certain charge of sonalty does not exonerate it from its primary liability to the other debts. Brydges v. Phillips, 6 Ves. 567;. personalty. Watson v. Brickwood, 9 Ves. 447. debts on Gift of realty and 4. A gift of realty and personalty together on trust to personalty pay debts will not exonerate the personalty from being together primarily liable. Boughton v. Boughton, 1 H. L 406; pay debts. Tench v. Cheese, 6 D. M. & G. 453. on trust to Gift on trust to sell and 5. But if the realty is given upon trust for sale and blended with the personalty upon trust to pay debts, the pay debts. realty and personalty are liable rateably. Roberts v. Discretion to trustees to sell realty. Realty to be sold and Walker, 1 R. & M. 752; Stocker v. Harbin, 3 B. 479; And where real and personal estate are given together, with a discretionary power to trustees to sell as often as they should think fit, legacies directed to be paid out of the real and personal estate are payable pro rata. Allan v. Gott, 7 Ch. 439. So, too, if realty is directed to be converted and become form part part of the personal estate. Bright v. Larcher, 3 De G. of personal & J. 148; Simmons v. Rose, 6 D. M. & G.-411. estate. Payments out of 6. Where the profits and income of real and personal income of estate are given in moieties and an annuity is directed to realty and be paid out of one moiety, it will be payable rateably out personalty. of the profits and income of the real and personal estate. Falkner v. Grace, 9 Ha. 280. Where profits and income of real and personal estate are to be accumulated during a certain time for the purpose of making certain payments, and the surplus of the whole property is given together to the same persons, the income of the personalty remains primarily liable. Boughton v. Boughton, 1 H. L. 406. But if there is no disposition of the surplus and large payments are directed to be made out of the rents and income of the realty and personalty, so that it appears that the testator did not contemplate a surplus, and the real estate is given subject to the payments, the realty and personalty are rateably liable. Howard v. Dryland, 38 L. T. N. S. 24. An annuity charged upon land with powers of distress Annuity charged on and entry is primarily payable out of personalty. land. Patching v. Barnett, 49 L. J. Ch. 665. on mixed onerate 7. The fact that a mixed fund of personalty and pro- Charge ceeds of sale of realty is created, which is charged with fund does debts and legacies under the rule in Greville v. Brown or not exby a general direction to pay debts, will not exonerate the personalty. personalty from its primary liability in the absence of a direction to pay the debts and legacies out of the mixed fund. Luckcraft v. Pridham, 48 L. J. Ch. 636; Wells v. Row, 48 L. J. Ch. 476; Elliott v. Dearsley, 16 Ch. D. 322. funeral expenses 8. A charge of debts funeral and testamentary expenses Charge of on the realty, which latter it can hardly be supposed the and testapersonalty would be insufficient to meet, will nevertheless mentary not exonerate the personalty. Walker v. Jackson, 2 Atk. on realty. 624; Gray v. Minnethorpe, 3 Ves. 103; Hartley v. Hurle, 5 Ves. 540; see Coote v. Coote, 3 J. & Lat. 175. estate spe. But where the whole personal estate is given not as a Personal residue but specifically and the realty is subject to all cifically given. the charges to which the personalty would be liable, the personalty is exonerated; if, for instance, all the personalty is given and the realty is charged with debts, funeral expenses and costs of administration. Greene v. Greene, 4 Mad. 148; Michell v. Michell, 5 Mad. 69; Blount v. Hipkins, 7 Sim. 43; Gilbertson v. Gilbertson, 34 B. 354. charged on The same rule applies with regard to legacies where the Legacies whole personalty is given and legacies are charged upon land where land. Jones v. Bruce, 11 Sim. 221; Lance v. Aglionby, sonalty is 27 B. 65. the per specifically given. TT Specific gift of personalty to an execu tor. Effect of charge of debts on And where the personalty is specifically given and a particular estate is devised upon trust to pay debts funeral and testamentary expenses, upon failure of that estate the general personalty and the realty are Eable pro rata to make up the deficiency. Powell v. Riley, 12 Eq. 175. The fact, however, that the gift of all the personalty is to a person appointed executor is a strong argument against the exoneration of the personalty. Brummel v. Prothero, 3 Ves. 111; Aldridge v. Lord Wallscourt, 1 Ba. & Be. 312. And when it is doubtful whether the whole personal estate is meant to be given specifically or only as a residue, the fact that funeral and testamentary expenses are not charged on the realty, as well as the debts, is an argument against exoneration. Collis v. Robins, 1 De G. & S. 131; Ouseley v. Anstruther, 10 B. 453; Bootle v. Blundell, 1 Mer. 193; 19 Ves. 494; see Tower v. Lord Rous, 18 Ves. 138. 9. There is no rule to the effect that a charge of parparticular ticular debts upon realty makes the realty the primary fund for those debts. Quennell v. Turner, 13 B. 240. Noel v. Lord Henley, 7 Pr. 241; Dan. 211; see Bickl v. Cruttwell, 3 M. & Cr. 763. realty. Hancox v. Abbey and The cases of Hancox v. Abbey, 11 Ves. 179, and Evar v. Cockeram, 1 Coll. 428, only establish, that where a debt is already a charge upon realty, a devise of lands including the mortgaged land in trust for sale and par ment of the mortgaged debt or a peclaration that the mortgage is to be charged upon the land, must mean that it is to be a primary charge on the land, otherwise, as it is already a charge upon realty, the words would have no meaning. Hancox v. Abbey, however, probably comes better under another head, see pp. 639, 643. Welby v. Rockcliffe, 1 R. & M. 571, was decided on the ground that the testator had imposed the condition of paying his debts upon the devisee; and in Clutterbuck v. Clutterbuck, 1 M. & K. 15, there was a gift of the residue of the real and personal estate not therein-before otherwise disposed of, showing that the only land given was after payment of the sum directed to be raised to pay debts. between oneration interests in The cases where legacies given out of a particular fund Distinction have been held payable out of that fund are also dis- cases of extinguishable. The question in those cases has generally and specific been, not whether the personalty was only secondarily gifts of liable, but whether it was liable at all; in other words, land. whether the legacy was demonstrative or specific. See, for instance, Dicken v. Edwards, 4 Ha. 273; Bessant v. Noble, 26 L. J. Ch. 236; Fream v. Dowling, 20 B. 624; 4 Eq. 145, n. lands after debts. 10. Where, however, a sum is directed to be raised out Gift of of land for payment of debts and the land is not given payment of till after such payment or only the residue of the land is given, there is a strong argument that the land was to be the primary fund. Hancox v. Abbey, 11 Ves. 179; Hale v. Cox, 3 B. C. C. 322; see Clutterbuck v. Clutterbuck, 1 M. & K. 15; Noel v. Noel, 12 Pr. 214; Lord St. Leonards's Law of Property, 363, 365; Ion v. Ashton, 28 B. 379. TENANT FOR LIFE AND REMAINDERMAN. I. Capital and income. 1. As between tenant for life and remainderman, dividends declared before the death of the tenant for life, though not paid till afterwards, belong to his representatives. Wright v. Tuckett, 1 J. & H. 266. Dividends on shares in a company declared after the Dividends on shares. Partner ship profits. Debts. Power of declaring whether profits are to be death of the tenant for life, though earned before his death, go to the remainderman. Mackinley v. Bates, 31 B. 280. On the other hand partnership profits declared for a past period are the income of that period. Ibbotson v. Elam, L. R. 1 Eq. 188; Browne v. Collins, 12 Eq. 586. Debts are the profits of the period when they are got in. Maclaren v. Stainton, 3 D. F. & J. 202; Edmondson v. Crosthwaite, 34 B. 30. A fund created for the protection of property given for life is capital. Varlo v. Faden, 1 D. F. & J. 211. 2. When there is a power vested in a duly constituted authority of declaring whether profits shall be added to capital or distributed, the tenant for life is bound by the capital or authority. Straker v. Wilson, 6 Ch. 503; In re Ezekiel Barton's Trust, 5 Eq. 238; Baring v. Ashburton, 16 W. R. 452; see In re Cox's Trusts, 9 Ch. D. 159. income. Bonuses out of capital. Bonuses out of profits. Waste. Without 3. With regard to bonuses, it seems clear that bonuses declared out of capital are capital. Paris v. Paris, 10 Ves. 185; Watts v. Steere, 13 Ves. 363; Brander v. Brander, 14 Ves. 80. On the other hand, bonuses declared out of profits, whether accumulated profits or not, are income. Barclay v. Wainwright, 14 Ves. 66; Price v. Anderson, 15 Sim. 473; Preston v. Melville, 16 Sim. 163; Plumbe v. Neild, 8 W. R. 337; 29 L. J. Ch. 618; Dale v. Hayes, 19 W. R. 299; In re Hopkins' Trust, 18 Eq. 696; see Hollis v. Allan, 14 W. R. 980. But, perhaps, the case would be different if it could be shown that the payment being out of accumulated profits, such profits were entirely earned before the testator's death. See Dale v. Hayes, supra. 4. A tenant for life cannot commit waste unless expressly made unimpeachable for waste. A tenant for life without impeachment of waste, |