the real estate; that the will of the testator may be performed in toto. The court declared the bequest of the leasehold estate to the charitable uses void, and consequently that the same was to be considered as part of the personal estate undisposed of by the testator, and that the same was in the first place applicable to the payment of the testator's debts and funeral expenses, and that the residue of the leasehold estate belonged to the testator's next of kin, and the produce of the leasehold estate (which was directed to be sold), was declared in the first place to be applicable to the payment of the testator's debts and funeral expenses, and that the residue of the leasehold estate belonged to the next of kin (q). The rule adopted in the above cases was first shaken by Lord Northington, and may now probably be considered as superseded.

In the case of a specific bequest of a leasehold estate to a charity which was void, it was attempted to give the charity the benefit of the leasehold estate as forming part of a residue which was given to charitable purposes. But Lord Northington was of opinion, that the void legacy could not bear a proportion of the debts and legacies in order to augment the general residue for the charity; first, because the words of the statute are negative, that no interest in land shall go to a charity; secondly, because it was the intent of the testatrix, that the trustees should take the leasehold by specific devise, and not as part of the residue of the personal estate; and therefore, the clause in the will giving "all the rest and residue of the personal estate to the trustees, to dispose of the same for the charitable purposes aforesaid," must be considered to mean only the residue exclusive of the lands specifically devised; and therefore, consistently with the will and the statute, the charity could at most only take such residue were there no other objection to the devise of such residue (r).

(q) Attorney General v. Graves, Ambl. 155, 157, note by Blunt. The same rule was observed in Negus v. Coulter, Ambl. 367; S. C. 1 Dick.

326. See ante, p. 154.

(r) Attorney General v. Tyndall, 2 Eden, 207; S. C. Ambl. 614. See Waller v. Childs, Ambl. 526.

In Hillyard v. Taylor (s), a testator gave all his estate, including a descendible freehold in trust, to sell and pay (amongst others), two legacies to charities, and it was decreed, that in case the personal estate should be wholly or in part exhausted in satisfying the debts and funeral expenses, and such of the legacies as were not given to charity, then the legatees of the charitable gifts should stand in the place of the specialty creditors, and receive a satisfaction pro tanto out of the real estate, but that decree was afterwards reversed on the authority of Foster v. Blagden (t).

The doctrine of marshalling assets so as to give to charities the full benefit of the pure personal estate, appears to be now wholly exploded as an evasion of the statute 9 Geo. II. c. 36 (u). Therefore, charitable legacies are only entitled to be paid out of the pure personal estate, pari passu, with the other legacies, and will be defeated as to all which that estate is insufficient to pay, after bearing the proportion of the other charges to which it is liable (v).

In Makeham v. Hooper (w), where the fund for payment of legacies arose partly from real estates, and the personal estate was insufficient for payment of general legacies to particular charities, Lord Commissioner Ashhurst said," that he thought they were bound by the recent cases with respect to the question of marshalling; that it did not appear what was the reason of the turn in the cases, but as the decisions had taken that course, they could not alter them."

2. As to the apportionment of a mixed fund to the payment of debts and charitable and other legacies.] Although assets will not be marshalled in favour of charitable gifts, yet the Court of Chancery in administering a general residue given for such purposes, consisting partly of mortgages or other interests or incumbrances affecting real estates, will not as between the testator's next of kin who are considered as legatees of such

(s) Ambl. 713; S. C. 2 Dick. 475.

(1) Ante, p. 230.

(u) Foy v. Foy, 1 Cox, 165.

(r) Ridges v. Morrison, 1 Cox,

180.

(w) 4 Br. C. C. 156.

interests, and the charities which have a clear right to the pure personal estate, allow a creditor or general legatee to resort exclusively to the assets purely personal, to the disappointment of the charities; but will, where part of a disposition of the residue to charity fails on account of its consisting of mortgages or the produce of real estate, direct, that the respective funds shall be applied to the debts and other charges according to the proportion those funds bear to each other. Thus, where a testator bequeathed all the rest, residue, and remainder of his goods, chattels, personal estate, and effects whatever, not thereinbefore otherwise disposed of, to trustees in trust, to invest in the funds and not on any real security, the dividends to be applied for supporting a school. On an information to establish the charity, one of the next of kin of the testator contended, that the gift of the residue was void so far as it consisted of mortgages and other real securities, and that he was entitled to a distributive share of the residue. Sir R. P. Arden, M. R., said, that some cases showed that assets should not be marshalled. He conceived this case to stand upon the same ground as if the testator had specifically bequeathed his mortgages to one person, and the other part of his personal estate to another. In such a case, they should contribute to the payment of the debts and legacies rateably according to the amount of what they took. The next of kin in this case, he considered as if he had been a legatee of the mortgages, and therefore decreed, that the payment of the debts and legacies should be made out of the mortgages, and out of the rest of the personal estate, rateably according to the amount of each of them respectively (x).

(x) Attorney General v. Earl of Winchelsea, 3 Br. C. C. 381, n. by Belt; S. C. 2 Cox, 364. The decree declared, that the debts, legacies, and costs of the original suit, ought to be paid out of the testator's general personal estate, and out of the monies secured upon mortgage or other real

securities pro ratá, (except so far as such costs related to any proceedings to be had respecting the charities in question, under the direction thereafter given for regulating the same), which ought to be wholly paid out of the testator's general personal estate; and that the surplus of the personal estate, exclusive

The rule of contribution adopted in the last case has been followed in several other cases. Thus where there was a specific disposition of real estate by will, in trust, to sell, and in the first place to pay debts, legacies, and the charges of probate and execution of the will, and, in the next place, that the residue should be appropriated to the improvement of the City of Bath, the bequest, as to a navigation share, being void and going to the heir-at-law as real estate; and as to money on real securities, as mortgages, turnpike bonds, and commissioners' bonds for the improvement of the City of Bath being also void and going to the next of kin, it was held, that the general residue undisposed of was to be first applied to the debts and other charges, and the deficiency to be borne by the personal property that passed to the City of Bath, and that of which the disposition failed by the statute of mortmain ratâ (y).

pro

Where a testator gave his real estate and the residue of his personal estate to his executor, upon trust, after the death of his wife, to convert it into money, and after payment of legacies (some of which were to charities), he gave the residue to the Corporation of Liverpool on charitable trusts. The executor having sold the real estate, the original decree declared that the bequests of so much of the legacies to charitable uses and the trusts of so much of the residue which was given to charitable uses, as arose from the real and leasehold estates, were void; and it was afterwards referred to the Master to

of such part thereof as should appear to have been secured by mortgage (after bearing the proportion of the testator's debts, legacies, and costs, before mentioned), ought to be applied for the several charitable purposes mentioned in the testator's will, and the surplus be retained by, or paid to the trustees, for the several charitable intents and purposes therein mentioned, and that a scheme be laid before the Master for the application of the charitable

funds given by the will. And it was declared, that so much of the personal estate as had arisen from mortgages or any other real securities (after bearing the proportion of the debts, legacies, and costs, directed to be paid thereout) belonged to the testator's two next of kin in equal moieties. The above decree is stated at length in Seton's Forms of Decrees, 130–132.

(y) Howse v. Chapman, 4 Ves. 542.

make the necessary apportionment for settling the rights of the parties (z).

In a recent case (a), where a testatrix gave two legacies to charitable institutions, and the residue of her estate which consisted partly of mortgages, for other charitable purposes; it was ordered, that such two legacies should be paid out of

(z) Crosbie v. Mayor of Liverpool, 1 Russ. & M. 761. It appeared by the Master's report, that the testator's personal estate amounted to 13861. Os. 5d., of which 9287. 16s. 2d. consisted of money due on mortgage and the produce of leaseholds; and the debts, legacies, and funeral expenses amounted to 8721. 7s. 6d. The decree on further directions was as follows:-That it be referred to the Master to ascertain how much of the sum of 13861. Os. 5d., certified by the Master to be the amount of the testator's personal estate, come to the hands of the plaintiff, his executor, has arisen from leaseholds and money due on mortgages; and to ascertain how much has arisen from other particulars; and it is ordered that the Master do apportion the debts, legacies, funeral and testamentary expenses of the said testator, between so much of the personal estate as he shall find to have arisen from leaseholds and the money due on mortgages, and so much thereof as he shall find to have arisen from other particulars, according to their respective values ; and it is ordered that he do tax as between solicitor and client the costs of these suits of all parties, and apportion the same between the produce of the real estate of the said

testator, such part of the personal estate as he shall find to have arisen from leaseholds and money due on mortgage, and so much thereof as he shall find to have arisen from other particulars, in like manner as herein before directed, as to the debts and legacies, funeral and testamentary expenses; and it is ordered that such costs, when so taxed and apportioned, be paid by the plaintiff out of the said several estates, according to such apportionment; and this court doth declare that the residue, if any, of the personal estate which has not arisen from leaseholds or money on mortgage, will be applicable to the purposes of the charity, and the residue of such personal estate as the Master shall find to have arisen from leaseholds and money on mortgage, will belong to the defendant as the only next of kin of the testator, and the residue of the produce of the real estate will belong to the defendant in the supplementary suit, as the personal representative of the heir-at-law of the testator. Reg. Lib. (A.) 1820, fol. 1362, 1 Russ. & M. 761, 763, n. See Paice v. Archbishop of Canterbury, 14 Ves. 364; 1 Russ. & M. 759, n.; Curtis v. Hutton, 14 Ves. 537.

(a) West v. Shuttleworth, Reg. lib. (B), 1834, fol. 575–577.