ter shall certify to be due to the said defendants, the mortgagees respectively for their principal, interest and costs, according to their respective priorities, and in the next place, in payment of what shall be remaining due to the other creditors of the said testator pari passu. And if any of the creditors by specialty (4) have exhausted or shall exhaust any part of the said testator's personal estate in the satisfaction of their debts, then they are not to come upon or receive any further satisfaction out of the said testator's real estate, until the other creditors of the said testator shall thereout be made up equal to them. And in case there shall be any surplus remaining of the money arising by sale of the said testator's real estate after the payment of his said debts, It is ordered and decreed, that the same be paid to the said defendant Joseph Penson. And for the better taking of the aforesaid accounts &c. [See Usual Directions, No. II. ante.] And the said Master is also to tax the plaintiffs in both causes, and the defendants Plunkett and Penson their costs of these suits to this time, which are to be paid them out of the said testator's estate. And his Lordship doth reserve the consideration of their subsequent costs until after the said Master shall have made his report. And the said parties are to be at liberty to apply (5) to this Court, as &c. [See Usual Directions, No. XIX. ante.] Plunket v. Penson, and Visc. Carrington v. Penson, L. C. 3d April, 1742. Reg. Lib. B. 1741. fol. 228. S. C. 2 Atk. 290.

NOTES.

(1) See No. VII. Note (1) post. (2) See No. III. Note (2) ante.

(3) See Decree for Administration of Legal and Equitable Assets, subject to Mortgage and Dower, No. VII. Note (2) post.

(4) Direction where Assets equitable.

This direction is sometimes confined to specialty creditors. PlunRye v. Boad, Appendix (1). Gibson v. Lowthian v. Hasel, 4 Bro. 168. Ithell v.

ket v. Penson, supra. Styles, Appendix (2). Bean, No. X. post.

It is sometimes extended to creditors generally. Hargrave v. Richardson, Appendix (3). Wride v. Clarke, No. VII. post. Davies v. Topp, No. VI. post. North v. Cox, 3 P. W. 344. note. Pope v. Gwyn, 8 Ves. 29. note. And see 2 Fonbl. 399.

It does not, however, apply to judgment creditors. Sharpe v. Earl of Scarborough, 4 Ves. 538.

Nor to mortagees. See decree in Wride v. Clarke, No. VII. post. Nevertheless the personal estate will not be applied in payment of mortgagees (nor it seems of judgment creditors) in such a mode as to disappoint other creditors or legatees. See Order of Application of Assets, No. VI. note (2), post.

The direction is sometimes retrospective. Plunket v. Penson, supra. Gibson v. Styles, Appendix (2). Wride v. Clarke, No. VII. post. Lowthian v. Hasel, 4 Bro. 168.

Nevertheless it seems that in that case it does not apply to sums received by creditors before the filing of the bill. See Lowthian v. Hasel, supra. Basset v. Leach, there cited.

(5) Further Directions are not reserved. See Reservation of Further Directions. Usual Directions, XV. ante.

Further Directions.

In Hartwell v. Chitters, Ambl. 308. the Lord Chancellor said that the general direction in the decree to apply the assets in a course of administration did not confine such application to a legal course, but was to be taken distributively and understood of legal or equitable, according to the nature of the assets; and accordingly, where the original decree had directed that the assets should be applied in a course of administration, and part of the assets were held to be equitable, seems to have held that they might be applied as such on further directions. But in Bailey v. Ekins. 7 Ves. 324. under the like circumstances it was agreed that the direction in the original decree should be got rid of by a short petition of rehearing. And see Solley v. Gower, 2 Vern. 62.

APPENDIX (1).

Direction where Assets equitable.

And in case the said testator's creditors by specialty shall exhaust his personal estate, his simple contract creditors are to come in, and receive a satisfaction pro tanto out of his real estate, and then the

said testator's creditors remaining unpaid are thereout to be paid pari passu. Rye v. Boad, M. R. 27th October, 1747. Reg. Lib. B.

1747. fol. 31.

APPENDIX (2).

Direction where Assets equitable.

And in case any of the specialty creditors of the said testator shall have exhausted any part of his personal estate, towards satisfaction of their debts, then they are not to receive any thing out of the said testator's real estates till the other creditors shall be paid up equally with them. Gibson v. Stiles, L. C. 18th July, 1741. Reg. Lib. A. 1740. fol. 550.

APPENDIX (3).

Direction where Assets equitable.

And in case any of the creditors of the said testator shall exhaust any part of his personal estate, then his Lordship doth declare they are not to receive any thing out of the said testator's real estate, charged with the payment of his debts, till the other creditors are paid up equal with them. Hargrave v. Richardson, L. C. 9th July, 1753. Reg. Lib. A. 1752. fol. 566. S. C. (Hargrave v. Tyndal), 1 Bro. 136. note.

No. V.

DECREE FOR ADMINISTRATION OF ASSETS, WHERE LEGACIES CHARGED ON COPYHOLD ESTATE.

[The testator, by his will, charged his freehold and copyhold estate with the payment of his debts and legacies. The copyhold was surrendered to the use of the will; but the will was not attested.]

[Inter alia] His Lordship doth declare that the plaintiff's, Peter Fenhoulhet and Jane Frances his wife, in right of the said Jane Frances, in the event that has happened, are entitled to &c. and that the same is to be considered as a debt to be satisfied out of the assets of the said Thomas Wilday, in a course of administration. And doth order and decree that it be referred to the said Master to take an account of

all the debts of the said Thomas Wilday, which were due and owing from him at his death (1), and of his funeral expenses. And it is further ordered, that the said Master do also take an account of the said Thomas Wilday's personal estate, which hath been received by, &c. [See Decree in Creditor's Suit, Personal Assets, No. I. ante.] And that such personal estate be applied in payment of his debts and funeral expenses in a course of administration. And in case such personal estate shall not be sufficient for payment of the said testator's debts, his Lordship doth declare that the said testator's copyhold estate (2), in the manor of Hackney, is liable to make good so much as his personal estate shall fall short to pay such debts, and also his legacies. And in that case, it is further ordered, that the said Master do take an account of his legacies, and compute interest thereon &c. [See Decree in Suit by Legatee, Personal Assets, No. IV. ante.] And that the said copyhold estate be sold &c. [See Usual Directions, No. VI. ante.] And it is further ordered, that the money arising by such sale be applied, in the first place, towards payment of so much of the said testator's debts and the interest thereof, as his personal estate shall fall short to pay; and in the next place, (3) in payment of the legacies given by his will and the interest thereof, pari passu. And in case the testator's personal estate, and the money arising by the said sale shall not be sufficient for that purpose, It is further ordered, that then the said Master do take an account of the rents and profits (4) of the said testator's copyhold estate, which have accrued since his decease and been received, by &c. [see Decree on Bill by Bond Creditor, No. I. ante.] And that what shall be coming on that account be in the next place applied towards making good such deficiency. And if all the funds before mentioned shall fall short to pay the said testator's debts by specialty, then his Lordship doth declare that the specialty creditors have a right to receive satisfaction for their demands out of the said testator's freehold estate descended to the plaintiff Jane Frances, his heir at law. And in case the specialty creditors (5) shall exhaust any part of

the said testator's personal estate towards satisfaction of their debts, his Lordship doth declare, that the simple contract creditors have a right to stand in their place, and receive a satisfaction pro tanto out of the said freehold estate; and that in case the debts of the simple contract creditors, who shall come in the place of such specialty creditors, shall not amount to the whole of what such specialty creditors shall exhaust out of the personal estate, then that the legatees (6) ought to stand in the place of such specialty creditors for the residue of what they shall exhaust out of the personal estate. And doth order and decree that such freehold estate, or a sufficient part thereof, be sold &c. [See Usual Directions, No. VI. ante.] And it is further ordered, that the money arising by such sale be applied in payment of so much of the testator's debts by specialty, or of such other of his simple contract creditors as have a right to stand in their place, according to the circurity before mentioned, as his personal estate shall fall short to satisfy pari passu; and afterwards, in payment of so much of his legacies as shall be remaining unpaid, according to the circuity before mentioned pari passu. And for the better taking of the accounts &c. [See Usual Directions, No. II. ante.] And his Lordship reserved the consideration of all further directions until &c. [See Usual Directions, No. XV. ante.] And any of the parties were to be at liberty

to apply as &c.

[See Usual Directions, No. XIX. ante.] Fenoulhet v. Passavant, L. C. 11th March, 1754. Reg. Lib. A. 1753. fol. 524. S. C. 1 Dick. 253.

NOTES.

(1) See Decree in Creditors' Suit; Personal Assets, No. I, Note (1), ante.

(2) See Order for Administration of Assets, No. VI. Note (2), post.

(3) Charge of Debts and Legacies.

It was formerly held, that where debts and legacies were charged on real estates, the debts and legacies were to be paid pari passu. Gosling v. Dorney, 1 Vern. 482. Anon. 2 Vern. 133. Davenhill v. Fletcher, 1 Mad. Chan. 617. 4 point.

Unless where the devise being to the executors the assets were held