rules of law, and in dealing with equitable assets it allowed the usual priority to claims secured by mortgage, charge, or lien, but subject thereto, it divided equitable assets among the general body of creditors rateably, without regard to the legal rules as to the priorities of debts, and pursued the same course with the claims of legatees upon equitable assets. It has been suggested, as another test of the quality of assets, that legal assets are such as come to the legal personal representative as such, and which the law gives to him to administer. And, perhaps, the best test was whether the assets in question would be admitted by a Court of law on a plea of plene administrant.1 The decisions upon the question whether equities of redemption are legal or equitable assets have been contradictory, but the later authorities favour the former view.2 The proceeds of real estate directed to be sold are equitable assets.3 In dealing with equitable assets, the Courts of equity not merely distributed them equally among creditors without regard to the legal rules of priority, but also endeavoured to redress the inequalities produced by the operation of these rules, by excluding creditors who had been partly paid by reason of these rules until inferior creditors had been proportionately paid. When all were proportionately paid the rest of the equitable assets were divided among the creditors in proportion to the amount of their debts. The Order of Administration of different Properties in Payment of Debts and Legacies.-The property of the deceased is to be administered according to certain rules, which are very important, as not only giving directions to the legal personal representative, but as governing the law of marshalling, and the law of administration generally. The rule is that assets are to be applied in the following order, no later and superior kind of property being applied in payment of the persons claiming out of the estate until the lower kinds have been exhausted; and no 1 Shee v. French, 3 Dr. 716. 3 A.-G. v. Brunning, 8 H. L. 243. inferior kind having any claim to be recompensed, because it has been exhausted and superior claims remain unimpaired. The order is: (1) The general and residuary personal estate; (2) estates devised for the payment of debts; (3) estates which have descended to the heir; (4) devises and legacies charged with the payment of debts; (5) general legacies; (6) specific legacies and devises, including residuary devises; (7) paraphernalia; (8) property over which the deceased had a general power of appointment which he has exercised.1 Subject to the creditor's rights to go against the realty, the personalty of the deceased shall be first applied as between persons claiming the realty and personalty under the deceased in satisfying his debts and other charges. This rule is so strong that the personalty can only be exonerated by express words, or a plain indication of an intention on the part of the testator to that effect. Of express words nothing need be said, for where the testator has expressed a wish that some other portion of his property shall be first applied in discharge of his liabilities, his wishes must be followed. When there are such express words exempting the personal estate, it is not applicable to the payment of debts, until after realty specifically devised not charged with debts is exhausted, because the devisees and legatees are equally objects of the testator's bounty, and there is an expression of intention to relieve the one and not the other from payment of debts. But it is not always easy to say what, in the absence of express words, is a sufficiently plain indication of his intention. The rule deducible from Ancaster v. Mayer,2 and the innumerable cases upon this head, is that there must be words discharging the personalty as well as words charging realty, for neither a charge of debts upon the realty, nor the creation of a term to pay debts, nor a direction to sell land for that purpose, nor a gift of realty on condition of paying debts will alter the 1 Stead v. Hardaker, L. R. 15 Eq. 178; Hensman v. Fryer, L. R. 3 Ch. App. 420; Lancefield v. Iggulden, L. R. 10 Ch. App. 136; Tomkins v. Colthurst, L. R. 1 Ch. Div. 626; Farquharson v. Floyer, L. R. 3 Ch. Div. 109. 21 Bro. C. C. C. 454. usual order of administration, even though the testator had so little personalty that his debts would exhaust it, and the gift of the personalty is thereby made little better than a mockery.1 3 And it is the better opinion that the fact that funeral and testamentary expenses are also charged on the realty will not relieve the personalty of its primary liability. If legacies were also charged on the realty the result might be doubtful. A gift of all the personalty does not exonerate it, although the realty is devised in trust to pay all the testator's debts. But it is otherwise where these things unite, i.e., the debts and funeral expenses are charged on the realty, and there is a gift not of the residue of the personalty, but of all the personalty. If in such a case the debts, &c., were charged upon a part of the realty, and the rest of the realty was devised and the personalty specifically bequeathed, the debts, &c., must first fall upon the realty charged, and when it was exhausted, the debts, &c., unpaid must be paid by the personalty, and the other realty-all devises of realty being now specific_together rateably. And the personalty was exonerated where the testator's instructions were to sell his realty to pay debts, and add the remainder of the sale moneys to his personal estate, because the direction to add showed he contemplated something to which the remainder might be added, and therefore he could not intend the personalty to be used and, perhaps, exhausted in paying debts." If a creditor take payment out of the realty when the personalty is primarily liable, the personal representative must recompense the real representative, unless some one with a better right than the latter will thereby be damnified. And where the testator directed part of his personalty to be sold and willed that it should be the fund "primarily applicable to the discharge of his debts, funeral expenses and legacies, and if insufficient he charged his Highbury estate with the deficiency, it was decided that the general personal estate was not liable until these two properties had been exhausted.1 If a testator exempts the personalty in such cases from its primary liability he is presumed to do so from a preference for the donees of the personalty, and if the gift of the personalty fails or lapses, its exemption is gone. The testator cannot be supposed to have intended to charge the devisees or even the heir with debts to the relief of the next of kin upon what is partial intestacy, and the case is the same, unless the words of the will are very clear, where the executor takes the personalty, of which no other gift is made, by his appointment as executor, beneficially or for the next of kin. The personal estate is also primarily liable to pay legacies and annuities, even where these are generally or individually charged upon land or there is a devise in trust to pay legacies generally, unless there are other indications of intention, but it is otherwise where there is a trust to pay a particular sum or sums out of the real estate. Such a gift is held to be payable out of the real estate only, and if the real estate is insufficient or does not belong to the testator at the time of his death the gift is gone. The personalty will, however, be secondarily liable if the legacy is merely demonstrative.5 Similarly a devise in trust to pay a particular debt or to raise a sum named for payment of debts renders the realty primarily liable. Unless there is no gift of the residuary personalty, in which case it is primarily liable to pay debts, &c., a specific portion of the personalty which the testator has charged with debts and 1 Dawes v. Scott, 5 Russ. 32. 2 Waring v. Ward, 5 Ves. 675. 3 Paget v. Huish, 1 Hern. & M. 663; Kirke v. Kirke, 4 Russ. 449. 4 Hancox v. Abbey, 11 Ves. 179; Newbold v. Roadnight, 1 Russ. & M. 677. 5 Savill v. Blacket, 1 P. Wms. 778. 6 Hancox v. Adbey, 11 Ves. 179. legacies or either is primarily liable, and after that portion is exhausted the remainder of the assets must be applied according to the usual rules.1 The Payment of Mortgage Debts.-The rule by which many cases are still to be decided, was that mortgages on the testator's estates were to be paid off out of his personalty in the first place, unless there were in the will express words or a clear intent to the contrary. But there were always certain exceptions to that rule, and these exceptions have been greatly increased by several Acts of Parliament. The principle upon which the rule proceeded was that the testator's personalty had been increased by the receipt of the mortgage money, and it was therefore just that the personalty should pay back what it had received. It was therefore necessary for the application of the rule that the mortgage should have been contracted or adopted by the testator himself. If it was created by his ancestor or predecessor in title, the mortgaged estate was primarily liable. So if a lady mortgaged her estate to procure money for her husband, and he did not pay the debt, her estate and not her personalty was primarily liable. So when the mortgage debt was created by settlement for the purpose of providing a jointure or portion, the personalty of the testator has not benefited, and the mortgaged estate was primarily liable, and it was indifferent that the settlor also covenanted to pay the debt. And, somewhat contrary to these principles, if a tenant for life with an absolute power of appointment mortgaged the estate by means of his power, adding a covenant to pay, the estate should primarily bear the debt, for he could not be supposed to have intended to pay out of his own personalty a debt which he could throw upon the remainderman.3 A mortgagor who afterwards gives away or aliens the estate, makes the estate the first source of payment of the mortgage |