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or not, it is charged with debts. Barker v. Duke of Devon- vised to the
executors 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. So legacies directed to be paid by the executor will be Whether
legacies to a charge on land specifically devised to him. Alcock v. be paid by Sparhawk, 2 Vern. 228; 1 Eq. Ca. Ab. 198, pl. 4; Preston the execuv. 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
devised to 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. It makes no difference apparently that the devise is of Where the
devise is 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.
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.
payment Moores v. Whittle, 22 L. J. Ch. 207.
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.
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 Mad. 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. Gift must
The rule does not apply where the gift is not of the be of “residue” of the real and personal estate. Symons v. residue.
James, 2 Y. & C. C. 301. Personalty Where the whole personal estate is disposed of in certain given in
proportions, the sums so given out of the personalty will certain shares. not be charged on the realty by a residuary gift. Gyett v.
Williams, 2 J. & H. 429.
4. Charge upon income or corpus : Power to It would seem that a power to raise money out of the raise out of rents and rents and profits would naturally mean out of the annual profits to
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.
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. Somer
ville, 19 B. 295. Money Or, if the money is to be raised within a given time, and payable within a
the annual rents would be insufficient to raise the money given time. within that time. Sheldon v. Dormer, 2 Vern. 310; War
. burton v. Warburton, ib. 420; Gibson v. Lord Montfort, 1 Ves. sen. 491.
Portions, it would seem, are on the same footing as Portions. debts, as it is to be presumed that they are to be paid within a limited time. Trafford v. Ashton, 1 P. Wms. 415; Stanhope v. Thacker, Prec. Ch. 435. Similarly, if a gross sum payable out of rents and profits Gross sum
payable at is payable at once, it may be raised by sale. Allan v. once. Backhouse, 2 V. & B. 65; Jac. 631. But if the testator treats the rents and profits as appli- When the
annual cable for some time for the purpose of raising the money, rents only and gives the whole lands from and after raising the money, cable.
are appli. the power will be limited to the annual rents and profits. Small v. Wing, 5 B. P. C. 68; see Harper v. Munday, 7 D. M. & G. 369; Heneage v. Lord Andover, 3 Y. & J. 360; Lord Lovat v. Duchess of Leeds, 10 W. R. 398.
Where a jointure was charged upon lands devised to several devisees and the income of a portion was fluctuating, the jointure was apportioned between the devisees in proportion to the actual income received in each year. Ley v. Ley, 6 Eq. 174. In the case of fines for renewal of leaseholds given for Fines for
renewing life with remainders, the Court will, as a rule, apportion the leaseholds fine between tenant for life and remainderman, according succession.
given in to their enjoyment, though it may be directed to be raised out of the "rents and profits, or by mortgage.” Greenwood v. Evans, 4 B. 44 ; Jones v. Jones, 5 Ha. 440; Reeves v. Creswick, 3 Y. & C. Ex. 715; Lewin on Trusts, p. 323; Ainslie v. Harcourt, 28 B. 313.
But if the fine is to be paid out of the "annual rents," it must be borne entirely by the tenant for life. Solley v. Wood, 29 B. 482. It is often a question of some difficulty whether an Whether
annuities annuity is payable out of the corpus or only out of the
are payable income of a fund set aside for its payment.
income or a. If the annuity is plainly charged upon the corpus it corpus.
Express is of course liable to make good arrears.
Picard V. charge on
Mitchell, 14 B. 103; Howarth v. Rothwell, 30 B. 516; Stamper v. Pickering, 9 Sim. 176; Wroughton v. Colquhoun, 1 De G. & Sm. 36, 357; Hickman v. Upsall, 2 Giff. 124; Gordon v. Bowden, 6 Mad. 342; Swallow v. Swallow, 1 B. 432, n.; Torre v. Browne, 5 H. L. 555; Haynes v. Haynes, 3 D. M. & G. 590; Lazonby v. Rawson, 4 D. M. & G. 556; Upton v. Vanner, 1 Dr. & Sm. 594; Horton v. Hall, 17 Eq. 437; Pearson v. Helliuell,
18 Eq. 411. Direction b. And if there is a clear gift of an annuity, a direction to set apart to set a fund apart to secure it which is to fall into the
fund which is to residue upon the death of the annuitant, does not disenthe residue. title the annuitant to have arrears made up out of corpus,
since the direction is merely a means to the end. The question is then merely between the annuitant and the residuary legatee. Bright v. Larcher, 3 De G. & J. 148; Davies v. Wattier, 1 S. & St. 463; May v. Bennett, 1 Russ. 370; Miner v. Baldwin, 1 Sm. & G. 522; Wright v. Callender, 2 D. M. & G. 652; Croly v. Well, 3 D. M. & G. 993; Ingleman v. Worthington, 1 Jur. N. S. 1062; Mills v. Drewitt, 20 B. 632; Perkins v. Cooke, 2 J. & H. 393; Anderson v. Anderson, 33 B. 223; Magill v. Murphy, 1 L. R. Ir. 196; Carmichael v. Gee, 5 App. C. 588.
It makes no difference that the fund if directed to fall into the residue after the death of the annuitant may go to persons other than the residuary legatees. Wright v. Callender, supra.
In these cases the direction to set apart a fund, in
fact amounts to a charge upon the corpus. . Direction
c. But if there is a direction to set apart a sum of to set apart a fund to money in order to pay an annuity out of the dividend pay an anwith a gift over, the annuitant is not entitled to come nuity out of the divi.
corpus and it is a simple case of tenant for life dends with gift over. and remainderman. A.-G. v. Poulden, 3 Ha. 555; Baker
v. Baker, 6 H. L. 616; Hindle v. Taylor, 20 B. 109; Miller v. Huddleston, 17 Sim. 71; 3 Mac. & G. 513; Michell v. Wilton, 23 W. R. 789.
d. When, however, the annuity is charged upon the Annuity income of the whole estate there is more difficulty. If the
charged capital is given over “subject to” or “after payment" of income of
whole the annuities the corpus is liable. Phillips v. Gutteridge, estate. 11 W. R. 12; 8 Jur. N. S. 1196; 32 L. J. Ch. 1; 4 De G. & J. 531; Stamper v. Pickering, 8 Sim. 176; Playfair v. Cooper, 17 B. 187; Ex parte Wilkinson, 3 De G. & S. 633; Perkins v. Cooke, 2 J. & H. 393; Re Tyndall, 7 Ir. Ch. 181; Percy v. Percy, 35 B. 295; Carter v. Salt, I. R. 1 Eq. 97; Bell v. Bell, I. R. 6 Eq. 239; Birch v. Sherratt, 4 Eq. 58; 2 Ch. 644; In re Mason; Mason v. Robinson, 8 Ch. D. 411.
e. But if there is anything to show that the corpus is Corpus looked upon as entire after the annuitant's death; if, for treated as
remaining instance, it is given over immediately upon the death of entire at the annuitant, or the trust then comes to an end, or it is tant's then directed to be sold, or if the corpus is devised in strict settlement, it is not liable to make good arrears. Foster v. Smith, 1 Ph. 629; Addecott v. Addecott, 29 B. 460; Re Kelly, 9 Ir. Ch. 103; Forbes v. Richardson, 11 Ha. 354; Tarbottom v. Earle, 11 W. R. 680; Darbon v. Rickards, 14 Sim. 537; Earle v. Bellingham (No. 1), 24 B. 445; Sheppard v. Sheppard, 32 B. 194; Taylor v. Taylor, 17 Eq. 324.
And if it is clear that the annuity is to be paid only out Gift of of the income of each year, by a gift, for instance, of the surplus surplus income of each year as it accrues to others, the each year. corpus is à fortiori not liable. Stelfox v. Sugden, John. 234; Darbon v. Rickards, 14 Sim. 537; Sheppard v. Sheppard, 32 B. 194. f. In some cases the further question arises whether, When an
annuity is supposing the annuity not to be charged upon corpus, it