of legacies. 6. When the debts are all discharged, the legacies claim 6. The payment the next regard; which are to be paid by the executor so judgment or decree, the executor will be held to have had sufficient constructive notice thereof, and it will be immaterial whether he had actual notice or not. If he has paid any debts of inferior degree, he will be answerable as for a devastavit. (Littleton v. Hibbins, Cro. Eliz. 793; Searle v. Lane, 2 Freem. 104; S. C. 2 Vern. 37.) Since the statute of 3 Will. & Mary, c. 14, (which, it is true, has been repealed by the statute of 11 Geo. IV. and 1 Gul. IV. c. 47, but only for the purpose of consolidating the whole provisions of the law, on this head, into one act;) simple contract debts are let in to be paid pari passu with debts by specialty, when a testator has limited lands to his executors or trustees, in trust for payment of his debts generally. (Kidney v. Coussmaker, 12 Ves. 154.) But this rule seems to have been of earlier date than the statute. (Foly's case, 2 Freem. 49; Hickson v. Witham, ibid. c. 12, in Appendix to 2nd edit. 306.) And it is now settled, that a charge for payment of debts, which does not break the descent of real estate to the heir, will be equitable assets for the payment of all creditors alike. (Shiphard v. Lutwidge, 8 Ves. 30; Bailey v. Ekins, 7 Ves. 323; Clay v. Willis, 1 Barn. & Cress. 372; 2 D. & R. 546.) If, therefore, specialty creditors sweep away the whole of the testator's personal assets, they will not be allowed to participate in the benefit of the devise, until the creditors by simple contract have received so much thereout as to make them equal and upon the level with the creditors by specialty, in respect of what they received out of the personal estate. (Haslewood v. Pope, 3 P. Wms. 323.) And whenever a plaintiff is under the necessity of applying to the court of Chancery for relief, the general rule of that court is, to do equal justice to all creditors, without any distinction. (Plunkett v. Penson, 2 Atk. 293.) Thus, the equity of redemption of a mortgage of a term for years, has been held equitable assets; (Sir Charles Cox's case, 3 P. Wms. 341; Hartwell v. Chitters, Ambl. 308; Newton v. Bennet, 1 Br. 137; Clay v. Willis, 1 Barn. & Cress. 372; 2 D. & R. 546 ;) and so, perhaps, would an equity of redemption of a mortgage in fee, if mere bond creditors contended for priority of payment; (for it is clear such assets could only be got at by aid of equity;) but it has been decided, that in such a case, judgment creditors could not be compelled to come in pari passu with simple contract creditors, but that, as the judgment creditors had a right to redeem, they must be paid in the first instance, and there could be no marshalling as against them. (Sharpe v. Earl of Scarborough, 3 Ves. 542.) Since this note was first published, the statute of 3 & 4 Gul. IV. c. 104, has been passed, by which it is enacted, that when any person shall die seised of or entitled to freehold or copyhold estates, which he has not, by his will, charged with or devised subject to payment of his debts, the same shall be assets to be administered in courts of equity for the payment of all the just debts of such person; but creditors by specialty, in which the heirs are bound, are to be entitled to priority of payment. The personal estate of a testator is the primary fund for payment of his debts and legacies; and it will not be enough for the personal representative to show that the real estate is charged therewith; he must satisfactorily show that the personal estate is discharged: (Tower v. Lord Rous, 18 Ves. 138; In case of deficiency of assets, far as his assets will extend; but he may not give himself the preference herein, as in the case of debts (x). A legacy is a bequest, or gift, of goods and chattels by tesgeneral legacies tament; and the person to whom it was given is styled the tionably abated. legatee: which every person is capable of being, unless par must be propor (x) 2 Vern. 434; 2 P. Wms. 25. [2 Freem. 134; 2 Atk. 171.-ED.] Bootle v. Blundell, 19 Ves. 548; Watson v. Brickwood, 9 Ves. 454; Barnewall v. Lord Cawdor, 3 Mad. 456) still, where such an intention is plainly made out, it will prevail: (Greene v. Greene, 4 Mad. 157; Burton v. Knowlton, 3 Ves. 108 :) and parties entitled, by descent or devise, to real estate, cannot claim to have the incumbrance thereon discharged out of their ancestor's or devisor's personal estate, so as to interfere with specific, or even with general legatees: (Bishop v. Sharpe, 2 Freem. 278; Tipping v. Tipping, 1 P. Wms. 730; O'Neale v. Meade, Ibid. 694; Davis v. Gardiner, 2 P. Wms. 190; Rider v. Wager, Ibid. 335 :) and, a fortiori, they could not maintain such a claim, when it would go to disappoint creditors. (Lutkins v. Leigh, Ca. temp. Talb. 54; Goree v. Marsh, 2 Freem. 113.) When the owner of an estate has, himself, subjected it to a mortgage debt, and dies; his personal estate is first applicable to the discharge of his covenant for payment of that debt: (Robinson v. Gee, 1 Ves. sen. 252:) and the case would be the same even although the mortgagor had entered into no such personal covenant, provided he received the money. (King v. King, 3 P. Wms. 360; Cope v. Cope, 2 Salk. 449.) The mere form of devising a mortgaged estate, subject to the incumbrance thereon, (but without expressly exonerating the other funds from liability in respect thereof,) will not affect the question as to the application of assets in discharge of the debt; those words con (Serle v. Bootle v. This rule, vey no more than would be implied if they had not been used. St. Eloy, 2 P. Wms, 386; Blundell, 19 Ves. 523.) however, does not apply where the mortgage debt was not contracted by the testator, and whose personal estate, consequently, was never augmented by the borrowed money; for such a construction would be to make the personal estate of one man answerable for the debt of another. (Evelyn v. Evelyn, 2 P. Wms. 664; Earl of Tankerville v. Fawcett, 1 Cox, 239; Basset v. Percival, 1 Cox, 270; Parsons v. Freeman, Ambl. 115; Tweddel v. Tweddel, 2 Br. 154.) But any one may, of course, so act as to make his personal assets liable to the discharge of debts contracted by another. (Woods v. Huntingford, 3 Ves. 152.) Though a court of equity cannot prevent a creditor from coming upon the personal estate of his deceased debtor, in respect of a debt which might be demanded out of his real estate; still the other creditors will have an equity to charge the real estate for so much as, by that means, is taken out of the personal estate. (Colchester v, Lord Stamford, 2 Freem. 124; Grise v. Goodwin, Ibid. 265.) And if a bill has been filed for administration of the assets, should it appear that a specialty creditor has been paid out of the personal estate, it is not necessary to file another bill for the purpose of marshalling the assets; but the court will, without being called on, give the requisite directions. (Gibbs v, Augier, 12 Ves. 416.) ticularly disabled by the common law or statutes, as traitors, papists (59), and some others. This bequest transfers an inchoate property to the legatee; but the legacy is not perfect without the assent of the executor: for, if I have a general or pecuniary legacy of 100l., or a specific one of a piece of plate, I cannot in either case take it without the consent of the executor (y). For in him all the chattels are vested (60); and it is his business first of all to see whether there is a sufficient fund left to pay the debts of the testator: the rule of equity being, that a man must be just, before he is permitted to be generous; or, as Bracton expresses the sense of our ancient law (z), “ de bonis defuncti primo deducenda "sunt ea quæ sunt necessitatis, et postea quæ sunt utilitatis, "et ultimo quæ sunt voluntatis.” And in case of a deficiency of assets, all the general legacies must abate proportionably, in order to pay the debts; but a specific legacy (of a piece [* 513 ] of plate, a horse, or the like) is not to abate at all, or allow (y) Co. Litt. 111; Aleyn. 39. (59) This ground of disability no longer disgraces the statute book. (60) It has been much questioned, whether it was not the intention of the legislature, that a specific devise of stock in the public funds should be considered in the nature of a parliamentary appointment, and not want the assent of the executor; (Pearson v. The Bank of England, 2 Cox, 179;) though a different practical construction has been put on the statute creating government annuities; (Bank of England v. Lunn, 15 Ves. 578;) and it must now be taken to be the law, that stock, like all other personal property, is assets in the hands of the executor. The consequence necessarily follows, that it must vest in the executor, and, till he assents, the legatee has no right to the legacy. (Franklin v. The Bank of England, 1 Russ. 597; Bank of England v. Moffat, 3 Br. 262.) The assent of the executor is equally necessary whether a legacy be specific or merely pecuniary; (Flanders v. Clarke, 3 Atk. 510; Abney v. Miller, 2 (z) L. 2, c. 26. Atk. 598;) a court of equity, indeed, any thing by way of abatement, unless there be not sufficient without it (a) (61). Upon the same principle, if the legatees (a) 2 Vern. 111. (61) A specific legacy is an imme. diate gift of any fund bequeathed, with all its produce; and is therefore an exception to the general rule, that a legacy does not carry interest till the end of a year after the testator's death: (Raven v. Waite, 1 Swanst. 557; Barrington v. Tristam, 6 Ves. 349:) and, though the payment of a principal fund, bequeathed to an infant, may depend on his attaining his majority; yet, the interest accrued from the death of the testator, may belong to the legatee, notwithstanding he does not live to take any thing in the principal. (Deane v. Test, 9 Ves. 153.) The criterion of a specific legacy is, that it is liable to ademption; that when the thing bequeathed is once gone, in the testator's lifetime, it is absolutely lost to the legatee. (Parrot v. Worsfield, 1 Jac. & Walk. 601.) When, therefore, a testator has bequeathed a legacy of certain stock in the public funds, or of a particular debt, so described as to render the bequest, in either case, specific; if that stock should be afterwards sold out by the testator, or if that debt should, in his lifetime, be paid or cancelled, the legacy would be adeemed. (Ashburner v. M'Guire, 2 Br. 109.) And it appears that there is no distinction between a voluntary and a compulsory payment to the testator, as to the question of ademption. (Innes v. Johnson, 4 Ves. 574.) The idea of proceeding on the animus adimendi, (though supported by plausible reasoning,) was found to introduce a degree of confusion into the decisions on the subject, and to afford no precise rule. (Stanley v. Potter, 2 Cox, 182; Humphreys v. Humphreys, 2 Cox, 185.) It seems, therefore, now esta blished that, whenever the testator has himself received, or otherwise disposed of, the subject of gift, the principle of ademption is, that the thing given no longer exists; and if, after a particular debt given by will had been received by the testator, it could be demanded by the legatee, that would be converting it into a pecuniary, instead of a specific legacy. (Fryer v. Morris, 9 Ves. 363; Barker v. Rayner, 5 Mad. 217.) Where, indeed, the identical corpus is not given; (Selwood v. Mildmay, 3 Ves. 310;) where the legacy is not specific, but what is termed in the civil law a demonstrative legacy—that is, a general pecuniary legacy, with a particular security pointed out as a convenient mode of payment; there, although such security may be called in, or fail, the legacy will not be adeemed: (Guillaume v. Adderley, 15 Ves. 389; Sibley v. Perry, 7 Ves. 529; Kirby v. Potter, 4 Ves. 751; Le Grice v. Finch, 3 Meriv. 52; Forler v. Willoughby, 2 Sim. & Stu. 358:) but, when it is once settled that a legacy is specific, the only safe and clear way, it has been judicially said, is to adhere to the plain rule-that there is an end of a specific gift, if the specific thing do not exist at the testator's death. (Barker v. Rayner, 5 Mad. 217; S. C. on appeal, 2 Russ. 125.) Courts of equity are always anxious to hold a legacy to be pecuniary, rather than specific, where the intention of the testator is at all doubtful. (Chaworth v. Beech, 4 Ves. 566; Innes v. Johnson, ibid. 573; Kirby v. Potter, ibid. 752; Sibley v. Perry, 7 Ves. 529; Webster v. Hale, 8 Ves. 413.) The greater part of this note is extracted from 1 Hovenden's Suppl. to Ves. jun. Reports, 312. had been paid their legacies, they are afterwards bound to refund a rateable part, in case debts come in, more than sufficient to exhaust the residuum after the legacies paid (b). And this law is as old as Bracton and Fleta; who tell us (c), “si 66 plura sint debita, vel plus legatum fuerit, ad quæ catalla "defuncti non sufficiant, fiat ubique defalcatio, excepto regis "privilegio." die before the testator, the leis lapsed, duary estate. If the legatee dies before the testator, the legacy is a lost if the legatee or lapsed legacy, and shall sink into the residuum. And if a contingent legacy be left to any one, as when he attains, and goes to form or if he attains, the age of twenty-one, and he dies before usesthat time, it is a lapsed legacy (d) (62). But a legacy to one, to be paid when he attains the age of twenty-one years, is a vested legacy; an interest which commences in præsenti, although it be solvendum in futuro: and if the legatee dies (c) Bract. 1. 2, c. 26; Flet. 1. 2, c. 57, s. 11. (d) Dyer, 59; 1 Eq. Cas. Abr. 295. (b) 2 Vern. 205. (62) A legacy may be so given, as that the legatee shall be entitled to the interest or produce thereof, from the time of the testator's death to his own, although such legatee may not live long enough to entitle himself to the principal. (Deane v. Test, 9 Ves. 153, as cited in the last note.) But where a bequest is made to a legatee, "at his age of twenty-one," or any other specified age; or, "if he attain such age ;" this is such a description of the person who is to take, that if the legatee do not sustain the character at that time, the legacy will fail: the time when it is to be paid is attached to the legacy itself, and the condition precedent prevents the legacy from vesting. (Parsons v. Parsons, 5 Ves. 582; Sansbury v. Read, 12 Ves. 78; Errington v. Chapman, Ibid. 24.) But if the legacy be to an infant, "payable at twenty-one," the legacy is held to be vested; the description of the legatee is satisfied, and the other part of the direction refers to the payment only. This distinction (as stated in the text) is borrowed from the civil law, but is adop ted as to personal legacies only, not as |