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&c. to what extent legatees may stand in Play creditors. place of cialty

originally her husband's, nor could she then make herself liable Marshalling, by contract. There is no covenant for her payment of the money, nor is there such a covenant, upon which any remedy could lie against her personal estate, unless she had been guilty of breach; all the covenant being, that the estate should stand charged. This covenantee, therefore, could not have brought an action, or other remedy, against her or her representative, because no breach. Then there is nobody, in whose place to come pro tanto; and this is a case for which the Court never would strain, however liberal they are in such cases, in the construction for creditors; for it is material in this case, that it is the husband's debt, and the intent was, not to change the nature of it, and to make it her debt, for it is only recited in the deed, and the recital of a debt under hand and seal has been held to be no specialty debt, for it must stand upon its own force; and so I have known it determined by Sir Joseph Jekyll."

But now by the above statute the simple contract creditor has, subject to the priorities of specialty creditors, a lien upon the real estate; if, therefore, he exhausts the personalty in payment of his debt, the legatee may now, to that extent, stand in his place, and resort to the realty, as before the act, the legatee might under similar circumstances, where the specialty creditor had absorbed the personal estate.

It may be properly noticed in this place, that, in instances where there is not any deficiency of assets, if a creditor apply the subject of a specific bequest in satisfaction of his debt, the executor or residuary legatee will be obliged to make the specific legatee a recompence out of the general assets, as they can retain nothing to their own use, but the residue, after debts and legacies paid.

Thus, in the case of Bowaman v. Reeve (o), the testator being seised and possessed of a considerable estate in Holland, consisting of houses, goods, merchandizes, jewels, and other effects, and being a native of that country, and residing there, sent for a notary public to make his will, and, according to the custom of the country, an instrument was drawn up in the nature of a will, and executed, whereby the testator gave some of the houses to the minister of the Presbyterian meeting there, and others to the minister of the Reformed Church there; and then gave all the residue of his goods, chattels, plate, jewels, and other effects, (which were very particularly enumerated), to the defendant, whom he made universal heir and executor, and died possessed

(0) Pre. Ch. 577, see also Mirehouse v. Scaife, 2 Myl. & C. 695.

Marshalling,

&c. to what extent legatees may stand in the place of creditors.

of a very considerable personal estate in England, besides what he had in Holland. By the laws of Holland, there is no distinction between the real and personal estate, but both are equally liable to the satisfaction of creditors; and therefore, after the testator's death, his creditors in Holland took possession of the houses specifically devised, in satisfaction of their debts; and though there were other considerable effects in Holland, yet the residuary devisee and executor would not intermeddle therewith; because, if he did so, by the law of that country he must take upon him the payment of all the testator's debts, notwithstanding a deficiency of assets; but he proved the will in England, and possessed all the testator's estate and effects here, upon which the plaintiffs, who were devisees of the houses in Holland, brought the bill against the executor, and residuary legatee, to have a recompence in proportion to the value of the houses. The Chancellor decreed an account and satisfaction accordingly; although it was urged, that those houses, by the law of this country, were liable to the payment of debts, and therefore, the specific devisees ought to take them liable thereto, and that the testator never intended to give them otherwise, or to give them any other part of his estate and his Lordship also said, that there was no difference between a devise of these houses, and a devise of a house or a term for years, and that in those cases, if the creditors brought an action, or sued out execution upon a judgment against the executors, and took the house or term for years, in execution, which they might do, notwithstanding the specific devise thereof, yet, most certainly, the executor or residuary legatee, should be obliged in equity to make them a recompence; for they were to have nothing to their own use but the residue, after the debts and legacies paid, and the residuum was chargeable with the debts; though, as to the creditors, they might take what they thought fit in satisfaction of their debts, and the enumerating of particulars in this devise of the residuum, made it no more a specific devise, than if he had only said in general, all the rest of his goods and chattels, or such like words; and therefore this residuum was liable to the payment of debts, although the creditors thought fit to fix on other parts of his estate, and thereby deprive the specific legatee of what was intended him.

SECT. VI. The consideration of those legatees for whom a Court of Equity will not marshal assets. We proceed to inquire what legatees they are for whom equity not marshalled. will not marshal assets.

Legatees for

whom assets

not marshalled.

Where le

1st. It appears to be now settled, that equity will not marshal Legatces for the assets, in instances, where the legatees, at the time of the whom assets legacies becoming due, have not an established claim distinctly and solely upon the personal estate. If, therefore, a legatee have gatees at the a claim, at the testator's death, upon both the real and personal time of their legacies beassets for the payment of his legacy, but by some subsequent coming due event, as the death of the legatee before the time of payment, established the remedy upon the real estate is defeated; the Court will not claim, &c. marshal the assets in favour of the legatee's representative, so as to preserve a personal fund for payment of the legacy.

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This Lord Hardwicke expressed as his opinion in the case of Prowse v. Abingdon (p), the facts of which are before stated. The executors were not before the Court, and no decree respecting the marshalling of assets, so that the legatee might be satisfied out of the personal estate, could be made; but his Lordship clearly expressed his opinion, that it could not be done: "For that the rule of marshalling assets in manner before mentioned, would hold, only where it was proper to be done at the time the legacy first took place, and not where it was owing to a fact which happened subsequent to the death of the testator, and to a mere accident, the death of the legatee before twenty-one.' Lord Hardwicke, however, seems to have altered his opinion in the subsequent case of Reynish v. Martin (q); but the rule as above stated has been revived by Lord Loughborough's decision in the case of Pearce v. Loman (r). In that case, Joseph Palmer devised all his real estate in the parish of Brodwinson, in the county of Dorset, to Robert Pearce and Robert Taylor, upon trust, to permit his mother to receive the rents and profits for her life, and, after her decease, to apply the same for the maintenance and education of Thomas Pearce, son of Robert, until he should attain twenty-one, and when he should attain twenty-one, in trust for him in fee; and if he died under twenty-one, upon other trusts. The testator gave to Thomas Pearce, and Robert, another son of Robert Pearce the elder, 1,000Z., to be paid at twenty-one, with interest at three per cent. in the mean time from his (the testator's) death, to be applied for the support and education of Thomas Pearce and Robert Pearce the younger. After several other legacies, the testator gave other real estate in the parish of Crewkerne, in the county of Somerset, and all the

(p) 1 Atk. 482, supra, p. 654; Ord v. Ord, 2 Dick. R. 439, S. P. (7) 3 Atk. 330.

VOL. IL

D

(r) 3 Ves. 135; see also Duke of Chandos v. Talbot, 2 P. Wms. 612.

have not an

Legatees for whom assets not marshalled.

residue of his personal estate, subject and charged with the payment of his debts, legacies and funeral expenses, to his two trustees, in trust, to see his debts, legacies and funeral expenses paid, and, after payment thereof, in trust for his cousin John Perkins absolutely, upon condition he should discharge the testator's debts, legacies, &c., and the testator appointed his said trustees executors. Robert Pearce the younger died under twenty-one, intestate and unmarried, whose father as administrator claimed the legacy. The question was, whether, as the legacy was a charge upon the real as well as the personal estate, the Court would so marshal the assets, as to direct payment of the legacy out of the personal estate, although it failed as a charge upon the lands by the death of the legatee before the time of payment. Lord Loughborough, C., after noticing Lord Hardwicke's observations before stated in Prowse v. Abingdon, expressed himself thus: "If marshalling could be carried to the extent of Reynish v. Martin, it might have been pursued in all the cases, that have been decided. There is a singularity in the doctrine, as it now stands; that, as far as it affects one fund, it is good; as far as it affects the other, bad: but it would be still more singular, if it shall sink in one case, and not in the other, but the land making good the personal estate shall be charged. The point was of very little moment in Reynish v. Martin; for in Mr. Forrester's note, the gross amount of the personal estate is stated to be 100%., and Mr. Wilbraham, in Lord Hardwicke's note, says, it is 100%. odd shillings and pence, therefore he speaks accurately from an account of it. The legacy was 8001. Therefore, I would not follow that case to introduce a new point with regard to marshalling assets against established rules. The assets cannot be marshalled. It would be directly against Prowse v. Abingdon: the contingency is the same, and I cannot charge the real estate indirectly. I have found, in Lord Hardwicke's note book, the case of Lowe v. Mosley referred to in the argument. There is very little of it, but exactly what he states. The note is this: "Lowe v. Mosley, upon the will of Mills; 300% given to his daughter: 150% at the age of twenty-four; 150l. at twenty-six. He devises his real estate to his son James, he paying debts and legacies Several questions upon acts the son had done. He had mortgaged: questioned, whether the charge remained against the mortgagee. She died between twenty-four and twenty-six. I was of opinion, that 150l. was due; but that the other 150%, sunk into the real estate, she dying under twentysix." Not a word said about marshalling: it was mixed a fund,

and a mortgage, I think, was one of the charges that affected the Legatees for personal estate."

whom assets not marshalled.

Charities.

Assets not

marshalled in favour of legacies to charity.

2. Equity has also refused to marshal (s) the assets in favour of legacies given to charitable uses; as that would be considered a mean to evade the Statute of Mortmain (t), and to effect, in substance, a charge upon the land, within the spirit of that act. In Mogg v. Hodges (u), Jane Churchill devised her real estate to trustees, to be sold, the profits to be applied to the uses of the will. She directed that her debts and legacies should be paid out of the personal estate, made the trustees executors, and left them all the residue of her personal estate, and of the money to arise by sale of the real, to be given in what charities they should think proper, recommending particularly to them the hospital at Bath. The question was, whether the assets should be so marshalled, that all the other legacies should be paid out of the real estate, so as to leave the personal to go to the charity; and Lord Hardwicke said, he thought himself not warranted to set up a rule of equity, contrary to the common rules of the Court, merely to support a bequest which was contrary to law.

In the case of Attorney General v. Tyndall (v), Mary Packer devised all her freehold and leasehold estates, to trustees to sell, and out of the money to buy ground for an almshouse in the parish of St. James's, in the city of Bristol; and likewise to erect an almshouse, and to lay out the residue of the money in land; and out of the rents and profits to pay certain stipends to twenty poor people, whom she had before appointed to be in the almshouses; and until such purchases could be made, she directed

the money

in

case

to be laid out on real or Government securities. And the charity could not by law take place according to her directions, then she ordered her trustees to lay out the money in such charitable uses, intents, and purposes, as near to her intention as could be, and the laws would permit. She then gave the residue of her estate to such uses, intents, and purposes, as aforesaid. By a decree in 1759, it was declared, that the devise of the freehold and leasehold estates to the charity was void; and an account was directed to be taken of the personal estate. On further directions, the Master of the Rolls declared that, if the trustees could obtain the gift of a piece of ground in Saint

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