Damages accrued after the death. Debts due at a parti Ir. Eq. 139; In re Bermingham, I. R. 4 Eq. 187; In rë A charge of debts will include damages accrued after the 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. And though there may be words limiting the debts to a cular time. particular class of debts, such as debts due at a particular period 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. Direction to pay debts of another. Direction to deduct from a legatee. A direction to pay the debts of another person includes the debts subsisting at his death, but not debts barred by statute. O'Connor v. Haslam, 5 H. L. 170; see, too, Martin v. Smith, 3 L. R. Ir. 417; 5 ib. 266. But a direction to deduct from the share of a legatee debts due the debts due from him to other legatees will include debts barred by statute, where the testator's intention is, that the debts in question should be treated as if they were advances made by himself. Poole v. Poole, 7 Ch. 17. Charge of debts and So where a share of residue is given to a person and a debt due from him is directed to be deducted, the whole debt and not merely what can legally be recovered is to be deducted. Matthews v. Keble, 4 Eq. 467; 3 Ch. 691. II. Upon what property a charge of debts and legacies attaches : A charge of debts and legacies on all the property of the legacies testator charges them on specifically devised real estate. extends to Maskell v. Farrington, 3 D. J. & S. 338; Mannox v. Greener, 14 Eq. 456; see Earl of Portarlington v. Damer, 4 D. J. & S. 161. specific devisees. A charge of debts and legacies by the will would not affect lands specifically devised by a codicil. Quain v. Harvey, 5 L. R. Ir. 622; Wheeler v. Claydon, 16 B. 169. legacies fined to A general charge of legacies merely will not be extended Charge of to lands specifically devised, but will be confined to re- only is considuary lands. Spong v. Spong, 1 Y. & J. 300; 3 Bl. N. S. 84; 1 D. & Cl. 365; Conron v. Conron, 7 H. L. 168; lands. Campbell v. M'Conaghy, I. R. 6 Eq. 20. It seems indifferent whether the lands specifically given are expressly subject to certain other charges or not. Ib. III. How a charge of debts is created: residuary a rent It seems a gift of a rent-charge without more would Devise of effect a charge on all the testator's lands. Ex parte charge. McDowall, 5 Jur. N. S. 553. A charge of debts upon realty "in case the personal Charge on realty in estate should be insufficient for their payment" is in effect case the a general charge of debts, as the additional words only ex- should be press what would be implied without them. Greetham v. cient. Colton, 34 B. 615. personalty insuffi tained. The time for ascertaining whether the personalty is When sufficiency sufficient is the death of the testator. If the personal ascerestate becomes insufficient through the fault of the executors, the charge will not take effect unless the defaulting executors are also devisees of the land. Humble v. Humble, 2 Jur. 696; Howard v. Chaffers, 2 Dr. & Sm. 236; Richardson v. Morton, 13 Eq. 123. 1. General direction to pay debts: rection to It is now clearly settled that a general direction to pay General didebts charges them upon real estate devised by the will. pay debts Clifford v. Lewis, 6 Mad. 33; Ball v. Harris, 8 Sim. 485; 4 M. & Cr. 264; Shaw v. Borrer, 1 Kee. 559; Harding v. Grady, 1 D. & War. 430; Elliot v. Montgomery, I. R. 7 Eq. 214. charges realty. realty left to descend Whether real estate would be charged by such a direc- Whether tion where the will only attempts to dispose of personalty seems doubtful. The remarks of Sir R. P. Arden, in would be charged. Subsequent express Shallcross v. Finden, 3 Ves. 739, probably only contemplate a case of lapse. A subsequent express charge of particular debts up a certain estates or upon all the real estate, will not overcharge of rule the general direction. Taylor v. Taylor, 6 Sim. 245; Forster v. Thompson, 4 D. & War. 303. Douce v. Lady Torrington, 2 M. & K. 600, is overruled. certain debts on particular estates. Subse quent Subse Nor will a subsequent express charge of all the debts charge of upon the personalty. Price v. North, 1 Ph. 85; Graves all debts on v. Graves, 8 Sim. 43; Hartland v. Murrell, 27 B. 204. personalty. But a subsequent express charge of all the debts upon charge of particular portions of the realty would, it seems, overrule the general direction. Palmer v. Graves, 1 Kee. 543. This distinction reconciles the case with those previously cited; but quære, whether it is substantial. quent all debts upon portions of the realty. Exception of certain So, too, if certain real estate is expressly excepted out of real estate a subsequent charge of debts upon a portion of the realty, out of a the general direction is controlled. Thomas v. Britnell, subsequent charge. 2 Ves. sen. 313. Express charge not Of course an express charge of debts on real and percontrolled sonal estate is not controlled by subsequent partial charges. by partial Wrigley v. Sykes, 21 B. 337. charges. Direction to execu 2. Direction to executors to pay debts: a. Again, if the executor is directed to pay the debts, tors to pay they are not charged upon the real estate unless real estate debts will is expressly devised to him. Keeling v. Brown, 5 Ves 359; Powell v. Robins, 7 Ves. 209; Cook v. Dawson, 29 B. 123; 3 D. F. & J. 127. not charge realty where no land is devised to them. Land de A direction to an executor to pay debts, followed by a devise to another person introduced by the word "then," will not charge the land. Brydges v. Landen, 3 Russ. 346, n.; 3 Ves. 550; Willan v. Lancaster, 3 Russ. 108. But if the real estate is devised "subject as aforesaid," it is charged. Dowling v. Hudson, 17 B. 248. b. If land is devised to the executors, whether in trust executors or not, it is charged with debts. Barker v. Duke of Devon- vised to the shire, 3 Mer. 310; Henvell v. Whitaker, 3 Russ. 343; is charged. Dormay v. Borradaile, 10 B. 263; Hartland v. Murrell, 27 B. 204; Bentley v. Robinson, 10 Ir. Ch. 293; see In re Bailey, 12 Ch. D. 268. legacies to Alcock v. be paid by tor are a So legacies directed to be paid by the executor will be Whether a charge on land specifically devised to him. Sparhawk, 2 Vern. 228; 1 Eq. Ca. Ab. 198, pl. 4; v. Preston, 2 Jur. N. S. 1040; Gallimore v. Gill, 2 Sm. & charge on G. 158; 4 W. R. 773. The point is, however, not free cifically from doubt: see Parker v. Fearnley, 2 S. & St. 592; Cross him. v. Kennington, 9 B. 150; 10 Jur. 343; 15 L. J. Ch. 167. land spe devised to devise is in tail. It makes no difference apparently that the devise is of Where the an estate tail or of an estate tail for life. Clowdsley V. for life or Pelham, 1 Vern. 411; 1 Eq. Ab. 198, pl. 2; Harris v. Watkins, Kay, 438; Cook v. Dawson, 29 B. 123; see Finch v. Hattersley, 3 Russ. 345, n.; Doe d. Ashby v. Baines, 2 C. M. & R. 23. executors On the other hand, if land is devised only to one of Devises to several executors or unequal interests are devised to them, unequally. the land is not charged. Warren v. Davies, 2 M. & K. 49; Symons v. James, 2 Y. & C. C. 301; Wasse v. Helsington, 3 M. & K. 495; Bailey v. Bailey, 12 Ch. D. 268. A gift of real and personal estate after payment of debts Gift after charges both. Withers v. Kennedy, 2 M. & K. 607; of debts. Moores v. Whittle, 22 L. J. Ch. 207. payment Greville v. 3. When debts are directed to be paid, and there is a Rule in gift of the residue of the real and personal estate together, Browne. the legacies and debts are charged upon the entire residue Greville v. Browne, 7 H. L. 689; Gainsford v. Dunn, 17 Eq. 405; In re Bailey, 12 Ch. D. 268, 274. The charge extends to real estate which is enumerated in the residuary devise. Thorman v. Hilhouse, 7 W. R. 332; 5 Jur. N. S. 563; Bray v. Stevens, 12 Ch. D. 162; see Castle v. Gillett, 16 Eq. 530. Gift must be of residue. Personalty given in certain shares. Power to raise out of profits to pay debts The rule applies whether the residuary gift follows or precedes the gift of legacies. Elliott v. Dearsley, 16 Ch. D. 322. It is immaterial whether interests in land have been already given by the will or not. Bench v. Biles, 4 Mal 187; Francis v. Clemow, Kay, 435; Wheeler v. Howell, 3 K. & J. 198. The fact that the executors are directed to pay debts and legacies, the residuary realty and personalty being devised to other persons, will not exclude the rule. In re Brooke; Brooke v. Rooke, 3 Ch. D. 630. The rule does not apply where the gift is not of the "residue" of the real and personal estate. Symons v. James, 2 Y. & C. C. 301. Where the whole personal estate is disposed of in certain proportions, the sums so given out of the personalty will not be charged on the realty by a residuary gift. Gyett v. Williams, 2 J. & H. 429. 4. Charge upon income or corpus : It would seem that a power to raise money out of the rents and rents and profits would naturally mean out of the annual rents and profits, but the cases show that a power to raise or legacies. a lump sum out of rents and profits will authorise a sale, See Bootle v. Blundell, 1 Mer. 233, per Lord Eldon; Baines v. Dixon, 1 Ves. sen. 42. Money within a This is clear at any rate where the object is to pay debts or legacies. Lingon v. Foley, 2 Ch. Ca. 205; Anon. 1 Vern. 104; Berry v. Askham, 2 Vern. 26; Metcalfe v. Hutchinson, 1 Ch. D. 591; Lord Londesborough v. Somerville, 19 B. 295. Or, if the money is to be raised within a given time, and payable the annual rents would be insufficient to raise the money given time. within that time. Sheldon v. Dormer, 2 Vern. 310; Warburton v. Warburton, ib. 420; Gibson v. Lord Montfort, 1 Ves. sen. 491. |