1843.-Burrell v. The Earl of Egremont. tax, and afterwards became entitled to the estate in fee, and devised it by his will: Sir John Leach said, "when Lord H. took the assignment of the land tax to himself, that act amounted to a declaration of his intention that the land tax redeemed should be part of his personal estate. It could not afterwards sink into the real estate without his expressed intention to that effect, and there is no evidence of any such intention. It continues, therefore, to be part of his personal estate." *In the present case, Earl George never evinced any [*212] intention. The deeds show that he was altogether ignorant of his rights, and by a mistake, originating during his minority, the personal estate was considered primarily liable. All the subsequent deeds proceed on the same error. The court will relieve in such cases; Earl of Buckinghamshire v. Hobart. (a) Lastly, it will be contended that the plaintiff's claim is barred by the statute of limitations(b) which enacts, that no suit shall be brought to recover any money charged on land, but within. twenty years "next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless, in the meantime, some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable or his agent, to the person entitled thereto or his agent; and in such case, no such action, or suit or proceeding, shall be brought but within twenty years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one, was given." The first answer to the objection founded on this statute is, that this clause only applies where there exists a person to pay, and one to receive, the amount of the charge and the interest. It can only apply where it is capable of this qualification,—that there is one person to demand and another to pay. Now it was impossible for Earl George both to pay and receive the interest; it would be absurd for George Earl of Egremont, by whom the interest was payable, or his agent, to give "some acknow (a) 3 Swan. 186. (b) 3 & 4. W. 4, c. 27, s. 40, 1843.-Burrell v. The Earl of Egremont. [*213] ledgment of the right thereto" to George Earl of *Egremont, "the person entitled thereto." According to the argument on the other side, however clearly Earl George might have declared his intention of keeping the charge on foot, it would have been impossible for him to do so; it may therefore be said that the right did not accrue until the death of Earl George. The second answer is, that interest has, in substance, been regularly paid. The court will so assume, for where a person fills two inconsistent characters, he must be taken to have fulfilled the obligations of each. Thus where a mortgagee in possession purchases the interest of a tenant for life, it is assumed, that he keeps down the interest, and time does not run against the remainder man. Corbett v. Barker,(a) Ashton v. Milne,(b) Raffety v. King,(c) Brocklehurst v. Jessop.(d) Lastly, in cases of mistake, the time runs from the discovery, and is, like the case of fraud, provided for by the twenty-sixth section. Brooksbank v. Smith,(e) and this is a mistake which is relievable; Denys v. Shuckburgh.(g) Mr. Tinney, Mr. Kindersley, and Mr. Lloyd, contra. First, as to the construction of the will of Earl Charles. It is quite an elementary proposition, that if a testator gives a sum of money, either as a legacy or as a portion or provision for his child, such gift is a mere pecuniary bequest payable out of the personal estate; if he adds that it shall be a charge on his real estate, the personal estate still remains primarily liable, and the real estate is only to be applied in aid of the personalty. On the other hand, if the gift be of a sum expressly to be raised out of the real estate, or if there be a devise of a real estate sub[214] ject to, or charged with, or upon the "condition of n aking payment thereout, of a given sum, which sum is not otherwise bequeathed by the will, then the charge is exclusively on the realty. The plaintiff who asserts that the personalty is exonerated, is bound to prove it; it is not sufficient for him to show that there is a charge on the real estate, but he must do (u) 1 Anst. 138, reversed 3 Anst. 755. (c) 1 Keen, 601. (d) 7 Sim. 438. (e) 2 You. & Col. (Exch.) 58. 1843.-Burrell v. The Earl of Egremont. more he must show that the personal estate is exempted. The rule has been laid down differently by various judges. Originally, express words were necessary to exempt the personal estate. (a) This was afterwards altered. In The Duke of Ancaster v. Mayer,(b) Lord Thurlow thought that "a declaration plain or manifestation clear" was necessary. In Brummel v. Prothero,(c) the expression "irresistible inference" which was used, was commented on by Lord Alvanley, who sald :-"As to the irresistible inference, I do not know what is meant by that. I admit, it must be such an inference, as leaves no doubt upon the mind of the person who is to decide upon it. It must be irresistible to my mind." In Bootle v. Blundell,(d) Lord Eldon, in referring to this expression, says, "I can find no rule deducible from all that has been said on the subject, but this, (which appears to be a rule supported by all the cases taken together,) namely, that, since it has been laid down that express words are not necessary to exempt the personal estate, there must be in the will that which is sometimes denominated 'evident demonstration,' sometimes 'plain intention,' and 'necessary implication,' to operate that exemption." In Lord Inchiquin v. French,(e) Lord Hardwicke remarks, "The general rule of law and equity is, that the personal estate is the first fund for payment of debts; and as to *proper legacies it is considered as the only fund, [*215] both in the ecclesiastical and in this court; if, therefore, the personal estate is to be exempted from these charges, it must be so expressed, or it must appear from a plain necessary implication arising from the words of the testator; and in such case of an implication or plain intention, without express words, it must appear that the personal estate is given as a specific bequest in some shape." In Samwell v. Wake,(g) it was held that in order to exonerate the personal estate from the payment of debts and legacies, it is necessary, not merely to charge the real estate, but the will must exempt the personal estate. Lord Thurlow says, "I believe it is very clear, that here is not enough to ex (a) Fereyes v. Robertson, Bunb. 301, and Dolman v. Smith. Prec. Ch. 456. (b) 1 Bro. C. C. 462. (c) 3 Ves. p. 113. (e) Amb. 37. (g) 1 Bro. C. C. 145. 1843-Burrell v. The Earl of Egremont. onerate the personal estate. The personal estate is the proper fund in order to exempt it, the testator must express his intent. It is not sufficient to charge the real, but he must show that his purpose is, that the personal should not be applied. The words to be attended to are those relative to the personal estate. He gives pecuniary legacies, and then, by a very loose clause, gives the residue to Samwell. I am called to construe the most large and loose residuary clause that ever was seen, in such a way as to change the natural order of payment. Where the intent is strongly expressed, and it is for near relations, old cases have carried the matter farther, than good sense without precedents would have done." In Tower v. Lord Rous,(a) Sir William Grant thus states the rule: "The personal estate, being the proper and primary fund for the payment of debts and legacies, can be exempted only by express declaration, or plain and unequivocal manifestation of intention. The question generally is, whether there is sufficient evidence of that intention. It [*216] is agreed, that neither a charge upon the land, nor a *direction to sell, nor the creation of a term for payment, will exempt the personal estate." So, Lord Redesdale in M'Cle land v. Shaw,(b) says: "Except Webb v. Jones (c) there is not, I apprehend, a single case in which it has been held that personal estate was exempt from payment of debts and funeral expenses, without express words for the purpose; except where personal estate has been given as a specific legacy: for if it is given in terms which do not imply that it was intended as a specific legacy, it is not held to be exempt from the charges which the law imposes on it."[1] (a) 18 Ves. 138. (b) 2 Sch. &. Lef. 544. (c) 2 Bro. C. C. 60. [1] The personal property is the primary fund for the payment of debts, although the testator has directed his debts to be paid out of the rents and profits of his real estate. Hawley v. James, 319, 469. The mere charging of a secondary fund with the payment of debts does not exempt 'the primary fund, or postpone its ap. plication, unless the intention of the testator to exonerate it for the benefit of the legatee, or some other person is manifest. And where an intention is manifested by the testator to exonerate the primary fund for the benefit of the residuary legatee, a lapse of the residuary bequest restores the residuary fund to its primary liabi 1843.-Burrell v. The Earl of Egremont. Apply these expositions of the law to the present case. The testator says, "I give and bequeath to my daughters, &c. the sum of 10,000l. a-piece." This is a simple pecuniary legacy. Calling these sums "portions" amounts to nothing: they would be equally portions, whether payable or raiseable out of the personal or out of the real estate. Then it is said there is a charge of these sums on the devised estates; but all the cases show that this is not, of itself, sufficient. Next there is no specific gift of the residue, which, according to the cases of Bootle v. Blundell and Webb v. Jones, is required. It is next said that the real estate is devised subject to the sums charged. No doubt it is, but that leaves the question, whether the real estate is primarily charged, or merely in aid of the personalty, perfectly open. Then as to the additional portions being paid out of the same fund, that rule applies only where there is a previous gift: here there is none: there is a mere appointment of the original portions, operating as under the settlement. Lastly, it is argued that the additional portions are to be subject to the same conditions and contingencies, &c. There is no difficulty in this, for the additional portions may be subject to similar conditions and contingencies [*217] as the original portions, so far as they are applicable, and yet be payable out of the personalty. If the defendant be right on this point, the plaintiffs' case entirely fails. Secondly; suppose the personal estate exonerated, then as to the effect of the acts done by Earl George. The rule is thus laid down by Lord Thurlow in Jones v. Morgan :(a) "A tenant for life, in general, paying off a charge, without taking an assignment, is a creditor for the sum so paid; but the smallest demonstration that he meant to pay it off, will prevent his representative from coming for the money." Is there not something more than "the smallest demonstration" in the present case? Earl George, being tenant for life, with remainder to his own issue, it was quite natural for him, upon attaining twenty-one, (a) 1 Bro. C. C. 218. lity for the payment of debts. Ibid. The personal estate was held, upon the context of the will, not exempt from the payment of debts and legacies, where a real estate devised for the payment thereof, in exoneration of the personal estate, proved to be insufficient. Colville v. Middleton, 3 B:av. 570. |