Page:The English Reports v1 1900.pdf/1192

these two funds were created and raised by the testator, for a particular purpose only, viz. the payment of his debts and legacies; which purpose, when answered, or if (as the fact was) the personal estate should prove sufficient to pay the same, the two funds, which were only provisionary, and raised out of the real estate, ought, by way of resulting trust, to belong to the heir at law. That the testator had clearly distinguished between the two surplusages, arising by the ten years term and the excepted lands, and the surplus of his personal estate, not only by the words of his will and codicils, but by interlining with his own hand, the three words of personal estate, which must be intended of such personal estate only, as was so in its own nature, and not by construction; and the very making of this interlineation by the testator, seemed to be intended to prevent the present question. And, lastly, that the respondents, in compliance with the recommendation of the decree, had settled the excepted lands accordingly.

But after hearing counsel on this appeal, it was ordered and adjudged, that so much of the decree complained of, as directed,

That the debts owing by the testator on the mortgages to Foxcroft and Lloyd, as well as his other debts, should, in the first place, be paid out of his personal estate; and that nothing ought to be raised by or out of the profits of the manor of Croft, devised to Lloyd for ten years, on trust to raise thereout £8000 for the purposes mentioned in the said testator's will, or by sale of the excepted parcels in Croft, which were comprised in Lloyd's mortgage, for satisfying the several mortgages by the will directed to be satisfied thereout, or increasing the dividend between the Lady Drake and the Lady Tyrwhitt,

should be reversed and it was further ordered and adjudged, that the profits of the trust-term of ten years, not exceeding £8000 should be applied, in the first place, to satisfy what remained due on the mortgage of Little Oakley, to Elizabeth Foxcroft; and that the surplus of such profits, as also the profits of the said excepted lands in Croft, comprised in the mortgage to Lloyd, until sale thereof, and the surplus of the money arising by sale of the said excepted lands, after satisfaction thereout, in the first place, of what remained due on Lloyd's mortgage, should be considered as part of the personal estate of the testator, and go in augmentation thereof, and for increasing the dividend to be made between Lady Drake and Lady Tyrwhitt; and the Court of Chancery was accordingly ordered to direct a sale of the said excepted lands; preserving nevertheless, the right of pre-emption thereof to the respondent Mountague Gerard Drake, according to the testator's will; and to give such other directions in pursuance of this order, as should be just. (Jour. vol. 19. p. 685.)

Note 1.—[53] The testator, after the making of his will, had paid off £1500 of this mortgage; and therefore struck out the words five thousand pounds, by drawing a line through them, and inserted £3500 in figures, being the sum then really due.

Note 2.—The figures 150 were interlined over the word thousand; and comparing this with the preceding alteration, it seems clear, that the testator must have intended three fifteen hundred pounds; because this exactly corresponds with the sum of £8000 to be raised.

Note 3.—The testator had likewise, after making his will, paid off £200 of this mortgage; and therefore altered the figures as above.

Note 4.—[54] This sum stood originally £5000, but was afterwards altered to £4000.

Note 5.These words were interlined by the testator, in a different ink.