Mirehouse v Scaife
| Jurisdiction | England & Wales |
| Judgment Date | 01 March 1837 |
| Date | 01 March 1837 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 805
HIGH COURT OF CHANCERY
S. C. 1 Jur. (0. S.), 134; 7 L. J. Ch. (N. S.), 22. See Walker v. Jeffrei/a, 1842, 1 Hare, 351; Tombs v. Bock, 1846, 2 Coll. 507; Harris v. Watkins, 1854, Kay, 447. Commented on, Conron v. Conron, 1858, 7 H. L. C. 168. Followed, Farquharson v. Floyer, 1876, 3 Ch. D. 112.
[695] mirehouse v. scaife. June 26, July 4, Nov. 25, 1837. {S. C. 1 Jur. (0. S.), 134; 7 L. J. Ch. (N. S.), 22. See Walker v. Jeffrei/a, 1842, 1 Hare, 351; Tombs v. Bock, 1846, 2 Coll. 507 ; Harris v. Watkins, 1854, Kay, 447. Commented on, Conron v. Conron, 1858, 7 H. L. C. 168. Followed, Farquharson v. Floyer, 1876, 3 Ch. D. 112.] A testator, after bequeathing a number of pecuniary legacies to different persons, and giving a certain field to his godson, directed that all his debts and the above legacies should be paid and discharged within six months after his decease; and all the rest and residue of his estate, both real and personal, he gave to N. The personal estate proving insufficient to pay the debts and legacies, it was held, upon demurrer to a bill by some of the legatees, seeking to charge their legacies on the real estate which passed under the residuary devise to N : first, that there was no equity, in favour of pecuniary legatees, to have the assets marshalled, so as to throw the debts upon the real estate devised to N. ; but, secondly, that both the debts and legacies were, by the words of the will, effectually charged upon that estate. The will of John Brockbank, yeoman, which bore date the 21st of October 1833, and was duly executed and attested to pass freehold estates by devise, was, so far as is material, in the following words :-"First, I give and bequeath unto my cousin William Perry, the sum of 100 ; unto my cousin Nancy Carter, 50 ; unto my cousin Mary Cape, widow of the late John Cape, 50; unto my cousins Robert Scaife, Isabella Scaife, and Mrs. Jane Mirehouse, the sum of 200, share and share alike, or the whole to the survivors at my decease. Also I give unto Robert Scaife all my interest in the brig Solon ; unto Hannah Lewthwaite, my servant woman, 10 ; unto James Brockbank, my godson, the son of John Brockbank of Chappies, I give and bequeath one field, known by the name of Gillfoot, as a memorandum, to be by him enjoyed at my decease. It is my will that all my debts, and all the above legacies, be paid and discharged within six months after my decease; and all the rest and residue of my estate, both real and personal, lands, messuages, and tenements, I give unto Mary Newton, the wife of George Newton of Green, by her freely to be possessed at my decease; and I do hereby constitute and appoint John Brockbank of Chappies, ^nd Robert Scaife of Maryport, to be the executors of and to this my last will and testament." [696] The testator died in the month of February 1836, and the executors proved his will. The bill was filed by Jane Mirehouse and Mary Cape, two of the legatees named in the will, against Scaife and Brockbank, the executors, against Mary Newton, the residuary devisee, and her husband, and against William Perry, who was the testator's heir at law. James Brockbank, the devisee of Gillfoot, was not made a Defendant. The bill alleged that the testator's personal estate was insufficient to pay his debts and funeral and testamentary expenses and legacies ; but that the real estates devised to Mary Newton were more than sufficient for those purposes. The bill prayed a declaration that, according to the true construction of the will, the testator's debts and legacies were a charge upon his real estates thereby devised to Mary Newton; and in case, on taking the accounts, his personal estate should prove insufficient to pay such debts and legacies, then that the deficiency might be raised by sale or mortgage of such real estates; or, if the Court should be of opinion that the testator's real 806 MIREHOUSE V. SCATFE 2 MY. & CR. 697. estates were not charged with the legacies, then that his assets might he marshalled, and that the amount of the personal estate which should have been applied in payment of his debts, or so much thereof as should be sufficient for payment of the legacies, might be raised by sale or mortgage of the said real estates, and applied in payment of the legacies. To this bill, George Newton and Mary his wife filed a general demurrer, which the Vice-Chancellor, upon argument, overruled, and the present appeal was then brought from His Honour's decision. Mr. Jacob and Mr. Booth, for the Appellants, made two points: first, that equity would not marshal the assets, in favour of pecuniary legatees, against a devisee [697] of a real estate, whether given specifically or in the form of residue, every devise of land being, in fact, specific ; and secondly, that the words to be found in this will were not strong enough to charge the testator's legacies upon the lands devised to Mary Newton. In support of the first proposition, the following authorities were cited ;-Forrester v. Lord Leigh (Amb. 171), Smtt v. Scott (1 Eden, 459), Nwnnock v. Horton (7 Ves. 391), Milnes v. Slater (8 Ves. 295), Hill v. Cock (1 Ves. & E. 173), Keeling v. Broom. (5 Ves. 359). The last of these cases, it was submitted, was on all fours with the case under appeal, and entirely concluded the question. Upon the second point (on which it was. stated that the Appellants had the expressed opinion of the Vice-Chancellor in their favour, His Honour having decided against them on the other ground), reliance was^ placed on the direction that the debts and legacies should be paid within six months after the testator's decease, as exempting the case from the ordinary rule, and bringing it within the distinction taken by Sir John Leach, in Douce, v. Lady Twrington. (1) Mr. Wigram and Mr. Walker, contra, distinguished the cases cited for the Appellants, and with reference to the first point, relied strongly upon Spong v. Spong (1 Y. fe Jerv. 300 ; 3 Bligh, 84, N. S.), in the House of Lords, and upon the language of Lord Hardwicke in Hanby v. Roberts (Amb. 127 ; 1 Dick. 104). They also mentioned Clifton v. Surf. (1 P. Wms. 679), and Wytlie v. Henniker (2 Mylne & Keen, 635). [698] They observed, moreover, that as the will was executed subsequently to the passing of the Act by which real estates are made assets for the payment of simple contract debts (3 & 4 W. 4, c. 104, which received the Royal assent on the 29th of August 1833), and as every testator must be presumed to be cognisant of the law, and. to make his will with reference to the state of that law, this testator knew that his. debts were chargeable by statute on his real, as well as on his personal estate, and of course, therefore, when he made his will, meant that in the event of the personalty proving insufficient to answer both his debts and legacies, the former should be thrown upon the real estate. In support of the proposition, that the words used in this will amounted to a charge of the legacies upon the real estate, the following cases were cited;- Awtreyv. Middleton (4 Vin. Ab. 460, pi. 15), Bench v. Biles (4 Mad. 187), Clifford v. Lewis (6 Mad. 33), Cole v. Turner (4 Russ. 376), Withws v. Kennedy (2 Mylne & Keen, 607). Nov. 25. the lord chancellor [Cottenham], This was an appeal from an order of the Vice-Chancellor, overruling a demurrer. The question is, therefore, whether the bill states a case which entitles the Plaintiffs to any relief against the party demurring. The Plaintiffs are legatees of general pecuniary legacies. The Defendant who demurs is the devisee of the residue of the testator's real estate. [Hi* Lordship read the material parts of the will, and proceeded :]- The Plaintiffs, who are the two legatees, Jane Mirehouse and Mary Cape, contend : first, that by this will [699] the residue of the testator's freehold estate, that is, the whole of his freehold estate except James Brockbank's interest in G-illfoot, is charged with the payment of his legacies; and secondly, if not, that they and the other legatees are entitled to have the assets marshalled, so as to throw the debts upon these devised estates, so far as may be necessary to leave enough of the personalty to pay the legacies. The Vice-Chancellor was of opinion against the Plaintiffs upon the first point, but in their favour on the second, and therefore overruled the demurrer. I concur with the Vice-Chancellor in thinking that the demurrer cannot be maintained ; but as the two points raised are of much importance, and are not unlikely to arise in other cases, I think it right to make some observationa upon both. a MY. & OR. WO. MIREHOUSE V. SCAIPE 807 I will begin with the second point. The proposition contended for by the Plaintiffs is, that the rule that pecuniary legatees are not entitled to have the assets marshalled against a devisee, is confined to specific devises of land, and that pecuniary legatees are so entitled against lands which pass under a residuary devise. I will first consider the authorities, and then the reason of the...
To continue reading
Request your trial
-
Dady v Hartridge
...Silk v. Prime (1 Dick. 384; S. C. 1 Bro. C. C. 138, n.); Bench v. Byks (4 Madd. 187); Cole v. Turner (4 Euss. 376); Mirehouse v. Scaife (2 My. & Cr. 695); Withers v. Kennedy (2 My. & K. 607); Spong v. Spong (3 Bl. (N. S.) 84); Joy v. Campbell (Ibid. Ill, n.); Tombs v. Bock (2 Coll. 490); Jo......
-
Wheeler v Howell
...notwithstanding the previous charge affecting a portion of such real estate : Bench v. Biles (4 Madd. 187), and see Mirehouse v. Scaife (2 My. & Cr. 695, 706). He also contended that, notwithstanding the unfinished form of the sentence purporting to provide for the event of a deficiency of ......
-
Harris v Watkins
...that the testator did not intend to subject the property given to his executors with the payment of debts. In Mirehouse v. Scaife (2 My. & Cr. 695) the testator, after giving various legacies, and to A. one field, whether freehold or leasehold did not appear, directed that all his debts and......
-
West v Lawday
...L. N. 2 Eq. 627. See this case on appeal, reported W. N., 7th December, 1867. Harris v. WatkinsENR 1 Kay, 438. Mirehouse v. ScaiffeENR 2 My. & Cr. 695. Emuss v. SmithENR 2 De G. & Sm. 735. Edwards v. PughENR 2 Jarman on Wills, 2nd Ed., 127, n.; and 2 Giff. 135, note. Cogswell v. ArmstrongEN......