1800. HARTLEY v. HURLE. [ *543 ] funeral and testamentary expences were not provided for; which in this instance are expressly charged upon this fund, not by law liable to them. This is a disposition not only of real estate, but also of personal property, money in the funds; which alone is more considerable than the debts. The testator's daughter is not a trustee for payment of the debts. She is an executrix: but this is not given to her in that character. That was relied on in Burton v. Knowlton. 66 The next question is, what passed by this clause for the purpose of creating a fund for the debts. The words, "messuages, lands, tenements, and hereditaments" are certainly very comprehensive. It will be contended, that they include leasehold estate; and certainly the subsequent words favor that construction. If upon reading the will the Court should have any doubt upon this point, the case ought to stand over. Mr. Richards and Mr. W. Agar, for the Defendants, upon the second point were stopped by the Court. The MASTER of the ROLLS. Upon that point the first words, "messuages, lands, tene"ments, and hereditaments," alone certainly would not pass a leasehold estate but I am clearly of opinion, that what follows is sufficient. He gives his messuages, lands, tenements, and hereditaments, and his monies in the funds, to the trustees, their heirs, executors, administrators, and assigns, according to the several and respective estates and interests therein; and the word "ground-rents" puts it out of all doubt ( 23 ). For the Defendants, upon the other question. These cases must depend upon their own circumstances. The question must be, whether there is demonstration plain of an intention to exonerate the personal estate. There is none of the evidence of that intention in this will, upon which your Honor relied in Burton v. Knowlton. No expression shewing an intention to discharge the personal estate, is to be found. The will begins by a direction, that all the debts, funeral and testamentary expences, are to be paid. (23) Thompson v. Lawley, ante, 476, and the note, 478. That would would charge the real estate as well as the personal (24): but the personal estate must be first applied. According to the common construction the personal estate is pointed to by that clause, as the fund first applicable. The specific articles then given to the testator's wife are taken out of that fund. The next disposition charges the real estate, as an auxiliary fund, with the debts and legacies. If the testator intended the debts to be charged exclusively upon that part of his property, such intention would have been shewn. The word "real" in the residuary clause can have no meaning, all the real estate being given before, except to shew, he did not mean the personal estate to be exempt. Burton v. Knowlton has these remarkable words "not before specifically disposed of;" which are wanting in this will. Can the Court find words in this will to authorise a sale of the freehold estate; for the leasehold cannot be sold? The real property is limited with a view to keep it in his family. There is no case, in which, the will containing such a general direction as this for the payment of the debts, any gift of the residue afterwards has been held discharged without an express exemption. Samwel v. Wake ( 25 ). Noke v. Darby (26). By a residuary disposition the testator only means, that he will not die intestate as to any part of his property and with that view he throws in the words "real estate." Mr. Stanley, in Reply. There are other parts of the property taken out of the residue viz. after the legacies to the wife all his money in the funds; which he takes out of the personal estate; and has appropriated to this fund. It is not therefore to be considered the general residue after payment of the debts, but after those specific articles are taken out of it, either for the wife or for this purpose. It has been considered in all the modern cases, that an express exemption is not necessary; the dispute has always been, what constitutes demonstration plain; and there has been a good deal of cavil upon the expression "irresistible inference." (24) Ante, Keeling v. Brown, 359. Chitty v. Williams, Shallcross v. Finden, Vol. III, 545, 738. Kidney v. Coussmaker, I, 436; II, 267, and the note, I, (25) 1 Bro. C. C. 144. 1800. HARTLEY v. HURLE. [ *544 ] 1800. HARTLEY V. HURLE. inference." Under this trust an ample fund is provided, even without resorting to the real estate: but if it should prove very inconvenient to pay the debts out of the rents or dividends, the Court would apply the capital. July 31st. [ *545 ] Bequest in trust to pay the annual produce into the proper hands of a married woman is a bequest to her separate use. The MASTER of the ROLLS. The only question, that remains in this cause, is, whether the personal estate given to the daughter of the testator is exempted from the payment of his debts. The effect of the will is, that, after a general direction, that the debts and funeral and testamentary expences shall be paid, which I consider as a direction to his executors to pay them, the persons, who take the personal estate, and which operates as a trust upon them to pay those debts, he gives certain parts of his personal estate to his wife. * He then creates a fund; which he vests in two trustees, who are two of his executors, for the purpose of doing that which he had before directed to be done, to pay his debts and funeral and testamentary expences, and not only those, but likewise his legacies. The legacies therefore are without all doubt charged only on this fund. The fund thus created consisted of the testator's real estate and a part of his personal estate. After creating this fund he gives the annual produce of it, subject to the debts, legacies and annuities, to his daughter, as I conceive, to her sole and separate use. The direction is to pay into her proper hands (27). After her decease the trust is declared for his grand-daughter at twenty-one or marriage; and then follows the residuary clause. It was contended, that this is a specific gift of the personal estate undisposed of to his daughter exempt from the payment of his debts. Whatever might have been my opinion upon this case before the case of Tait v. Lord Northwick, I must now be extremely cautious, before I proceed to decide upon this point beyond the case of Burton v. Knowlton; for it is extremely clear, the noble Lord, who decided Tait v. Lord Northwick, intimated a strong doubt of the propriety of my determination. I have had occasion, and have taken great pains, (27) See Lumb v. Milnes, ante, 517; and the note, 520. Post, Adamson v. Armitage, Vol. XIX, 416. Coop. 283. 1 Madd. 208. pains, to consider that case very fully, since this was argued last night; and I think, if I was to decide it again, I should still be of the same opinion. But there are many distinctions between that case and this. First, in that the will does not set out with any direction for the payment of the debts. The testatrix begins with a devise to trustees in trust to pay all the debts and funeral expences; and after having so done and having disposed of the surplus of that fund, and of part. of her personal estate, she gives to her executor, but not in trust for himself, but for such uses as she should appoint, the residue of her personal estate not before specifically disposed of, and, for default of appointment, to him for his own use and benefit. The residuary clause in this will is not a specific gift at all, except with reference to what is before given. It is not merely personal estate, but the rest and residue of his real and personal estate not otherwise given; whereas he had given all his real estate before in trust for the payment of his debts; and I must admit, his funeral and testamentary expences are included. It is impossible to suppose it any thing more than a gift of what was not before given, not as a specific bequest, but of what might have been omitted; not to the separate use of his daughter, but to her generally; not to be paid into her proper hands. So, it appears to be, that after a general direction for the payment of his debts and funeral and testamentary expences he gives all his real estates and a considerable part of his personal estate, his money in the funds, to trustees for the payment of his debts, &c.; and then makes this general residuary disposition. However I may be more liberal than others in construing a will in favour of the legatee of the personal estate, and nine times in ten I really believe upon such gifts the Court by its rules has violated the intention, yet, whatever may be my own idea upon it, I will not set that up against the rules, that have been laid down by great men; and from all the cases, The Duke of Ancaster v. Mayer, and all the others, I find, that, unless there is a necessary implication, the personal estate shall not be exempt. I have before (28) had implication, 1 Ves. & Bea. 466; and in the net, aut, 531 (28) Ante, Vol. III, 113, in Brummel v. Prothero. See Lord Eldon's definition of necessary 1800, HARTLEY v. HURLE [ *546 ] 1800. HARTLEY v. HURLE. Aug. 1st. [ *547 ] had occasion to comment upon the sort of implication. It cannot be an irresistible inference; but that inference, that leaves no doubt upon the mind of the person to decide. But I find no case, as has been fairly admitted, in which the testator, after beginning with a direction for the payment of the debts and funeral expences, which naturally fall upon the personal estate, and are to be paid by the executors, has created a fund for his debts and funeral expences, and then given the residue by such words, (for it is not given to the separate use of his daughter) and it has been held, that he meant that trust fund as any thing more than auxiliary, if the personal estate should be deficient; and with that impression I am not at liberty to decide in favor of the residuary legatee as to the exemption of the subject of that residuary disposition; which I consider as only general words thrown in, perhaps without any definite intention. Therefore with some reluctance, but bound down by the authorities, I decide, that there is not sufficient in this residuary disposition to exempt it from the payment of the debts. * The next evening the Master of the Rolls observed, that the subject of the residuary clause is, not specifically the residue of the personal estate, but the residue of the real and personal estate not by him otherwise given and disposed of; and he had made all his real estate a fund for the debts; and therefore it is the residue of the very fund, which he had created for his debts. 1800. Aug. 1st. mer church FRENCH v. DEAR. Bill by a for- THE bill, filed in 1798, stated a feoffment in the 10th year of King Charles II, in trust for the poor of the parish warden against of Byfleet; to be under the management of the churchwardens the parish offi cers, trustees of an estate for the poor of the parish, and forty inhabitants, to be reimbursed money laid out on account of the trust under an order of vestry, his accounts being passed, and an order made for payment. Upon demurrer the Lord Chancellor expressed a strong opinion against such a bill; and as it appeared not to be signed by Counsel, ordered it to be taken off the file, and the Plaintiff to pay the costs. and |