estate

III. Real III. Real estate not charged with debts which descends, descended because no disposition has been attempted. Daries v. not Topp, 1 B. C. C. 527; Harmood v. Oglander, 8 Ves. 125; with debts. Manning v. Spooner, 3 Ves. 117.

charged

estate

charged

and

IV. Real IV. Real estate charged with payment of debts and devised or descended rateably. Wood v. Ordish, 3 Sm. with debts & G. 125; Peacock v. Peacock, 13 W. R. 516; 34 L. J. Ch. devised or 315; Ryves v. 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.

descended.

V. General legacies.

Whether lapsed legacy is

before

V. General pecuniary legacies rateably. Collins v. Lewis, 8 Eq. 708; Dugdale v. Dugdale, 14 Eq. 234; Tomkins v. Colthurst, 1 Ch. D. 626; Farquharson v. Flower, 3 Ch. D. 109; see Hensman v. Fryer, 3 Ch. 420.

1. As between general legacies the further question may arise if there is no residuary gift, whether a lapsed applicable pecuniary legacy exonerates those that take effect:a. Where all the legacies are subject to a charge of given. debts, a lapsed pecuniary legacy only contributes rateably. Howse v. Chapman, 4 Ves. 542.

those

effectually

What are general

b. Where there is no charge of debts possibly on the principle of Gowan v. Broughton, 19 Eq. 77, and Scott v. Cumberland, 18 Eq. 578, a lapsed legacy may be primarily applicable; see, however, p. 619, ante; and see In re Ham's Trusts, 2 Sim. N. S. 106.

2. As to what are general legacies for the purpose of legacies for abatement:

purposes of abatement.

Rent

charges.

Legacy duty directed to be paid on a specific legacy is a general legacy and abates with the general legacies. Farrar v. St. Catherine's Coll., 16 Eq. 19; see Wilson v. O'Leary, 17 Eq. 419.

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 has priority over legacies charged upon the land in

the event of deficiency of the personalty. Creed v. Creed, 11 Cl. & F. 491.

value of

is to be

calculated.

In estimating the value of annuities for purposes of How the abatement their value is to be taken at the time when the annuities estimate is made; thus the value of the annuity of an annuitant who is dead, is the sum of the payments which would have been made to him in respect of it, and the value of a reversionary annuity which has come into possession is its present value at the time of abatement, plus any arrears due upon it. Todd v. Bielby, 27 B. 353; Potts v. Smith, 8 Eq. 683.

Where legacies and annuities are charged on real estate, powers of distress and entry conferred upon the annuitants do not give the annuities priority over the legatees. Roper v. Roper, 3 Ch. D. 714.

3. Priority of general legacies, inter se:—

for valu

sideration

a. As between general legatees, legacies given for valu- Legacies able consideration, as for debts or instead of dower, have able conpriority. Blower v. Morrett, 2 Ves. sen. 420; Heath v. have Dendy, 1 Russ. 543; Norcott v. Gordon, 14 Sim. 258; Bell priority. v. Bell, 6 Ir. Eq. 239; Davies v. Bush, 1 You. 341; Stahlschmidt v. Lett, 1 Sm. & G. 421.

A legacy, however, in lieu of dower, where the testator has no land out of which the widow is dowable, has no priority. Acey v. Simpson, 5 B. 35; Roper v. Roper, 3 Ch. D. 714.

A legacy to an executor for his trouble has no priority. Duncan v. Watts, 16 B. 204.

A legacy to the testator's wife to be paid immediately after his decease has recently been held to have priority. In re Hardy; Wells v. Barwick, 50 L. J. Ch. 241; see, however, Blower v. Morret, 2 Ves. sen. 420; Roche v. Harding, 7 Ir. Ch. 338.

b. Legacies payable at the death of a tenant for life or Time of at some other future period, do not abate before other payment

creates no legacies. Miller v. Huddlestone, 3 Mac. & G. 513; Street priority. v. Street, 2 N. R. 56; Nickisson v. Cockill, 3 D. J. & S. 622.

Legacies intro

duced by

'firstly,' "second

ly."

Legacies given on supposition of a surplus.

Legacies for life

on the

The words "in the first place," "in the next place,” or the word "afterwards," used in introducing legacies, create no priority between them. Thwaites v. Forman, 1 Coll 409; Beeston v. Booth, 4 Mad. 161; Whitehouse v. Insole, 7 L. T. N. S. 400; see In re Hardy; Wells v. Barwick, 50 L. J. Ch. 241.

c. But legacies given on the supposition that there will be more than enough to pay prior legacies abate first. A.-G. v. Robins, 2 P. Wms. 23; Stammers v. Halliley, 12 Sim. 42.

And a direction that certain legacies given for life are applicable to become applicable on the death of the legatees to the payment of other legacies will give the legatees for life the lega priority. Brown v. Brown, 1 Kee. 275; see Haynes v. Haynes, 3 D. M. & G. 590.

death of

tees.

made

applicable

Real estate And where real estate given, subject to certain annuities, subject to annuities is made applicable in aid of the personalty to the payment of legacies subject to those annuities, the annuities in aid of have priority over the legacies. Earl of Portarlington v. personalty. Damer, 4 D. J. & S. 161; see Coore v. Todd, 7 D. M. & G. 520.

General

legacies have

priority

over

residue.

And, of course, when a particular legacy is given and the residue is then distributed in certain sums, the particular legacy has priority over all the others. Gyett v. Williams, 2 J. & H. 429; see In re Hardy; Wells v. Barwick, 50 L. J. Ch. 241.

4. Priority between general and residuary legatees :— a. As a general rule the residuary legatee is entitled to nothing till all the particular legacies given by the will are satisfied in full.

Thus, a gift of the rest of a specific fund after payment of debts and funeral expenses, where legacies have been

given as well, is a gift of the residue after payment of the legacies as well as the debts and funeral expenses. Foxen v. Foxen, 3 N. R. 452; 13 W. R. 33.

apart to

In the same way, where a fund is set apart to pay Fund set annuities and is directed upon the death of the annuitants pay an respectively to fall into the residue, if the fund is insuffi- nuities. cient to pay the annuities, the residuary legatee is entitled to nothing till all the legacies and annuities have been paid in full. Arnold v. Arnold, 2 M. & K. 374; Anderson v. Anderson, 33 B. 223; In re Tootal's Estate, 2 Ch. D. 628.

b. It would seem that a direction that in the event of Direction for abateinsufficiency of assets all the beneficiaries are to abate ment. does not entitle the residuary legatee to a fund which is released by the death of a tenant for life. In re Lyne's Estate; Sands v. Lyne, 8 Eq. 482.

On the other hand, if annuities are directed to abate in avour of legatees or vice versa, in the event of deficient assets the abatement is permanent and a fund falling in is not applicable to increase gifts which have abated. Farmer v. Mills, 4 Russ. 86; Hichens v. Hichens, 25 W. R. 249.

assets falls

residue.

c. Upon similar principles, where assets have been lost Loss of after the death of the testator, the loss falls on the residuary on the legatee in the first instance. Wilmot v. Jenkins, 1 B. 401; Baker v. Farmer, L. R. 3 Ch. 537. Dyose v. Dyose, 1 P. Wms. 305, is overruled; see Fonereau v. Poyntz, 1 B. C. C. 478; Humphreys v. Humphreys, 2 Cox, 186; Baker v. Farmer, supra.

On the other hand, if the legatees assent to an appro- Assent by legatees to priation of a particular sum in payment of their legacies, appropriathey are only entitled to the sum so appropriated and tion. must abate if that sum proves insufficient, whether through loss of assets or otherwise. Ex parte Chadwin, 3 Sw. 380.

Appropriation.

VI. Real estate

An appropriation in satisfaction of a legacy in order to bind a legatee must be in the 3 per cents. Prendergast v. Prendergast, 3 H. L. 195; Stewart v. Sanderson, 10 Eq. 26.

VI. Real estate devised, not charged with debts, indevised not cluding residuary real estate and specifically bequeathed charged with debts personal estate rateably. Hensman v. Fryer, 3 Ch. 420 and specific (see Lancefield v. Iggulden, 10 Ch. 136); Jackson v. Pease, gifts. 19 Eq. 96.

Lapsed realty.

Devise subject to rentcharge.

VII. Pro

perty ap

It seems to be the better opinion that real estate devised not charged with debts but descending by reason of lapse is applicable in the same order. Blann v. Bell, 47 L. J. Ch. 120; 7 Ch. D. 382; Luckcraft v. Pridham, 48 L. J. Ch. 636. Scott v. Cumberland, 18 Eq. 578, would probably not be followed; see Astley v. Micklethwait, 15 Ch. D. 59, 66; Trethewy v. Helyar, 4 Ch. D. 53; Row v. Row, 7 Eq. 414. In the case of land devised subject to a rent-charge or annuity, the rent-charge and the land abate rateably, Long v. Short, 1 P. Wms. 403; Jackson v. Hamilton, 9 Ir. Eq. 430; see Raikes v. Boulton, 29 B. 41.

VII. Property appointed by the will under a power of pointed. appointing, whether by deed or will or by will only. Fleming v. Buchanan, 3 D. M. & G. 976; Hawthorn v. Shedden, 3 Sm. & G. 305; Petre v. Petre, 14 B. 197; Williams v. Lomas, 16 B. 1.

VIII. Land

is governed

Property appointed by a married woman under a power of appointing by deed or will or by will only, is applicable in the same order. London Chartered Bank of Australia v. Lemprière, L. R. 4 P. C. 572; Mayd v. Field, 3 Ch. D. 587; In re Harvey's Estate; Godfrey v. Harden, 13 Ch.

D. 216.

VIII. Land in a foreign country is governed by the lez by the lex loci rei sita and is only liable to such debts as would be east upon it by the law of that country. Harrison v. Harrison, 8 Ch. 342,

loci.