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would otherwise have been applicable to those purposes, is undisposed of. As far as this part of the fund has been composed of real estate, the heir is to have the benefit of it, as so much real estate undisposed of; and as far as this part of the fund has been composed of personal estate, I am of opinion that it is personal estate undisposed of for the benefit of the next of kin; and in order to ascertain the proportion which will thus belong to the heir and next of kin respectively, it must be referred to the Master to compute the respective values of the real and personal estate which are thus blended by the testator in one common fund ”(k).
Where charitable legacies were declared to be void, so far as they were charged upon real and leasehold estates, and such part of the personal estate as was out on mortgage, it was declared that the heir-at-law was entitled to such part of the real estate, or of the money to arise by the sale thereof, as would have been applied in satisfaction of the said two legacies, in case they had not been void, except there should be a deficiency in the funds provided by the testatrix for payment of her other legacies; in which case the consideration was reserved how the said part of the real estate, or the money to arise by the sale thereof, should be ultimately disposed of; and it was declared that such part of the leasehold estates, or of the money to arise by the sale thereof, and the said money due upon mortgage, as would have been applied
(k) Roberts v. Walker, 1 Russ. & tion to be borne by the real estates, M. 752. The decree ordered the and any and what interest therein Master to apportion the legacies (ex- were to be raised, and it was ordered cept the charitable legacies), funeral that the rents of the real estate expenses and debts of the testator, should be received by heiress-atand also the costs of the suit up to law; and it was declared, that the and including his further report, heiress-at-law was entitled to the between the testatrix's real and per- undisposed surplus of the freehold sonal estate in proportion to their and copyhold estates, and that such respective values; for which pur- estates were liable to a rateable propose he was to set a value on the portion with the personal estate of real estate and the outstanding per- the sums charged by the testatrix on sonal estate (if any), and reserved the mixed fund, Reg. lib. 1829, B. the consideration how the propor- fol. 2355, 1 Russ. & M. 767.
in satisfaction of the said charity legacies, if they had not been void, would form part of the funds provided for payment of the other legacies. On the cause coming on for further directions, the question was, whether the proportion of the fund produced by the real estate, which would have been applied in satisfaction of the charity legacies, should go to the heir-at-law, or to supply the deficiency of assets for the other legacies. The court held, that as the testatrix had converted all her real and personal property into an aggregate fund, the whole liable to every legacy, had made the produce of her real estate, where it was not well disposed of, liable to all legacies well given, as by the general law personal estate, forming an interest in land, was liable to all legacies, except those given to a charity, and therefore that the fund arising from the real estate was liable to the other legacies (2).
In Paice v. The Archbishop of Canterbury (m), the testatrix gave all her real and personal estates to trustees, “ in trust, for the following purposes,” which were for the payment of debts and legacies, and then for charitable uses. tion was, whether the money produced by the sale of the leasebolds and freeholds was liable to any part of the debts, legacies, and costs; and it was held, that the freehold estate was not to be burthened with any of the debts or legacies, or of the costs of the suit, except such as related to the real estate.
In Howse v. Chapman (n), a testator directed a share in the Bath Navigation, and various descriptions of personal property, to be sold, and the proceeds of the sale to be applied in paying his debts and legacies, and he gave the remainder to a charitable purpose. The decree at the hearing declared that the Navigation share descended to the heir-atlaw; and, by the decree on further directions, the personal estate exclusively was directed to be applied in payment of the testator's debts and legacies.
(1) Currie v. Pye, 17 Ves. 462.
1 Russ. & M. 759.
(n) 4 Ves. 542.
It was established by the case of Ackroyd v. Smithson (0), that where a testator directs his real estate to be sold, and the mixed fund arising from the produce of the real estate and the personal estate to be applied to certain specified purposes, if any part of the disposition fails, either by lapse or otherwise, then to the proportional extent in which the real estate would have contributed to that disposition, it is to be considered as failing for the benefit of the heir-at-law, and as so much real estate in that event undisposed of. Where the whole land is properly sold by the trustees, and there is only a partial disposition of the produce of the sale, there the surplus belongs to the heir as money, and not as land (p).
Where lands are directed to be sold, and part of the money to arise therefrom is given for charitable purposes, the heirat-law, and not the residuary legatee of the testator, will be entitled to so much of the money as is ineffectually given for those purposes, unless there was a complete conversion, and it can be inferred from the will that the testator intended the legacies which failed should be included in the gift of the residue. Thus where a testatrix, having given certain parts of her household goods to her executors, to be disposed of as they or the survivor should in their discretion think proper, devised her freehold, copyhold, and leasehold estates to her executors, their heirs, executors, administrators and assigns, upon trust, to sell, and out of the money to arise by such sale and her other effects, she bequeathed several legacies, and one to each of her executors for their care and trouble. The testatrix then gave all “ the rest and residue of the monies arising from the sale of her said estates, and all the residue of her personal estate, after payment of her debts, legacies, and funeral expenses, unto her said executors, to be disposed of unto such person and persons, and in such manner and form, and in such sum and sums of money as they, in their discretion should think proper; and declared her will to be,
(6) i Br. C. C. 503; Cruse v. Bar. 484; Dixon v. Dawson, 2 Sim. & ley, 3 P. Wms. 22, and n. by Cox.
Stu. 340. (p) Smith v. Claxton, 4 Madd.
that in case her said freehold, copyhold, and leasehold and personal estates, therein before mentioned, should fall short or not be sufficient for payment of all the said several legacies and bequests, sum and sums of money thereby given and bequeathed, that what should fall short should be proportionably abated out of each legacy thereby given.” The personal estate having been insufficient to pay the debts, the real estate had been sold, and the questions were, first, whether the executors, or the heir-at-law, or the next of kin of the testatrix, were entitled to the surplus arising from the sale of the real estate; secondly, who was entitled to the sum of 5301., the amount of the charitable legacies, admitted to be void by statute 9 Geo. II. c. 36. The court held it clear, that such part of the real estate as was given to charitable purposes belonged to the heir-at-law, and did not go to the next of kin or the residuary legatee; but that neither the heir-at-law nor the next of kin had any right to call upon the executors to account for the residue, which was not otherwise disposed of than by the residuary clause, which was held not to have imposed any trust, but to have given at least a general power of appointment (9).
Again, where a testatrix devised all her real and personal estates to trustees, their heirs, executors and administrators, upon trust, in certain events which happened, to sell the same, and out of the monies to be produced by the sale to pay certain legacies, and then to lay out the sum of 8001. in the purchase of landed property, which was to be conveyed and settled so that the rents thereof might be applied for ever for the benefit of certain charitable institutions' mentioned in the will; and to pay all the remainder of the monies to arise from the sale of the real estates to J. R., for his own use and benefit; the testatrix then disposed of her personal estate by giving several legacies, and bequeathed the residue to J. R., for his own use. The estates having been sold, in a suit instituted by the personal re
(9) Gibbs v. Rumsey, 2 Ves. & 763 n. ; Green v. Jackson, 5 Russ. B. 294. See Crosbie v. The Mayor 35; post. p. 224. of Liverpool, i Russ. & M. 761
presentatives of the testator's heir-at-law against the trustees and J. R., claiming the legacy of 8001., on the ground that it was void as to the charitable uses, Sir John Leach, V. C., said, the will, as to personal estate, speaks at the time of the death of the testator, and the residuary legatee takes not only what is undisposed of by the expressions of the will, but that which becomes undisposed of at the death, by disappointment of the intentions of the will. It is otherwise as to the residuary devisee of real estate, or of the price of real estate. As to him, the will speaks only at the time of making it, and he can take nothing but what is at that time intended for him (r). The devisor, at the time of making the will, intended that the residuary devisee of the price of the land should take such residue, subject to the deduction of the 8001. and not the 8001., which is therefore undisposed of, and results to the heir. In Durour v. Motteux (s), the devisor included the residuary price of his land in the general gift of all his personal estate ; and therefore it was contended that it was the purpose of the testator that it should pass as his residuary personal estate would do (t).
As a testator may, if he pleases, direct that the produce of his real estate, which he orders to be sold, shall in all events and for all purposes be considered as if it had been personal estate at his death; questions have arisen, where there is no express declaration of such intention on the part of the testator, whether that intention is or not to be collected from the whole will. Some regret was expressed by Sir John Leach, M. R., that a rule had not been established that such intention was never to be inferred without the testator's express declaration to that effect; but it is
(r) By a bill foramending the laws been executed immediately before with respect to wills, now in Par- the death of the testator, unless a liament, it is proposed to alter the contrary intention shall appear by above rule of law by an enactment, the will.” “ that every will shall be construed, (s) Ante, p. 216. with reference to the real estate and (t) Jones v. Mitchell, i Sim. & personal estate comprised in it, to Stu. 290. speak and take effect as if it had