case, 2 Ventr. 342; Onslow V. South, 1 Eq. Cas. Abr. 295, Ca. 6, cited 3 Bro. C. C. 473; Stapleton v. Cheales, Prec. Ch. 317, cited 6 Ves. 245; Fonereau v. Fonereau, 3 Atk. 645, 1 Ves. 118. (i) Prec. Ch. 318; 6 Ves. 245. () Prec. Ch. 318; 6 Ves. 245; Anon. 1 Freem. 420, Ca. 559. On the words 'when' and 'if,' see 6 Ves. 243-249, 9 Ves. 230, and 3 Bro. C. C. 473. (k) Knight v. Knight, 2 Sim. & St. 490. 1 Ves. 118; Hanson v. Graham, 6 Ves. 239. (n) Clobberie's case, 2 Ventr. 342; Lampen v. Clowbery, or Cloberry v. Lampen, S. C., 2 Ch. Cas. 155, 2 Freem. 24; Anon. Skinn. 147; Stapleton v. Cheales, or Cheele, Prec. Ch. 317, 2 Vern. 673; Hoath v. Hoath, 2 Bro. C. C. 3; Hanson v. Graham, 6 Ves. 239. See also Collins v. Metcalfe, 1 Vern. 462; Walcott v. Hall, 2 Bro. C. C. 305; Dodson v. Hay, 3 Bro. C. C. 404; Booth v. Booth, 4 Ves. 399; and Jones v. Mackilwain, 1 Russ. 220; also Neale v. Willis, Barn. Ch. Rep. 43. (0) Batsford v. Kebbell, 3 Ves. 363; Knight v. Knight, 2 Sim. & St. 490. terest and maintenance; for notwithstanding a bequest of maintenance until A. is of age, the legacy will continue to be contingent until he attains twenty-one, unless there is farther evidence in the will to make it vested before. (p) It is important to distinguish between a legacy contingent until a future day, and a legacy not payable until a future day. The latter may be vested at the death of the testator, although to be paid hereafter. If, out of personal estate, a legacy is bequeathed to A., to be paid at a future period, as to A., to be paid at the age of twenty-one, (g) or to A., to be paid when he attains twenty-one, (r) or to A., to be paid at the death of a third party, to whom a preceding life estate in the property is bequeathed;(s) in these, and similar(t) cases, the legacy of A. will be vested at the death of the testator, unless there are farther words in the will to make it contingent. The distinction noticed between a legacy bequeathed on a condition precedent, and a legacy vested presently, and to be paid hereafter, is thus stated in Clobberie's case, the leading authority on this point-" If money be bequeathed to one at his age of twenty-one years; if he dies before that age the money is lost. On the other side, if money be given to one, to be paid at the age of twenty-one years; there, if the party dies before, it shall go to the executors." (u) *If, out of land, (v) a legacy is bequeathed to A. on a con[ *127 ] tingency, as to A. at his age of twenty-one; if A. dies before the contingent event takes place, as before his age of twenty-one, the legacy will sink into the land, for the benefit of the heir, natus or factus,(w) and will not pass to A.'s personal representative. (x) And if, out of land, a legacy is bequeathed to A., to be paid at a certain age, as to A., to be paid at twenty-one; if A. dies before the time of payment, the legacy will here likewise sink into the land for the benefit of the heir.(y) And whether the legacy is given to A. at twenty-one, or to A. (p) Pulsford v. Hunter, 3 Bro. C. C. 416; Hanson v. Graham, 6 Ves. 249. See also 1 Atk. 501, and Harrison v. Buckle, 1 Stra. 238. (q) Clobberie's case, 2 Ventr. 342; Anon. 1 Freem. 420; Anon. 2 Freem. 64; Chester v. Painter, 2 P. W. 335; Laundy v. Williams, ib. 478; Roden v. Smith, Ambl. 588; Walcott v. Hall, 2 Bro. C. C. 305; Bolger v. Mackell, 5 Ves. 509. (r) May v. Wood, 3 Bro. C. C. Anon. 2 Freem. 89. 471; (s) Corbett v. Palmer, 2 Eq. Cas. Abr. 548, and 544, in marg.; Hatch v. Mills, 1 Eden, 342; Weedon v. Fell, 2 Atk. 123; Monkhouse v. Holme, 1 Bro. C. C. 298; Benyon v. Maddison, 2 Bro. C. C. 75; Scurfield v. Howes, 3 Bro. C. C. 90; Molesworth v. Molesworth, 3 Bro. C. C. 5, 4 Bro. C. C. 408; Roebuck v. Dean, 4 Bro. C. C. 403; Skey v. Barnes, 3 Mer. 335. See also Sturgess v. Pearson, 4 Madd. 411, and Maitland v. Chalie, 6 Madd. 243. (t) Bro. Abr. tit. Devise, pl. 27; Rowley v. Lancaster, 2 Ch. Rep. 25; Lane v. Goudge, 9 Ves. 225; Love v. L'Estrange, 5 Bro. P. C. ed. Toml. 59, cited 3 Bro. C. C. 472, and (u) 2 Ventr. 342; on which distinction, see also 2 Vern. 417; 2 P. W. 612; 1 Atk. 501, 512; 2 Ves. 263; 1 West Cas. T. Hardw. 701; 1 Bro. C. C. 123, 3 Ves. 543; 5 Ves. 513; 6 Ves. 245; and 9 Ves. 230. (v) By land is here meant real estate (1 Atk. 503; 1 West Cas. T. Hardw. 701; 2 P. W. 610; 2 Ld. Raym. 937; 5 Ves. 513,) which excludes leaseholds for years. Yet if a term of years is created out of the inheritance, in trust to raise a sum of money, this money is payable out of land, or real estate. Bond v. Brown, 2 Ch. Cas. 165; Lady Pawlett v. Lord Pawlett, 1 Vern. 321. See also 2 Freem. 244, 245. (w) 2 P. W. 277, 610; 1 Atk. 486; 2 Ves. 207. (x) On legacies by a father to his child, Taylor v. Wood, Nels. 193; Carter v. BletPrec. Ch. 267, Gilb. Eq. Rep. 11; Smith v. Avery, 1 Eq, Cas. Abr. 269; Phipps v. Lord Mulgrave, 3 Ves. 613. soe, (y) On legacies by a father to his child, Smith v. Smith, 2 Vern. 92; Yates v. Fetti |