secured by the bond and equitable mortgage of the copyhold property at Midanbury, still remained unpaid.

The Master, to whom the matter was referred, found, that the English property of the testator was confined to this estate at Midanbury, and that his property abroad consisted of one seventh of one tenth of certain freehold estates in the island of Jamaica, and of one of the two houses at Calcutta, mentioned in his codicil of the 6th of April 1835.

The cause now came on for further directions on the Master's report; and a question was raised between the widow of the testator, on the one hand, and his brother and other devisees in remainder of the Midanbury estate, on the other, whether the devisees of that estate were to take it cum onere· - that is, subject to this mortgage of £1,500 — or whether the estates abroad, devised to the widow absolutely, were to contribute towards the payment of this £1,500 so charged on the Midanbury property.

Mr. Lloyd and Mr. Selwyn, for the plaintiff, the widow of the

testator.

Mr. R. Palmer, for the defendants.

The Master of the Rolls reserved his judgment.

THE MASTER OF THE ROLLS. [SIR JOHN ROMILLY.] The question in this cause arose on the construction of the will and codicil of Charles John Middleton, who made his will on the 28th of February 1831, republished it on the 2d of January 1834, and afterwards executed a codicil to it on the 6th of April 1835.

The will is to this effect: After directing that his real estate shall be liable, in the case of the deficiency of the personal estate, to contribute to the payment of debts and legacies, and after giving some specific and small pecuniary legacies, he devises all his property in England to his widow for her life, and after her decease, to his brother H. J. Middleton for his life, and after his decease, to the eldest male heir of his body absolutely; and in default of any such male heir, he directs the property to be divided between Charles Edward Jerningham and the eldest daughter of H. J. Middleton, as tenants in common in fee simple; then, after reciting that he was possessed of property in the colonies, he gives the whole of his property abroad to his wife absolutely. By the codicil executed by him in 1835, he mentioned that he had purchased two houses at Calcutta, and, that in order that he might not die intestate with respect to them, he desired them to go to the uses of his will then in England- that is, that they were to go to his wife absolutely. By this codicil, he says nothing respecting the payment of debts and legacies.

The cases of Oneal v. Mead, 1 P. Wms. 693, and Halliwell v. Tanner, 1 R. & M. 633, were relied upon by the widow, the devisee of the colonial estate, for the purpose of showing, that the devisees of the Midanbury estate must take it cum onere, and that they cannot throw any portion of this charge on the other estates. It is the settled

rule of this court, that if, in the absence of any special direction, a testator devises an estate to one devisee, and personal property to a legatee, the devisee must take the estate as he finds it; and that if the personal estate should be exhausted by the mortgagee in payment of his debt, the legatee may marshal the assets and stand in the place of the mortgagee, in order to throw that debt on the real estate. This is Clifton v. Burt, 1 P. Wms. 679, and there are several other cases to the same effect.

The case of Oneal v. Mead simply established, that, as between a devisee of a mortgaged estate and a specific legatee of a leasehold estate, the devisee should not be entitled to have his mortgage paid by a specific legatee.

Halliwell v. Tanner, also relied upon, was to the same effect. Three leaseholds were, in that case, bequeathed to three legatees; one was mortgaged the two other legatees were held not to be bound to contribute towards the payment of the mortgage charged on the first lease, hold estate. These cases are, in truth, instances of the same principle, and of the doctrine already stated. The devisees and legatees are all equally objects of the testator's bounty, and one cannot be permitted wholly or partially to defeat the gift to another, by reason of any rule of law, which makes the property so given to that other legatee previously liable to pay the debts of the testator. These are only instances of giving effect to the intention of the testator found in the words he has used; but this case is distinct from those, and it is, in my opinion, in no further respect governed by them, than by showing that the expressed intention of the testator is to be followed. Here the testator directs, in the first place, that if his personal estate should prove insufficient, his debts should be paid out of his real estate, and the question is, whether the devisees do not take subject to this direction.

In Carter v. Barnadiston, 1 P. Wms. 505, which was relied upon for the devisees in remainder of the English estates, it was so determined, in a case where the testator had devised all his real estates to trustees, in trust, out of the profits to pay his debts and legacies; and after these had been discharged, he devised the estates at Orton to one set of devisees, and the estate at Pickworth to another, and he afterwards mortgaged the Pickworth estate. The Orton estate was, in that case, held liable to contribute to the payment of the mortgage charged upon. the Pickworth estate.

In Irvin v. Ironmonger, 2 R. & M. 531, the will began with a general charge of debts and funeral expenses, and, subject thereto, the testator gave all his freehold, copyhold, and leasehold estates to trustees in trust to pay annuities and legacies, and, subject thereto, in trust for certain persons, in the manner there stated. The Master of the Rolls held, that, so far as the personal estate not specifically bequeathed was insufficient to pay the debts, they must be borne by the freehold, copyhold, and leasehold estates proportionably.

These cases, in my opinion, govern the present; nor am I able to

find any well-founded distinction, as applicable to the question before me, between these cases and the present, arising from the circumstance, that there was, in the cases cited, a devise to trustees in trust for the payment of debts, and that in this a charge for the payment of debts is created. That a devise of an estate in trust for the payment of debts, and a charge of debts on the real estate, are distinct in their nature and consequences, is a proposition familiar to every one; but, as applicable to the question before me, they are, in my opinion, the same, if it appear, from the plain import of the words of the will, that the charge of all debts is general upon all the estates of the testator.

I am of opinion, that this is the true import of this testator's will, and that in this case, the real estate generally must bear the expense of paying all the debts, whether they be simple contract debts, or charged on any particular portion of the real estates. In the first place, the will, after containing the general direction, that if the personal estate should prove insufficient, the debts and legacies should be paid out of the testator's real estate, contains a repetition of this direction as applicable to each devise. This is so after the gift of the Midanbury property; and after giving to his wife Eliza all his lands in the colonies, to be held absolutely by her heirs and assigns forever, without remainder to any one, the testator proceeds to say, "subject only to payment of debts, expenses, and legacies as aforesaid."

If I were to hold, that these lands were not to contribute, it would be a violation of these words in the will, and it would be, in effect, to hold, that where the testator has said that the lands shall be subject to the payment of debts, this court may say they shall not, in fact, be so subject.

The after-acquired property in the East Indies is, in my opinion, subject to the same trust, as it passes by the codicil, which directs that the houses, one of which still forms a portion of the testator's property, "shall follow the uses of his will then in England," and must therefore be enjoyed by her as her absolute property, subject to the contribution. I have before mentioned. This, therefore, manifestly points to the

same end, and to the payment of debts and legacies.

I must declare, therefore, that the Jamaica and Calcutta estates are liable to contribute with the Midanbury estate, to the payment of the £1,500, in proportion to their relative values; and if evidence of such proportionate values be not laid before me, or if the parties interested. do not, or cannot, agree as to the values thereof, I must refer it to the Master to ascertain the value accordingly. The rest of the decree will be of course, and according to the minutes prepared by counsel.1

1 See Harper v. Munday, 7 De G. M. & G. 369 (1856).

LOOSEMORE v. KNAPMAN.

CHANCERY. 1853.

[Reported Kay, 123.]

By an indenture, dated the 31st of January, 1833, and made between William Knapman of the first part, Sarah Loosemore of the second part, and Samuel Robert Topping and Robert Loosemore of the third part, after reciting that a marriage had been agreed upon, and was intended shortly to be solemnized, between the said William Knapman and Sarah Loosemore, and reciting the title of William Knapman to certain real estates, and that, on the treaty for the suid intended marriage, it was agreed that the said William Knapman should secure to the said Sarah Loosemore, during the joint lives of herself and him the said William Knapman, an annuity or yearly sum of £50 for her separate use by way of pin money, and also during the life of her the said Sarah Loosemore, in case she should survive him the said William Knapman, an annuity or yearly sum of £200 by way of jointure and in bar of dower in manner thereinafter expressed: It is witnessed, that, in pursuance of the said agreement, and in consideration of the said intended marriage, and pursuant to and by force and virtue and in exercise and execution of the several powers and authorities (therein referred to), and of every or any other power or authority in anywise enabling him in this behalf-he the said William Knapman, with the privity of the said Sarah Loosemore, his intended wife, (testified by her being a party to and executing the settlement in manner therein mentioned,) appointed that the several freehold messuages or tenements and hereditaments thereinafter described, with the appurtenances, should thenceforth go, remain, and be to the use of the said Samuel Robert Topping and Robert Loosemore, their executors, administrators, and assigns, for and during and unto the full end and term of 500 years, fully to be complete and ended, without impeachment of waste. Nevertheless, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, agreements, and declarations thereinafter declared and contained of and concerning the same. And it is further witnessed, that, in further pursuance of the said agreement, and for the consideration aforesaid, and for the nominal consideration therein mentioned, the said William Knapman, with the privity of the said Sarah Loosemore, testified as aforesaid, and by way of further assurance only, granted and demised unto the said Samuel Robert Topping and Robert Loosemore, their executors, administrators, and assigns, the said hereditaments (therein described), to hold the same, with the appurtenances, unto the said Samuel Robert Topping and Robert Loosemore, their executors, administrators, and assigns, thenceforth for and during and unto the full end and term of 500 years fully to be complete

and ended, without impeachment of waste. Nevertheless, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, agreements, and declarations thereinafter declared and contained of and concerning the same. And it is further witnessed, that, in further pursuance of the said agreement, and for the considerations aforesaid, the said William Knapman, with the privity, &c., of the said Sarah Loosemore, testified as aforesaid, demised unto the said Samuel Robert Topping and Robert Loosemore, their executors, administrators, and assigns, (certain leaseholds for long terms of years,) to hold the same unto the said Samuel Robert Topping and Robert Loosemore, their executors, administrators, and assigns, from thenceforth for and during all the remainder of the said terms, except only the last ten days thereof, at the yearly rent of a peppercorn, if the same should be lawfully demanded. Nevertheless, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, declarations, and agreements thereinafter declared and contained of and concerning the same. And the said William Knapman did thereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree, with and to the said Samuel Robert Topping and Robert Loosemore, their executors, administrators, and assigns, in manner following; that is to say, (amongst other things,) that, in case the said intended marriage should take effect, and the said William Knapman should depart this life in the lifetime of the said Sarah Loosemore, his intended wife, then, and in such case, the heirs, appointees, executors, administrators, or assigns of him the said William Knapman should and would, from and after such his decease, during the life of the said Sarah Loosemore, his intended wife, well and truly pay, or cause to be paid, unto her the said Sarah Loosemore, and her assigns, the yearly sum of £200, of lawful money as aforesaid, by four equal quarterly payments, on the 25th day of March, the 24th day of June, the 29th day of September, and the 25th day of December in every year, without any deduction or abatement thereout on any account whatever, the first of such quarterly payments to be made on such of the said last-mentioned days of payment as should first happen after the decease of the said William Knapman, if the said Sarah Loosemore should on that day be living. And, as well, as to and concerning the said several freehold messuages or tenements, hereditaments, and premises, so thereby appointed and demised to the said Samuel Robert Topping and Robert Loosemore, their executors, administrators, and assigns, with the appurtenances, during the said term of 500 years, as thereinbefore mentioned; as also, as to and concerning the several leasehold pieces or parcels of ground, messuages, or tenements and premises, so thereby demised unto the said Samuel Robert Topping and Robert Loosemore, their executors, administrators, and assigns, with the appurtenances, for the respective residues of the said terms of years save the last ten days thereof, respectively, as thereinbefore mentioned: it was thereby agreed and declared, between and