1837. Wood v. Cox. done what she afterwards did, namely, specify the legacies. It was argued that the words "trusting and wholly confiding in his honour, that he will act in strict conformity with my wishes," prove that the testatrix did not use the words "for his own use and benefit" in an absolute and unrestricted sense. Certainly she did not use these words in their absolute and unrestricted sense, as to the whole of her property, namely, as to that part which would be required to pay the legacies given to others, or, in other words, to execute her wishes. But is there any thing unusual or inaccurate in a gift of property to an individual, for his own use and benefit, subject to the payment of an annuity, or other provision for another; and yet the observation would apply with equal force to such a gift? Assuming, however, that these words are inapplicable to so much of the property as would be required to provide for the execution of the testatrix's wishes, as expressed, can that be a sufficient reason for rejecting them altogether, when they are strictly and correctly applicable to so much of the property as was not required for those purposes? It was then asked, if these words cannot be applied to the whole of the property, by what rule can it be ascertained to what part they do, and to what part they do not apply? The answer seems obvious: they must apply to all the property as to which the testatrix did Every gift of a residue, for not express any other wish. It was said further, that the second paper only expresses the testatrix's wishes pro tanto, it appearing from from the answer of Sir George Cox, that she had afterwards mentioned other legacies which she wished to have paid. If the answer be to be looked at for this purpose, the whole statement must be taken together; and the statement there made is, that she, in the evening of the same day, mentioned to him that she had forgotten to include in the list certain legacies she wished to have paid, and that after payment of her debts and legacies there would be something handsome for Sir George Cox. In my consideration of the claims of the parties in this case, I wholly reject this statement in the answer; but then I do not think that it can properly be relied upon for the purpose of showing, that the testatrix intended to treat the whole of the property given to Sir George Cox as a trust, because subject to the future expression of her wishes. It was undoubtedly subject to any other disposition she might make of it, as every residuary gift is; but the question is, to whom was that portion of it to belong, which was not otherwise disposed of. I have in this case, as I do in every case in which I have the misfortune to differ from the Master of the Rolls, felt every disposition to doubt the correctness of the several steps of reasoning by which I have come to a different conclusion. But when I find one construction which makes every part of the testamentary disposition consistent, and which is consistent with every circumstance connected with it, I cannot feel justified in adopting another, which creates an intestacy as to the residue, which requires striking out of the will certain expressions of ordinary use, and of well known meaning, and which would leave unexplained several other provisions appearing upon the face of the testamentary papers. 1837. WOOD v. Cox. 1837. WOOD V. Cox. In cases of this kind little assistance is to be derived from former decisions; but what is said by Lord Hardwicke, in Hill v. The Bishop of London (a), and by Sir William Grant, in Walton v. Walton (b), and Lord Eldon's decision in Dawson v. Clarke (c) (proceeding, as it appears to have done, upon the terms of the gift, and not upon the claim of the executor as such) and in King v. Denison (d), which was a stronger case in favour of a resulting trust than the present, would have confirmed me in the opinion I have formed, had I felt more doubt upon the particular circumstances of this case. Adopting the distinction expressed by Lord Eldon, in the cases referred to, I am of opinion that this is not a gift upon trust, but a gift subject to a charge, and that Sir George Cox is therefore entitled to the property, subject to the legacies given by the testatrix, including those verbally given, as found by the Master's report. (a) 1 Atk. 618. Judgment reversed. (c) 18 Ves. 247. 1837. THE MIREHOUSE v. SCAIFE. June 26. Nov. 25. A testator, after bequeathing a number of pecuniary legacies to different persons, and giving a certain field to his godson, directed that all the above legacies, should be paid and discharged within six his debts and months after HE will of John Brockbank, yeoman, which bore date the 21st of October 1833, and was duly executed and attested to pass freehold estates by devise, was, so far as is material, in the following words: "First, I give and bequeath unto my cousin William Perry, the sum of 100l.; unto my cousin Nancy Carter, 501.; unto my cousin Mary Cape, widow of the late John Cape, 50l.; unto my cousins Robert Scaife, Isabella Scaife, and Mrs. Jane Mirehouse, the sum of 2001, share and share alike, or the whole to the survivors at my decease. Also I give unto Robert Scaife all my interest in the brig Solon; unto Hannah Lewthwaite, my servant woman, 10l.; unto James Brockbank, my godson, the son of John Brockbank of Chapples, I give and bequeath one field, known by the name of Gillfoot, as a memorandum, to be by him enjoyed at my decease. real and perIt is my will that all my debts, and all the above legacies, be paid and discharged within six months after my decease; and all the rest and residue of my estate, both real and personal, lands, messuages, and tenements, I give unto Mary Newton, the wife of George Newton of Green, by her freely to be possessed at my decease; and I do hereby constitute and appoint John Brockbank bill by some of Chapples, and Robert Scaife of Maryport, to be the executors of and to this my last will and testament.” his decease; and all the rest and residue of his estate, both sonal, he gave to N. The personal estate proving in sufficient to pay the debts and legacies, it was held," upon de murrer to a of the legatees, seeking to charge their legacies on the real The estate which passed under the residuary devise to N., First, that there was no equity, in favour of pecuniary legatees, to have the assets marshalled, so as to throw the debts upon the real estate devised to N.; but, Secondly, that both the debts and legacies were, by the words of the will, effectually charged upon that estate. 1837. MIREHOUSE V. SCAIFE. The testator died in the month of February 1836, and the executors proved his will. The bill was filed by Jane Mirehouse, and Mary Cape, two of the legatees named in the will, against Scaife and Brockbank, the executors, against Mary Newton, the residuary devisee, and her husband, and against William Perry, who was the testator's heir at law. James Brockbank, the devisee of Gillfoot, was not made a defendant. The bill alleged that the testator's personal estate was insufficient to pay his debts and funeral and testamentary expenses and legacies; but that the real estates devised to Mary Newton were more than sufficient for those purposes. The bill prayed a declaration that, according to the true construction of the will, the testator's debts and legacies were a charge upon his real estates thereby devised to Mary Newton; and, in case, on taking the accounts, his personal estate should prove insufficient to pay such debts and legacies, then that the deficiency might be raised by sale or mortgage of such real estates; or, if the Court should be of opinion that the testator's real estates were not charged with the legacies, then that his assets might be marshalled, and that the amount of the personal estate which should have been applied in payment of his debts, or so much thereof as should be sufficient for payment of the legacies, might be raised by sale or mortgage of the said real estates, and applied in payment of the legacies. To this bill, George Newton and Mary his wife filed a general demurrer, which the Vice-Chancellor, upon argument, over-ruled, and the present appeal was then brought from his Honor's decision. Mr. Jacob and Mr. Booth, for the Appellants, made two points; first, that equity would not marshal the assets, in favour of pecuniary legatees, against a devisee of |