1844. BURRELL v. EGREMONT. The first question is, whether, according to the true construction of the will of Earl Charles, the additional portions, amounting to 25,000/., ought to be considered as general pecuniary legacies payable primarily out of The Earl of the testator's personal estate, or whether they are to be considered as portions, exclusively or primarily charged upon and payable out of the estates in Somerset, Dorset, and Cornwall, devised to Earl George for life. The words by which the additional portions are given and bequeathed, if taken by themselves, constitute distinct gifts, which would be primarily payable out of the personal estate. The Defendant relies mainly upon this, and upon there being no term or estate created for the purpose of raising the additional portions; but it is necessary to examine the whole scope and context of the will for the purpose of ascertaining the effect of it. The testator begins his will, by reciting and confirming the settlement of his estates in York, Cumberland, and Sussex, made on his marriage; and he appoints the 25,000l., thereby raiseable by sale or mortgage, for the portions of his younger children, directing the whole to be raised and paid, as to 10,000l. part thereof for his daughter Elizabeth, for part of her portion, as to 10,000l., other part thereof, to his daughter Frances, for part of her portion, as to 2500l., other part thereof, to his son Percy Charles, for part of his portion, and as to the sum of 2500%, residue thereof, to his son Charles William as part of his portion; and after giving directions as to the payment of interest and the time of payment, he provided, that if any younger child should die without issue before the time of payment, his or her portion should sink into the inheritance charged therewith, and not be raised or paid. The testator, after devising to his eldest son certain purchased estates in York and Essex, proceeds to deQ 2 vise 1844. BURRELL v. The Earl of EGREMONT. vise the estates out of which the Plaintiffs seek to raise the sum 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:- "I 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 twenty-one 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, 1844. BURRELL ท. EGREMONT. conditions, 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 The Earl of in the several counties of Somerset, Dorset, and Cornwall, hereinbefore by me devised to my eldest son, with the raising and paying the said portions and sums of money to 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 personal estate. And then he 1844. BURRELL V. EGREMONT. 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 The Earl of 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 the trustees to raise, "by sale or mortgage of the estate, and pay, not only the sums of money and portions hereinbefore by me charged and secured on the said premises for my younger children, 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, primâ 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 that he pays the charge for his own benefit, and not for the benefit of the persons entitled in remainder; but evidence may shew 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 10,000%. 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 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 Pembroke, Ashburnham, Q 4 and 1844. BURRELL v. The Earl of |