PRECEDENT XI. WILL APPORTIONING TESTATOR'S REAL AND LEASEHOLD PROPERTY AMONG HIS 28. and to stand possessed of the surplus proceeds in trust for testator's children surviving him, or dying before him leaving issue. pp. 32, 33]. AND SHALL stand possessed of all the residue of such monies in trust, &c. [trust for all the testator's the assets of a testator whose general personal estate was adequate for the payment of his debts and legacies. By that Act, as to any person dying after the 31st of December 1854, seised of or entitled to any estate or interest in any land or other hereditaments charged with the payment of money by way of mortgage, and who does not by his will, or some other document, signify a contrary or other intention, his heir or devisee is not to be entitled to have the mortgage debt discharged out of the personal estate, or other real estate, of the deceased; but the land charged is, as between the different persons claiming under the deceased, to be primarily liable to the payment of the mortgage debts charged thereon, every part according to its value bearing a proportionate part thereof. It is, however, provided that the Act is not to affect the rights of any person claiming under any will, deed, or document made before the 1st day of January, 1855. By the explanatory Act of 1867 (30 & 31 Vict. c. 69), it was enacted that in the construction Explanatory Act of the will of any person dying after the 31st December, 1867, a general direction that the debts, or that all the debts of the testator should be paid out of his personal estate, should not be deemed to be a declaration of a contrary intention under the above Act, unless such contrary intention should be further declared by words expressly, or by necessary implication, referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real estate (s. 1); and that the word "mortgage" in the Acts should extend to any lien for unpaid purchase money upon any lands Amendment Act or hereditaments purchased by a testator (s. 2). By the Amend Locke King's of 1867. of 1877. Decisions on the ment Act of 1877 (40 & 41 Vict. c. 34) it was further enacted that the previous Acts should, as to any testator or intestate dying after the 31st December, 1877, be held to extend to a testator or intestate dying seised or possessed of or entitled to any land or other hereditaments, of whatever tenure, charged with the payment of money by way of mortgage or any other equitable charge, including any lien for unpaid purchase money; and that the devisee or legatee, or heir, should not be entitled to have such money discharged out of any other estate of the testator or intestate unless (in the case of a testator) he should, within the meaning of the Acts, have signified a contrary intention, and that such contrary intention should not be deemed to be signified by a charge of or direction for payment of debts upon or out of residuary real and personal estate, or residuary real estate. It was determined under the original Act that copyholds are within it (Piper v. Piper, 1 J. & H. 91), and this is made abun children surviving him or dying in his lifetime leaving PRECEDENT XI. issue, as at p. 244, mutatis mutandis, and omitting the dantly clear by the Amendment Act of 1877; and leaseholds, which were held not to be within the original Act (see In re Wormsley, 4 Ch. D. 665), are now brought within it by the Amendment Act of 1877. But bequests of chattels personal which are in mortgage are still subject to the old law, and the mortgage debt must therefore in that case be discharged out of the personal estate, unless an intention to the contrary is shown (Lewis v. Lewis, L. R. 13 Eq. 218). The interest of a testator in the monies to arise from the sale of land held in trust for sale, under which the land was after his decease actually sold, has been held not to be an "interest in land" within the Act (Lewis v. Lewis, ubi supra). The Act was held to apply to an equitable mortgage by deposit of deeds (Pembroke v. Friend, 1 J. & H. 132; Coleby v. Coleby, L. R. 2 Eq. 803; and see now the Act of 1877); and to a mortgage given as collateral security only (Coleby v. Coleby). A vendor's lien for unpaid purchase money, which was held not to be within the original Act (Hood v. Hood, 3 Jur. N. S. 684, 26 L. J. Ch. 616; and see Barnwell v. Iremonger, 1 Dr. & Sm. 260), was brought within it by the second section of the Act of 1867; the latter enactment was held not to apply where the vendor died intestate (Harding v. Harding, L. R. 13 Eq. 493), but this restriction has been removed by the Act of 1877. Although the original Act speaks of the liability to the debt as between the different persons claiming under the deceased, it was decided under that Act (and the decision appears to apply equally to the Amendment Acts), that a mortgaged estate must bear the mortgage as against the Crown taking the personalty on failure of next of kin (Dacre v. Patrickson, 1 Dr. & Sm. 186). In Porcher v. Wilson (14 W. R. 1011), the right of the devisee of the mortgaged estate to exoneration out of the personalty was held to be subject to the right of the pecuniary and specific legatees to be first satisfied; (and as to the right of pecuniary legatees to marshal as against a devisee of real estate in respect of unpaid purchase money, see Lord Lilford v. Powys Keck, L. R. 1 Eq. 347). As to the liability as between a specifically devised mortgaged estate and the residuary realty, where the personalty charged with debts is insufficient, see Rodhouse v. Mold, 35 L. J. Ch. 67. As to when the Act will apply as between the representatives of a devisee of real estate subject to a general charge of debts and legacies, see Hepworth v. Hill, 30 Beav. 476. A great many cases arose under the original Act upon the question what amounted to the signification of a contrary or other intention within the meaning of the Act, so as to exclude the appli WILL AMONG HIS What indicates a contrary intention so as to PRECEDENT XI. WILL APPORTIONING TESTATOR'S REAL AND LEASEHOLD PROPERTY AMONG HIS exclude the statutory rule. words appropriate to real estate. General power of investment and varying investments, supra, p. 236. cation of the statutory rule of administration. A mere direction for payment of debts (not specifying any particular fund) was held not to have this effect (Pembroke v. Friend, 1 J. & H. 132; Coote v. Lowndes, L. R. 10 Eq. 376); nor a direction that all the testator's debts should be paid by his executors out of his estate (Woolstencroft v. Woolstencroft, 2 De G. F. & J. 347; and see Brownson v. Lawrence, L. R. 6 Eq. 1). On the other hand, after a considerable conflict of decision, it was finally settled by the case of Eno v. Tatham (3 De G. J. & S. 443, and see Mellish v. Vallins, 2 J. & H. 194), that a general direction that the testator's debts should be paid out of the personal estate, or any other specified fund, was not sufficient to exonerate the mortgaged estate; but it will be seen that this construction has been overruled by the Acts of 1867 and 1877, which (taken together) declare that a mere direction for payment of the debts out of the personal estate, or the residuary real and personal estate, or the residuary real estate, shall not be deemed to signify a contrary intention. The effect of these enactments is that the rule in Eno v. Tatham is abolished, although the debts are directed to be paid, not out of the personal or residuary real estate generally, but out of a specified part of the personal or real estate (Gall v. Fenwick, 43 L. J. Ch. 178, 22 W. R. 211; In re Newmarch, 9 Ch. D. 12). In Brownson v. Lawrence (ubi sup.) it was held that the specific devise of one of two estates comprised in the same mortgage, and leaving the other to pass by the residuary devise, indicated a contrary intention within the Act; but this view was questioned in Sackville v. Smyth, L. R. 17 Eq. 153; and the contrary was decided in Gibbins v. Eyden, L. R. 7 Eq. 371, having regard to the doctrine now settled (after some conflict of authority) that a residuary devise is still, notwithstanding the Wills Act, specific. See further as to the effect of the Act, Greated v. Greated, 26 Beav. 621, Allen v. Allen, 30 Beav. 395. Although the Act directs that every part of the mortgaged land, according to its value, shall bear a proportionate part of the mortgage debts charged on the whole, of course, where there is a principal and a collateral security, the land comprised in the principal security will be primarily liable (Stringer v. Harper, 26 Beav. 33); and where two estates (A and B) devised to different persons, were charged with the same mortgage debt, but estate A formed the primary security, and estate B was charged as a further security on the occasion of a further advance, it was held that the original debt must be borne dis Power to trustees to determine questions, p. 54]. I DECLARE, that if either of my said sons D. B. and E. B. shall die, whether in my lifetime or after my decease, or shall refuse or become unfit or incapable to act in or by deed declare his desire to he discharged from the trusts of this my will, then my said son F. B. shall become a trustee of this my will in place of the son so dying or refusing or becoming unfit or incapable to act, or desiring to be charged, and if both of them my said sons D. B. and E. B. shall so die or refuse or become unfit or incapable to act or declare their desire to be discharged from the said trusts, or in case one of them the said D. B. and E. B. and also the said F. B. shall so die or refuse or become unfit or incapable to act or declare his desire to be discharged from the said trusts, then and in such case I appoint my said son G. B. to be a trustee of this my will, and I direct that the trust estate shall whenever necessary be assured and transferred so as to be vested in the trustees for the time being [clause as to appointment of and indemnity to trustees, supra, p. 55]. AND I DECLARE, that all the powers, authorities, and discretions hereinbefore vested in by estate A, and the further advance by the two estates rateably, according to their values, the value of estate A being computed for this purpose after deducting the original debt (De Rochefort v. Dawes, L. R. 12 Eq. 540). Where real and personal estate are comprised in the same mortgage, the Act does not throw the whole debt, but only a rateable proportion of it, on the real estate (Trestrail v. Mason, 7 Ch. D. 655; and see Gall v. Fenwick, ubi sup.). As to the effect of the proviso in the original Act that it is not to affect the rights of persons claiming under wills or other documents made prior to 1855, see Piper v. Piper, ubi sup., Power v. Power, 8 Ir. Ch. Rep. 340, Rolfe v. Perry, 3 De G. J. & S. 481, Nelson v. Page, L. R. 7 Eq. 25. In preparing a will in which the real and personal estates are subject to different destinations, the draftsman should always consider how mortgage debts are to be borne, and the intention in this respect should be unequivocally expressed, and not left to the operation of the Acts or the general rules of law. PRECEDENT XI. WILL APPORTIONING or given to my trustees shall vest in and devolve upon and be exerciseable by the trustees or trustee for the time TESTATOR'S REAL being of this my will, or the executors or administrators AND LEASEHOLD PROPERTY AMONG HIS or (as to any real estate vested in them) the heirs of the last surviving trustee (n). [Devise of trust and mortgage estates, supra, p. 58]. I APPOINT my said sons D. B. and E. B. executors of this my will, and in case either of them shall die in my lifetime or shall renounce probate thereof I appoint my said son F. B. an executor in his place, and sons in case they in case one of them the said D. B. and E. B. and also the said F. B. shall so die or renounce, then I appoint my said son G. B. an executor (0). IN WITNESS, &c. 31. Appointment of two sons executors with substitu tion of two other should die or renounce. PRECEDENT XII. WILL WITH SPECIAL TRUSTS XII. WILL of REAL and PERSONAL estate. DIRECTION to keep up testator's HOUSEKEEPING for a certain period. Specific DEVISE of real estate to a son in FEE, with GIFT OVER on his DEATH in testator's lifetime or under twenty-one WITHOUT ISSUE. SHORT provisions for MANAGEMENT during son's MINORITY, and MAINTENANCE and ADVANCEMENT, and powers of LEASING and SALE and EXCHANGE. DEVISE of other real estate to the CHILDREN of a deceased son as TENANTS in COMMON, with ACCRUER clause, and provisions for MANAGEMENT, &c., by REFERENCE to (n) Compare the form, supra, p. 56. (0) As to the appointment of an executor in substitution for the original executor, see supra, p. 120, note, Williams on Executors, 7th ed., p. 245. The substituted appointment might, if desired, be made to take effect (as in the case of the trusteeship) in the event of the death of either of the original executors at any time, whether happening in the testator's lifetime or afterwards (Id. 246); and power may be given to an executor to appoint another executor in the place of one deceased, or as an addition to the number, (Id., |