to be legal. Greaves v. Powell, 2 Vern. 248. Anon. 2 Vern. 405. Walker v. Meagher, 2 P. W. 550. But it has long been settled, that where the assets are equitable, the debts are to be paid in the first instance. Fenhouillet v. Passavant, supra. Davies v. Topp, No. VI. post. Kidney v. Coussmaker, 12 Ves. 154. Sear v. Ashwell, 3 Swan. 413. note. Bradgate v. Bridlington, Mos. 56. Maylin v. Hooper, Ca temp. Hard. 206. Hixon v. Witham, 1 Ch. Ca. 248. Walker v. Meagher, supra, notes, 6th edition. (4) See Legal Assets, No. III. Note (2) ante. (5) See Direction for Marshalling, No. III. Note (4) ante. (6) For marshalling for legatees. See Order of Administration of Legal and Equitable Assets, No. VI. Note (2) post. No. VI. DECREE FOR ADMINISTRATION OF LEGAL AND EQUITABLE ASSETS ACCORDING TO THEIR PRIORITIES. [The testator was seised in fee of estates, which he mortgaged in fee (1), and devised by his will for life, charged with debts and legacies. He afterwards purchased other estates. He gave parts of his personal estate as heir-looms.] [Inter alia] His Honour doth declare the will of the said testator John Topp, well proved &c. [See Establishing Will, No. I. ante.] And that it be referred to Mr. B. one &c. to take an account of what is due to the plaintiffs, and all other the creditors of the testator for their debts, comprising what is due to the defendant Pemberton, the mortgagee, for principal and interest on his mortgages in the pleadings mentioned, and to tax him his costs of this suit; and the said Master is also to take an account of the said testator's legacies &c. and to compute interest, &c. [See Decree in Suit by Legatee. Personal Assets, No. IV. ante.] And it is ordered and decreed that the said Master do also take an account of the said testator's personal estate not specifically bequeathed (2) come to the hands of &c. [See Decree in Creditors' Suit, Personal Assets, No. I. ante.] And it is ordered that the personal estate of the said testator not specifically bequeathed, be applied in payment of his debts, funeral expenses, and legacies, in a course of administration. But in case such personal estate of the said testator shall not be sufficient for payment of his debts, his Honour doth declare that the deficiency as to what shall be remaining due to the said defendant Robert Pemberton, the mortgagee, and the other specialty creditors, ought to be raised by sale or mortgage of the said testator's real estate, descended on the defendants Sarah Lloyd and Jane Price, his heirs at law, and doth order and decree that such deficiency be raised by such sale or mortgage of the said estate, or a sufficient part thereof, with the approbation of the said Master, and all proper parties are to join &c. [See Usual Directions, No. VI. ante.] And it is ordered that the money to arise by such sale or mortgage be applied in making good such deficiency accordingly. And in case of such deficiency, and the same shall be raised by sale of the said estate, or any part thereof, and more shall be raised than shall be sufficient for the purposes aforesaid, It is ordered that the surplus be paid into the bank, with the privity &c. [See Usual Directions No. X. ante.] with liberty for any person or persons interested therein to apply to the Court concerning the same. But in case such personal estate, and the money to arise by sale of the said estate descended shall not be sufficient for the purposes aforesaid, his Honour doth declare that the rents and profits (3) of the said estate ought in the next place to be applied to make good such deficiency in manner aforesaid, and doth in that case order and decree that the said Master do take an account of the rents and profits &c. [See Decree in Suit by Bond Creditor, No. I. ante.] And it is ordered that what shall be coming on the said account of rents and profits be applied in making good such deficiency accordingly. And in case the said defendant Robert Pemberton, the mortgagee, or the other specialty creditors of the said testator, shall have exhausted (4) any part of the said testator's personal estate, the simple contract creditors in the first place, and the legatees in the next place, are to stand in the place of such specialty creditors, and receive a satisfaction pro tanto, out of the said real estate descended. But in case the funds aforesaid shall not be sufficient for payment of the said testator's debts and legacies, under and according to the directions aforesaid, his Honour doth declare that such deficiency ought to be made good out of the said testator's real estates devised by his will, charged with the payment of his debts and legacies, and doth order and decree, that such deficiency be raised thereout by sale or mortgage of the said estates, or a sufficient part thereof, with the approbation of the said Master, the said defendant Robert Pemberton, the mortgagee, by his counsel consenting to a sale (5) of that part of the said estates comprised in his mortgages in case it shall be necessary or proper to sell the same. And in case such deficiency shall be raised by sale, then such sale is to be to the best purchaser or purchasers &c. [See Usual Directions, No. VI. ante.] And it is ordered that the money to arise by such sale or mortgage be applied in the first place, in payment of what shall be remaining due to the said defendant Robert Pemberton, the mortgagee, for principal, interest, and costs, on his said mortgages not exceeding the value of the estates comprised in his said mortgages; and in the next place, the money to arise by such sale or mortgage be applied in payment of what shall be remaining due to the plaintiff, and all other the creditors of the said testator, pari passu. But such of the said creditors who shall have received any thing out of the said personal estate, and the said estate descended, are not to receive any thing out of the money to arise by sale or mortgage of the said estate devised, till the other creditors are paid up equal with them; and in the next place, (6) the several legatees are to be thereout paid their respective legacies, or what may be remaining due to them for their said legacies, equally and in proportion to their said legacies respectively. And in case the said lastmentioned deficiency shall be raised by mortgage, the defendant Richard Topp, the tenant for life of the said estates, H is to keep down the interest of such mortgage out of the rents and profits of the said devised estate. And in case the same shall be raised by sale, and more shall be raised than shall be sufficient for the purposes aforesaid, it is ordered that the surplus be paid into the bank with the privity &c. [See Usual Directions, No. X, ante.] with liberty for any person or persons interested therein to apply to the Court concerning the same, as they shall be advised. And it is ordered that an inventory be taken of the several specific things mentioned in the said testator's will, and thereby directed to go as heir-looms (7) with his estate at Whitton, and that two parts be made thereof, and be signed by the said defendant Richard Topp; and that one part thereof be kept by the said defendant Richard Topp, and the other part deposited with the said Master for the benefit of the persons interested therein. And it is ordered that the said specific things be considered as heir-looms, and be from time to time enjoyed by the person who shall be in possession of the said testator's estate at Whitton, so far as the same may by the rules of law and equity be so limited. And for better taking the aforesaid accounts &c. [See Usual Directions, No. II. ante.] And it is ordered that all parties (except the defendant Robert Pemberton the mortgagee, whose costs are hereinbefore provided for) be paid their costs of this suit to be taxed by the said Master, out of the said testator's estate, so far as the same are not paid out of his personal estate, to be raised out of his real estates, in order and manner hereinbefore directed with respect to the deficiency of the said testator's personal estate for payment of his debts. And any of the parties are to be at liberty to apply &c. (8) [See Usual Directions, No. XIX. ante.] Davies v. Topp, M. R. 25th February, 1780. Reg. Lib. A. 1779. fol. 228. S. C. 1 Bro. 525. NOTES. (1) See No. VII. Note (1), post. (2) Order of the Administration of Legal and Equitable Assets in Payment of Debts and Legacies. 1st. The personal estate. Davies v. Topp. 1 Bro. 526. Wride v. Clarke, No.VII. post. Donne v. Lewis, 2 Bro. 263. Not specifically bequeathed. Decree in Davies v. Topp, supra. Harmood v. Oglander, 8 Ves. 124. Or exonerated, Manning v. Spooner, 3 Ves. 117. This being legal assets, is to be applied in a course of administration, in the payment of debts, according to their legal priorities, and then in payment of legacies. Decree in Davies v. Topp, supra. 2nd. Real estates specifically appropriated to (not merely charged with) the payment of debts. Davies v. Topp, supra. Harmood v. Oglander, supra. Manning v. Spooner, supra. Donne v. Lewis, supra. Powis v. Corbet, 3 Atk. 556. But see Fenoulhet v. Passavant, No.¡V. ante. in which estates charged were applied before estates descended. In Milnes v. Slater, 8 Ves. 303. the Lord Chancellor intimates a doubt of Lord Redesdale, whether the law had been well collected in these cases; but nevertheless considered the rule to be settled. These being equitable assets are to be applied in the payment of debts pari passu. Haslewood v. Pope, 3 P. W. 323. Deg v. Deg, 2 P. W. 416. Contra. Car v. Countess of Burlington, 1 P. W. 228. And in case creditors are paid out of the personal estate, in payment of legatees pro tanto. Haslewood v. Pope, supra. Whether spe cific or pecuniary. S. C. 3d. Real estates descended. Davies v. Topp, supra. Wride v. Clarke, No. VII. post. Harmood v. Oglander, supra. Manning v. Spooner, supra. Donne v. Lewis, supra. Powis v. Corbet, supra. Whether possessed by the devisor at the date of the will or subsequently acquired. Manning v. Spooner, supra. Milnes v. Slater, 8 Ves. 304. These being legal assets as to specialty creditors are to be applied in payment of specialty creditors in a course of administration; and in case the specialty creditors are paid out of the personal estate, by marshalling, in payment of simple contract creditors pro tanto. Decree in Davies v. Topp, supra. Fenoulhet v. Passavant, No. V. ante. Davenhill v. Fletcher, 1 Mad. Chancery, 617. 1st point. And then in payment of legatees pari passu. Decree in Davies v. Topp, supra. Fenhoulhet v. Passavant, No. V. ante. Davenhill v. Flet cher, supra. Hamly v. Fisher, 1 Dick. 105. S. C. (Hanby v. Roberts) Ambl. 128. Scott v. Scott, Ambl. 383. S. C. 1 Eden, 458. Clifton v. Burt, 1 P. W. 678. Tipping v. Tipping, 1 P. W.730. Whether specific or pecuniary. 4th. Real estates devised charged with the payment of debts. |