Page:The English Reports v1 1900.pdf/1430

should be paid to the plaintiff, and that the interest accrued on the said sum of £100 and to accrue thereon until raised, [430] should be paid to the respondent by the appellant, the tenant for life of the said estate. And his Lordship declared, that the defendant Henry Hudson was to be considered as a trustee for the respondent as to the £1500 mortgage money on the estates in question, and he was to declare the trust thereof accordingly. And it was further ordered, that the appellant should pay the arrears of interest accrued on the mortgage, and should continue to keep down the interest thereof during his life. And it was further ordered, that the respondent should pay to the defendants Hudson and Cardonnell their costs, and to be taxed by the master; as between the respondent and appellant, no costs were to be paid on either side.

From this decree the appellant thought proper to appeal, alledging in his petition, that he was advised the decree was erroneous, and that the respondent's bill ought to have been dismissed; for that the legacy of £100 to Winefred Collingwood, and the £1500 mortgage debt on the estate, of which the appellant was tenant for life under the will of Hylton Lawson, were properly paid by the respondent, his executrix, out of his personal estate; whereof she had sufficient in her hands for those purposes, as stated by her bill.

And in support of these propositions it was argued (J. Dunning, G. Hardinge, J. Mitford), that as to the mortgage debt with which the real estate devised by the testator Hylton Lawson to his brother and heir, and after to the appellant his nephew for life, appeared to stand charged at the testator's death, supposing it to be the same mortgage which was made by Robert Lawson the elder in 1717, (which fact was put in issue by the answer, but not proved in the cause,) although it should be admitted, that a devisee of a real estate has generally no right to call upon the personal estate of the testator to disincumber the real estate devised, of any debts not of the testator's own contracting; yet where there are words in the will which shew the testator's intention that his personal estate should be so applied, a Court of Equity will decree such application. In the present case, it was conceived, that no man who read this will could doubt of its being the testator's intention that this debt, as well as those which were contradistinguished as his own, should be discharged out of the funds he provided, for the purpose of carrying the whole real estate, or what should remain of it, after it had been applied to make good any deficiency of the personal, to his brother, nephew, etc. in the course of succession which he prescribed. With this view he charged his copyhold estate with an annuity in favour of his wife, and expressly exonerated his freehold estates from any claim of dower on her part. When he settled his whole real estate in strict settlement, subject to a power of sale or mortgage, as far as might be necessary to make good a deficiency of the personal to pay his debts, could it be conceived that he would have left it without a provision for paying this debt, if he had not thought it sufficiently provided for by this power; or if he had been aware of the distinction now contended for between his [431] debts and debts payable out of his estate? It was submitted therefore, that however the law may be in other cases, this testator, by charging his freehold and copyhold lands with the payment of all his debts, legacies, and funeral expences, as also all his personal estate, except, etc. meant that this debt, as well as all his other debts, legacies, and funeral expences, should be paid and discharged by mortgage, or sale of such and so much of his freehold and copyhold lands, as should be necessary and sufficient to discharge the same, with all his personal estate, except the £300, and had in view and meant to include the mortgage on the Cramlington estate; of which he was seized in fee, and might with propriety consider a debt on it as a debt of his own; and must know, when he directed a sale of it if necessary, that if a sale should be necessary, the mortgage subsisting on the estate must have been first discharged to make a title to a purchaser. It was hoped therefore, that the construction contended for on the part of the appellant, would be found most agreeable to the testator's intention, which seemed to have been to exonerate his real, by means of his personal estate, as far as the latter fund would extend. That this construction of the will was the more reasonable, as the testator had devised his real estates in strict settlement, and made no disposition of the residue of his personal estate; and it was a further argument in the appellant's favour, that the executrix herself, well informed of the testator's circumstances at the time of making his will, and the alteration therein at his death with respect to his personal estate, and knowing his