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Carter, was entitled to the benefit of such contribution. And in support of this proposition, it was argued, that Evers Armyne was tenant for life of the manors of Pickworth and Willoughby; and that the remainder limited to Thomas Style, was a contingent remainder, and perfectly uncertain whether it would ever take effect or not. That it was a known and undoubted rule of law, which had never yet been denied or over-ruled by the judgment of any court, that where a tenant for life suffers a recovery, it is a good bar to, and destroys any contingent remainder which depends on the estate for life; and in this very case the opinion of the Court of Common Pleas had been already given, in a point entirely proper for their judgment. That the estate vested in Evers Armyne, notwithstanding the devise to him, was originally subject to the payment of the debts and legacies mentioned in the will. And that the title to the redemption of Pickworth being only a question of law, the same ought to have been tried at common law, where the said John and Elizabeth Mortimer might have fully made out their title, and the liberty of doing which they now prayed.

On the part of the respondent Carter, it was contended (S. Cowper, T. Reeve), that the mortgage-debt of £4000 which Sir Michael gave his personal covenant to pay, was a debt within the words as well as meaning of his will; for though Sir Michael in his will said, I know my debts to be great, amounting to £4600, a perfect schedule whereof is hereunto annexed, yet the words of his will were not confined to the schedule debts; for if he had forgot, or omitted out of the schedule £500 of his debts, no man could say that the creditors for £500 should not have the benefit of the will, as well as the schedule creditors; especially when Sir Michael, in his will, expressed himself in these general words, without restraining them to the schedule, viz.

My will is, that my executors see all my debts paid out of my personal estate; and because I know my debts to be great, I devise my lands in Orton, etc. to be sold for payment of my debts. And lost both personal estate, and the monies raised by sale be not sufficient, I devise the profits of Pickworth and Willoughby, in trust, to pay the residue of my debts, till the whole of them be fully paid. And after my just debts be fully paid, I give an annuity to Silvester and his wife, the first [71] payment to begin after my debts be fully paid. And as to my manors of Pickworth and Willoughby, from and after such time as my just debts are paid, then from and after such time I devise the said manors to my uncle Evers Armyne for life.

That it was proved in the cause, that Sir Michael applied the £4000 borrowed on the mortgage to pay the schedule debts; and it appeared by the two deeds poll executed by the executors, that they understood this mortgage to be a debt within the will. But above all, Sir Michael, after the mortgage, republished his will by the codicil; and at the time of making the codicil, there were no schedule debts subsisting, the mortgage debt being the only debt he then owed: it was therefore a debt which he meant and intended should be paid by the provision and trust created by his will, before Evers Armyne, or any of his devisees, should have or take any estate or interest under his will. That if the mortgage was a revocation of the will pro tanto, yet that revocation extended only so far as concerned the creditor Lady Holles; but did not alter the case as between the devisees Style and Barnardiston. However, a full answer to the pretence of a revocation was, that the codicil to the will was made after the mortgage; and the codicil being a new publication of the will, and of every part of it, it was apprehended that it ought to be now taken, as if the will itself had been made after the mortgage; and in that case, it was plain that the testator charged the mortgage-debt of £4000 upon Willoughby, as well as upon Pickworth. As to the, pretence that the devise to Thomas Style was a contingent remainder, and therefore barred by the common recovery which was suffered by Evers Armyne, the tenant for life, the respondent Carter insisted upon these two answers to it: 1. That when the testator had, in express words, and in as strong terms as could be invented, limited the time when the estate given to Evers Armyne should commence and take place, viz. "And as to my manors of Pickworth and Willoughby, from and after such time as my just debts are paid by the profits of them, then from and after such time, I devise unto my uncle, Evers Armyne, the said manors for his life," it would be a strange violence upon the will, to expound it so as to say, that the testator intended, contrary to his own express words, that Evers Armyne should have an estate for life before the debts were paid; and especially when this exposition could serve no purpose, except only to enable Evers Armyne, the tenant for life, (as the appellants would have it,) to dispose of the inheritance, and defeat the reversioner