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PAGE Walmesley v. Butterworth 202 Whitmore v. Whitmore
293 Walsh v. Lonsdale 209 Wicker v. Hume .
330, 331 Walton, Ex parte, Re Levy 90, 91 Wigglesworth v. Dallison
110 Warner v. Jacob 226 Wilcocks v. Wilcocks
197 Warrender v. Warrender 331 Wilder v. Pigott
56, 57 Warrior, The 302 Wild's case
58 Waters, 'Ec parte, Re Hoyle
15 Williams, Ex parte, Re Kit Watkins, Re, Ex parte Evans
Hill Tunnel, Ld. 15 Watkins v. Cheek
v. Bishop of SalisWatson v. Waltham
312 Watt, Re, Ex parte Joselyne. 10
331 Waverley, The
337 Webster v. Cecil
111 Weckersheim's case 37 Willock v. Noble
248 Weir v. Johnson 167 Wilmot v. Pike
238 Wellesley v. Lord Morning
Wilson v. Fendall
336 Wells, Re
325 Winehouse v. Winehouse 345 0. Barwick, Re Hardy 95 Winston's case, Re The Albion Wensley, In the goods of 285
Life Assurance Society 144 Westby v. Westby
111 Winter, Re, Ex parte Bolland. 16 Western v. Russell
336 Withernsea Brick Works, West Friesland, The 300 Lim., Re The
35, 345 West Hartlepool Iron Co., Ex Wood, Re, Ex parte Naden
198 parte Gray. 36 Woodgate v. Godfrey
19 Westminster, The. 367 Woodrup Sirus
304 West of England and South Wright v. Davies
314 Wales District Bank, Hut
v. The Midland Ry. 36 Co.
132 Whalley v. Whalley
227 Wheatley v. Slade
337 Wheelwright v. Walker 325
Y. Whitbread v. St. John.
328 Whitcombe v. Whitcombe 331 YELVERTON v. Yelverton
331 White v. Witt 175 Young v. Buckett.
HONOURS EXAMINATION DIGEST.
THE PRINCIPLES OF THE LAW OF REAL AND PERSONAL PRO
PERTY, AND THE PRACTICE OF CONVEYANCING; THE
ADMINISTRATION OF ASSETS.
1. State the order in which the different properties of a testator are, as between such properties, liable to satisfy his debts in the event of the estate being administered by the Court.
(1.) The general personal estate not bequeathed at all, or bequeathed by way of residue only.
(2.) After the general personalty, the next fund resorted to for the payment of debts is land devised upon express trust for their payment. Such land is equitable assets; and, therefore, in all cases distributed amongst creditors pari passu.
(3.) Next in order stand lands descended to the heir, and not charged with debts. Since 3 & 4 Will. IV. c. 106, if there is a specific devise of lands to the heir, he is considered to take them in the character of devisee, and not by descent. His position as regards these lands is, therefore, the same as that of any other specific devisee.
(4.) Lands devised and personalty bequeathed charged with the payment of debts are next liable; and being equitable assets, are distributed in payment of debts pro rata. Moreover, if a devise of lands so charged lapses, and the heir consequently takes, this does not alter their place in the order of administration. They still rank as lands charged, and not as lands descended. Lands charged with debts being equitable assets, the Court, in its favour of an equal distribution amongst creditors, has been inclined to give as wide a construction as possible to any passage in a will which can be considered as amounting to a charge of debts. A mere declaration that the debts shall be paid by the executors will not, indeed, amount to a charge of debts on realty, which does not come to the hands of the executors at all. But if with such a direction real estate is devised to executors, then it is considered as charged in their hands, unless from the special circumstances of the case a contrary intention is apparent. If, moreover, there is a direction in general terms that debts shall be paid, not specifying by whom, and accompanied by an expressed intention to dispose of the real estate, that effectually charges devised lands. The principle is that such a general direction indicates an intention that the debts shall at all events be paid in preference to any disposition of real or personal property.
(5.) General pecuniary legacies next abate pro ratâ as far as is necessary. Annuities are equivalent to legacies, and after valuation (since the Judicature Act, 1875, sect. 10, on the principles of bankruptcy) abate pro ratâ with them. It must be observed also that if a general legacy be given for valuable consideration, such as the relinquishment of dower, or of a debt, it is entitled to priority over all merely voluntary legacies.
(6.) Then specific legacies and specifically devised real estate not charged with debts are resorted to pro ratâ.
Under this head it is to be observed that a residuary devise is considered to be specific.
(7.) A widow's paraphernalia was liable (with the exception of her wearing apparel) to her husband's debts; and this would appear to have been its proper place in the order of administration.
The effect of the Married Women's Property Act, 1882, would
seem to be to enable a married woman to hold her paraphernalia as separate property. It is submitted, however, that articles given to her by her husband would still be liable, as before the Act, for payment of his debts.
(8.) Lastly, real or personal property over which the testator has a general power of appointment, and over which he has actually exercised that power by will or by deed in favour of volunteers, is applicable. As the creditors can only claim under the appointment, which is a voluntary act, they will have no claim unless the power is actually exercised, since equity will not interfere to aid the non-execution of a power in favour of volunteers except as hereinafter mentioned. It must be observed, however, that a residuary gift will, under sect. 27 of the Wills Act (1 Vict. c. 26), operate as an appointment, unless a contrary intention appears. Property appointed is equitable assets, and accordingly distributable pro ratâ. (H. A. Smith's Equity, 499–502.) The non-execution of a power will only be relieved against in cases of trust-powers and where the power is not exercised through fraud.
2. A testator who is considerably indebted but solvent, by his will gives certain specific and pecuniary legacies, uppoints to A. real and personal property under a general power of appointment, bequeaths his residuary personal estate to B., devises a freehold estate to C. and D. upon trust to sell, and out of the proceeds to pay his debts, charges two other estates with the payment of his debts and subject thereto, devises one estate to E. and the other to F., devises another estate to G., and the rest of his real estate to H. and K. as tenants in common. K. died in the testator's lifetime. State the order in which the assets will be administered.
The different properties will have to bear the debts of the testator in the following order :
(1.) The residuary personal estate bequeathed to B. (2.) The proceeds of the freehold estate devised to C. and D.
(3.) K.'s interest as tenant in common, which would have devolved upon him if he had lived, but which, as he is dead, subject to the debts not paid out of the above properties, (1) and (2), devolves upon the testator's heir at law. (See A. 1 (3).)
(4.) The estates devised to E. and F. respectively, and charged with the debts.