and personal estate to his son James, and appointed him executor. Held, that the residuary form of the devise to the executor made the legacies a charge upon the real estate, notwithstanding that a previous interest in real estate was given by the will. (See the next case.)

Francis Clemow, by his will, dated the 3d of May 1839, after directing payment of his debts, and giving some pecuniary legacies, and making certain specific bequests, gave to his daughters Charlotte and Emma £150 each, to be paid to them respectively on the day of their marriage; and, in case both or either of his daughters should discontinue living with his sons Joseph and James, he directed that interest at £4 per cent. should be paid on their legacies; and, after bequeathing certain annuities, the testator directed that his wife should hold and enjoy his farm and lands of Tresawna, for the purpose of bringing up his children, for such term and at such rent as his brother Robert should think fit; but if his son James was desirous of occupying the said farm and lands he was to be at liberty to do so on his placing the testator's wife and children on a farm of about the same yearly value as Tresawna; and the testator gave, devised and bequeathed all the rest, residue and remainder of his estate and effects, both real and personal, unto the said James Clemow, his heirs, executors, administrators and assigns, whom he thereby nominated his executor. The testator died on the 30th of May 1839; and on the 30th of October 1839 his will was proved by James Clemow, who paid the debts and the several legacies, except the said legacy of £150 to the testator's daughter Emma, who had since married the Plaintiff, John Francis.

The bill was filed by the said John Francis and his wife against the executor, praying an account of what was due in respect of the said legacy and interest, and for payment [436] of the amount due; and that, if necessary, it might be declared that the testator's residuary real estate was charged with the payment of the said legacy and interest, or otherwise that the Plaintiffs were entitled to have raised out of the testator's real estate, and applied in payment of the legacy, the amount of personal estate which should appear to have been applied in payment of the testator's debts.

pro confesso.

The cause now came on upon a motion to take the bill Mr. J. V. Prior, for the motion, contended that the legacy was a charge upon the real estate, citing Brudenell v. Boughton (2 Atk. 268), in which a gift of the rest and residue of the testator's estate, real and personal, to one whom he appointed executor, was held to constitute a charge of legacies previously given upon the real estate: Cole v. Turner (4 Russ. 376), where the testator, after giving certain legacies, continued, "All the rest, residue and remainder of my freehold, copyhold, leasehold estates and all my stock, utensils, farming implements, and the rest of my real and personal property, I give, devise and bequeath," &c.; and Sir John Leach, M.R., said that the freehold, copyhold and leasehold estates were not devised, but the rest and residue of these estates; and as nothing was given previously except the legacies, they were well charged on these real estates; and Bench v. Biles (4 Madd. 187), which is shortly stated in the following judgment.

THE VICE-CHANCELLOR reserved the point for consideration.

Feb. 27. THE VICE-CHANCELLOR Sir W. PAGE WOOD. This cause came on upon a motion to take the bill pro confesso. The question is whether or not certain legacies [437] are charged upon the real estate of the testator in the cause.

After making some dispositions, and giving certain interests in real estate, the testator gave all the rest, residue and remainder of his estate and effects, both real and personal, to his son, and appointed him executor. I had some doubt whether, where real estates had actually been previously devised so that the term "residue of real estate" was strictly applicable to what was subsequently given, a charge of the legacies could be effectively made by the residuary form only of the devise. I think, however, that Bench v. Biles (4 Madd. 187) seems to have gone that length; and I am disposed to follow that authority. In that case the testator gave all his real and personal estate to his wife for life; and after her decease gave various legacies, and all the rest, residue and remainder of his real and personal estate to his nephews absolutely; and the legacies were held to be charged upon the real estate.

The point is just glanced at by Lord Cottenham in another case (Mirehouse v. Scaife, 2 My. & Cr. 706), where there was a devise of a field called Gillfoot, and afterwards a gift of the residue, real and personal. Lord Cottenham says that it does not appear whether the field previously given was freehold or leasehold; but makes no further observation. Bench v. Biles (4 Madd. 187) seems to be the only authority directly in point; but I think that I must follow it in this case.

Take an account of what is due for principal and interest on the legacy. Declare that such principal and interest are a charge on the real estate of the testator. Decree that the Defendant pay the amount found due within one month after the certificate of the Chief Clerk; and if he [438] do not the Plaintiff to be at liberty to bring in a proposal to raise the same by sale or mortgage of such real estates.

[438] HARRIS v. WATKINS. March 9, 21, 1854.

[See Bentley v. Robinson, 1859, 10 Ir. Ch. R. 293; In re Bailey, 1879, 12 Ch. D. 273 ; In re Tanqueray-Willaume and Landau, 1882, 20 Ch. D. 472.]

Will. Charge of Debts. Residuary Devise.

A testator, by his will, directed that all his debts should be paid by his executrix thereinafter named, and then made certain specific devises, and gave to his wife a house and appurtenances, partly freehold and partly leasehold, for her life, and then over; and all the "rest and residue " of his real and personal estate the testator also gave to his wife, and appointed her sole executrix. Held that, on a deficiency of personalty to pay the testator's debts, the residuary real estate was next liable, and before the freehold and leasehold estates specifically devised; and then the other real property specifically given to the executrix.

When a will contains a direction to the executor to pay the testator's debts, and then a devise of real estate to that executor, it is considered that the testator has imposed upon the executor the duty of paying the debts to the extent of the property given to him, and accordingly that property is held to be charged with the debts. But an exception has been made to this rule, where there are two or more executors to whom unequal benefits are given by the will; because, in such a case, it cannot be supposed to be the testator's intention that they should be equally subjected to the burden of his debts, and therefore the property given to them is not considered to be charged.

This was a creditor's suit for the administration of real and personal estate.

William Powell, being at the time of his death possessed of some personal estate, and being also seised and possessed of, or entitled to, the freehold, copyhold and leasehold estates in his will mentioned, and certain other real estates, and being indebted to the Plaintiff and various other persons on simple contract, made his will, dated the 30th of September 1844, as follows:-" As to such worldly estate as God of His goodness hath bestowed upon me, I dispose thereof as follows: that is to say, I direct all my just debts, funeral and testamentary expenses, to be paid by my executrix hereinafter named; I give, devise and bequeath unto my niece, Mary Sarah Dee, all that piece of land called Page Park Meadow, situate at Hampton Bishop, in the occupation of William Watkins, being part freehold and part copyhold, held under the manor of Hampton Bishop aforesaid, to hold unto and to the use of the said Mary Sarah Dee, her heirs and assigns, according to the respective tenures thereof. I give, devise and bequeath unto my wife Catherine Powell all that my messuage or dwellinghouse, with the outbuildings, [439] garden, orchard and appurtenances, wherein I now reside, situate at Eign Hill, being principally leasehold for years, but a part being freehold of inheritance, to hold the same unto the said Catherine Powell for her life, or for such part thereof as my estate therein shall continue, subject to the reserved rents, fines and expenses of renewal of the said leasehold part thereof. And from and after her decease, Î bequeath the said messuage and premises unto the said Mary Sarah Dee, her heirs, executors, administrators and assigns, to hold the same according to

the respective tenures thereof, for all the subsisting estate and interest therein, subject to the costs, fines and expenses of renewals thereof, as regards the said leasehold part of the said premises. But if my said niece shall not survive my said wife, I give, devise and bequeath the same unto my said wife for the then subsisting estate and interest therein as her own absolute property. I also give, devise and bequeath unto my said wife all the rest and residue of my real and personal estate, goods, chattels and effects whatsoever and wheresoever, which I have now, or may at the time of my decease have power to dispose of, to hold the same unto and to the use of my said wife, her heirs, executors, administrators and assigns, according to the respective natures and tenures thereof, as and for her own absolute property. And I appoint my said wife executrix of this my will, and hereby revoke all former wills, codicils and testamentary papers by me made, and declare this to be my last will and testament; and I hereby declare that the devises and bequests hereby made to my said wife shall be taken and considered in lieu and discharge of all money which I have borrowed out of and forming part of the trust moneys mentioned in the settlement made on my marriage with her.'

The testator, William Powell, died on the 1st of January 1848, leaving the said Mary Sarah Dee, and also the said [440] Catherine Powell, his widow, surviving him. Catherine Powell, his widow, died intestate a few days after him and shortly after her death her heir at law took possession of all the real estates of the testator, except those devised to Mary Sarah Dee.

The usual decree having been made and the accounts taken, it appeared that the personal estate of the testator was insufficient to pay his debts. The cause now came on for further consideration.

Mr. Rolt, Q.C., and Mr. Cotterill, for the Plaintiff, asked for a sale of all the real estates of the testator.

Mr. W. M. James, Q.C., and Mr. Whitbread, for the heir at law of the testator's widow, contended that the real estates of the testator specifically devised were liable to the testator's debts pari passu with the real estates, which passed by the residuary devise. In a very similar case, where the will, dated before the Wills Act, of a testator, who died in 1832, commenced with a direction to the executors to pay the testator's debts, and after numerous specific devises and bequests the testator gave "all other" his real and personal estate to his executors absolutely, Vice-Chancellor Knight Bruce decided that the executors were not, nor were the gifts to them, liable to pay the testator's debts; and that the general gift to the executors was for all purposes specific, "having regard to the whole will:" Symons v. James (2 Y. & Coll. C. C. 301). [THE VICE-CHANCELLOR. The word "residue" does not occur in that case.] In Wasse v. Heslington (3 My. & K. 495) the will commenced with a similar direction, and contained various bequests to each of the executors, and then a general gift of "all his freehold, copyhold, [441] and leasehold estates whatsoever in Great Britain, except certain hereditaments and premises therein before mentioned, and all his personal estate whatsoever, except," &c., to one of the executors; and Sir J. Leach, M.R., said that it was manifest that the testator did not intend to subject the property given to his executors with the payment of debts.

In Mirehouse v. Scaife (2 My. & Cr. 695) the testator, after giving various legacies, and to A. one field, whether freehold or leasehold did not appear, directed that all his debts and legacies should be paid within six months after his decease, and gave "all the rest and residue" of his estate, both real and personal, to B., and appointed C. and D. his executors; and Lord Cottenham held that the circumstance of the devise of the real estate following the direction to pay the debts and legacies, the use of the words "rest and residue," and the blending of the real and personal estates in the residuary gift, were sufficient to charge the land included in it with the legacies as well as the debts: Spong v. Spong (3 Bligh (N. S.), 84; Lord St. Leonards' Book on Real Property, p. 422). Emuss v. Smith (2 De G. & S. 722) decided that the new Wills Act, 1 Vict. c. 26, did not alter the course of administering the assets.

Mr. Willcock, Q.C., and Mr. Keene, for the copy hold heir of the widow. In Parker v. Fearnley (2 S. & S. 592) a direction that the legacies should be paid by the executor, and a subsequent gift to him of all the real estate and the residue of the personalty of the testatrix, was held not to charge the legacies upon the real

estates.

Mr. Daniel, Q.C., and Mr. Shebbeare, for the specific devisee. The real estate comprised in the residue must be [442] first applied in the payment of the debts; for the gift of it as residue shews that the testator only meant to give what should remain after the charges thrown upon the real estate by law or otherwise should have been satisfied. In Hanby v. Roberts (Amb. 129; S. C. nom. Hanby v. Fisher, 2 Coll. C. C. 512; [63 E. R. 838]; 1 Dick. 104) Lord Hardwicke says, "If one, having land and personal estate, makes his will, being indebted by specialty, and he gives specific legacies, and then gives the rest and residue of his real and personal estate, if creditors exhaust the personalty, the legatees may stand in their place and come upon the residuary devisee, because he has only given the rest and residue." Creditors claiming by title paramount before 1830 were entitled to be satisfied first out of the residuary real estate; and, therefore, since Sir Samuel Romilly's Act, 3 & 4 W. 4, c. 104, which makes real estates liable to simple contract debts of the deceased owner, the simple contract creditors' rights against the real estate must have been intended by the testator to have been satisfied out of any property given as residue in his will before it could come under that denomination: Mirehouse v. Scaife (2 My. & Cr. 695). Then, the testator has directed his executrix to pay his debts, and given his residuary real estate to her; and that is another reason why, when the personal estate is exhausted, this residuary real estate should be the next property in order liable to pay his debts. In Finch v. Hattersley (3 Russ. 345, n.) it was decided, in the year 1775, that a direction that the testator's debts should be paid by his executrix, followed by a devise of all his real estates and residuary personalty to her, made the real estates liable to pay the debts on a deficiency of the personalty: Howell v. Whitaker (3 Russ. 348), Cross v. Kennington (9 Beav. 150), Powell v. Robins (7 Ves. 209), where there was no beneficial gift to the executors; and Braithwaite v. Britain (1 Keen, 206). Then, [443] the residuary real property must be applied in payment of debts before the leaseholds specifically bequeathed, for these are for this purpose in the same position as specifically devised freeholds: Long v. Short (1 P. Wms. 403), Tombs v. Roch (2 Coll. C. C. 490).

THE VICE-CHANCELLOR reserved his judgment.

March 21. THE VICE-CHANCELLOR Sir W. PAGE WOOD. The point to be decided in this case is whether or not, under the terms of this will, there was a charge of debts upon the property devised by the testator to his widow, whom he made executrix. The reason for which it has been necessary to consider this point is that the personal estate, being insufficient for payment of the debts, it became important to determine what part of the real property should be first sold to pay the debts. The direction in the will is, in the first instance, that all the testator's debts, funeral and testamentary expenses should be paid by his executrix thereinafter named. The testator then gave certain property specifically to different persons; among others, to his wife for life, a certain dwelling-house and appurtenances, being partly freehold and partly leasehold; and then he gave all the rest and residue of his real and personal estate, goods, chattels and effects whatsoever and wheresoever to his wife absolutely, and appointed her executrix.

The cases which have been decided with reference to the direction that the testator's debts should be paid by his executor have gone to this extent, that, whenever a direction of that kind is contained in the will, subject to the observations which I shall make upon the case of Symons v. James (2 Y. & C. C. 301), it is considered that the testator has imposed [444] upon his executor the duty of paying those debts to the extent of any property which may be devised to him. That is too firmly settled for me to attempt to disturb it, even if I desired so to do. Henvell v. Whitaker (3 Russ. 343) was by no means the first case in which it was decided. Finch v. Hattersley, cited in a note to that case (3 Russ. 345, n.), was decided in 1775; and the principle was recognised by Lord Alvanley in Keeling v. Brown (5 Ves. 359), where he distinguishes that case, and decides that there was no charge by the will then before him, because nothing but the personal estate was given to the executors out of which debts could be paid. In Powell v. Robins (7 Ves. 211), Finch v. Hattersley (3 Russ. 345, n.), and Keeling v. Brown (5 Ves. 359) being cited, Sir W. Grant, M.R., relies upon the latter authority, but in no way disputes the principle. Then there is the case of Henvell v. Whitaker (3 Russ. 343), where the will directed, in the first place, that all the testator's debts

should be paid by his executor thereinafter named, and then contained a gift of all his real and personal estate to the testator's nephew, William Whitaker, whom he appointed his executor; and the principle there laid down by Sir John Leach was entirely in accordance with the previous cases, but perhaps not altogether consistent with the view which he himself took in Wasse v. Heslington (3 My. & K. 495). In Henvell v. Whitaker (3 Russ. 343) Sir J. Leach said: "When the testator in his will directs that all his just debts and funeral expenses be fully paid by his executor thereinafter named, it must be intended that he had then fully determined who that executor should be, and the will is to be construed as if he had said, I direct that my just debts and funeral expenses be fully paid and satified by my nephew, William Whitaker, whom I hereinafter name my executor. In such case the obligation to pay his debts and funeral expenses would be a condition imposed upon the nephew, William Whit-[445]-aker, to be satisfied, so far as all the property which he derived under the will would extend, whether personal or real. This principle will reconcile all the authorities, and will be of ready application in future cases: " considering it therefore as if it was altogether an immaterial question whether he was executor or not, but that it was a gift to him nominatim, subject to the condition of paying the testator's debts. In Wasse v. Heslington (3 My. & K. 495) the devise was of a totally different description, namely, that the testator's debts should be paid by his executors thereinafter mentioned; and then a devise of all the real estate to one executor, giving to the other only a small benefit; and Sir J. Leach there says: "Prima facie, the direction of the testator that his debts and funeral expenses shall be paid by his executors, imports an intention that the debts and funeral expenses are to be paid by them out of the funds which come to their hands as executors." That seems to be a totally different view from what he expressed in Henvell v. Whitaker (3 Russ. 343), where he puts it upon the direction being given to the devisee, not as executor, but nominatim, and therefore imposing upon him the condition of paying the debts. In reference to that case he continues: "In the case referred to it appeared to me to be manifest from the whole will, that the testator intended to subject all his property given by his will to the executors, with the payment of his debts and funeral expenses. It appears to me in this case to be equally manifest that he had not that intention:" founding his decision upon the argument of counsel, that whereas in Henvell v. Whitaker (Ibid.) there was a direction that the debts should be paid by the executor, and then a gift of the whole property to him; here the direction was to two executors, and one took a much larger interest than the other by the will, and there was nothing to attach the direction to the gift. [446] Again, in Dover v. Gregory (10 Sim. 393) there was a direction that the debts were to be paid by the executor, and then there was a gift to that executor of certain copyhold property, by words which would not carry the fee, unless the debts were held to be charged upon it, and in that way the question arose for discussion, it being the interest of the party claiming under the devise to contend that the property was charged with debts, and was given to him in fee, subject to that charge. The Vice-Chancellor was pressed in argument with doubts as to Henvell v. Whitaker (3 Russ. 343), but he said that he considered that case to have been rightly decided, and that it had been much contested, but had not been appealed, and must be treated as settled law.

The case of Finch v. Hattersley (3 Russ. 345) recognises this doctrine. Sir W. Grant had treated it as settled before Henvell v. Whitaker (3 Russ. 343), and I cannot depart from it, but must consider it to be law. Where there is a direction to executors to pay the testator's debts it cannot be mere surplusage, the principle being, not to look upon any words in a will as surplusage, if it be possible to avoid it, and the only meaning that can be given to it is that it was the intention of the testator by this direction, and by giving property to the executors, to create a charge of the debts upon that property. In many cases words, in order to give them effect, have a peculiar efficacy attributed to them. Since the case of Clifford v. Lewis (6 Madd. 33), a direction that the testator's debts should be paid, in the commencement of the will, has been extended to mean more than mere payment, which the law would require if there were no such direction, and has been held to create a charge upon all the real estate devised. In Clifford v. Lewis (Ibid.) the words "in the first place," which have been relied on in some cases, did not occur; but Sir J. Leach, V.-C.,