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apart to pay an.


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.

In the same way, where a fund is set apart to pay Fund set annuities and is directed upon the death of the annuitants 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 Tootals Estate, 2 Ch. D. 628. 6. 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.

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

Wilmot v. Jenkins, 1 B.

residue. legatee in the first instance. 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 priation of a particular sum in payment of their legacies, appropria

legatees to they 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.

assets falls estate


Appropria- An appropriation in satisfaction of a legacy in order to tion.

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

19 Eq. 96. Lapsed It seems to be the better opinion that real estate devised realty.

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,

Trethewy v. Helyar, 4 Ch. D. 53; Row v. Row, 7 Eq. 414. Devise In the case of land devised subject to a rent-charge or subject to

annuity, the rent-charge and the land abate rateably. charge.

Long v. Short, 1 P. Wms. 403; Jackson v. Hamilton, 9 Ir.

Eq. 430; see Raikes v. Boulton, 29 B. 41. VII. Pro. VII. Property appointed by the will under a power of perty appointed.

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.

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 VIII. Land in a foreign country is governed by the lex is governed by the lex loci rei sitæ 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.




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The costs of an administration action are not debts Costs of

adminis. within the meaning of a charge of debts. Stringer v. tration not

debts. Harper, 26 B. 585.

The order of assets for payment of such costs is not in all respects the same as that for payment of debts.

If a particular fund is appointed they are payable out of that. It is now settled that a direction to pay testamentary Testa

mentary expenses includes the costs of an administration action.

expenses Morrell v. Fisher, 4 De G. & Sm. 422; Miles v. Harrison,

include 9 Ch. 316; Harloe v. Harloe, 20 Eq. 471; Penny v. Penny, action. 11 Ch. D. 440. The term executorship expenses has the same meaning. Executor

ship Sharp v. Lush, 10 Ch. D. 468.

expenses. Costs of an administration suit have been held to be Funeral included under “funeral and other expenses” and “ “legal

expenses. expenses.” 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. Costs of Gilbertson, 34 B. 354, where the costs of a special case case.

special were held not included in testamentary expenses, and In re Biels Estate, 16 Eq. 577, may be considered overruled.

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.

If no particular fund is appointed by the testator, costs Personal of administration are payable out of the personal estate. liable for





Ripley v. Moysey, 1 Kee. 578; Pickford v. Brown, 2 K. &

J. 426; Jackson v. Pease, 19 Eq. 96. What The costs of administration include the costs of getting costs are included. in any part of the personal estate which is in a foreign

country and the payment of all duties necessary for that purpose. Peter v. Stirling, 10 Ch. D. 279.

The costs of deciding any question of construction upon the will, though it arises only with regard to a single legacy or a settled share, are payable out of residue.

Boulton v. Beard, 3 D. M. & G. 608. Costs of And in the same way the costs of ascertaining the ascertaining classes. persons or classes of persons entitled to gifts general or

residuary under the will are costs of administration. In

re Reeve's Trusts, 4 Ch. D. 841. Title to The costs of ascertaining the persons entitled to a lapsed lapsed share of

share of residue must be borne by that share. Chatteris residue.

v. Young, Beames on Costs, 390; Skrymsher v. Northcote,

1 Sw. 566. Mixed Where the residue is composed of the proceeds of sale of residue bears costs realty directed to be converted and of personalty, given rateably. together as a mixed fund, costs of administration are pay

able 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. Unap

In the case of a fund subject to a power the costs of pointed

administration will be borne rateably by appointed and fund not first liable. unappointed shares. .

Warren v. Postlethwaite, 2 Coll. 108, 116; Trollope v. Routledge, 1 De G. & Sm. 662;

Moore v. Dixon, 15 Ch. D. 566. Devised It seems that devised and lapsed estates bear costs and lapsed

rateably. 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. 624.


The heir cannot be made liable to pay the probate duty. 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.


the heir or

I. General rules.

Where a fund has been applied out of its proper order A fund in the administration of assets, the persons who would of its order

applied out have been entitled to the fund may claim for the amount is entitled so applied against the fund, which ought to have been couped. applied in priority to their own. See Tombs v. Roch, 2 Coll. 490; In re Mower's Trusts, 8 Eq. 110.

Thus, legatees may stand against descended realty or Marshalagainst realty charged with debts, if the personalty has tween lega

ling bebeen exhausted in payment of debts. Foster v. Cook, 3 tees and B. C. C. 347; Paterson v. Scott, 1 D. M. & G. 531 ; devisees

charged Rickard v. Barrett, 3 K. & J. 289.

with debts. So, too, a general pecuniary legatee is entitled to stand Between against the mortgaged land in the place of a mortgagee and devisee

legatees who has exhausted the personal estate in payment of the of mortmortgage. Forrester v. Leigh, Amb. 172; Wythe v. Hen- lands. niker, 2 M. & K. 635; Binns v. Nichols, L. R. 2 Eq. 256. Pecuniary legatees are, however, not entitled to have Between

legatees the assets marshalled against residuary devisces, where and the land is not charged with debts. Hensman v. Fryer, devisees.

residuary 3 Ch. 420; Collins v. Lewis, 8 Eq. 708; Dugdale v. Dugdale, 14 Eq. 234. Upon similar principles it has been held that legatees Between

legatees are entitled to stand in the place of the vendor against an and devisee estate purchased by the testator and paid for after his subject to a

lien for the

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