been alleged, that, according to the proper construction of the will, the proceeds of the real estate were the primary fund for payment of the testator's debts, and funeral and testamentary expenses, in exoneration of his personal estate. That they had possessed the personal estate, but not enough to pay all the debts, funeral and testamentary expenses; and that the real estate was in the possession of certain tenants; and that they the defendants had received the rents and profits of the same, and that they had not sold any part of the real estate. Wigram and Prior, for the plaintiff, said, that it was clear that there was no conversion of the real estate by the words of the will, and that the surplus (if any) of the produce of it, when sold, would go to the plaintiff, the testator's heir-at-law. (Wilson v. Major, 11 Ves. 205). As to the question, of which was the primary fund for the payment of the debts, the personal estate was, no doubt, that fund. (Brummell v. Prothero, 3 Ves. 111; Aldridge v. Lord Wallscourt, 1 B. & B. 312; Michell v. Michell, 5 Mad. 69; Driver v. Ferrand, 1 Russ. & My. 681; Blount v. Hipkins, 7 Sim. 43; Greene v. Greene, 4 Mad. 148). Hodgson and Follett, for the infant, contended, that the testator intended to comprise, under the description of personal estate, the surplus arising from the sale of the realty, after payment of the legacies and debts charged thereon. He plainly thought that his real estate was converted into personalty, and would pass by the bequest; and that intention being clear, the Court would give effect to it, and hold, that the fund out of which the debts were to be paid in the first instance was such produce, and that Thomas Robins the infant would take the personalty clear of those debts, except so far as the surplus produce of the realty should prove insufficient to pay them. Bacon and Bentinck appeared for the executors. March 5.-KNIGHT BRUCE, V. C.-Since the argument I have read attentively the will in this case, upon which two questions only were raised. As to one of them, I think that the will does not give to Thomas Robins, and does not dispose of the surplus of the beneficial interest in the produce of the testator's real estate, after paying the charges which ought to be considered as imposed upon it, according to the true construction of the instrument; and that this surplus, therefore, if any, belongs to the plaintiff as the heir. The other question, that, namely, whether the real estate or the personal estate is the fund first applicable to the payment of the testator's debts, (for the personal estate has not been argued not to be the first fund for paying the funeral expenses, and the expenses of proving the will in the Ecclesiastical Court), has appeared to me one of more difficulty, and upon which it had occurred to me to doubt whether a statute that relieves our laws from great discredit,-I was nearly saying scandal, the act, namely, of 1833, (the 3 & 4 Will. 4, c. 104), ought not to have some influence, so as possibly to render a decision since the act in favour of the personal against the real estate right, which, before the act, would have been erroneous. I cannot, however, venture to say, that, in the present instance, at least, I ought so to view it; though, certainly, where a testator dies solvent, a charge of his debts on his real estate by his will is at present of little or no materiality so far as his creditors are concerned, who need scarcely care whether the real assets are legal or equitable, if they are in either case sure of payment. A remark, subject, of course, to this, that the state of the property may be such as to render material the question whether the real assets are equitable, and to this, that a creditor may, after his debtor's death, be barred by delay as to any remedy against his personal estate, without being so against his real estate in certain circumstances; and it is to be recollected, that what is now true of the real estate of all deceased debtors was, for more than five and twenty years before 1833, true of the freehold estate of debtors who were at their deaths in trade. The particulars of the will here are soon stated. It is dated in 1845. All the real estate is devised to John Robins and Benjamin Robins, in trust to sell. The proceeds of the sale, and the rents in the meantime, are directed to be applied, in the first place, to pay and satisfy all debts due and owing from the testator at the time of his decease to any person or persons whomsoever, and then to pay the trustees all costs, charges, and expenses attending the execution of the trusts hereby created, or in relation thereof; and then to pay to each of two nieces of the testator, whom he names, 5007.; and then to invest 500l., of which he directs the interest to be paid to a third lady for life, and the capital to be, after her decease, paid to his godson Thomas Robins, son of one of the trustees. The will then proceeds, and concludes in these words:" And as to, for, and concerning all and singular my ready monies and securities for money to me belonging, and all other my personal estate and effects, whatsoever and wheresoever the same may be at the time of my decease, I give and bequeath the same unto my said godson, the said Thomas Robins, his executors, administrators, and assigns. I give and devise all estates vested in me on any trusts, or by way of mortgage in fee, and which I have power to dispose of by this my will, with the appurtenances, unto the said John Robins and Benjamin Robins, and to their heirs, executors, administrators, and assigns, according to the respective natures and legal qualities of the same estates respectively, upon trust to hold or dispose of the said trust estates in the manner in which they ought to be held and disposed of pursuant to the said trusts, and upon payment of the money secured on mortgage, to convey or assign the estates on mortgage to the person or persons entitled thereto for the time being; and it is my will, that the receipts in writing of the said trustees or trustee for the time being acting under this my will shall be sufficient discharges to all persons and purchasers for his, her, or their purchase or other money or monies, or for so much thereof as in such receipts shall be expressed to be or to have been received, without such purchaser or purchasers or other person or persons being bound to see to the application, or answerable for the loss, misapplication, or non-application thereof, or any part thereof; and further, that it shall be lawful for the trustees or trustee for the time being acting under this my will, in the first place, to deduct and retain to themselves, and to allow to each other, all loss, costs, charges, and expenses they or he shall bear or be put unto in the execution of this my will, or in relation thereto; and that they or either of them shall not be answerable for the other or others of them, or for the heirs, executors, or administrators, or the acts, deeds, or defaults of the others, or any other of them, but each for his own acts, deeds, and defaults only; and that neither of them shall be answerable for any banker, broker, or other person with whom or in whose hands any of the trust monies shall be deposited or placed; nor for any loss, damage, or misfortune which may arise or happen in the execution of this my will, or in relation thereto, except the same shall arise or happen by or in consequence of his or their own wilful default. And lastly, I hereby nominate and appoint the said John Robins and Benjamin Robins executors of this my will, hereby revoking all former wills." Thus, therefore, it appears, that the devisees in trust are the executors, are the only executors; that there is given to the heir, the plaintiff in the cause, nothing; but to his daughter, one of the testator's two nieces, the sum of 5007. That, as to the beneficial interest in the produce of the real estate, there is an original intestacy, not wholly, but partially—at least, as it seems, without much, or with out any, doubt to me. That there is one universal Mitchell v. Mitchell, (5 Madd. 69); Driver v. Ferrand, legatee of the personal estate; that he is neither the (1 Russ. & My. 681); Blount v. Hipkins, (7 Sim. 43); trustee nor an executor, but is one of the four persons and Lamplier v. Despard, (2 Dr. & War. 59) Having among whom the beneficial interest in the produce of done this, and having done so with the conviction that the real estate is given, so far as the testator has dis- I should be in error, were I to depart from any prinposed of it; and that, unless under the words "all ciple or rule which, in the course of the judgment in costs, charges, and expenses attending the execution of Bootle v. Blundell, (a judgment containing various obthe trust hereby created, or in relation thereto," or the servations having, as I think, a particular bearing, as words, "all loss, costs, charges, and expenses they or well as a bearing generally on the present case), Lord he shall bear or be put unto in the execution of this Eldon recognised or laid down, I have arrived at the my will, or in relation thereto"-expressions in con- conclusion, that the preponderance of authority is in struing which attention ought to be given to the place favour of the heir on the point of exoneration. Among in which they are found respectively, it is clear that the propositions which, in the case I have just menthe instrument does not in terms notice, does not ex- tioned, were stated by the great judge who decided it, pressly refer to, any payment or deduction as to be are these:-"I can find no rule deducible," says Lord made out of the personal estate; and, I suppose, equally Eldon, "from all that has been said on the subject, but clear, that the expenses of the funeral and the expenses this, (which appears to be a rule supported by all the of proving the will in the ecclesiastical court are not cases taken together), namely, that, since it has been charged on the real estate, or made payable out of its laid down that express words are not necessary to exproceeds. Whether this circumstance whether the empt the personal estate, there must be in the will that fact, that this particular will does not in terms call the which is sometimes denominated evident demonstragift of the personal estate "residuary," or the gift of a tion, sometimes plain intention, and necessary implicaresidue ought, upon the question of exoneration, to tion to operate that exemption. Thus much can be be deemed of weight on either side, may perhaps be collected from the cases; but when you proceed furquestionable. It has, however, been judicially said, ther, and inquire what it is that constitutes this evithat a testator's acquaintance with the law is to be dent demonstration, plain intention, or necessary impresumed; and certainly it is very plain, that, what-plication, it does appear to me that Lord Alvanley is ever this testator's right of arranging the order and mode in which the different portions of his property should, as between themselves, be applied, it was beyond his power to except his personal estate from liability to his creditors at least, if not from that and other liabilities; and beyond his power also to prevent his executors from acquiring the property in it, or to enable Thomas Robins, without their assent, or the assistance of a court of equity, to obtain any benefit from it. A testator, also, knowing the law, would know the difference between legal and equitable assets. I need not say whether, independently of authority, I should have thought it right, or probably right, to treat the instrument before me as exhibiting an intention of excluding the personal estate from the debts; for the question of exoneration has arisen on so many wills, has presented itself in such a variety of forms and circumstances, and is so ancient and almost so familiar a grievance of the court, that authority upon it is abundant. The accumulation, indeed, of cases, with the different views taken by different judges of the nature and effect of particular phrases or provisions, has tended, I suppose, of necessity to embarrass the question; and this must probably be thought somewhat an unruly quarter of the law. On the whole, however, some principles of interpretation, with reference to the point under consideration, have been finally recognised and established, which, whenever the point arises, are to be kept in view, and not intentionally abandoned. But still, with reference to the true construction and effect of such a will as this, the authorities cannot, I think, be represented as uniform or harmonious; and I have had, therefore, to consider whether those against or those for the plaintiff, as the testator's heir, preponderate. The reported cases, more or less directly in point, which have been decided within the last 150 years, would, extracted from the many volumes containing them, and collected, form together, I do not say a great evil, but a great book. It appeared to me, on this occasion, that I might content myself, in addition to Bootle v. Blundell, (1 Mer. 193), with consulting particularly Lord Inchiquin v. French, (Amb. 33); Duke of Ancaster v. Mayer, (1 Bro. C. C. 454); Webb v. Jones, (2 Bro. C. C. 60); Burton v. Knowlton, (3 Ves. 107); Brummell v. Protheroe, (Id, 111); Brydges v. Phillips, (6 Ves. 567); M'Cleland v. Shaw, (2 Sch. & Lef. 558); Watson v. Brickwood, (9 Ves. 447); Tower v, Lord Rous, (18 Ves. 132); Greene v. Greene, (4 Madd. 148); every in right when he says, You are not to rest on conjecture, I not exonerate the personal estate from the burthen of his debts, unless he so expressed himself as to lead the Court to the fair conclusion, from the language which he used, that such was the intention which he meant to express." It being clear, that upon those who allege a testator's personal estate not to be the first fund for paying his debts lies the burthen of shewing, that, in so many words, or by expressions tantamount, he has directed his personal estate not to be so, and that they must do more than bring his meaning into doubt, I do not find it possible, considering the state of the authorities, to declare that the legatee of the personalty has, in the present instance, done this. I must decide in the heir's favour, therefore, both the points that have been argued, though my decision would, I very much suspect, be altogether reversed by the testator if he could sit in judgment on his will. But as Lord Eldon, in a case that I have several times mentioned, said, "After all the question is, not what the testator really meant, which can never be ascertained; but what he has authorised the Court to say it is possible was his meaning." Declare, that, as between the real and personal estate, the personal estate is primarily liable for the payment of debts. Reserve the consideration of the question of costs. VICE-CHANCELLOR WIGRAM'S COURT. Steed v. Oliver.-May 8. Practice-Evidence-Examination of Co-defendant. An order to examine a Co-defendant as a Witness may be obtained Ex parte by a Defendant, as well after as before Decrees and the Question, whether the proposed Witness is or is not incompetent from Interest, can only be raised when the Evidence is objected to. The bill was filed for an account against the three executors of a deceased testator. After the usual decree had been made at the hearing, two of the defendants, who had severed in their defence from the third defendant, took in a state of facts before the Master, and then obtained ex parte the common order at the Rolls for leave to examine their co-defendant in support of the state of facts, saving just exceptions, upon the usual allegation, that the party proposed to be examined had no interest in the matters in question in the cause. Romilly and R. Pryor moved to discharge the order for irregularity. The order to examine a co-defendant, though it might be obtained ex parte before decree, could be made only upon a special application after decree. The defendant, moreover, whom it was proposed to examine, was interested co-extensively with the other defendants in the account to be established by the state of facts. The case, therefore, was one to which the provisions of the stat. 6 & 7 Vict. c. 85, did not apply. (Monday v. Guyer, V. C. K. B., March 18, 1847). Eade, contra, contended that a motion for an order to examine a co-defendant was as much of course after as before decree; (Paris v. Hughes, 1 Kee. 1; Vau v. Corpe, M. & K. 269; 2 Dan. Ch. Pr. 459); and that the proper time for raising the question how far the party was a competent witness was at the hearing, when the examination was offered to be read in evidence. Murray v. Shadwell, 2 V. & B. 401; Lee v. Atkinson, 1 Cox, 413; Paris. Hughes). Sir JAMES WIGRAM, V. C., upon the authority of the cases cited, refused the motion, with costs. COURT OF QUEEN'S BENCH.-MICH. TERM. REG., on the Prosecution of the Executors of Thomas Where a Testator leaves Assets in the Provinces of Can- Semble, that the Practice of the Commissioners of Stamps in such Cases, of apportioning the Debts rateably, according to the Amount of Assets in each Province, is an equitable Course. Mandamus. The writ recited that Thomas Lord Wallace died on the 23rd February, 1844, having duly made his last will, and appointed Sir C. Monck and others executors thereof; that probate of the said will was granted by the Prerogative Court of Canterbury on the 19th July, 1844, and the personal estate and effects, for and in respect of which such probate was granted, were sworn to be under 45,000l., and a stamp-duty of 600l. was accordingly paid by the executors thereon; that probate of the said will was also granted by the Prerogative Court of York on the 5th September, 1844, and the personal estate and effects, for and in respect of were then sworn to be under 8000l., and a stamp-duty which the said last-mentioned probate was granted, of 1407. was accordingly paid by the executors on such last-mentioned probate; that the personal estate and effects for and in respect of which probate was granted by the Prerogative Court of Canterbury as aforesaid, having been fully got in, and the amount thereof clearly ascertained, it had been found that the same did not, at the time of the death of the said Thomas Lord Wallace, or at the time of granting the said last-mentioned probate, exceed the sum of 43,3771. 3s. 6d., and that the personal estate and effects, for and in respect of which probate was granted by the Prerogative Court as aforesaid, having also been fully got in, and the amount thereof clearly ascertained, it had been found that the same did not, at the time of the death of the said Thomas Lord Wallace, or at the time of granting the said last-mentioned probate, exceed the sum of 75691. 18s. 2d.; that the executors had paid debts due and owing from the deceased, and payable by law out of his personal estate and effects, to the full amount of 26897. 6s. 10d., which, being deducted from the amount or value of the estate and effects of the deceased, would have occasioned a less stamp-duty to be paid on the said probates of the said will than was actually paid thereon by the said executors by the sum of 65.; that within three years after the date of the probates, or the date of either of them, application was made to the commissioners of stamps and taxes by the executors to return the difference, pursuant to the statute in that case made and provided, and that it was proved by oath and proper vouchers, to the satisfaction of the commissioners, that the executors had paid the said debts, but that the commissioners had refused to return the difference. The writ then commanded the commissioners to return to the executors the said sum of 65l., or to shew cause, &c. Return. That the said sum of 26897. 6s. 10d., so due and payable in respect of the debts of the deceased, as in the writ mentioned, was payable from the time of his decease out of the general personal estate and effects of the deceased, that is to say, as well out of the said personal estate and effects of the deceased, situate at the Effects in Canterbury sworn under 45,0007. Duty paid £600 Ditto York ditto Total duty paid .... 7,569 18 2 Amount or value of the estate and effects 2,689 6 10 £48,257 14 10 £740 Upon which is payable a duty of only ...... £675 And which, if it had been the whole gross amount or value of such estate or effects, a less duty would have been 65 paid on such probate by Statement of apportionment of debts shewing the duty claimed by the commissioners:— Effects in Canterbury sworn under .... 45,000 0 0 Duty paid £600 Effects in Canterbury amount to 43,377 3 6 Reducing the effects in Can-41,087 8 6 terbury to On which the stamp-duty paid is payable, viz... £600 which ought to be deducted 399 11 10 £7170 6 4 time of his decease in the province of Canterbury, as out of the said personal estate and effects of the deceased, situate at the time of his decease in the province of York; and that the personal estate and effects, so situate in the province of Canterbury, amounted to the Effects in Canterbury amount to £43,377 3 6 sum of 43,3771. 3s. 6d., as in the writ mentioned; and the personal estate and effects, so situate in the province of York, amounted to the sum of 75697. 18s. 2d., as in the writ mentioned. That, for the purpose of ascertaining whether any and what portion or portions of such stamp-duties so paid, as in the writ mentioned, ought to be returned to the said executors, according to the statute in that case made and provided, a proportionate part only of the said amount of debts ought to be deducted from the respective gross amounts of the said estate and effects, in respect of which each of the said duties was paid in respect of each of the said probates, that is to say, such a portion of the amount of the said debts as the gross amount of the estate and effects in each of the said respective provinces bore respectively to the gross amount of the whole estate and effects in both of the said provinces. That the proportion of the amount of the debts which ought to be so deducted from the amount of the estate and effects of the deceased in the province of Canterbury, amounted to the sum of 22891. 15s. and no more, and that such amount being deducted from the gross amount of the estate and effects within the said province, in respect of which probate was granted by the Prerogative Court of Canterbury, that is to say, the said sum of 43,3771. 3s. 6d., did not reduce the same to a sum which, if it had been the whole gross amount or value of such estate and effects in the province of Canterbury, would have occasioned a less stamp-duty to be paid on such probate than the amount which had been paid thereon, as in the said writ mentioned, but reduced the same only to the sum of 41,0871. 8s. 6d.; and that the proportion of the amount of the debts which ought to be so deducted from the amount of the estate and effects of the deceased in the province of York, amounted to the sum of 3997. 118. 10d., and no more; and that such last-mentioned amount being deducted from the gross amount of the estate and effects within the said province of York, in respect of which probate was granted by the Prerogative Court of York, that is to say, the said sum of 75697. 18s. 2d., did not reduce the same to a sum which, if it had been the whole gross amount or value of such estate and effects in the province of York, would have occasioned a less stamp-duty to be paid on such probate than the amount which had been so paid thereon; but reduced the same only to the sum of 71707. 6s. 4d. Demurrer, and joinder therein. The points stated for argument on the part of the executors of Lord Wallace were, that the fact of the debts being payable out of the general personal estate in each province, was not a sufficient reason for the apportionment contended for by the commissioners; and that the debts ought to be deducted from the gross amount of assets, and that the executors were entitled, under the 5 & 6 Vict. c. 79, s. 23, to a reduction of stamp-duty in respect of the probates. On the part of the commissioners the points stated were, that no return of probate-duty ought to be made; that neither the estate of the deceased within the province of Canterbury, nor the estate within the province of York, was reduced by the payment of any amount of debts applicable thereto, to a sum in respect of which a lower duty is payable than that in respect of which duty had been paid; and that the amounts of the two estates could not be added together in the manner suggested in the writ, for the purpose of ascertaining the amount of one probate-duty on the whole amount of the testator's property; the two estates in the respective provinces being distinct for the purposes of probate-duty. The following is a statement, shewing the return of duty claimed by the executors: On which the stamp-duty paid is payable, viz... £140 The case was argued by W. H. Watson, in support of the demurrer.-The question turns upon whether the commissioners of stamps and taxes have put the right construction upon the stat. 5 & 6 Vict. c. 79. By the 23rd section, after referring to 55 Geo. 3, c. 184, s. 5, which was the first provision for a return of duty paid upon probates, it is enacted, "that where it shall be proved by oath and proper vouchers, to the satisfaction of the commissioners of stamps and taxes, that an executor or administrator hath paid debts due and owing from the deceased, and payable by law out of his or her personal or movable estate to such an amount, as, being deducted from the amount or value of the estate or effects of the deceased, for in respect of which a probate or letters of administration shall have been granted in England after the 31st August, 1815, shall reduce the same to a sum which, if it had been the whole gross amount or value of such estate or effects, would have occasioned a less stamp-duty to be paid on such probate or letters of administration than shall have been actually paid thereon, it shall be lawful for the said commissioners, and they are hereby required to return the difference, provided the same shall be claimed within three years after the date of such probate or letters of administration." It will be urged that this section speaks of "s probate," and does not contemplate cases where it is necessary to take out two probates; but the object of the Legislature clearly was to entitle executors to a return of duty wherever the whole amount of debts paid reduced the assets to a sum upon which a lower duty would have been payable; and the interpretation clause (sect. 25) enacts, that wherever in this act, with reference to any person, matter, or thing, any word is used importing the singular number, yet such word shall be understood to include several matters or things establish his claim, and I think that the prosecutors have wholly failed to make out that it is incumbent upon the commissioners to comply with the mode of calculation which the writ suggests. as well as one matter or thing, unless it be otherwise specially provided, or there be something in the subject or context repugnant to such construction." The two probates, therefore, in the present case, ought to be treated as one, and the whole ought to be brought into WIGHTMAN, J.-In order to succeed in this mandaone account, and the gross amount of debts deducted mus, it is incumbent upon the prosecutors to make out from the gross amount of assets, and the duty be made that they have made such payments as reduce the payable upon the gross sum thus ascertained. The gross amount of the estate to a sum, which, if it had duty on the whole would then be 6754., which, deduct-been the whole gross amount or value of such estate ed from the two sums making up 740l. already paid, would leave a balance of 651. The commissioners are bound to shew a clear authority for the mode of calculation they have adopted; they are not at liberty to exercise a mere equitable discretion. Sir F. Thesiger, contra.-The commissioners of stamps and taxes being desirous of having the opinion of the Court as to the legality of the course they have pursued, waive the objection, that a mandamus will not lie. The mandamus here omits to notice that the return of duty is to be made where debts have been paid to such an amount as, being deducted from the amount of the estate for or in respect of which probate shall have been granted, would have occasioned a less stamp-duty to have been paid on such probate. The debts, therefore, are to be deducted, not from the gross amount of the estate in both provinces, but from the gross amount of each estate in respect of which a probate has been granted. The mode proposed by the other side does not comply with this requisition of the act; according to it the deduction would be made from something, viz. the gross amount in the two provinces, in respect of which a probate has not been granted. It assumes an imaginary case of one probate, as if the effects were only in one province; whereas two probates were necessary. There is no conceivable mode of deduction in compliance with the above requisite of the statute, by which any such sum as 657., less stampduty, would become returnable to the executors on the probates granted in this case. The only fair course is, that of apportioning the debts which have been paid out of the general personal estate of the deceased rateably to the personal estate in each province, according to the amount of assets in each. Watson, in reply. Lord DENMAN, C. J.-This question arises upon a demurrer to the return. Before, however, we come to the return, we must see whether the claimant makes out a good case upon his writ; and we are called upon to give an opinion upon the construction of the 23rd section of stat. 5 & 6 Vict. c. 79, and as to what it would be right for the commissioners to do. I have found the greatest difficulty in discovering in Mr. Watson's argument that proof which I think it lies upon him to offer in order to entitle the executors to the return of that which has, in the first instance, been lawfully paid. There are no means of calculating the amount of the deduction to be made on each probate. There is nothing in the act of Parliament to make the Canterbury debts deductible from the amount on which probate is paid in Canterbury; nor to make the debts in York deductible from the assets in York on which probate duty would be payable there. There is no Locality assignable to the debts. It appears to me that I am prevented, by the language of the statute, from giving the executors the benefit which they claim. and effects, would have occasioned a less stamp-duty to be paid on such probate or letters of administration. It is necessary that they should shew that supposing they had at the time they took out the single probate, or the two probates, (as they have done in the present case), been enabled to reduce the whole amount to the sum to which it has been subsequently reduced by the payments which have been made, they would have been entitled to the two probates at a less rate of duty, than has been paid for them. I am by no means satisfied that such would have been the case. Mr. Watson's argument is founded upon the assumption that one probate would have been sufficient. If that were so, they would have been entitled in this case to a return of duty. But if the amount of assets had only been 48,0007. at the time, still they must have taken out two probates; and I am certainly not satisfied that they would not have been obliged to take out a probate for the same amount that they have already taken it out for in Canterbury, and another for the same amount that they have taken it out for in York. The most reasonable mode is that which has been proposed by the commissioners of stamps. I give no opinion whether, if that were declined, a party in similar circumstances to the present prosecutors would be able to make any claim at all. As the case stands, it appears to me that the present prosecutors have by no means made out that if the whole amount of the debts had been deducted from the gross amount of the estate and effects, they would not have been obliged, being under the necessity of taking out two probates, to pay the same amount of stamp-duty as has been actually paid. ERLE, J.-Upon the demurrer to the return to this mandamus, we are at liberty to look at the mandatory part of the writ, and if it commands the commissioners of stamps and taxes to do that which by law they are not bound to do, we ought to give judgment for them. The claim is founded upon the supposition that the executors under two probates may blend together the sum total of the two sets of assets in respect of which probate was granted, and then take the sum total of the debts of the testator, and deduct it from the amount of the assets so ascertained, and inasmuch as that gives them an advantage upon what they would be entitled to if they had kept the two accounts separate, that they may claim a deduction upon that supposed blending of the two sums total of assets. But, looking at the act of Parliament, it appears to me, that, before an executor is entitled to any return of duty, he must shew first of all the sum total of assets in respect of which probate was granted, and in respect of which a certain amount of duty was paid, and then shew that he has actually paid the debts out of those assets, and that the amount of debts so abstracted from those assets will make him liable to a less amount than he originally paid: if that be so, then he is entitled to have a return of the difference between what he actually paid and what he would be so liable to; and, according to that, it appears to me that the executor in Canterbury might, perhaps, have entitled himself to a return, if he had paid all the debts out of the assets in Canterbury, and then, leaving the assets untouched in York, had claimed the entire deduction in Canterbury. But it is not necessary for me to go into that supposiHere the executors blended the two sets of COLERIDGE, J.-With regard to the return, I am not prepared to say that the commissioners could devise a more equitable course than that which they state. At the same time it seems to me that the statute gives them no particular authority to adopt that course. I am not prepared to lay down any specific rule as to the mode in which they should carry out the provisions of the statute; nor is it necessary that, in deciding this case, we should do so, for I agree with my Lord that it lies upon the party who sues out a mandamus totion. |