COSTS OF ADMINISTRATION. adminis. The costs of an administration action are not debts Costs of within the meaning of a charge of debts. Stringer V. tration not 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. debts. mentary include It is now settled that a direction to pay testamentary Testaexpenses includes the costs of an administration action. expenses Morrell v. Fisher, 4 De G. & Sm. 422; Miles v. Harrison, costs of 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. Sharp v. Lush, 10 Ch. D. 468. ship expenses. and other expenses. Costs of an administration suit have been held to be Funeral included under "funeral and other expenses" and "legal 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. case. Browne v. Groombridge, 4 Mad. 495, and Gilbertson v. Costs of special 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. 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 SS estate costs. What costs are Ripley v. Moysey, 1 Kee. 578; Pickford v. Brown, 2 K. & The costs of administration include the costs of getting 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. Costs of ascertain 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. And in the same way the costs of ascertaining the ing 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 lapsed share of residue. Mixed residue The costs of ascertaining the persons entitled to a lapsed share of residue must be borne by that share. Chatteris v. Young, Beames on Costs, 390; Skrymsher v. Northcote, 1 Sw. 566. Where the residue is composed of the proceeds of sale of bears costs realty directed to be converted and of personalty, given rateably. together as a mixed fund, costs of administration are pay Unap pointed fund not 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. In the case of a fund subject to a power the costs of administration will be borne rateably by appointed and 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 estates. 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 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. duty. I. General rules. MARSHALLING. applied out is entitled 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 have been entitled to the fund may claim for the amount to be reso 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. ling be 3 tees and Thus, legatees may stand against descended realty or Marshalagainst realty charged with debts, if the personalty has tween legabeen exhausted in payment of debts. Foster v. Cook, B. C. C. 347; Paterson v. Scott, 1 D. M. & G. 531; devisees Rickard v. Barrett, 3 K. & J. 289. the heir or charged with debts. legatees So, too, a general pecuniary legatee is entitled to stand Between against the mortgaged land in the place of a mortgagee and devisee who has exhausted the personal estate in payment of the of mortgaged mortgage. Forrester v. Leigh, Amb. 172; Wythe v. Hen- lands. niker, 2 M. & K. 635; Binns v. Nichols, L. R. 2 Eq. 256. legatees residuary Pecuniary legatees are, however, not entitled to have Between the assets marshalled against residuary devisees, where and the land is not charged with debts. Hensman v. Fryer, devisees. 3 Ch. 420; Collins v. Lewis, 8 Eq. 708; Dugdale v. Dugdale, 14 Eq. 234. legatees Upon similar principles it has been held that legatees Between 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 purchase death out of the general personal estate. This is clear where the estate has descended. Sproule v. Prior, 8 Sim. money. Between legatees with and without a charge on realty. Assets not 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. Of course persons whose fund has been applied in its proper order have no right to stand in the place of a creditor against a fund not applicable till after their own. Douglas v. Cooksey, I. R. 2 Eq. 311. II. Marshalling in the case of charities: When pure and impure personalty is given to charity, marshalled the Court will not marshal the assets so as to cast the charities. debts on the impure personalty, unless an intention can in favour of Direction that chari 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. In the absence of such an intention the charitable lega cies 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; Luck craft v. Pridham, 48 L. J. Ch. 636, 639. A direction that the charities are to be paid out of pure ties are to personalty will give them priority over other legatees as be paid out regards the pure personalty, but will not release the of pure personalty. pure personalty from bearing its proportion of the debts. Robinson v. Geldard, 3 De G. & Sm. 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. N. S. 93; see, however, Nickisson v. Cockill, 3 D. J. & S. 622. that resi is to con But a gift of residue to charity with a direction that the Direction residue so given is to consist of pure personalty, following due given a provision for payment of debts out of realty and out of to charity residuary personalty only so far as the realty will not ex- sist of pure tend, throws the debts on the impure personalty in default of realty. Wills v. Bourne, 16 Eq. 487. personalty. The same is the effect of a direction to reserve the pure personalty for charities. Miles v. Harrison, 9 Ch. 316. A gift to a charity of such part of the testator's personal Personalty 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. CHARGE OF DEBTS. I. What debts it includes: given specifically. of debts debts sub A direction to pay debts includes all the legal debts of Charge the testator subsisting at his death, but not debts barred includes by statute. Burke v. Jones, 2 V. & B. 275; Maxwell v. sisting at Maxwell, L. R. 4 H. L. 506; see Hawkins v. Hawkins, 13 the death. Ch. D. 470. pay debts A trust for payment of debts will not prevent the Trust to statute from 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 |