Legatees for whom assets not marshalled. Charities. James's parish, Bristol, they might erect an almshouse upon it, and declared, that the trustees were entitled to have the assets marshalled, by applying the leasehold in the first place in payment of debts, legacies, funeral expenses, and costs, in order to leave more of the personal free and clear for the purposes of the charity. The defendants having appealed from this decree, Lord Henley, Chancellor, after argument at bar, and time for consideration, thus delivered his opinion: "As to the freehold, there is no doubt that must go to the heir-at-law. The question respects only the leasehold, which, by reason of the devise being void, falls into the residuum: and on this, whether the Court shall marshal the assets and by applying the leasehold in the first place to payment of debts, leave the other assets to be applied to the charity, and by that mean do per obliquum, what could not be done per directum. This would be a method to elude the statute, which I will not do. The second question respects the building an almshouse, if the trustees can get the ground given them. The decree in this part is founded upon the precedent of the Attorney General v. Bowles, which is an authority for the Master of the Rolls. But I feel only one authority, that of the House of Lords, which is a superior Court; no other authority has any influence on my judgment. The precedent has no influence upon me; it is contrary to the spirit of the statute. In common sense, it is laying out money in land: it improves the site, is demandable in a præcipe, and is a purchase of so much realty; such a determination is opening a door to avoid the statute;" and his Lordship held the devise of the residue to be void, as being given to be laid out in lands and tenements; and the decree was reversed. Again, in Foster v. Blagden (w), Sarah Knapp devised her real and personal estate, after payment of her debts, funeral expenses and charges of proving her will, to the plaintiffs, in trust, to dispose thereof, and directed the trust money to be paid to certain charitable uses. The question was, whether the Court would marshal the assets, and order the debts to be paid out of the real estate, in order that the personal might be left clear, so that the devise to the charity might take effect. Smith, Baron, who sat for the Lord Chancellor, declared his opinion, that the debts could not be thrown upon the real estate; and that the cases of Mogg v. Bath Hospital, and the Attorney General v. Tyndall, were in point. (w) Amb. 704. not marshalled. Charities. Again, in Hillyard v. Taylor (x), William Brown, after devising Legatees for an estate to the plaintiff and his family, and several legacies, whom assets bequeathed all his personal estate, together with his estate at Forfield, held by lease of the Bishop of Winchester, descendible to his right heirs, in trust, to sell the said estate, and out of the money to pay his just debts, funeral expenses and several legacies, and the Warden and Fellows of Winchester College 100%, to be disposed of as they should think fit, for the use of superannuates, not succeeding to New College; to the county hospital at Winchester, 50%; to the Governors of the charity for relief of poor widows and children of clergymen, 6007.: and after reciting, that it was uncertain what his effects might amount to, he gave whatever remained, after payinent of debts, legacies and other charges, to his executors, to be disposed of to such charitable uses as they should think fit, and appointed Taylor and Knapp executors. In 1761, the Master of the Rolls decreed, that if the personal estate should be wholly or in part exhausted, in satisfying the debts and funeral expenses, and such of the legacies as were not given to charity, then the legatees of the charitable bequests should stand in the place of specialty creditors, and receive a satisfaction pro tanto, out of the real estate: but without prejudice to the question, whether the legacy of 100% given to the Warden and Fellows of New College, was within the saving clause of the Statute of Mortmain, which might arise, in case the before mentioned marshalling of assets should not be sufficient to furnish the whole of the legacies given to charities; and he directed an account of the rents and profits of the Hampshire estate, and the balance to be applied to make good the deficiency of the personal estate; and if those funds should prove deficient, the real estate in Hampshire to be sold, and applied to make good the deficiency. The personal estate and the rents and profits of the Hampshire estate, proving deficient, that estate was sold, and the purchase money paid into the Bank, and laid out in 4,2951. 15s. 8d. three per cent. annuities. After twelve years, there was an appeal from the above decree, occasioned by the determination of Foster v. Blagden (y). The Lord Chancellor, without hearing the reply, reversed the decree, so far as related to the charitable legacies to Winchester Hospital, and for the relief of widows and children of clergymen, on the authority of Foster v. Blagden, and directed an inquiry, what fund was established at Winchester College, to defray the expense of superannuates at (1) Amb. 713. (y) Supra, preceding page. Legatees for whom assets not marshalled. Charities. either of the Universities; and after ordering the costs, declared that the residue of the three per cents. belonged to the heir-at-law. In Makeham v. Hooper (z), Joseph Lloyd, being seised of freehold and copyhold estates, and possessed of leasehold and other personal property, devised to trustees all his freehold, leasehold, copyhold and personal estates to sell, and out of the money to pay, among other legacies, 2007. to the Bath Infirmary, and other charitable legacies to the amount of 1,2007.; also 200l. to erect a monument to the memory of J. Curle; and after payment of several general legacies, to pay the surplus of the money arising from the real and personal estates, unto the plaintiff, and D. Evans, and appointed them executors. Evans died in the life of the testator. By codicil, among other legacies, the testator gave to two of the defendants 1007. in trust for another charity, (but without naming any fund out of which it was to be paid), and ordered a monument to be erected to himself. He afterwards made a second codicil, by which he gave some legacies, and died in November 1781, leaving the plaintiff his surviving executor and residuary legatee, and two others of the defendants his heir-at-law, and next of kin, who had assigned their claims to the plaintiff. The bill, after the usual prayer in regard to the will and codicils, and the general personal estate, prayed that the charitable legacies might be declared void, and to fall into the residue; and that the real estate might be sold, and the clear residue of the money, as also the testator's personal estate might be declared to belong, and be paid to the plaintiff as residuary legatee. The cause was heard before Lord Thurlow, C., in 1784; and by the decree, the will and codicils were declared well proved, and ought to be established, and the trusts performed; and it was referred to the Master to take the proper accounts, and to distinguish what arose from chattels personal, and chattels real; and he reserved the consideration, whether the charity legacies were to be paid, and in what manner, and all further directions till after the Master's report: from which report, it appeared, that the money received by the plaintiff and the trustees, amounted to 1,9881. 7s. 7 d., and that they had paid 1,0377. 15s. 5d.: so that there remained a balance of 9501. 12s. 24d. That the legacies, besides the charitable ones, amounted to 4,4907. So that the personal estate fell short of paying the same in 3,5391. 7s. 94d.; and that the real and leasehold estates sold for above 6,000l. The question (z) 4 Bro. C. C. 153. not marshalled. Charities. was, whether the assets should be marshalled? And it was de- Legatees for creed in the negative; Ashurst, Lord Comm. observing, that whom assets "he thought they were bound by the recent cases with respect to the question of marshalling: that it did not appear what was the reason of the turn in the cases, but as the decisions had taken that course, they would not alter them." But the legacy to the Bath Infirmary, was ordered to be paid, in consequence of the Act of the 19 Geo. 3, c. 23, permitting that charity to take in mortmain (a). &c. not allowed tion between general residue whereof con leaseholds. 3. The preceding authorities clearly settle the rule, that the Marshalling, Court of Chancery will not marshal the assets, so as to throw for charities, the debts upon the real estate and leave the personal a clear fund but contribu for the charity; but it will be proper in this place to notice a them and next rule of the Court in the administration of the general residue of kin wher bequeathed to a charity, and consisting partly of mortgage secu- given, part rities and leaseholds which savour of the realty, and partly of sists of mortassets purely personal. In such case, the bequest of the residue, gages and so far as regards the mortgage securities and leaseholds, fails, as being within the Statute of Mortmain, and lapses for the benefit of the next of kin. As between such next of kin, who are considered in the light of legatees of the mortgage securities and leaseholds, and the charities which have an indisputable right, as legatees of the other personalty not partaking of the nature of real estate, the Court will not allow a creditor or general legatee to resort exclusively to the assets purely personal, to the disappointment of the charity, but will direct a rateable contribution by the charities and next of kin, in proportion to their respective interests, for the satisfaction of the debts and legacies. In the exercise of this branch of equitable jurisdiction, the Court adopts a rule well established by the cases on marshalling, namely, that a person having two funds to resort to for the satisfaction of his demand, shall not, by his option of resorting to either of those funds, determine whether one of two parties, whose equities are equal, shall be paid or not. The above rule respecting contribution does not appear distinctly stated, although it was acted upon in the case of Attorney (a) See also Att. Gen. v. Lord Weymouth, Amb. 20, infra, vol. 2, Chap. XIX. sect. m. div. 2; Hobson v. Blackburn, 1 Keen. 274; Philan. Society v. Kemp, 4 Beav. 581; Contribution between chari General v. Winchelsea (b). Nor indeed, has the editor discovered ties and next of an earlier case, wherein it is explicitly laid down. kin, where resi due given to the former, partly consist. ing of mortgages and leaseholds. In the case just mentioned, and which will be more fully stated in a subsequent part (c) of this work for another point, the Rev. Robert Chapman bequeathed the residue of his personal estate to trustees, upon trust to invest it in the funds, and apply the annual produce for the support of certain charities. A considerable part of this residue consisted of money secured on mortgage. One of the questions in the cause was, whether the bequest of the residue, so far as it related to the real securities, was not void, as being within the Statute of Mortmain, and it was insisted for the next of kin, that they were entitled to these mortgage securities. The Master of the Rolls, as appears from a note of part of his judgment given in Belt's edition, page 380, first considered the cases as proving that the assets could not be marshalled; and then said that he conceived this case to stand upon the same ground, as if the testator had specifically bequeathed his mortgages to one person, and the other part of his personal estate to another. In such a case, they should contribute to the payment of the debts and legacies rateably, according to the amount of what they each took. The next of kin, in that case, he considered, as if he had been a legatee of the mortgages, and therefore decreed that the payment of the debts and legacies should be made out of the mortgages, and out of the rest of the personal estate rateably according to the amount of each of them respectively. The rule was stated in Howse v. Chapman (d), arguendo, by the counsel for the next of kin, and acted upon by the Court. In that case, Leonard Coward, after enumerating several specific parts of his residuary personal estate, gave the same, after payment of debts, legacies, funeral and testamentary expenses to be appropriated to the improvement of the city of Bath. There were parts of the personal estate not enumerated, and undisposed of. After the testator's death the bill was filed by the executors to establish the will, and ascertain the rights of the parties; the heir-at-law and next of kin contending, that the bequest of the residue was void for uncertainty of its object, or, if not void on that ground, it was void under the statute 9. Geo. 2, c. 36, as to such parts as were of the nature or consisted of real property. (b) 3 Bro. C. C. 373, S. C.; 2 Cox, 364; nomine Att. Gen. v. Hurst, (c) Chap. XIX. sect. v. |