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. payable at Similarly, if a gross sum payable out of rents and profits Gross sum is payable at once, it may be raised by sale. Allan v. once. Backhouse, 2 V. & B. 65; Jac. 631. annual are appli But if the testator treats the rents and profits as appli- When the 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. 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 annuity is payable out of the corpus or only out of the income of a fund set aside for its payment. annuities are payable out of income or a. If the annuity is plainly charged upon the corpus it corpus. is of course liable to make good arrears. Express Picard v. charge on corpus. Direction a fund fall into Mitchell, 14 B. 103; Howarth v. Rothwell, 30 B. 516; Stamper v. Pickering, 9 Sim. 176; Wroughton v. Colqu houn, 1 De G. & Sm. 36, 357; Hickman v. Upsill, 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. Helliwell, 18 Eq. 411. 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 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. Weld, 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. Direction 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. 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 an- with a gift over, the annuitant is not entitled to come nuity out of the divi- upon the corpus and it is a simple case of tenant for life and remainderman, A.-G. v. Poulden, 3 Ha. 555; Baker dends with gift over. 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. upon whole 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 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. treated as remaining of entire at the annui is tant's death. e. But if there is anything to show that the corpus is Corpus looked upon as entire after the annuitant's death; if, for instance, it is given over immediately upon the death the annuitant, or the trust then comes to an end, or it 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. income of 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 a continu ing charge is a continuing charge on the rents and profits, so that on the annual rents. arrears will have to be made up out of surplus income during the annuitant's life, and even after his death; and if there is nothing to show that the annuity was to be confined to the income of each year, as in Stelfor v Sugden, or that it was to determine immediately on the annuitant's death, as in Foster v. Smith, 1 Ph. 629; Earle v. Bellingham, 24 B. 445, arrears will be a continuing charge during the annuitant's life and after his death. Forbes v. Richardson, 11 Ha. 354; Phillips v. Phillips, 8 B. 193; Phillips v. Gutteridge, 3 D. J. & S. 332; Taylor v. Taylor, 17 Eq. 324; Booth v. Coulton, 5 Ch. 684; Salvin v. Weston, 14 W. R. 757. Exonera tion by express words. Gift over of the fund EXONERATION OF PERSONALTY. I. By express words: The personal estate is the primary fund for payment of debts, but it may be exonerated by express words. Morrow v. Bush, 1 Cox, 185; Young v. Young, 26 B. 522; Dawes v. Scott, 5 Russ. 32; Forrest v. Prescott, 10 Eq. 545. A direction not to pay debts out of a specific fund of is not personalty is effectual without a gift over of the fund, necessary. though the fund may not be specifically disposed of, but falls into the residue. Coventry v. Coventry, 2 Dr. & S. 470. When the personalty is given exonerated from debts, it is not applicable to their payment till everything else is exhausted. Morrow v. Bush, 1 Cox, 185; Young v. Young, 26 B. 522. On the other hand, if land is given in exoneration of the personalty, the personalty is primarily liable if the land so given is insufficient. Colvile v. Middleton, 3 B. 570. Similarly as between land and residue, both given exempt from debts, the residue is primarily liable on failure of other funds. Lord Brooke v. Earl of Warwick, 1 H. & T. 142. And personalty disposed of exempt from debts is ex- Whether personalty empted only for the purposes of that disposition and not exonerated in favour of next of kin. Waring v. Ward, 5 Ves. 676; rated in Dacre v. Patrickson, 1 Dr. & S. 186. is exone favour of next of If, however, it is exempted from debts and no disposi- kin. tion is made, it is exempted for all purposes. Milnes v. Slater, 8 Ves. 305; 1 Dr. & S. 186. See Noel v. Noel, 12 Pr. 214. II. Exoneration on the general context: 1. In the absence of express words exonerating the personalty from the payment of debts it is primarily liable, though other funds may be provided. not exone Thus, neither a charge of debts on the realty, or on a What will specific portion, nor a devise upon trust for sale for pay- rate the ment of debts, will exonerate the personalty. White v. personalty. White, 2 Vern. 43; Walker v. Hardwick, 1 M. & K. 396; Ouseley v. Anstruther, 10 B. 453; Quennell v. Turner, 13 B. 240; Hancox v. Abbey, 11 Ves. 186; Collis v. Robins, 1 De G. & S. 131. condition 2. Whether a devise upon condition of paying the Devise on testator's debts will exonerate the personalty seems of paying doubtful. The better opinion seems to be that it will debts. not. Bridgman v. Dove, 3 Atk. 201; Meade v. Hide, 2 Vern. 120; and Welby v. Rockcliffe, 1 R. & M. 571; Henry v. Henry, I. R. 6 Eq. 286. sum in But in a case not within Locke King's Act, a devise of Gift of a mortgaged lands to A., he paying the mortgage, with a exonerasubsequent gift of a sum in exoneration of the mortgage, entitles the devisee to that sum and no more. Lockhart v. Hardy, 9 B. 379. tion of a mortgage directed to be paid by devisee. 3. An express charge of certain debts upon the per- Express |