reach (b). This rule extends to legatees; thus, where a specialty creditor, who has a general lien on the real estate, as a creditor by bond in which the debtor bound himself and his heirs, receives satisfaction out of the personal estate, and thereby exhausts it so as to leave nothing for the payment of legacies, a legatee shall stand in the place of such specialty creditor, as against the real assets, which have descended to the heir (c).

A legacy given to charitable uses payable out of pure personal estate, that is, out of such parts of it as have not arisen from mortgages or other interests, or incumbrances affecting real estates, is valid (d). It has been already shewn that bequests of leaseholds, money due on mortgages whether in fee or for a term of years, or charged on, or to arise from the sale of real estate, to charitable uses, are void (e).

1. Decisions as to marshalling assets in cases of charities.] Where testators being possessed of pure personal estate, and of money arising from mortgages, and other interests or incumbrances affecting real estate, have given the residue of their estates or particular legacies, to charities; questions have often arisen whether the assets should be marshalled, by throwing all the debts and other legacies in the first instance, upon those interests which cannot lawfully be charged in favour of charities, in order that the pure personal estate may go in satisfaction or augmentation of the charitable bequests.

The court does not appear to have marshalled the assets in favour of a charitable gift, where the residue was given to charitable uses, and the real estate was charged with the payment of debts and legacies generally.

(b) Attorney General v. Tyndall, Ambl. 615. See 2 Fonbl. Eq. 286 -301; Ram on Assets, 329-355.

(c) Bowaman v. Reeve, Pr. Ch. 578; Lutkins v. Leigh, Cas. temp. Talb. 53; Hanby v. Roberts, Ambl.

128; S. C. Dick. 105; Aldrich v. Cooper, 8 Ves. 396.

(d) Sorresby v. Hollins, 9 Mod. by Leach, 221; ante, pp. 183-185. (e) Ante, pp. 154-168.

In Arnold v. Chapman (f), the facts of which have been already stated, it was contended, that the assets ought to be marshalled in favour of the charity, on the ground that a testator might say, that he charged his real estate with debts and legacies, and gave his personal estate to a charity. Lord Hardwicke said, possibly that might do, although it would go a great way towards overturning the mortmain act; but as to that he would not give an opinion, for in such a case the testator appears to have an intention of exoneration (g). The rule of the court as to marshalling assets, must be taken to be the same as it was before the statute, and if a legacy was given and debts charged on real and personal estate, the rule then was, that the debts should be paid out of the real, and the legatees should come on the personal; but there was no rule that where real and personal estate is charged, and the residue given to a legatee; the court would in such case, turn the charge on the real, to give the whole personal estate to the legatee.

As the personal estate is the proper fund for payment of debts, if an heir-at-law is sued upon a specialty, he may go into a court of equity and be reimbursed out of the personalty; but where a testatrix, after subjecting her personal estate to the payment of her debts and legacies, gave the residue of her personal estate and of the money to arise from the sale of her real estate, which was directed to be sold for charitable purposes, the court would not lay all the debts and other legacies on the real estate, in order that all the personal estate might be applied to the charities (h). So where a testatrix devised her real and personal estate, after payment of her debts, funeral expenses and charges of prov

(f) 1 Ves. sen. 110; ante, pp. money, and such part of his per206, 207. sonal estate, as by law he could charge with the payment thereof," was not questioned.

(g) See Dixon v. Dawson, 2 Sim. & Stu. 327, in which the validity of a direction by a testator "that certain legacies to charities should be raised and paid out of his ready

(h) Mogg v. Hodges, 1 Cox, 9; S. C. 2 Ves. sen. 52.

ing her will, to be disposed of, and gave a legacy to the Corporation of the Sons of the Clergy, and the residue to Christ's Hospital, the court refused to marshal the assets by throwing the debts upon the real estate, in order to leave the personalty clear for effecting the charitable legacies (i).

But in some early cases, a distinction was made between the gift of a residue and a particular legacy to charitable uses; and, in the latter case, if the real estate was made liable to the payment of debts and legacies as an auxiliary fund, and the personal estate was not sufficient to pay the whole, a legacy to a charity was ordered to be paid out of the personal estate, and the debts and other legacies out of the real. Thus where a testator gave all his real estate to trustees, in fee, in trust, to sell and to pay the monies to arise by such sale and the rents in the mean time, as he had thereafter bequeathed the same, and then gave certain legacies and a sum of 1000l. to be laid out by trustees as a fund for charitable uses; and declared his mind to be that his debts, funeral expenses, and legacies should be paid out of his personal estate, if the same should be sufficient, but if not, that such deficiency should be made good out of the monies to arise from the sale of his real estate, and gave the residue of his estate to charities. It was declared that the devise of the surplus of the real estate, or of the monies to arise by the sale thereof, was void by the statute 9 Geo. II. c. 36; and that in case, after payment of the debts, funeral and testamentary expenses and legacies, there should remain any surplus of the testator's personal estate, then that such surplus should be applied to the charitable purposes declared by the will; but if the personal estate was not sufficient to pay debts, funeral expenses, and legacies, that the legacy of 10007. and the interest given, in trust, to be laid out and settled as a fund for charitable uses, ought to be satisfied entirely out of the personal estate, as far as the same would extend; and that the residue of the testator's debts and other

(i) Foster v. Blagden, Ambl. 704.

legacies, and the interest thereof, ought to be raised and paid out of the real estate (k).

So where a testator by his will charged his real estate with the payment of his debts and legacies, except three legacies for charities, which he directed to be paid out of his personal estate, Lord Northington decreed, the charity legacies to stand in the place of the specialty creditors, for what they should exhaust of the personal estate (1).

The bounty of a testator enables legatees to require assets to be marshalled, and therefore if such creditors as have a right to resort to the real estate descended will go to the personal estate, the choice of the creditors will not determine whether the legatees shall be paid or not (m).

Lord Hardwicke adopted a similar principle in marshalling assets, in cases where leaseholds for years or mortgages were bequeathed to charities, considering the property as undisposed of and belonging to the next of kin, and in the same light as land descending to an heir-at-law, which was applied for the benefit of a particular devisee in payment of a mortgage debt secured on the lands devised.

Thus where a testator, who was possessed of a lease for years but not of any real estate, after directing the payment of his debts and legacies, gave the residue of his estate for charitable purposes; and the question was, whether the leasehold should be first applied in payment of debts and legacies. Lord Hardwicke said, where there are general legacies charged on real estate, and the personal estate is insufficient to pay the whole, the legacy to the charity shall be paid out of the personal estate, and the rest out of the real. So where there. is a particular disposition of the different species of estate, enumerating them, and in the devise of the residue one of them is left out, that part shall be applied first. So when there is a charge on the real estate and part of it is left undisposed

(k) Attorney General v. Lord Weymouth, Ambl. 20, 25, n. (11). See Mogg v. Hodges, 1 Cox, 12, 2 Ves.

şen. 52.

(1) Attorney General v. Lord Mountmorris, 1 Dick. 379.

(m) Aldrich v. Cooper, 8 Ves.

396.

and descends, that part shall be first applied (n). His lordship said that the same rule must apply in the principal case; for though the court would not set up a new rule of marshalling assets in order to defeat the statute of mortmain, yet the old rules ought to be applied as before that statute. The bequest of the residue being good, except as to the leaseholds, which went to the next of kin, it was held that the charitable legacy ought to be paid out of the residue of the personal estate exclusive of the leaseholds, and that the leaseholds should be first applied in the payment of debts and legacies, as a real estate descending would before that part which is devised (o).

In the Attorney General v. Caldwell (p), where a testator gave the residue of his estate naming "mortgages" to charities, on the question whether a mortgage for years should be applied in the first place in payment of the debts, the court distinguished between a case where a mortgage was given specifically, and where it passed by the residuary bequest, enumerating it amongst the different species of estates of which the residue consisted; and held, that in the former case it could not be first applied to pay debts, but in the latter it might, and accordingly gave directions that the mortgage should be first applied.

Where a testator devised the residue of his real and personal estate to charitable uses, which was declared to be void, so far as related to a term of years, whereof he was possessed as lessee. On the question of marshalling the assets, Lord Hardwicke said, that he should not set up a new rule for the benefit of charities, but they might have the benefit of the old rule. When there are general legacies, and the testator has charged his real estate with payment of all his legacies, if the personal estate is not sufficient to pay the whole, the court has said, the legacy to the charity should be paid out of the personal estate, and the rest out of Ambl. 216, and n. by Blunt. (p) Ambl. 635; ante, p. 157.

(n) Galton v. Hancock, 2 Atk,

430.

(0) Attorney General v. Tomkins,