20. If a perfonal eftate is increased by any event after the teftator's death, it is part of the refidue, and will pafs as fuch, and fo will the intereft of that refidue, for that intereft is affets. 2 Atk. 473. Dec. 1742. Green v. Ekins.

21. A. had power to charge a sum of money on land by deed or will, and executes it by a voluntary deed; the court in favour of the creditors of A. will confider it as affets. 3 Atk. 269. July 1745. Pack v. Bathurst.

22. Where the perfonal eftate has been exhaufted in payment of fpecialty creditors, the widow fhall ftand in their place, as to the amount of her paraphernalia upon the real afsets of the heir at law. 3 Atk. 369. June 1746. Snelfon v. Corbet.

23. The teftator defires that all his debts may be discharged by his executors, adding, "I mean thofe only of my own contracting, not thofe heavier debts by my family," and gives his perfonal eftate to his mother, whom he makes executrix, defiring her to pay all his juft debts exactly: long after making the will the mother buys in mortgages charged on his eftate by his ancestors, and the fon covenants to pay the money. The perfonal estate is still exempted from the principal and intereft due on these mortgages, which are still a charge on the real. 1 Vef. 51. Nov. 1747. Leman v. Newnham.

24. Devifee in truft for payment of debts mortgages the eftate to one of the creditors: he thall not retain it for his former debt, but come in pari paffu. 1 Vef. 215.

25. Sir R. W. reciting himself to be feised, fubje& to incumbrances, of an eftate which was mortgaged, devifed another estate for a term of twenty-one years in aid of his perfonal estate to pay bond, and book debts, and by a fubfequent claufe to pay all his debts the perfonal estate, and the term fhall exonerate the mortgaged eftate. 1 Bro. Ch. Rep. 240. March 1783. Marchioneft Dowager of Tweedale v. Earl of Coventry.

26. Devife of an eftate for payment of debts takes it out of the statute against fraudulent devifes. On a direction to pay out of the rents and profits, no fale, or mortgage can be made. Ch. Rep. 311. Oct. 1783. Linguard v. Earl of Derby.

1 Bro.

27. Devife to fell the refidue, after payment of debts, and the money to be part of the perfonal eftate, on a total infolvency, held to be equitable affets. 2 Bro. Ch. Rep. 94. 1786. Batfon v. Lindegreen.

28. A fum of money being in court to be laid out in lands, which when purchased would be fubject to the bond debts of the teftator, the debts were decreed to be paid out of the fund in court. 3 Bro. Ch. Rep. 256. Eaft. 1791. Cattell v. Money.

29. An equity of redemption is not equitable affets, at leaft as against judgment creditors, who have a right to redeem. 4 Vef. jun. 538. April 1799. Sharpe v. Earl of Scarborough.

(2) What Debts to be paid by virtue of fuch 16 Vin. 283.

ONE

Devife or Settlement.

NE owes a debt of fimple contract, fix years paft, whereby his debt is barred; after which the debtor by will charges his lands with the payment of all his debts, and dies; this debt is revived. 3 P. Wms. 84. Jones v. Earl of Strafford.

See Limitation, Truft, &c.

(R) Devife or Settlement for Payment of Debts or 16 Vin.285. Legacies. Where they shall be paid pari passu.

A. By his will gives an estate for life to his wife, and in the latter part creates a trust term for payment of debts, to take place from the day of his death: the term, though fubfequent, fhall take place of the wife's eftate for life, efpecially as it is a trust term for raising money. It is immaterial how a teftator places the feveral devifes in a will, because the whole must be construed together, fo as to make it confiftent. 1 Atk. 419. 1737. Ridout v. Dowding.

2. The rule as to marshalling affets on behalf of a legatee obtains only where it was proper to be done at the time when the legacy took place. 1 Atk. 486. Eaft. 1738. Prowse v. Abing. don.

3. The plaintiff lent A. 500l. on note, on affurance that an aunt had left him 400cl. by will. A. died foon after, and his reprefentatives refused to pay the 500l. as the legacy was directed to be laid out in land, and fettled on A. in fee; the court could not let in a fimple contract creditor upon money fo devised. 307. June 1742. Trelawny v. Booth.

2 Atk.

4. As long as the fund exifts upon which a legacy is charged, though it devolves upon the heir or executor, yet they take it fubject to the charge. 2 Atk. 605. 1743. Wills v. Wirley.

5. A. agreed to purchase an eftate of the plaintiffs for 1200/ but died before he had paid the whole purchase-money; A. by will, after giving 8ool. legacy to his fifter, devifes the estate purchafed, and all his perfonal eftate, to J. K. and makes him executor; J. K. commits a devaftavit and dies, and the purchased eftate defcends to B. K. his fon. The court, to give the legatee a chance of being paid her legacy out of the perfonal affets, directs the plaintiff to take his fatisfaction upon the purchafed eftate for the remainder of the purchase-money. 3 Atk. 272. Feb. 1745Pollexfen v. Moore.

6. Affets not marfhalled in favour of a charity. 1 Vef. 110. 1748. Arnold v. Chapman.

7. The real affets of A., who took out administration to the ex← ecutrix of B., and dministered de bonis non to B., and who entered into the ufual bonds to the ordinary, followed by B.'s legatees. 2 Vef. 368. 1751. Afbley v. Bailie.

8. Legatees are not entitled to stand in the place of specialty creditors against a devifee. Ambl. 171. 1753. Forrefter v. Lord Leigh.

9. By devife of real and perfonal, after payment of debts and legacies, the real estate is liable to debts contracted afterwards, and to legacies given by a codicil not attefted according to the ftatute. Ambl. 556. Nov. 1752. Hannis v. Packer.

10. A. by will appoints a certain perfon to fell his eftates for payment of debts and legacies; bill by creditor and legatees, who are papifts, to be paid; and held entitled. Ambl. 767. Feb. 1776. Foone v. Blount.

11. The court refused to give a widow fatisfaction out of the real estate devised and charged with debts, for her paraphernalia, which had been fold to pay her husband's debts. Ambl. 6. May 1739. Probert v. Clifford.

12. Bill filed by a tutor for an annuity of 200l. for his own life against the executors of the pupil, who by his will charged his eftate with all his debts, by bond, mortgage, or fimple contract. The claim was fupported by letters referring to an annuity, but no fpecific length of time named. Bill difmiffed without cofts. 1 Bro. Ch. Rep. 34. Hil. 1779. Jamefon v. Skipwith.

13. Legacies, no fund being defcribed, to be paid in the currency of the country where the will was made. 2 Bro. Ch. Rep. 38. 1786. Pierfon v. Garnet.

14. Teftator ordered his eftate to be fold, and, after giving a legacy to his wife, directed the remainder to be vested in his executors for payment of debts; the money arifing from the fale is equitable affets. 1 Bra. Ch. Rep. 135. East. 1782. Newton v.

Bennett.

15. Where the teftator by his will had ordered the trustees to poffefs themfelves of his eftates and fubftance, and to pay debts, it was held that this was a charge on the real eftate, and that the aflets should be marshalled for the legatees to let them in fo far as the perfonal eftate had paid towards the debts. 3 Bro. Ch. Rep. 347. Auguft 1791. Fefter v. Cook.

16. Legacy charged upon real estate, and payable at a future day, fiuks as to the real eftate, by the death of the legatee before the time of payment, and the affets cannot be marthalied. 3 Vef jun. 135. June 1796. Fearce v. Loman.

17. Notwithstanding declarations of the teftator to his executor, that he never meant to call for payment of a promiffory note, it was held part of the affets, which were infufficient for the legacies, a charge on the real cftate failing for want of proper at teftation of the will. 4 Vef. jun. 6. 1798. Byrn Godfrey.

10

(T) What shall be liable to the Payment, or shall be 16Vin. 286.

1. ONE

faid charged.

NE devifes all his perfonal eftate to his daughters, and all his real estate to trustees in truft to pay debts, &c. remainder to his daughter in tail, remainder over: the personal eftate fhall in the first place be all applied to pay the debts. 3 P. Wms. 324. Trix. 1734. Haflewood v. Pope.

2. A provifo in the will, that if the teftator's perfonal eftate, and house and lands at W. fhould not pay his debts, then his executors to raise the fame out of his copyhold premises; the rents not being fufficient to difcharge the teftator's debts, these words will give the trustees a power to fell the copyhold lands to fatisfy his intention of paying his debts. 1 Atk. 421. Nov. 1739. Bateman v. Bateman.

3. A man cannot, by any expreffion in his will, alter his eftate and disappoint his creditors. 1 Atk. 465. 1739. Hinton v. Toye.

4. Where a real eftate is exprefsly devifed for payment of debts, the perfonal estate is exempted; but if the real is not fufficient, the perfonal must be applied. 2 Atk. 79. Nov. 1740. Bicknee v. Page.

5. Debts and legacies are by will directed to be raised by perception of rents and profits, or by leafing or mortgaging the land; this reftrains it merely to a payment out of rents, and the court cannot decree a fale. 2 Atk. 105. Dec. 1740. Ridoubt v. Earl of Plymouth.

6. A man cannot, by any form of conveyance, raife a fee fimple to his own right heirs, by the name of heirs, as a purchase, so as to prevent the reverfion from being affets to fatisfy the fon's debts. 2 Atk. 57. O. 1740. Godolphin v. Abingdon.

7. George Ward, having power to charge his eftate with 2000/. by his will gives 500l. apiece to his two fifters, and dies indebted to the plaintiffs; this 2000/. is the perfonal estate of George Ward, and liable to his debts. 2 Alk. 172. April 1741.

ton v. Ward.

Bain

8. if a man makes no difpofition of a reverfion in fee, which he has power to difpofe of, yet it fhall be affets. Ibid.

9. Thomas Delahay, on his marriage, fettled his eftate on himfelf for life, on his wife for life, remainder to trustees to preferve contingent remainders, remainder to his firft and every other fon in tail male, remainder to himself in fee. A fon is born; the father dies indebted by bond; the fon afterwards dies without iffue, but by his will devifes the eftate to the defendant in fee: the reverfion being come into poffeffion, was held affets to pay the father's debts. 2 Atk. 204. Trin. 1741. Kinnaflon v. Clark. 10. Though a real estate be devifed to be fold, yet if a teftator has done nothing to exempt the perfonal eftate, it shall be VOL. V. primarily

Bb

.

primarily liable; the rule is, the perfonal eftate fhall be first applied, unless there be exprefs words, or a plain intention of the teftator to exempt it, or to give it as a specific legacy. 2 Atk. 624. July 1743 Walker v. Jackson.

11. A fire engine, fet up for the benefit of a colliery by a tenant for life, fhall be confidered as part of his perfonal eftate, and go to the executor for the increase of affets in favour of creditors. Atk. 13. Dec. 1743. Lawton v. Lawton.

3

12. Where a teftator charges all his eftates for payment of his debts, the devifee of a particular one must take fubject to that charge. 3 Atk. 101. 1744. Clark v. Sewel.

13. A. devifes to Sir J. B. his heir Clifton lands, he paying all debts and legacies charged on these lands, and after his decease to his nephew. Sir F. B. as tenant for life, is obliged to keep down the intereft, if the principal is not difcharged; but if it be, he is to pay one third and the reverfioner two thirds. 3 Atk. 201. 1744. Bridgeman v. Dove.

14. Provifions in wills for payment of debts relate to the time of the teftator's death: the words, "all the debts which I have contracted" must be conftrued, fhall contract. Ibid.

15. The perfonal estate is liable to pay the debts, unless there is a fpecial exemption of it. Ibid.

16. An advowfon in fee in grofs is affets by defcent to fatisfy bond creditors. An estate pur auter vie, though it is devised, will be liable to debts by fpecialty to contribute in a course of adminiftration. 3 Atk. 460. March 1746. Weffailing v. Weftfailing.

17. Where a man takes an estate as executor, it is affets, for as an executor he can take nothing without doing fo. As before the statute of frauds, granting an estate pur auter vie to A. his executors, &c. would have made it affets: devifing it them makes it equally fo. Ibid.

18. Affets, defcended on the heir at law, must be applied to the payment of debts before the lands can be charged, which are fpecifically devised. 3 Atk. 556. August 1747. Powis v. Corbet.

19. The executor of a bond creditor of Sir W. F.'s brings a bill for an account of his personal estate, and if that falls fhort of fatisfying the debts, prays that a fufficient part of the real estate may be fold. The real estate never having been affets of Sir W. F., the lands comprised in the settlement made after his mar riage, are not liable to his debts by fpecialty, for they are not specific liens upon the estate. 3 Atk. 631. March 1747. Brown v. Danton.

20. Where a legacy is charged on real estate, the perfonal is not to be applied in aid. 1 Vef. 482. 1750. Amesbury v. Brown.

21. Bequest of 100l. to a daughter, to be paid by the executor within a month after the death of the widow, to whom the real eftate was devised for life, and afterwards to the fon, the executor, in fee; two trustees or overfeers being appointed to see the will

performed: