Page:The English Reports v1 1900.pdf/741

Henry Booth, to and for his own use for ever; and I constitute and appoint my said brother Henry Booth sole executor of this my last will and testament.

Henry Booth being then in Holland, renounced the executorship; whereupon the respondent took administration of the personal estate of the said Langham Booth, with his said will annexed; and on the 2d of February 1726, Henry Booth dying intestate, without issue, the respondent took administration of his personal estate also.

The respondent, by the deaths of Langham and Henry without issue, became entitled (as he was advised) to the said £2000 and interest for the same, from the death of the said Langham Booth; and in order to have a satisfaction out of the real estate of Langham Booth, for so much of the said £2000 and interest, as his personal [513] estate would not satisfy, the respondent, in Michaelmas term 1727, filed his bill in the Court of Chancery, against the appellant and others. To which the defendants put in their respective answers. And the appellant and other of the defendants brought their cross-bill, touching the same matters as were in the respondent's bill. To which cross-bill the respondent put in his answer, and thereby insisted, that the personal assets of Langham Booth, which remained after payment of his other debts, towards satisfying the respondent's demand of £2000 and interest, did not amount to £100.

On the 15th of July 1731, both causes were heard before his Honour the Master of the Rolls, who was pleased to decree, inter alia, that the respondent's bill, as to charging the said £2000 and the interest thereof, on the real estate of the said Langham Booth, should be dismissed; and that the respondent should account before the Master for the said Langham Booth's personal estate, and produce upon oath all books of account, papers, and vouchers, and be examined on interrogatories, as the Master should direct. And the Master was directed to compute what was due to the respondent for principal and interest of the said £2000. And he was to retain the same out of the personal assets of the said Langham Booth.

From this decree the respondent appealed to the Lord Chancellor, apprehending that he was aggrieved thereby; because the said debt of £2000 and interest was not decreed to be paid out of the real estate of the said Langham Booth, so far as his personal estate should be deficient. And also, for that the decree directed the respondent to produce books and vouchers upon oath, contrary, as he humbly conceived, to the privilege of Peers.

On the 17th of May 1732, the appeal was heard before the Lord Chancellor King, who declared his opinion, that the said £2000 was a charge on the real estate of Langham Booth by the words of his will, and was pleased to decree, inter alia, that the Master should take an account of the said Langham Booth's debts, and the said £2000 to be considered as a debt of the said Langham Booth's. And the respondent was to account before the Master for the personal estate of the said Langham Booth, and produce all books of account, papers, and vouchers in his custody, and to be examined on interrogatories, as the Master should direct. And the Master, in taking the said account, was to make all just allowances to the respondent. And it was further ordered, that so much of the real estate of which the said Langham Booth died seised in fee, should be sold, as his personal estate should fall short of satisfying the said £2000. And all proper parties were to join in such sale, and have their costs out of the monies arising thereby.

From so much of this latter decree as declared the £2000 to be a charge upon the real estate of Mr. Langham Booth, and directed any part of such real estate to be sold for satisfaction thereof, the present appeal was brought; and on behalf of the appellant, it [514] was contended, (P. Yorke, C. Talbot) that every charge upon lands by will, is, so far as it goes, a disherison of the heir at law; and therefore ought to be expressed clearly, and not be collected only from a possible implication, or doubtful construction. That the first clause in this will, and which the other side chiefly relied on, was no more than a common introductory clause inserted by scriveners of course in the beginning of wills, and only intimated what the testator was about to do, viz. to dispose of all his estate; and the direction, that all his debts should be paid, did not alter the nature or consequence of those debts, or the legal course of paying them. That all the subsequent devises particularly specified to what charge the testator intended his real estate should be