1839. The Earl of Ilchester v. The Earl of Carnarvon.

part; and Francis Newman Rogers, and George O. Lampriere, of the fourth part; and thereby, after reciting that the sum of 83047. then remaining due on the security of the indenture of the 17th of February, 1808, was the proper

money of Algernon *Herbert, who had requested Thomas D'Oyley [*214] to assign the same to the said F. N. Rogers and G. O. Lampriere; and that Algernon Herbert, being satisfied that the lands situate at Marston were an ample security for the sum of 83047. and interest, it has been agreed that the other premises comprised in the said mortgage should not be assigned to F. N. Rogers and G. O. Lampriere; it was witnessed that, for the consideration therein mentioned, Thomas D'Oyley assigned unto F. N. Rogers and G O. Lampriere, their executors, administrators and assigns, the sum of 8301 then remaining due on the mortgage, and all interest thereon; to hold the same unto F. N. Rogers and G. O. Lampriere, their executors, administrators and assigns and Thomas D'Oyley thereby assigned unto F. N. Rogers and G. O. Lampriere, their executors, administrators and assigns, the Marston. estate for the then residue of the term of 2000 years, created by the said indenture of the 17th of February, 1808, subject to such equity of redemption as the same premises were then subject or liable, by virtue of the said lastmentioned indenture.

The testator, Henry George, died in April, 1833, and his will was proved by the present Earl, who being entitled thereto under the will, possessed himself of the testator's assets.

The testator's daughter, Lady Harriet, died in 1836.

The bill was filed by the Earl of Ilchester and Algernon Herbert, the trustees, and by Lord Porchester, the eldest son of the present Earl of Carnarvon, stating that 83041. remained due on the mortgage (1007. having been paid off by Henry George, Earl of Carnarvon,) and insisting that the Marston estate had been devised to the trustees freed from the mortgage debt of 83041. and interest, and *that the plaintiffs were entitled to have [*215] it paid out of the general personal estate of the second testator, Henry George, Earl of Carnarvon, or, in case of its insufficiency, out of the real estate devised to the present Earl; and the bill prayed accordingly.

Mr. Pemberton and Mr. T. H. Hall, for the plaintiffs:-Under the trusts of the will of the late Earl, the Marston estate is now saleable; and the question between the parties is, whether the personal estate of the last Earl, possessed by the present Earl, is or not liable to pay off the mortgage on the Marston estate, so as to leave the whole produce of that estate to be invested upon the trusts of the settled real estate: from the limitations of the settled estates, the question amounts to his, whether the defendant is entitled to the sum of 83001. absolutely, or for life only.

The debt, it is admitted, was orginally the debt of the first testator, who mortgaged the Marston and the Blunsden estates for securing it; he specially devised the Blunsden estate, and the other estate descended to Henry George, to whom the testator had bequeathed his personal estate subject to the payments

1839. The Earl of Ilchester v. The Earl of Carnarvon.

of his debts and legacies. What was the position of the property at the death of the first testator? The owner of the Blunsden estate had clearly an equity to have the mortgage paid out of the personal and the descended estates; so that Henry George, having assets, was bound to pay off the mortgage on the Blunsden estate, and in exonerating that estate from the mortgage, he must

at the same time have exonerated the Marston estate. He had not [*216] therefore the power of exercising an option *as in Scott v. Beecher,(a) but was bound in equity to discharge the mortgage. The real and personal estate did not in this case, as in Scott v. Beecher, wholly centre in one person, but part of the real estate was devised away and therefore that authority does not apply. Being subject then to an equitable obligation, he entered into a personal covenant for the discharge of the mortgage; and he bequeathed his personal estate to the defendant, expressly subject to that, amongst other "contracts and obligations." He adopted the debt, which he was in equity bound to discharge, and his personal estate is therefore primarily liable to pay it.

The trusts on which the testator devised the Marston estate might have required the whole undiminished rents; and this too shows an intention on the part of the testator, that that estate should be exonerated out of his personal estate.

Mr. Tinney and Mr. E. J. Lloyd, contra :-The general rule is this, that if an estate be subject to a mortgage which is created by the testator, who specifically devises the estate, the devisee is entitled to have it exonerated out of the descended and personal estate; but if the debt be not a debt contracted by the testator, then the devisee takes it cum onere, and is not entitled to have an exoneration out of the personal or descended estate,

[*217]

It must be admitted that Henry George, Earl of Carnarvon, was bound to exonerate the Blunsden estate out of the Marston estate, which descended; but this was a derivative and not a primary obligation. The obligation was not personal, but affected the estate only; and he was therefore in the same situation as the devisee and executrix in Scott v. Beecher. If the case stood here, independent of any subsequent dealing, it is clear that the devisees in trust would take the Marston estate subject to the mortgage.

As to the subsequent transactions, the covenant of Henry George, Earl of Carnarvon, which was merely to exonerate the Blunsden estate, did not operate as an adoption by him personally, of the debt of his testator; neither would a bond or covenant to pay the amount have had that effect; Barham v. The Earl of Thanet.(b) There, Sir John Leach laid down the law in these words, "If an estate descend to the heir subject to a mortgage, and he become a party to an assignment of the mortgage, and by deed or covenant contract with the assignee to pay the amount due, he does not thereby make

1839. The Earl of Ilchester v. The Earl of Carnarvon.

it his personal debt, as between his heir and executor: as between these parties, the mortgaged estate remains the primary fund for the payment of the mortgage debt, and the bond or covenant of the heir of the mortgagor is considered merely as an auxiliary security to the assignee."

The question then remains, whether the will of Henry George, Earl of Carnarvon, had the effect of making the mortgage debt his personal debt. The question is always one of inteution, and whether the testator intended. to increase his real estate at the expense of his personal estate; Donisthorpe v. Porter, (a) The Earl of Oxford v. Lady Rodney.(b) There being no equity between real and personal representatives, it lies on the plaintiffs to make out such an intèntion. It is true that Henry George, Earl of Carnarvon, gives all his real and *personal estate to the present Earl, [*218] "subject to the payment of his debts, and the fulfilment of all contracts and obligations;" but he had entered into no contract or obligation to pay the mortgage debt, but only to exonerate (as he was bound to do, having assets of the first testator for that purpose) the Blunsden estate. The testator had no intention of charging the whole of his estate with a debt, for which the estate of the first testator alone was liable.

Mr. Pemberton, in reply.

THE MASTER OF THE ROLLS, after detailing the circumstances of the case, and the nature of the question between the parties, said he should postpone giving judgment until he had an opportunity of looking into the cases.

March 12.-THE MASTER OF THE ROLLS-The principal question raised in this cause, is whether the devisees in trust of the Marston estate, under the codicil of Henry George, Earl of Carnarvon, are entitled to have a mortgage for S0001. and upwards paid out of the personal estate of the same Earl.

The mortgage was created by, and was the personal debt of Henry, Earl of Carnarvon, the father of Henry George, and the money was secured by a term of 2000 years, which comprised not only the Marston estate, but also another estate called Blunsden.

The two estates being subject to the mortgage, the Blunsden estate was devised by the will of Henry, Earl of Carnarvon, and under that will became vested in Augusta Elizabeth, the daughter of Charles Herbert; *the Marston estate descended on Henry George, Earl of Carnarvon, [219] as the heir of his father; and he was also the executor and residuary legatee of his father.

Under these circumstances, the devisee of the Blunsdèn estate was entitled to have it exonerated from the mortgage, by payment out of the personal estate, or, if necessary, out of the descended real estates of Henry, Earl of Carnarvon; and Henry George, who was the executor, having personal as

1839. The Earl of Ilchester v. The Earl of Carnarvon.

sets, and also heir having real assets, was in those characters liable to pay the mortgage, as he was liable to be compelled to apply the assets which he had received for that purpose.[1]

. He made his will, dated the 27th day of September, 1821, and thereby left his real and personal estates to his eldest son, the present Earl of Carnarvon, subject to the payment of his debts, the fulfilment of all contracts and obligations, payment of annuities with which he was chargeable, and to his funeral expenses; and on the 8th of May, 1824, on the occasion of the marriage of Augusta Elizabeth Herbert, who was entitled to the devised Blunsden estate, he covenanted for himself, his executors, administrators or assigns, in effect that he would exonerate the Blunsden estate from the mortgage to which it was subject, in common with the descended Marston estate. At the time when he entered into this covenant, he might have been compelled to do that which he covenanted to do; he had personal estate of his father sufficient, and also descended real estate sufficient for the purpose. It may be assumed that, being, as residuary legatee, owner of the personal estate, and, as heir at law, owner of the descended real estate, it was [*220] for his own convenience that he entered into this covenant, rather than apply his father's assets in payment.

Very soon after the date of this deed, and on the 10th of July, 1824, he executed a codicil to his will, and thereby devised the Marston estate. The codicil does not mention the mortgage to which the Marston estate was subject, but provides that, in case it should happen by sale, mortgage, or other disposition of the estates thereby devised made in his lifetime, the same should be insufficient to provide for the annuity therein mentioned, the annuity was to abate in proportion.

On the 9th of July, 1830, a deed was executed between Thomas D'Oyley, in whom the mortgage term had become vested, of the first part; Henry George, Earl of Carnarvon, of the second part; Algernon Herbert, who was the person entitled to the money secured by the mortgage, of the third part; and Francis Newman Rogers, and George O. Lemprierre, of the fourth part; and thereby, after reciting that Algernon Herbert was satisfied that the Marston estate was a full and ample security for the payment of the mortgage money, it was witnessed, that Thomas D'Oyley, at the request of Algernon Herbert, assigned the mortgage money and so much of the estates comprised in the mortgage term as constituted the Marston estate to Rogers and Lempriere, subject to the same equity of redemption as the same were subject to under the original mortgage deed.

The intended effect of this deed was, to charge the Marston estate exclusively with the mortgage; and in the execution of this intention no more was done than the owner of the Blunsden estate had a right to com

[1] Vide The Duke of Cumberland v. Codrington, 3 Johns. Ch. Rep. 229, 257. Knight v. Davis, 3 Myl. & K. 361.

1839. The Earl of Ilchester v. The Earl of Carnarvon.

pel Henry George, Earl of Carnarvon, to do; although the *mort- [*221] gage extended over the two estates, yet, as between the owners of

the two estates, the owner of the equity of redemption of Blunsden, a specific devisee, had a right to throw the whole burden on the owner of the equity of redemption of Marston, who was the heir taking by descent; and here again it may be assumed, that Henry George, Earl of Carnarvon, being owner of the personal estate, and of the descended real estate, both of which were applicable to the payment of the mortgage, made an exclusive charge on the descended real estate for his own convenience.

Henry George, Earl of Carnarvon, died in the year 1833; and the question is, whether, under the circumstances which have been stated, his personal estate, or the Marston estate devised by his codicil, is the primary fund for payment of the mortgage.

In the consideration of the question, it must be observed, that in some respects, Henry, Earl of Carnarvon, owed a like duty to the mortgagee and to the owner of the Blunsden estate; the mortgagee, for the purpose of obtaining payment, and the owner of the Blunsden estate, for the purpose of obtaining exoneration, had each of them a right to resort to the personal estate, and to the descended real estates of Henry, Earl of Carnarvon; and Henry George, Earl of Carnarvon, had corresponding duties towards both; and, having regard to this circumstance, I think that the case of Scott v. Beecher distinctly applies; and it follows that the mere circumstance of Henry George being the owner of the personal estate, which in his hands. was the primary fund, and also of the descended real estate, which in his hands was the secondary fund for payment, is not a reason, why, as between those who are entitled to his personal estate and those who are entitled to the devised *mortgaged estate, the latter should be relieved ;[1] [*222] and this brings us to the question, whether the acts done afford indications of an intention either to adopt the mortgage debt as a personal debt of his own, or to have it paid out of his own personal estate after his death. It has been determined, that when the mortgage debt is created by another, the estate must bear the burden, although the owner of the equity of redemption has charged other parts of his property with the payment of all his debts ;[2] and it does not appear to me that the covenant contained in

[1] The mere charging of a secondary fund with the payment of debts, does not exempt the primary fund, or postpone its application, unless the intention of the testator to exonerate it for the benefit of the legatee, or some other person is manifest. Hawley v. James, 5 Paige, 319, 469.

[2] Where a person takes a conveyance of land subject to a mortgage, covenanting to indemnify the grantor against the mortgage, and dies intestate, the land is the primary fund to be resorted to for the payment of the residue, and the heir cannot throw the charge upon the personal representatives. And if the purchaser has even rendered himself liable, at law, for the payment of the debt, this circumstance will not alone be sufficient to shift the charge upon the personalty. He may by express direction, or necessary implication shift the charge from the realty to the personalty; but, if having subjected his personal estate to the charge, he dies, and the land descends to his heir, who is also his personal representative; although the personal funds of the ancestor, in the