liable before pecuniary legacies or even personalty specifi cally bequeathed (h). CHAP. XLVI. devisees. But legatees are not entitled to have the assets mar- But not against shalled against the devisees of real estate, either specific or residuary (i); for to throw the debts upon the devisees, in such a case, would be to apply devised real estate before personal estate specifically bequeathed, and thereby break in upon the established order of application before stated (k). It is not correct in such cases to account for the non-interference of the Court, by saying that the parties have equal equities (l), which would seem to imply that there exists such an equality between them in the consideration of a Court of equity, as to entitle neither party to its interposition against the other; whereas it is clear that if the devised lands had been resorted to by any creditor, having no specific lien thereon, instead of the personal estate, the devisee would have been entitled to be reimbursed out of personalty specifically bequeathed. The reason therefore, and the only reason, why assets are not marshalled in the case under consideration is, that the creditor having resorted to the fund in the proper order, no ground exists for disturbing it. But if the lands devised are charged with debts, it is clear, upon the same principle, that the assets will be marshalled in favour of pecuniary and specific legatees; lands so charged being applicable before pecuniary or specific (h) See ante, p. 546. (i) Mirehouse v. Scaife, 2 My. & Cr. 695; Forrester v. Leigh, Amb. 171; Scott v. Scott, Amb. 383; S. C. 1 Ed. 458; Hamly v. Fisher, Dick. 105; Keeling v. Brown, 5 Ves. 359. Mr. Roper has treated this case as if the specialty debts had been charged upon the land by the testator, 1 Treat. on Leg. 463; although Lord Alvanley distinctly determined that (k) Ante, p. 546. Unless lands with debts. are charged CHAP. XLVI. legacies (m). Thus, in Foster v. Cook (n), (where a testator had charged his real estate with his debts, and given legacies not so charged), the creditors having been paid out of the personal estate, which was not sufficient to pay both them and the legatees, the latter were allowed to come upon the real estate, so far as it had been applied in payment of debts. Assets marshalled against devisees, &c., of mortgaged lands. So, if the mortgagee of a devised or descended estate resort in the first instance (as he clearly may) to the personal estate of the deceased mortgagor, to the prejudice of specific or even of general pecuniary legatees (who, it will be remembered, are not liable to exonerate a devised or descended mortgaged estate (o)), equity will give those legatees a claim on the estate to the extent to which their funds may have been applied in its exoneration (p). In the case of Wythe v. Henniker (q), an attempt was made, by impugning the authority of the case of Forrester v. Leigh, to shake this doctrine, in regard to pecuniary legatees; but Sir J. Leach, M. R., adhered to it, observing that, since that case, he had always considered it to be a settled rule of Courts of equity, that a pecuniary legatee is entitled to stand upon the devised estate in the place of the mortgagee, to the extent to which the mortgage has been satisfied out of the personal estate. That doctrine proceeded upon the assumption, that the devise of the (m) Ante, p. 547. (n) 3 B. C. C. 347. See also Bradford v. Foley, Rolls, 14 Aug. 1791, 3 B. C. C. 351, n.; Webster v. Alsop, Rolls, 12 July, 1791, 3 B. C. C. 352, n.; Fenhoulett v. Passavant, Dick. 253. Lord Hardwicke's judgment in Arnold v. Chapman, 1 Ves. sen. 110; Norman v. Morrell, 4 Ves. 769; Aldrich v. Cooper, 8 Ves. 396. But, as to the widow's parapher- (p) Lutkins v. Leigh, Cas. temp. Talb. 53; Forrester v. Lord Leigh, Amb. 171. (p) 2 Myl. & K. 635. That doctrine, his mortgaged estate is a devise of the equity of redemption It has been much debated whether, where a vendor, who has an equitable lien for his purchase-money on the property, as well as a claim on the personal estate of the deceased purchaser, resort to the latter, to the prejudice of specific or pecuniary legatees, the legatees are entitled to have the assets marshalled against the heir or devisee of such property. In regard to the heir, it would seem clear upon principle, and by analogy to the case of a descended mortgaged estate, that in such a case the Courts would marshal the assets in favour of the legatees; descended assets being, according to the order before stated, applicable before specific or pecuniary legacies to the payment of all charges affecting them both. And this view of the case seems to agree with Lord Eldon's observations in Austen v. Halsey (r), where, however, the land was devised, and his Lordship's opinion upon another question rendered it unnecessary to decide the point. A contrary determination, indeed, was made in the case of Coppin v. Coppin (s), where a person, who was both heir and executor of the vendee, was held to be entitled to retain out of the personal assets the purchase-money of an estate which his ancestor had pur CHAP. XLVI. Rule es to venpurchase dor's lien for money. Question be tween legatees and heir. (r) 6 Ves. 484. (s) Selw. Ch. Cas. 78; S. C. 2 P. W. 291. CHAP. XLVI. Question between legatees chased, against the legatees of the vendee. This case has been questioned by Lord Eldon (t), and seems to have been overturned by the case of Trimmer v. Bayne (u), where Sir Wm. Grant, M. R., decided that the heir who had paid the purchase-money for an estate contracted for by his ancestor, was not entitled, as against the legatees of such ancestor, to be reimbursed out of his personal estate. It is not distinctly stated, however, whether the legatees, out of whose bequests the heir unsuccessfully claimed to be reimbursed, were specific or pecuniary legatees. The right of a pecuniary legatee to have the assets and devisee of marshalled, as against the heir of a testator who purchased, but died without having paid for, an estate, is placed beyond all doubt by the recent case of Sproule v. Prior (x). contracted-for estate. Where the purchased estate is devised, the question is somewhat different; but as the established rule is, we have seen, that the devisee of a mortgaged estate is not entitled to exoneration out of personal estate specifically bequeathed, and not expressly made subject to debts, there seemed ground to contend that in the present case the estate must, by parity of reasoning, also bear its own burthen against such legatees, and, accordingly, that if their funds have been taken by the vendor, they are entitled to have the assets marshalled against the devisee. And the case of Pollexfen v. Moore (y) was considered to lend some countenance to this doctrine; but it appears to have been decided upon different, though it should (t) See his Lordship's judgment in Mackreth v. Symmons, 15 Ves. 339. (u) 9 Ves. 209. (x) 8 Sim. 189. (y) 3 Atk. 272; S. C. stated from the Registrar's book, Sugd. Vend. & Purch. 449. Some of the doctrine advanced in this case is at variance with the decision. See 9 Ves. 211; 15 Ves. 339. CHẠP. XIVI, tees not entitled to marshal, as against devisee of contracted for estate, in respect of un money. seem untenable, grounds. Sir Wm. Grant, in Trimmer v. Bayne (2), intimated that the case had greatly perplexed him, and the eminent author of the Treatise of Vendors and Purchasers has taken some pains to shew the inapplicability of the decision to the doctrine which it has been advanced to support, and the unsoundness of that doctrine; and his high authority may have had some weight in procuring its overthrow in the recent case of Wythe v. Hen- Pecuniary leganiker (a), where Sir J. Leach, M. R., held that a person having devised an estate which he had purchased, and the vendor having after his decease been paid a part of the purchase-money, which remained unpaid at the testator's paid purchasedeath, out of the deceased's personal estate, the pecuniary legatees had no right to stand in the place of the vendor in respect of his lien upon the purchased estate, to the extent of the sum so received. His Honor, however, appears to have contented himself with shewing that the case of Pollexfen v. Moore (which had been cited on behalf of the legatees) was not applicable to the point, and we look in vain throughout his judgment for an explanation of the principle of his decision, or an answer to the plausible, if not convincing, arguments founded upon analogical reasoning from the cases by which the claim of the legatees was attempted to be sustained. Sir W. Grant decided that, even where the testator expressly directed his executors to pay the purchasemoney of the devised estate, and the personal estate was inadequate to pay both the purchase-money and the pecuniary legacies, the devisee was liable to contribute rateably with the legatees (b). It may be observed that Lord Eldon, in Austen v. (*) 9 Ves. 211. (a) 2 Myl. & K. 635. (b) Headley v. Redhead, Geo. Coop. 50, noticed ante, p. 547, 11. |