Gambar halaman
PDF
ePub

money.

purchase 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. Between So, too, the principle of marshalling applies between with and legatees, some of whose legacies are charged upon realty without a and others not. Hanby v. Roberts, Ambl. 127; 2 Coll. 512; charge on realty. 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. 133.

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 : Assets not When pure and impure personalty is given to charity, marshalled

the Court will not marshal the assets so as to cast the in favour of charities. 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.

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; Luick

craft v. Pridham, 48 L. J. Ch. 636, 639. Direction

A direction that the charities are to be paid out of pure that charities are to personalty will give them priority over other legatees as be paid out regards the pure personalty, but will not release the personalty. pure personalty from bearing its proportion of the debts.

of pure

a

that resi.

is to con

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.

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

personalty. tend, throws the debts on the impure personalty in default of realty. Wills v. Bourne, 16 Eq. 487.

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 given spedebts 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:
A direction to pay debts includes all the legal debts of Charge

of debts the testator subsisting at his death, but not debts barred includes by statute. Burke v. Jones, 2 V. & B. 275; Maxwell v.

debts sub

sisting at Maxwell, L. R. 4 H. L. 506; see Hawkins v. Hawkins, 13 the death. Ch. D. 470.

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

pay debts

to pay

Ir. Eq. 139; In re Bermingham, I. R. 4 Eq. 187; In re

Warnoch’s Estate, I. R. 11 Eq. 212. Damages A charge of debts will include damages accrued after accrued after the the testator's death on an equitable liability to indemnify death.

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 And though there may be words limiting the debts to a at a particular 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 A direction to pay the debts of another person includes debts of the debts subsisting at his death, but not debts barred by another.

statute. O'Connor v. Haslam, 5 H. L. 170; see, too,

Martin v. Smith, 3 L. R. Ir. 417; 5 ib. 266. Dirertion But a direction to deduct from the share of a legatee to deduct debts due the debts due from him to other legatees will include

debts barred by statute, where the testator's intention legatee.

is, that the debts in question should be treated as if they were advances made by himself. Poole v. Poole, 7 Ch. 17.

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 : Charge of A charge of debts and legacies on all the property of the debts and legacies

testator charges them on specifically devised real estate. extends to Maskell v. Farrington, 3 D. J. & S. 338; Mannox v. specific devisees.

Greener, 14 Eq. 456 ; see Earl of Portarlington v. Damer, 4 D. J. & S. 161.

A charge of debts and legacies by the will would not

from a

fined to

a rent

affect lands specifically devised by a codicil. Quain v. Harvey, 5 L. R. Ir. 622; Wheeler v. Claydon, 16 B. 169. A general charge of legacies merely will not be extended Charge of

legacies to lands specifically devised, but will be confined to re-only is con siduary lands. Spong v. Spong, 1 Y. & J. 300; 3 Bl. N.

residuary 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 :

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

personalty a general charge of debts, as the additional words only ex- should be

insuffipress what would be implied without them. Greetham v. Colton, 34 B. 615. 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 :

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; realty.

charges 4 M. & Cr. 264; Shaw v. Borrer, 1 Kee. 559; Harding v. Grady, 1 D. & War. 430; Elliot v. Montgomery, I. R. 7

cient.

tained.

rection to

Eq. 214.

Whether real estate would be charged by such a direc- Whether tion where the will only attempts to dispose of personalty

realty left

to descend seems doubtful. The remarks of Sir R. P. Arden, in would be

charged.

tions of

Shallcross v. Finden, 3 Ves. 739, probably only contem

plate a case of lapse. Subse- A subsequent express charge of particular debts up? quent express certain estates or upon all the real estate, will not overcharge of certain

rule the general direction. Taylor v. Taylor, 6 Sim. 246 ; debts on

Forster v. Thompson, 4 D. & War. 303. Douce v. Lady particular estates. Torrington, 2 M. & K. 600, is overruled. Subse. Nor will a subsequent express charge of all the debes quent charge of upon the personalty. Price v. North, 1 Ph. 85; Grare all debts on

Graves, 8 Sim. 43; Hartland v. Murrell, 27 B. 204. personalty. Subse. But a subsequent express charge of all the debts upon Charge of particular portions of the realty would, it seems, overrule all debts the general direction. Palmer v. Graves, 1 Kee. 545. upon por

This distinction reconciles the case with those previousis the realty.

cited; but quære, whether it is substantial. Exception So, too, if certain real estate is expressly excepted out of of certain 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 Of course an express charge of debts on real and percharge not controlled sonal estate is not controlled by subsequent partial charges. by partial Wrigley v. Sykes, 21 B. 337. charges.

2. Direction to executors to pay debts : Direction 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 not charge

is expressly devised to him. Keeling v. Brown, 5 Ves. realty 359; Powell v. Robins, 7 Ves. 209; Cook v. Dawson, 29

B. 123; 3 D. F. & J. 127. devised to

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 Rus. 346, n. ; 3 Ves. 550; Willan v. Lancaster, 3 Russ. 108.

l But if the real estate is devised “subject as aforesaid,"

it is charged. Dowling v. Hudson, 17 B. 248. Land de- 6. If land is devised to the executors, whether in trust

to execu

debts will

where no land is

them.

« SebelumnyaLanjutkan »