Page:The English Reports v1 1900.pdf/1167
street, London, which were mortgaged to one Wood for £1600, and he was indebted to the estate of his son Thomas in above £2000 for the dividends of £500 East India stock, and the rents of certain lands in Yorkshire, which belonged to Thomas.
Under these circumstances Nathaniel made his will, dated the 21st of July 1699; and thereby devised a messuage and several warehouses to his grandson Nathaniel Hawes, and his heirs; another messuage to his grandson Thomas Hawes, and his heirs; and another to his granddaughter Ann Warner, for life; with remainder to his grandson Thomas Hawes, and his heirs; he also gave to his granddaughters Ann Hawes and Elizabeth Hawes, £1000 a-piece, with benefit of survivorship; to Elizabeth, his son's widow, £200; to his daughter Ann Warner, £600; to his granddaughter Ann Warner, £500; to his grandson Edmund Warner, £300; to his granddaughter Elizabeth Warner, £700; to his granddaughter Mary Warner, £700; and to his granddaughter Katherine Warner, £700. These, with some smaller legacies, amounted to £3860; which sum the testator, by his will, calculated to be the residuary part of his personal estate, his debts and funeral expences being first thereout paid: but he declared, that in case his estate should, by losses, or otherwise, fall short of that estimate, a proportionable abatement should be made by his several legatees, out of the legacies thereby given them; and if his estate should, at the time of bis death, exceed the said estimate of £5860, then he gave the surplus, whatever it should [22] prove, to and amongst all his said grandchildren, share and share alike. Then follows a proviso in these words, viz.
Provided always, and it is hereby declared, that the several devises of the said messuages and tenements, and the legacies herein given to my daughter-in-law Elizabeth Hawes, and to her two sons, Nathaniel and Thomas, and to her two daughters, Ann and Elizabeth, are so given on these conditions, viz. that if they and every of them shall not, at the request of my executors, make and execute to my executors a sufficient release and discharge for all money, parts, shares, claims, and demands whatsoever, which they or any of them can or may reclaim out of my personal estate, or be entitled unto, by virtue of the custom of London, or otherwise howsoever; or which they or either of them can claim or demand in right of my son Thomas, deceased, or in reference to my said son's, or my own estate, in any manner of wise; then I give and devise the said several messuages, tenements, and other legacies, to the children of my said daughter Ann Warner, share and share alike.
In Michaelmas term 1703, Thomas and Ann Hawes, two of the testator's grandchildren, exhibited their bill in the Court of Chancery against the appellants, and other proper parties, for an account of the testators personal estate, and satisfaction of their legacies; and that the £1600 due on the mortgage, might be paid out of such personal estate, and the premises devised to them discharged thereof.
The cause being at issue, was heard before the Lord Keeper Wright, on the 7th of February 1704; when it was decreed, that the said £1600 and all the interest thereof, should be discharged by the executors out of the personal estate, and that the legatees should abate in proportion, in case the personal estate should fall short; and the usual accounts were directed to be taken.
The Master reported the personal estate to be deficient, in £1732 12s. 2d. and therefore he charged the devisees of the real estate, as well as the pecuniary legatees, to contribute by a pound rate to make good this deficiency; but upon exceptions being taken to the report, on account of charging the devisees of the real estate to contribute, such exceptions were allowed.
From so much of this decree as directed the £1600 and interest to be paid out of the personal estate, and also from the order allowing the exceptions, the present appeal was brought; and on the part of the appellants it was said (S. Cowper, T. Powys), that the intention of the testator throughout his will, seemed to be, that in case the personal estate should prove so deficient, as not to make good the particular legacies, every legatee should abate in proportion; and if the testator had meant, that the mortgaged premises should not have borne their own burthen, but should be exonerated out of the personal estate, he would have provided so by his will, when he was devising those premises. Besides, it was not likely that he could mean the mortgage to be paid out of the personal [23] estate, because he calculated that to he £5860, which was very near what the Master had certified the same to be, viz. £5797 7s. 10d. And it would have been more, if the interest of the £1600 from the testator's death had not been paid out of it; from whence it appeared, that the testator had framed his will upon a
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