Beachcroft v. Harris v. Ingledew, 3 P. Wms. 91. S. P. Legh v. 1 Bro. Parl. Hatton v. Forrest, 110. Chitty, Shallcross v. Thomas v. 2 Ves. 313. 11. A will began with these words:" As to all my wordly estate, my debts being first satisfied, I devise the same as follows," &c. The Court held it clear in this case, that no land, nor any part of the testator's worldly estate, was devised, till after his debts paid; consequently that the land was charged: and that it would have been sufficient though the word first had been omitted. 12. A will began in these words:" As to my worldly estate which it hath pleased God to bestow upon me, I give and dispose thereof in manner following, (that is to say,) imprimis, I will that all my debts, which I shall owe at the time of my decease, be discharged and paid." It was decreed by Lord King, that these words made the lands of the devisor liable to his debts. And this decree was affirmed in the House of Lords. 13. A testator may charge a certain part only of his real property with the payment of his debts, and not the whole. 14. John Ivy, reciting that he had made a former will in the life of his wife, in which he had given her all his real and personal estate; that he had the misfortune to lose her, and therefore he made his will for the disposition of the same. First, he ordered all his debts and funeral charges to be honourably paid after his decease. In a subsequent clause he devised particular premises, enumerating them, excepting H. and R.; all which enumerated lands, except H. and R., he devised to trustees, by and out of the money arising by sale, and out of the rents and profits thereof, in the mean time, in the first place, to pay and discharge all his debts, funeral expenses, and all legacies given by his will, or by other writing under his hand. He afterwards went on and said that H. and R. should be in the first place for payment of the legacies mentioned in his will. On a bill by the creditors to have the real estate by the will subjected to the payment of their debts, in aid of the personal, so far as that proved deficient; insisting that the whole real estate was by the will established as a fund for payment of debts. And whether the whole or any part of the real estate was subject to debts, was the question. Sir J. Strange, M. R. said, the word same must relate to the real and personal estate before given; and if it stood on that, and the word first, only, he should have no doubt but that his whole real estate would be subject to the payment of debts; not from any express mention made that they should be a charge on his real estate, but from that construction the Court makes for the benefit of creditors; and that men should not sin in their graves. Here was no express declaration on the outset of the will that the testator's whole real estate should be charged with payment of his debts; therefore it was necessary to look further into his will, and to see what was the intent of the testator, who was not bound in fact, though bound in honour, to make such a disposition for his creditors. Considering the whole, he had subjected the greatest, but not every part of his real estate, to the payment of his debts; having excepted a particular part, and applied it to another purpose, not intending that H. and R. should be liable to be swallowed up by creditors, to the prevention of the legatees under the will: but afterwards directed what should be done with H. and R. He had personal estate, which he could not exempt from payment of his debts; he had real, the whole of which he might subject; in declaring his intent as to that, he exempted H. and R. entirely, reserving them as a fund for legacies only. On the clauses therefore, altogether, and which were only clauses by which he expressly charged his land therewith, he considered how far his real estate should be chargeable to creditors; and then thought himself at liberty to apply the other part to satisfy legatees. Ellison v. 2 Ves, 568. Therefore, though on the first part, the Court might take the whole real to be charged with debts, yet as there was no express lien on the real, by these general words, and afterwards he distributed such part of his real for debts, and such for legacies; it was too much to lay hold on the general words, to say the whole should be charged with payment of debts. It could only be done by implication on the general words, which might be explained afterwards, and that implication destroyed: consequently, the plaintiffs could only have a decree for an account of the personal estate, and then the other parts of the real estate, except H. and R., for payment of their debts. 15. But unless the intention to exempt a particular part of the real estate be very clear, the whole will be subject. 16. T. Nichols by his will charged all his personal estate with debts and legacies; and so much as the personal estate should fall short to answer and pay, he charged all his messuages, lands, and grounds in Durham, with payment thereof, in aid of the personal estate, and directed the personal to be sold. By a subsequent clause he gave a particular farm to be sold, for payment of his debts and legacies; and by another clause, devised all his real estate so charged and chargeable to trustees, to receive and take the first two years' profits, that should arise and become payable out of his estate in Durham, for payment of his debts and legacies, if the personal estate proved deficient. It was contended that only that particular part, and the two years' profits, were charged; the generality of the first charge being controlled and restrained thereto by express words. Lord Hardwicke said, that upon all the rules of charging for payment of debts and legacies, the charge of the personal estate therewith was unnecessary. Afterwards there was a full and complete charge on the real, of so much as the personal proved not sufficient to satisfy. It must be something very strong in the will to restrain that charge to a particular part, to go no further. If it rested on the clause which gave the farm, would the express direction of the will to sell a particular estate, towards payment of those debts and legacies that the personal was not sufficient for, afford a negative implication that no more should be sold? Certainly not. For there were several cases where there was a charge for payment of debts, and afterwards a direction that a particular part should be sold; that had been taken only to be a declaration that they should be first applied. Then the subsequent part was no more than what was done by the former clause, taking out a particular part; as one was of the inheritance, the other the profits. If indeed negative words were added, it could go no further; but he took those negative words, and no more, to be applied to the maintenance. There were several cases of a general charge, by words not nearly so strong as here, and a devise afterwards of a particular estate for that purpose, yet that was not sufficient to restrain it. This general charge then subsisted; and he could not make any other construction. 17. A devise in trust for payment of debts does not revive a debt upon which the statute of limitations had taken effect, by the expiration of the time, before the testator's death. 18. In all cases of this kind, customary or copyhold lands will be applied in payment of debts, as well as freeholds. v. Penneck, 19. T. Penneck declared by his will that all his Godolphin debts and funeral expenses should be first paid and 2 Ves. 271. satisfied. The question was, whether certain customary lands held of the duchy of Cornwall, which had been mentioned in the will, in distinct parts from the rest of the fee simple lands, were subject to debts; the testator Coombes v. Gibson, having surrendered those lands to B. P., who declared a trust thereof by deed, for several persons, and for the use of such as the testator should appoint. Lord Hardwicke said, he was satisfied that by the will these lands were subject to debts. 20. A question arose, whether in failure of the per1 Bro. R. 273. sonal estate, copyhold lands were liable to debts, under the common commencement of a will:-" As to all my worldly estate, I desire all my just debts should be first paid." Legacies not preferred to Lord Commissioner Ashurst said, the doctrine was, that where the introductory words made the real estate liable, it should extend as well to the copyhold as to the freehold lands. The freehold was as unnatural a fund for the payment of debts as the copyhold. It was admitted that if there had been no freehold, the copyhold would have been liable. If the freehold had been devised to one person, and the copyhold to another, the freehold might have been first applied. But he was clearly of opinion they were both liable. Lord C. Hotham said, if the copyhold was charged by the will, there was nothing in the case to discharge it. The law followed the testator's intention, to apply the whole real estate to the payment of debts; which covered the copyhold as well as the freehold. 21. It has been determined that a clause in a will, specific devises, directing the payment of all the testator's debts and legacies, is not alone sufficient to charge legacies on real estates specifically devised; for there the intention must be clearly expressed. Kightley v. 2 Ves. jun. 22. Thus where a testator first directed that all his debts, legacies, and funeral expenses should be fully paid and discharged; and afterwards devised two freehold estates specifically to two persons and gave some legacies; the question was, whether the legatees were entitled to have the devised estates sold for payment of their legacies. Sir R. P. Arden, M. R. said, it had been contended, |