Harris v Watkins
| Jurisdiction | England & Wales |
| Judgment Date | 21 March 1854 |
| Date | 21 March 1854 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 186
HIGH COURT OF CHANCERY
See Bentley v. Robinson, 1859, 10 Ir. Ch. R. 293; In re Bailey, 1879, 12 Ch. D. 273; In re Tanqueray-Willaume and Landau, 1882, 20 Ch. D. 472.
Will. Charge of Debts. Residuary Devise.
[438] haeris v. watkins. March 9, 21, 1854. [See Bentleyv. Robinson, 1859, 10 Ir. Ch. E. 293; In re Bailey, 1879, 12 Ch. D. 273; In re Tangueray-Willaume and Landau, 1882, 20 Ch. D. 472.] Will. Charge of Debts. Residuary Devise. A testator, by his will, directed that all his debts should be paid by bis executrix thereinafter named, and then made certain specific devises, and gave to his wife a house and appurtenances, partly freehold and partly leasehold, for her life, and then over; and all the "rest and residue " of his real and personal estate the testator also gave to his wife, and appointed her sole executrix. Held that, on a deficiency of personalty to pay the testator's debts, the residuary real estate was next liable, and before the freehold and leasehold estates specifically devised; and then the other real property specifically given to the executrix. When a will contains a direction to the executor to pay the testator's debts, and then a devise of real estate to that executor, it is considered that the testator has imposed upon the executor the duty of paying the debts to the extent of the property given to him, and accordingly that property is held to be charged with the debts. But an exception has been made to this rule, where there are two or more executors to whom unequal benefits are given by the will; because, in such a case, it cannot be supposed to be the testator's intention that they should be equally subjected to the burden of his debts, and therefore the property given to them is not considered to be charged. This was a creditor's suit for the administration of real and personal estate. William Powell, being at the time of his death possessed of some personal estate, and being also seised and possessed of, or entitled to, the freehold, copyhold and leasehold estates in his will mentioned, and certain other real estates, and being indebted to the Plaintiff and various other persons on simple contract, made his will, dated the 30th of September 1844, as follows:-"As to such worldly estate as God of His goodness hath bestowed upon me, I dispose thereof as follows : that is to 'say, I direct all my just debts, funeral and testamentary expenses, to be paid by my executrix hereinafter named; I give, devise and bequeath unto my niece, Mary Sarah Dee, all that piece of land called Page Park Meadow, situate at Hampton Bishop, in the occupation of William Watkins, being part freehold and part copyhold, held under the manor of Hampton Bishop aforesaid, to hold unto and to the use of the said Mary Sarah Dee, her heirs and assigns, according to the respective tenures thereof. I give, devise and bequeath unto my wife Catherine Powell all that my messuage or dwelling-house, with the outbuildings, [439] garden, orchard and appurtenances, wherein I now reside, situate at Eign Hill, being principally leasehold for years, but a part being freehold of inheritance, to hold the same unto the said Catherine Powell for her life, or for such part thereof as my estate therein shall continue, subject to the reserved rents, fines and expenses of renewal of the said leasehold part thereof. And from and after her decease, I bequeath the:said messuage and premises unto the said Mary Sarah Dee, her heirs, executors, administrators and assigns, to hold the same according to "T" KAY, 440. HARRIS t . WATKINS 187 the respective tenures thereof, for all the .subsisting estate and interest therein, subject to the costs, fines and expenses of renewals thereof, as regards the said leasehold part of the said premises. But if my said niece shall not survive my said wife, I give, devise and bequeath the same unto my said wife for the then subsisting estate and interest therein as her own absolute property; I also give, devise and bequeath unto my said wife all the rest and residue of my real andipersonal estate, goods, chattels and effects whatsoever and wheresoever, whicb I have now, or may at the time of my decease have power to dispose of, to hold the samb unto and to the use of my said wife, her heirs, executors, administrators and assigns, according to the respective natures and tenures thereof, as and for her own absolute property. And I appoint my said wife executrix of this my will, and hereby revoke all former wills, codicils and testamentary...
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