5. If it is clear that the executors are appointed not from Chap. L. personal motives, but merely from convenience or because they Executors appointed occupy a particular position, they take as trustees. Urquhart for particular v. King, 7 Ves. 224; De Mazay v. Pybus, 4 Ves. 644; Sadler reasons. v. Turner, 8 Ves. 616. Evidence in favour of next of kin is not admissible, except to rebut evidence in favour of the executors. 3 V. & B. 72. White v. Williams, CHAPTER LI. Chap. LI. 1. General personal estate. Residue undisposed of. Legacy given general per- ADMINISTRATION. THE ORDER OF ASSETS. THE order in which the assets of a testator are applied in administration is as follows :— I. The general personal estate. Manning v. Spooner, 3 Ves. 117. 1. And as to this, if a specific fund of personalty is charged, it is primarily liable if the residue is disposed of. Browne v. Groombridge, 4 Mad. 495; Choat v. Yeates, 1 J. & W. 102; Evans v. Evans, 17 Sim. 106; Phillips v. Eastwood, 1 Ll. & G. 294; Webb v. De Beauvoisin, 31 B. 573; Vernon v. Earl Manners, ib. 623; Longfield v. Bantry, 15 L. R. Ir. 101. 2. If, however, the residue is undisposed of, the latter is primarily liable. Holford v. Wood, 4 Ves. 78; Hewett v. Snare, 1 De G. & S. 333; Newbegin v. Bell, 23 B. 386; Corbet v. Corbet, I. R. 8 Eq. 407; see Re Isabel Williams; Green v. Burgess, 59 L. T. 310. 3. And generally it would seem that where there is no residuary gift, but there is in fact a residue of which no disposition has been attempted, this is in all cases the primary fund for payment of debts. Howse v. Chapman, 4 Ves. 542; Taylor v. Mogg, 27 L. J. Ch. 816. Legacies, however, even if given in lieu of a share of residue, the gift of which is revoked, and thereby becomes undisposed of, are not payable out of the share undisposed of, but out of the general estate. Sykes v. Sykes, 4 Eq. 200; 3 Ch. 301; see Cresswell v. Cheslyn, 2 Ed. 123; 3 B. P. C. 246; see 1 Sw. 571, n. But the testator may direct them to be paid out of the revoked share of residue. In re Wood's Will, 29 B. 236; Walsh v. Walsh, I. R. 4 Eq. 396. Chap. LI. lapsed. A specific legacy falling into the residue by reason of lapse Specific legacy bears its rateable proportion with the other residue. Scott v. Forristall, 10 W. R. 37; Morley v. Tunstall, 7 Eq. 416, n. lapsed share 4. On the question whether a lapsed share of residue is Whether a applicable in payment of debts in priority to a share effectually of residue is disposed of : a. If there is a general charge of debts, a lapsed share only contributes rateably. Eyre v. Marsden, 4 M. & Cr. 231; Burt v. Sturt, 10 Ha. 415; Oddie v. Brown, 4 De G. & J. 179; see Elborne v. Goode, 14 Sim. 165; Ralph v. Carrick, 5 Ch. D. 984. applicable before a share well disposed of. debts. b. The same rule applies where there is no charge of debts. No charge of Trethewy v. Helyar, 4 Ch. D. 53; Fenton v. Wills, 7 Ch. D. 33 ; Blann v. Bell, 7 Ch. D. 382; overruling, so far as contra, Gowan v. Broughton, 19 Eq. 77; see In re Jones; Jones v. Caless, 10 Ch. D. 40. Upon this principle, if a mixed residue of pure and impure personalty was given to a charity, so that the gift failed as regards the impure personalty, the latter was not the primary fund as against the other portion, the gift of which took effect, but debts were payable rateably out of both. A.-G. v. Lord Winchelsea, 3 B. C. C. 373; S. C. A.-G. v. Hurst, 2 Cox, 364; for payment estate devised Milnes v. Slater, 517; Phillips v. of debts. estate II. Real estate devised or ordered to be sold for payment of II. Real debts, whether it descends to the heir or not. 8 Ves. 295; West v. Lawday, I. R. 2 Eq. Parry, 22 B. 279; Stead v. Hardaker, 15 Eq. 175. III. Real estate not charged with debts which descends, be- III. Real cause no disposition has been attempted. Davies v. Topp, descended not 1 B. C. C. 527; Harmood v. Oglander, 8 Ves. 125; Manning charged with V. Spooner, 3 Ves. 117; Sellon v. Watts, 9 W. R. 847; Wood v. Ordish, 3 Sm. & G. 125; Barber v. Wood, 4 Ch. D. 885. IV. Real estate charged with payment of debts and devised or descended rateably. Wood v. Ordish, 3 Sm. & G. 125; Peacock v. Peacock, 13 W. R. 516; 34 L. J. Ch. 315; Ryves v. T.W. UU debts. IV. Real estate charged with debts and devised or descended. Chap. LI. V. General legacies. Right of pecuniary legatees against real estate debts. Ryves, 11 Eq. 539; Stead v. Hardaker, 15 Eq. 175; Barber v. Wood, 4 Ch. D. 885; see, however, Williams v. Chitty, 3 Ves. 545. V. General pecuniary legacies rateably. The right of the pecuniary legatees as against real estate charged with payment of debts, appears to rest on an anomalous application of the doctrine of marshalling. If the land is charged with devised subject to payment of debts creditors have two funds. If they exhaust the personal estate, legatees may stand in the place of the creditors against the real estate. It is, however, settled that a charge of debts on real estate does not exonerate the personalty from its primary liability to pay debts. It is difficult, therefore, to see how the doctrine of marshalling applies. Distinction between express and implied charge. If fund A. is properly applicable before fund B., what right have the owners of fund A. to take any part of fund B. because their own fund is applied in its proper order? The doctrine is, however, established by a long line of cases, which it is now too late to reconsider. Haslewood v. Pope, 3 P. W. 322; Arnold v. Chapman, 1 Ves. Sen. 108, 110; Foster v. Cook, 3 B. C. C. 347; Bradford v. Foley, 3 B. C. C. 351 n.; Webster v. Alsop, 3 B. C. C. 352 n.; Aldrich v. Cooper, 8 Ves. 381, 396; Paterson v. Scott, 1 D. M. & G. 531; Rickard v. Barrett, 3 K & J. 289; Surtees v. Parkin, 19 B. 406; Re Stokes; Parsons v. Miller, 67 L. T. 223, where Re Bate; Bate v. Bate, 43 Ch. D. 600 is considered, and see In re Butler; Le Bas v. Herbert, (1894) 3 Ch. 250. The cases do not draw any distinction between an express charge of debts and a charge of debts implied from a general direction to pay debts. In Bradford v. Foley there appears to have been only a general direction to pay debts. The judgment in In re Bate, where there was also only a direction to pay debts, did not lay any stress on this circumstance. The doctrine is very similar to the doctrine established before Locke King's Act, that pecuniary legatees are entitled to stand in the place of a mortgagee against mortgaged real estate if the personal estate is exhausted by the mortgagee, a doctrine which seems to be equally unfounded in principle, though established as the rule of the Court. Chap. LI. against See Forrester v. Leigh, Amb. 171; Wythe v. Henniker, 2 M. & K. 635, 644. The liability of pecuniary legatees to be applied before Liability of residuary devisees is settled by Mirehouse v. Scaife, 2 M. & Cr. legates as 695; Gibbins v. Eyden, 7 Eq. 371; Collins v. Lewis, 8 Eq. residuary 708; Dugdale v. Dugdale, 14 Eq. 234; Tomkins v. Coulthurst, 1 Ch. D. 626; Farquharson v. Floyer, 3 Ch. D. 109, not following Hensman v. Fryer, 3 Ch. 420. In these cases the real estate was devised in words which did not make debts and legacies a charge within the rule in Greville v. Browne. If there had been such a charge different considerations would have applied. devisees. 1. As between general legacies the further question may Whether arise if there is no residuary gift, whether a lapsed pecuniary lapsed legacy legacy exonerates those that take effect : is applicable before those effectually a. Where all the legacies are subject to a charge of debts, a given. lapsed pecuniary legacy only contributes rateably. Howse v. Chapman, 4 Ves. 542. b. Where there is no charge of debts possibly on the principle of Gowan v. Broughton, 19 Eq. 77; Scott v. Cumberland, 18 Eq. 578, a lapsed legacy may be primarily applicable; see, however, p. 657, ante; and see In re Ham's Trusts, 2 Sim. N. S. 106. 2. As to what are general legacies for the purpose of abate- What are abatement. ment:general legacies for Legacy duty directed to be paid on a specific legacy is a purposes of general legacy and abates with the general legacies. Farrer v. St. Catherine's Coll., 16 Eq. 19; see Wilson v. O'Leary, 17 Eq. 419; In re Wilkins; Wilkins v. Rotherham, 27 Ch. D. 703. And annuities for the purpose of abatement rank with general legacies. Miller v. Huddlestone, 1 Mac. & G. 513. A rent charge, however, or annuity issuing out of the land, Rent charges. has priority over legacies charged upon the land in the event of deficiency of the personalty. Creed v. Creed, 11 Cl. & F. 491; In re Briggs; Briggs v. George, 29 W. R. 925. In estimating the value of annuities for purposes of abatement their value is to be taken at the time when the estimate UU 2 How the annuities is to value of be calculated. |