Chap. LI. expenses include costs of action. It is now settled that a direction to pay testamentary expenses includes the costs of an administration action, except in so far Testamentary as they have been increased by the administration of the real estate. Morrell v. Fisher, 4 De G. & S. 422; Miles v. Harrison, 9 Ch. 316; Harloe v. Harloe, 20 Eq. 471; Penny v. Penny, 11 Ch. D. 440; Re Young; Young v. Dolman, 44 L. T. 499; Patching v. Barnett, 51 L. J. Ch. 74; In re Middleton; Thompson v. Harris, 19 Ch. D. 552; see In re Roper; Taylor v. Bland, 45 Ch. D. 126. The term executorship expenses has the same meaning. Executorship Sharp v. Lush, 10 Ch. D. 468. expenses. Costs of an administration suit have been held to be included Funeral and other exunder “funeral and other expenses" and "legal expenses." penses. Webb v. De Beauvoisin, 31 B. 573; Coventry v. Coventry, 2 Dr. & Sm, 470. But the words "debts and costs of proving the will" do not include costs of a suit. Stringer v. Harper, 26 B. 585; see Alsop v. Bell, 24 B. 451. Browne v. Groombridge, 4 Mad. 495, and Gilbertson v. Gilbertson, 34 B. 354, where the costs of a special case were held not included in testamentary expenses, and In re Biel's Estate, 16 Eq. 577, may be considered overruled. See, too, Brown v. Burdett, 53 L. J. Ch. 56. A fund charged with payment of testamentary expenses need not be retained by the executors for more than a year if no action is apprehended. In re Cope's Trusts, 36 L. T. N. S. 437. Costs of special case. estate liable for costs. If no particular fund is appointed by the testator, costs of Personal administration are payable out of the personal estate, except in so far as they have been increased by administration of the realty, which in that case must bear the added costs. Ripley v. Moysey, 1 Kee. 578; Pickford v. Brown, 2 K. & J. 426; Jackson v. Pease, 19 Eq. 96; In re Middleton; Thompson v. Harris, 19 Ch. D. 552; In re Towry's Settled Estate; Dallas v. Towry, 41 Ch. D. 64, p. 87; see In re Price; Williams v. Jenkins, 31 Ch. D. 485. The costs of administration include the costs of getting in What costs any part of the personal estate which is in a foreign country and are included. Chap. LI. Mixed residue bears costs rateably. Unappointed Devised and the payment of all duties necessary for that purpose. Peter v. Stirling, 10 Ch. D. 279. Where the residue is composed of the proceeds of sale of realty directed to be converted and of personalty, given together as a mixed fund, costs of administration are payable out of the mixed fund rateably, and a lapsed share will not be applied before shares well disposed of. This is the case though the personalty may not be exonerated for the purpose of paying debts. Luckcraft v. Pridham, 48 L. J. Ch. 636. In the case of a fund subject to a power the costs of administration will be borne rateably by appointed and unappointed shares. Warren v. Postlethwaite, 2 Coll. 108, 116; Trollope v. Routledge, 1 De G. & S. 662; Moore v. Dixon, 15 Ch. D. 566. It seems that devised and lapsed estates bear costs rateably. lapsed estates. Maddison v. Pye, 32 B. 658; Bagot v. Legge, 2 Dr. & Sm. 259; see, however, Scott v. Cumberland, 18 Eq. 578, and cases cited ante, p. 662. Probate and estate duty. Probate Duty and the old Estate Duty are payable out of the residuary personalty. In re Bourne; Martin v. Martin, (1893) 1 Ch. 188. The heir cannot be made liable to pay the Probate Duty. Shepheard v. Beetham, 6 Ch. D. 597. Costs of administration have precedence over any other costs directed to be paid out of the estate; for instance, costs of a suit in the probate division. In re Mayhew; Rowles v. Mayhew, 5 Ch. D. 596; Gillooly v. Plunkett, 9 L. R. Ir. 324; In re Price; Williams v. Jenkins, 31 Ch. D. 485. MARSHALLING. A fund applied out of its order is entitled to be recouped. I. General rules. Where a fund has been applied out of its proper order in the administration of assets, the persons who would have been entitled to the fund may claim for the amount so applied against the fund, which ought to have been applied in priority to their own. See Tombs v. Roch, 2 Coll. 490; In re Mower's Trusts, 8 Eq. 110. cases marshalling has been Chap. LI. between the heir or charged with devisee And in some anomalous allowed in favour of persons entitled to a fund which has been Marshalling applied in its proper order: thus, legatees may stand against legatees and descended realty or against realty charged with debts, if the personalty has been exhausted in payment of debts. Foster v. Cook, 3 B. C. C. 347; Paterson v. Scott, 1 D. M. & G. 531; Rickard v. Barrett, 3 K. & J. 289; Re Stokes; Parsons v. Miller, 67 L. T. 223. So, too, a general pecuniary legatee is entitled to stand against the mortgaged land in the place of a mortgagee who has exhausted the personal estate in payment of the mortgage. Forrester v. Leigh, Amb. 172; Wythe v. Henniker, 2 M. & K. 635; Binns v. Nichols, L. R. 2 Eq. 256. debts. Between legatees and devisee of mortgaged lands. devisees. Pecuniary legatees are, however, not entitled to have the Between legatees and assets marshalled against residuary devisees, where the land residuary is not charged with debts. Hensman v. Fryer, 3 Ch. 420; Collins v. Lewis, 8 Eq. 708; Dugdale v. Dugdale, 14 Eq. 234. Upon similar principles it has been held that legatees are entitled to stand in the place of the vendor against an estate purchased by the testator and paid for after his death out of the general personal estate. This is clear where the estate has descended. Sproule v. Prior, 8 Sim. 189. And it has been so held where the estate is devised. Birds v. Askey, 24 B. 618; Lord Lilford v. Powys Keck, L. R. 1 Eq. 347. Wythe v. Henniker, 2 M. & K. 635, is contra; see Barnwell v. Iremonger, 1 Dr. & S. 255. So, too, the principle of marshalling applies between legatees, some of whose legacies are charged upon realty and others not. Hanby v. Roberts, Ambl. 127; 2 Coll. 512; Dick. 104. But this is not the case if the claim against one of the funds fails; if, for instance, where the legacy is charged on land, the legatee dies before the time of payment. Prowse v. Abingdon, 1 Atk. 482; Pearce v. Loman, 3 Ves. 135. Where a testator charged the whole of his estate with the payment of debts rateably, and the debts were paid exclusively out of the general personal estate, it was held that the specifically bequeathed personal estate, and the real estate were bound to Between legatees and devisee subject to a purchase lien for the money. Between Chap. LI. Assets not marshalled in favour of charities. Direction that Direction that to charity is to consist of pure personalty. pay interest on the proportion due from them from the time when the debts were paid. Ashworth v. Munn, 34 Ch. D. 391. II. Marshalling in the case of charities: In cases not within the Mortmain and Charitable Uses Act, 1891, when pure and impure personalty is given to charity, the court will not marshall the assets so as to cast the debts on the impure personalty, unless an intention can be gathered from the will that the assets are to be marshalled. Gaskin v. Rogers, L. R. 2 Eq. 284; Wigg v. Nicholl, 14 Eq. 92; see Biggar v. Eastwood, 19 L. R. Ir. 49, as to the Irish practice. In the absence of such an intention the charitable legacies will abate in the proportion of the pure to the impure personalty, the value being taken as at the time of the testator's death. Calvert v. Armitage, 2 N. R. 60; Luckcraft v. Pridham, 48 L. J. Ch. 636, 639. A direction that the charities are to be paid out of pure personalty will give them priority over other legatees as regards the pure personalty, but will not release the pure personalty from bearing its proportion of the debts. Robinson v. Geldard, 3 De G. & S. 499; 3 Mac. & G. 735; Tempest v. Tempest, 2 K. & J. 635; 7 D. M. & G. 470; Beaumont v. Oliveira, 6 Eq. 534; 4 Ch. 309; Lewis v. Boetefeur, 38 L. T. 93; W. N. 1879, p. 11; see, however, Nickisson v. Cockill, 3 D. J. & S. 622. But a gift of residue to charity with a direction that the residue given residue so given is to consist of pure personalty, following a provision for payment of debts out of realty and out of residuary personalty only so far as the realty will not extend, throws the debts on the impure personalty in default of realty. Wills v. Bourne, 16 Eq. 487; see In re Arnold; Ravenscroft v. Workman, 37 Ch. D. 637. Personalty given specifically. The same is the effect of a direction to reserve the pure personalty for charities. Miles v. Harrison, 9 Ch. 316; see In re Pitt's Estate; Lacy v. Stone, 33 W. R. 653. A gift to a charity of such part of the testator's personal estate as he can so bequeath is specific and throws the debts on assets applicable in priority to specific legacies. Shepheard v. Beetham, 6 Ch. D. 597. If the testator exonerates the pure personalty from debts it must nevertheless bear its share of the costs of administration if they are not provided for. In re Fitzgerald; Adolph v. Dolman, 26 W. R. 53. Chap. LI. CHARGE OF DEBTS. I. What debts it includes: debts includes A direction to pay debts includes all the legal debts of the Charge of testator subsisting at his death, but not debts barred by debts subsiststatute. Burke v. Jones, 2 V. & B. 275; Maxwell v. Max- ing at the well, L. R. 4 H. L. 506; see Hawkins v. Hawkins, 13 Ch. D. 470. death. A trust for payment of debts will not prevent the statute from Trust to pay continuing to run. Scott v. Jones, 4 Cl. & F. 382. Possibly, a direction to pay specific debts barred by statute would revive them. See Clinton v. Brophy, 10 Ir. Eq. 139; In re Bermingham, I. R. 4 Eq. 187; In re Warnoch's Estate, I. R. 11 Eq. 212. debts. accrued after the death. A charge of debts will include damages accrued after the Damages testator's death on an equitable liability to indemnify and damages recovered in respect of a covenant broken after the testator's death. Willson v. Leonard, 3 B. 373; Morse v. Tucker, 5 Ha. 79. Debts due at a particular And though there may be words limiting the debts to a particular class of debts, such as debts due at a particular period time. of the testator's life, the Court will lean to the wider construction, so as to include all the debts. Bridgman v. Dove, 2 Atk. 201; Dormay v. Borradaile, 10 B. 263; Bermingham v. Burke, 2 J. & Lat. 699. A direction to pay the debts of another person includes the Direction to pay debts of debts subsisting at his death, but not debts barred by statute. another. O'Connor v. Haslam, 5 H. L. 170; see, too, Martin v. Smyth, 3 L. R. Ir. 417; 5 ib. 266. Direction to deduct debts But a direction to deduct from the share of a legatee the debts due from him to other legatees will include debts barred by statute, where the testator's intention is, that the debts in legatee. due from a |