1844. Burrell v. The Earl of Egremont.

now in question, and he devises his estates in Somerset, Dorset, and Cornwall, "subject in the first place to the raising and paying the annuities and sums of money now affecting the same, or hereinafter charged thereon by this my will, or any codicil I shall hereafter think fit to add thereto, unto my eldest son and his assigns for and during the term of his life." Then follow the various remainders over. It is observed as material, that no devise is made, otherwise than subject to the charges to be made thereon by the will. After completing the limitations of his estates in Somerset, Dorset, and Cornwall, he gave as follows:-" 1 give and bequeath to my daughters, Elizabeth and Frances, the sum of 10,000l. a-piece, and to my sons Percy Charles and Charles William, 2500l. a-piece."

No doubt, if the gifts had ended here, they would have been general legacies payable out of the personal estate, but in pursuance of the same sentence, and speaking of the sums so given, he proceeds to describe them as portions, thus: "which several portions I will shall be in augmentation of, and as an addition to, the portions already provided for them by my said marriage settlement, and hereinbefore appointed to be paid to them as aforesaid." Now by the settlement, those portions were to be raised by sale or mortgage out of the York estates, and by his will he had directed them to be paid with interest to the sons at twentyone years of age, to the daughters on attaining that age or marriage, and that if any younger son should become an eldest son, or any younger son or daughter should die without issue before the day of payment, the portion should sink into the inheritance. And as to these sums of money, which he calls portions, in augmentation of and addition to the others, he directs, that they "shall be raised and paid to his said sons and daughters respectively, at such times, and under such *conditions, [*225] and subject to such contingencies, and with such interest, as I have before directed and appointed their original portions by this my will. And I do hereby subject and charge my manors, &c. and hereditaments in the several counties of Somerset, Dorset, and Cornwall, herein before by me devised to my eldest son, with the raising and paying the said portions and sums of money to

1844.-Burrell v. The Earl of Egremont.

my said sons and daughters respectively, at the times and in the manner aforesaid."

Considering the distinct and appropriate use which the testator makes of the word "portions,"-that the devise of the Somerset estates is expressly made subject to the charges afterwards made thereon, that the gifts of the subsequent sums to the daughters and younger sons are expressly stated to be in augmentation of the portions, and are made payable at the same times, and subject to the same contingencies, and that then immediately the Somerset estates are charged with the raising and paying them, at the time and in the manner aforesaid, it appears to me that these several provisions are consistent only with the intention, that these additional portions should be raised out of the estates devised to the eldest son; and I think that the words in which the sums of money which constitute the subject of the charge are given, are not sufficient to throw the legacies, or to leave them a charge, exclusively or primarily, on the personal estate, unless the will should be found to contain other provisions tending to corroborate that conclusion. But the other provisions of the will, instead of having that effect, appear to me to have a contrary tendency. After the gifts of the mansion houses and of an annuity of 3007., and of certain personal estate as heir-looms, the testator gives certain pecuniary legacies, which he directs to

be exclusively paid out of certain particular parts of his [*226] personal estate. And then he gives all the residue of his personal estate, subject to his debts and funeral expenses and the legacies aforesaid, to his eldest son; and he adds a proviso, that if his personal estate shall not extend to pay such of his debts as should not be charged on his real estate, and his said funeral expenses and legacies, he charged his estates in Somerset, Dorset, and Cornwall, in aid, and to make good any deficiency that might happen in his said personal estate. I do not think that the legacies here referred to, comprise the additional portions before charged on the estates in Somerset, Dorset, and Cornwall, and we immediately afterwards find the testator mentioning the legacies and portions distinctly, and he proceeds thus, "And for the end and purpose," (that is for the purpose of making good the deficiency he was providing for,) he empowers

1844.-Burrell v. The Earl of Egremont.

the trustees to raise, " by sale or mortgage of the estate, and pay, not only the sums of money and portions herein before by me charged and secured on the said premises for my younger chil. dren, and such deficiency as shall happen in my personal estate to pay my debts and legacies, but also such sums of money as shall be necessary," for the other purpose in his will mentioned. Taking the whole of this will into consideration, I am of opinion, that the effect of it is to make the additional portions given to the younger children, a primary, if not an exclusive, charge upon the estates in Somerset, Dorset, and Cornwall, devised to the eldest son for life.

We have next to consider the effect of the several acts done by Earl George with reference to the payment of the several portions to his brothers and sisters. If a tenant for life pays off a charge on the inheritance, he is, prima facie, entitled to that charge for his own benefit; but he may, if he think proper, exonerate the estate. In the absence of evidence, the presumption is, *that he pays the charge for his own [*227] benefit, and not for the benefit of the persons entitled in remainder; but evidence may show the contrary conclusion to be true.

The Lady Elizabeth Alicia Maria was married to Mr. Henry Herbert in the year 1771, and upon that occasion, two instruments were executed, and an account stated; and by one of the instruments, it was recited, that the Lady Elizabeth was, by virtue of the settlement executed before the marriage of the late Earl Charles, and by his will, entitled to two sums of 10,000. each, amounting together to 20,000l. for her fortune or portion, and that the said two sums of 10,000l. and 10,000l. were charged upon and to be paid out of the real and personal estates of Earl Charles; and by the other of the instruments, after reciting the settlement and the will of Earl Charles, it was further recited, that upon the treaty for the intended marriage, it had been proposed and agreed, that the several principal sums of 10,000l. and 10,000l. the original and additional portions of the Lady Elizabeth, so charged upon and payable out of the real and personal estates of Earl Charles, should be assigned as therein mentioned; and by the account then stated it appeared, that the interest of

1844.-Burrell v. The Earl of Egremont.

one sum of 10,000l. was paid by the guardians of Earl George, and that the interest of the other sum of 10,000l. was paid by the Countess, the executrix of the late Earl Charles.

Earl George attained his age of twenty-one years on the 18th of December, 1772; and on the 11th of May, 1773, he paid the sum of 20,000l., pursuant to an arrangement made on the marriage of his sister the Lady Elizabeth to Mr. Herbert; and upon that occasion, a deed was executed by and between Mr. Herbert

and the Lady Elizabeth of the first part, the Earls of Pem[*228] broke, Ashburnham, *and Thomond, and Charles Herbert, of the second part, the Countess Dowager of Egremont and the Earl of Aylesford, of the third part, and George, Earl of Egremont, therein described as the eldest son and heir and executor of the will of his father Earl Charles, and also residuary legatee in the same will named, of the fourth part; and thereby, after reciting, amongst other things, that Earl George had attained his age of twenty-one years, and thereupon became entitled in possession to, and soon afterwards entered upon, the real estates limited and devised to him by the settlement and will of Earl Charles, and upon which, or upon part of which, the principal sum of 10,000l., the original portion of the Lady Elizabeth, stood charged, and that the said Earl George, also, upon attaining his age of twenty-one years, became entitled to the residuary personal estate of his father, which had been accounted for and satisfied to him by his guardians; and that having entered upon his real estates and possessed himself of his father's residuary personal estate, he was desirous to pay off and discharge the several sums of 10,000l. and 10,000l., being the amount of the original and additional portions of his sister Lady Elizabeth, it was witnessed, that under the circumstances and for the reasons therein mentioned, the Earls of Pembroke, Ashburnham, and Thomond, and Charles Herbert, assigned the said two sums of 10,000l. and 10,000l. to Henry Herbert, and appointed Earl George, as executor, residuary legatee, and heir to his deceased father, and in every other right and capacity him thereunto requiring, to satisfy the same sums of 10,000l. and 10,000Z. to the said Henry Herbert, and the same were accordingly paid; and the said Henry Herbert acknowledged the receipt thereof, in

1844. Burrell v. The Earl of Egremont

full satisfaction of the original and additional portions of the Lady Elizabeth, and of all claims and demands in respect there

of, upon the estates real and personal of *Earl Charles, [*229] or upon the Dowager Countess, and the Earl of Thomond, or either of them; and Henry Herbert released them, and all and singular the estates real and personal of Earl Charles, from the same, and covenanted to do any other act required for further releasing the same, and better extinguishing the same sums of money and all claims of Henry Herbert and Lady Elizabeth by reason thereof, or upon the estates of Earl Charles.

In the same month of May, 1773, and by deed, dated the 11th of the same month, and made between Earl George, described as the eldest son and heir of Earl Charles, of the one part, and the Dowager Countess and the Earl of Thomond and John Drummond of the other part, after reciting, amongst other things, that there was standing in the names of the Earl of Thomond and John Drummond, the capital yearly sum of 21861. 78. 5d. consolidated long annuities, which had been purchased out of the surplus produce of the real and personal estates of Earl George, during his minority, and were his absolute property in his own right, and that the portions of Lady Elizabeth had been paid, and that the Lady Frances, being in the eighteenth year of her age. and her portions being payable at her age of twenty-one years or day of her marriage, Earl George, in order to exonerate, as well the residuary personal estate of his late father, of and from the payment of the additional portion, legacy, or sum given to the Lady Frances by her father's will, and also the settled estates, and all other the estates real and personal of Earl Charles, of and from the original portion or like sum of 10,000l. provided for Lady Frances by the settlement, and to secure and provide for the more immediate payment of the several portions or sums of money, when and as the same should respectively become payable, had proposed and agreed, that the yearly sum of 7841. 6s. 3d. long *annuities, part of the yearly sum of [*230] 21861. 7s. 5d. long annuities before mentioned, should be appropriated and set apart to answer and pay the several portions. of the Lady Frances, when the same should become payable; and after reciting, that for the same purposes, Earl George had