Page:The English Reports v1 1900.pdf/742

subject, viz. the rent-charge of £100 per ann. which was repeated in every limitation, and carried along with it a strong implication, that he did not mean it should be burthened with any other. That there was no instance where the general words of a will so penned, had been construed to charge real estates with debts by simple contract; and it was apprehended that such a charge could not be created otherwise than by express words, or a necessary implication; and a contrary construction might impeach the titles of a multitude of purchasers under wills, where there were the like clauses with those in the present case. That Mr. Langham Booth could have no reason to believe, that the £2000 would be esteemed a debt due from him; since, if he had laid it out in the purchase of lands, and settled them pursuant to the directions of the will and codicil, he might afterwards have barred that settlement, and subjected the lands to his own disposal, which would have intirely defeated the respondents' pretensions to the money, even as a debt upon his personal estate; and that this would have been the case was evident, from his barring the entail in an estate called Little Ashley, which was devised to him by the same will, and settled to the same uses as the £2000 in question. It was therefore hoped, that the last decree, as to charging the real estate of Langham Booth with the payment of the £2000 would be reversed; and the first decree, as to that point, affirmed.

On behalf of the respondent Lord Warrington, (no case being made either for or against the other respondents,) it was argued, (T. Lutwyche, J. Willes) that Mr. Langham Booth having retained out of the assets of the Dutchess, the £2000 directed by her to be laid out in the purchase of lands; the respondent, if the same had been so laid out, and in default of issue of his brothers, would have had an absolute estate in fee simple in such lands; and therefore he was now justly entitled to receive the money in lieu of the land in which it ought to have been invested; and consequently, this demand of the respondent's was a just debt from Langham Booth. That the words of Mr. Langham Booth's will were sufficient to charge his real as well as his personal estate, for he first disposed of his worldly estate in manner following; and then directed, imprimis, "that all his debts should be discharged and paid:" now, the words worldly estate, undoubtedly comprehend real as well as per-[515]-sonal estate; and therefore it was a disposition of both estates, for the payment of his debts, and this was what in justice and conscience he was obliged to do, there being a deficiency in his personal estate. But further, it is certain that Mr. Langham Booth intended that all his debts should be paid; and as his will and his intent therein expressly declared could not be fulfilled without charging his real estate therewith, his personal estate being deficient, it was most agreeable to justice, and the rules which have been always laid down concerning the construction of wills, to construe his will in such a manner, as that, there being a deficiency of his personal estate, his debts might be satisfied out of his real estate: and there are many precedents, where Courts of Equity have decreed real estates to stand charged with debts in cases of the like nature. That the respondent, who claimed the £2000 being heir at law to his brother Langham, this was not the claim of a stranger to charge lands in the hands of an heir, but the claim of an heir to be paid a just debt, out of an estate devised from him to a stranger and voluntary devises; the respondent being only devisee for life in this estate of Thornton, which by the decree was charged with the £2000. And if the real estate should not be subject to this charge, the appellant, who was no relation either to Langham Booth or the Dutchess, would in effect have the benefit of the Dutchess's legacy; while the respondent and his family would be deprived of it, contrary to the express words of her codicil, and contrary to the intent at least of Mr. Langham Booth's will, who could not be presumed to intend the benefit of his real estate to a stranger, exclusive of paying a just debt to his own brother.

After hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and such part of the decree as was therein complained of, affirmed. (Jour. vol. 24. p. 231.)