before provided for them? I think that no such meaning can be educed from the language he employs, and that therefore this mortgage has not the effect of discharging the land of these legacies. My opinion is, that this appeal should be dismissed, and the decree affirmed. Orders appealed from affirmed. Appeal dismissed, with costs.1

In re BANKS.

BANKS v. BUSBRIDGE.

(Supreme Court of Judicature, Chancery Division. [1905] 1 Ch. 547.) BUCKLEY, J. The personal estate is primarily liable for the payment of debts and funeral and testamentary expenses; but the testator may exonerate it, either by express words or by an indication of intention to be found in the will which leads to the court being judicially satisfied that it was the testator's intention to exonerate it. It is not enough that he charges his real estate with the payment of debts. It is necessary to find, not that the real estate is charged, but that the personal estate is discharged. This need not be done by express words, but there must be found in the will plain intention or necessary implication to operate exoneration. This testator gives his personal estate to Keziah Ann Banks. He specifically devises certain real estate, and, subject to that devise, devises all his real estate to his trustees "subject to the payment of my just debts and funeral and testamentary expenses."

19 "The court below rightly held that the blending of the real and personal estate in the residuary clause bound the real estate for the payment of the legacies by implication, since 'the residue and remainder' can only be ascertained after the payment of the debts, legacies and expenses. This has been uniformly held in this state." Williams, J., in Sloan's Appeal, Watt's Estate, 168 Pa. 422, 32 Atl. 42 (1895).

"The effect of placing realty with the residue was to subject it to the general rule governing residuary estates." Dubois, J., in Tyler v. Tallman, 29 R. I. 57, 68 Atl. 948 (1908). Also, Simonsen v. Hutchinson, 231 Ill. 508, 83 N. E. 183 (1907). But see Brill v. Wright, 112 N. Y. 129, 19 N. E. 628, 8 Am. St. Rep. 717 (1889); Pearson v. Wartman, 80 Md. 528, 31 Atl. 446 (1895).

"The general rule is that, after certain legacies are given without any express provision of means of payment, a residuary gift blending the real and personal property of the testator creates a charge of the, legacies upon the entire estate. * A court of equity can not only decree the legacy to be a charge upon the real estate, if the will can be so construed, but with its elastic procedure it can also provide the method of securing the same, and designate the particular real estate which shall in the first instance be reached, because the equitable rights of the present holders may vary." Cornish, J., in Walker v. Follett's Estate, 105 Me. 201, 73 Atl. 1092, 1094 (1909).

"It is established that the rule of Greville v. Browne, 7 H. L. C. 689, applies so as to render legacies payable out of a mixed fund, whether the legacies are given before or after the gift of residue. See Elliott v. Dearsley, 16 Ch. D. 322, 329; In re Grainger, [1900] 2 Ch. 756, 767, [1902] A. C. 1.” Swinfen Eady, J., in In re Balls, [1909] 1 Ch. 791, 795.

The statement of facts is omitted.

The same thing is true as to charging legacies on land. Reid v. Corrigan, 143 III. 402, 32 N. E. 387 (1892).

The argument addressed to me has been, that because the personal estate, that is to say, the whole personal estate, is given to Keziah Ann Banks, I ought to find in that fact an expression of intention that the personal estate shall not bear the debts subject to which the real estate is afterwards devised. I am unable from that fact to find that intention. There is an indication to the contrary at the end of the willnamely, that the testator desires that none of his real estate be sold whilst male descendants of the name of Banks are living. In Brummel v. Prothero (1796) 3 Ves. 111, 114, the Master of the Rolls, Sir Richard Pepper Arden, says: "This" case "is stripped of every circumstance except that of a devise to a trustee for payment of debts and a general bequest of the personal estate to the executor. There is no one case since French v. Chichester (1707) 3 Bro. P. C. 16 (2d Ed.), the first upon the subject, in which such words as these have been alone sufficient to exempt the personal estate. It has over and over again been decided that such words are not sufficient to raise such a demonstration as Lord Thurlow says, in Duke of Ancaster v. Mayer, 1 Bro. C. C. 454, is necessary." The personal estate was there held not to be exonerated, and that notwithstanding that there was in that case, not as here a mere charge of debts, but a trust to pay the debts. The present case differs in the fact that Keziah Ann Banks is not here the executor; but this does not, I think, differentiate the case. A gift to A. is none the less a beneficial gift because A. is also appointed executor. In Haslewood v. Pope (1734) 3 P. Wms. 322, there was a devise of real estate to trustees upon trust to sell so much as would raise money to discharge all the debts the testator should owe at his death, and a gift of all the personal estate to the testator's daughter, whom he made sole executrix. Lord Talbot, L. C., held that the personal estate was not exonerated. I agree that there was a special reason upon which also he founded himself, namely, that the same person was donee of the personal estate and also devisee of the surplus of the real estate in tail. The passage in Mr. Theobald's book on Wills (6th Ed., at the top of page 802) is not, I think, borne out by the cases which he cites. There was in those cases, not, as would seem to be there implied, a mere charge of debts on the real estate (which is the case in the will before me), but a trust to sell the real estate and thereout pay the debts.

There is nothing more here than a devise of the real estate subject. to the debts. In my judgment the personal estate is not exonerated, and the real estate is only charged in aid of the personal estate.*

While a general direction to pay legacies out of a mixed fund of residue charges them ratably on the portions attributable to realty and personalty (In re Spencer Cooper, Poe v. Spencer Cooper, [1908] 1 Ch. 130), the charge implied from blending the residue in one mass has been held in England to leave the legacies payable primarily out of the personalty and to allow the realty to be resorted to only in aid of the personalty if that is insufficient. In re Boards, Knight v. Knight, [1895] 1 Ch. 499.

LACEY v. COLLINS.

(Supreme Court of Iowa, 1907. 134 Iowa, 583, 112 N. W. 101.)

The will of John L. Collins, with a codicil attached, was admitted to probate March 29, 1904, and, in so far as material to this controversy, was in words following:

"First, I desire that all my just debts be paid including my funeral

expenses.

"Second. I bequeath and devise to my daughter, Margaret M. Collins (legally adopted by my wife and myself, her former name being Rebecca Crilley), all the remainder of my property of every kind, both personal and real, to have and to hold and do with as may seem best by her, and she shall be my sole legatee.

"Third. I desire, and do hereby nominate and appoint E. R. Lacey as my executor of this my last will and testament, and to give such bond as the court may direct.

"Fourth. I desire that the Independent Order of Odd Fellows of Columbus Junction, Iowa, shall take charge of my remains and direct the funeral services.

"Fifth. I desire that a suitable tombstone to be placed at the grave of myself and wife, not to exceed the sum of one hundred dollars each, and on my monument I desire to have the Emblem of the I. O. O. F. and to be similar to that of R. Caldwell's monument in the Columbus City Cemetery.

"Codicil.

"I, John L. Collins, hereby amend my will heretofore made, by adding this as a codicil, to wit: I give and bequeath my sister Ellen Collins ($1,000.00) one thousand dollars, to be paid her by my executor, and except for this change, I readopt my former will."

E. R. Lacey was duly appointed executor of the estate and in August, 1905, filed his report, and a few days later applied to the court for an order to sell certain real estate to procure funds out of which to pay the legacy of Ellen Collins. To this Margaret M. Collins, objected, on the ground that real estate is not liable, under the terms of the will, for the payment of the legacy. On hearing the sale was or⚫dered as prayed. Margaret M. Collins appeals. Affirmed.

LADD, J. The sole question for determination is whether the legacy to Ellen Collins is payable out of the real estate of deceased. The personal property left by him was inadequate to meet the indebtedness of the estate and pay the funeral expenses. The will speaks as of the date of the testator's death, and the codicil is to be construed as part of it. Looking thereto, the intention of the testator appears to have been: (1) That his debts, including funeral expenses, be paid; (2) that tombstones be erected at the graves of himself and wife at a cost not exceeding $200; (3) that $1,000 be paid by his executor to his

sister, Ellen Collins; and (4) that "all the remainder of my property of every kind, both real and personal," pass to his adopted daughter, Margaret M. Collins. The will recites that "she shall be my sole legatee"; but this was modified by the bequest in the codicil to his sister. It will be observed that the disposition of property is not made in the will in the order above indicated, but as the debts, including funeral expenses, the erection of the monuments and the legacy to the sister are to be paid from the estate, and that left to appellant is designated as "all the remainder of my property of every kind, both real and personal."

The intention that the adopted daughter shall take the residuary estate is manifest. See Kightley v. Kightley, 2 Ves. Jr. 328. No other inference is reasonably to be drawn therefrom. This being so, we have to say whether it was the intention of the testator to charge his entire estate, regardless of its character, with the payment of the legacy to Ellen Collins. The will contains no express provision to this effect, and, unless such intention is to be implied therefrom, the rule must prevail that, even though the personal estate is insufficient, it is not only the primary, but the only fund to which resort may be had. for this purpose. Morey v. Morey, 113 Iowa, 152, 84 N. W. 1039; Newsom v. Thornton, 82 Ala. 402, 8 South. 261, 60 Am. Rep. 743; Montgomery v. McElroy, 3 Watts & S. (Pa.) 370, 38 Am. Dec. 771; See In re Will of Newcomb, 98 Iowa, 175, 67 N. W. 587.

But, where such intention is clearly deducible from the language of the will, the realty will be charged with the payment of legacies, notwithstanding the omission to expressly so direct. Morey v. Morey, supra; Greville v. Brown, 7 H. L. 703; Wright v. Page, 10 Wheat. 210, 6 L. Ed. 303; McCampbell v. McCampbell, 5 Litt. (Ky.) 97, 15 Am. Dec. 48; Knotts v. Bailey, 54 Miss. 235, 28 Am. Rep. 348; Thurber v. Battey, 105 Mich. 718, 63 N. W. 995; McQueen v. Lilly, 131 Mo. 9, 31 S. W. 1043; Evans v. Beaumont, 16 Lea (Tenn.) 713; Arnold v. Dean, 61 Tex. 249; Lee v. Lee, 88 Va. 805, 14 S. E. 534; Van Winkle v. Van Houten, 3 N. J. Eq. 172. And where the legacies are pecuniary and general, and there is a gift of the residue of the estate, both real and personal, and this is blended as one mass, the rule prevails that this conclusively manifests an intention to charge the entire residuary estate, both real and personal, therewith. Pitkin v. Peet, 87 Iowa, 268, 54 N. W. 215; Sloan's Appeal, 168 Pa. 422, 32 Atl. 42, 47 Am. St. Rep. 889; Brill v. Wright, 8 Am. St. Rep. 723, 112 N. Y. 129, 19 N. E. 628; Knotts v. Bailey, supra; Newsom v. Thornton, supra; Lewis v. Darling, 16 How. 1, 14 L. Ed. 819. See numerous decisions collected in 19 Am. & Eng. Ency. of Law (2d Ed.) 1354 et seq.; Lee v. Lee, 88 Va. 805, 14 S. E. 534.

In the last case, sometimes cited as holding that the rule is different where the bequest is by codicil, the latter provides for payment "out of any money due and belonging to my estate," and this was construed to point out the fund from which the legacy was to be taken. The ba

sis of the rule is that a mixed fund has been created out of which to pay the legacies. Tidd v. Lister, 3 De G., M. & G. 857; Ellis.v. Bartrum, 25 Beav. 110. It is not necessary that words of like import and equivalent in meaning, as in this case, be employed. In re Hawden (1904) 1 Ch. 693; Hart v. Williams, 77 N. C. 426.

Guided by these well-established principles, the district court rightly held that the legacy to Ellen Collins was payable out of the realty, and its order directing the sale is approved. Affirmed.20

MOORE v. ALDEN et al.

(Supreme Judicial Court of Maine, 1888. 80 Me. 301, 14 Atl. 199, 6 Am. St. Rep. 203.)

PETERS, C. J. Horatio E. Alden, whose will is presented to be construed by the court, after directing that certain necessary bills be paid, and giving his wife certain property outright, also gives to her an annuity of $1,000 for her life-time, the annuity to be paid from the earnings of his individual and partnership properties; and he declares that these gifts to his wife are to be in lieu of all allowances, dower, and distributive share to which she might be entitled out of his estate. He then grants other annuities, their payment made subject to a prior payment of his wife's annuity, and makes sundry bequests to take effect on the death of his wife. It appears that he died seized of dowable real estate; that no child was left by him; that the widow is now 39 years old; and that the entire estate reduced to money, now in the hands of the trustee, the administration accounts having been finally settled, amounts to $11,707.61.

It is evident enough that the annuity to the widow, to say nothing of the other annuities, cannot be obtained from the income and earnings of the estate. And the question of the case is whether she is entitled to receive the amount each year, although it will be necessary to entrench upon the corpus of the estate to supply the deficiency. She correctly claims that the full annuity should be paid to her as long as the estate lasts, upon the rule, which appears to be well established in the law, that, where a testamentary gift is made by husband to wife, in satisfaction of her waiver of dower in his estate, the gift has a preference over all other unpreferred legacies, and for the reason that the estate receives a valuable consideration for such gift. The principle is based upon the idea of contract between husband and wife. He dictates the terms, and she accepts them. The estate gets

20 But see Lee v. Lee, 88 Va. 805, 14 S. E. 534 (1892), where, also, the leg acy was given in a codicil. That case does not, however, purport to deny the doctrine of Greville v. Browne, ante, p. 673.

21 The statement of facts and the part of the opinion relating to costs are omitted.