Simmon v Rose
| Jurisdiction | England & Wales |
| Judgment Date | 18 January 1856 |
| Date | 18 January 1856 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 1292
BEFORE THE LORD CHANCELLOR LORD CRANWORTH.
S. C. 21 Beav. 37; 25 L. J. Ch. 615; 2 Jur. N. S. 73. Explained, Luckcraft v. Pridham, 1879, 48 L. J. Ch. 636.
[411] simmons v. rose. Before the Lord Chancellor Lord Cranworth. Jan. 11, 12, 18, 1856. [S. C. 21 Beav. 37 ; 25 L. J. Ch. 615; 2 Jur. N. S. 73. Explained, Luckcraft v. r-ridham, 1879, 48 L. J. Ch. 636.] A testator, after directing payment of all his debts, devised the residue of his freehold and copyhold estates to trustees, upon trust to sell and absolutely dispose of the same, and he directed the monies to arise from such sales should be deemed to be part of his personal estate, and that the rents and profits of the hereditaments, till their sale, should be deemed to be part of the annual income of his personal estate, and that the same monies, rents and profits should be subject to the disposition thereinafter made concerning his personal estate and the annual income thereof respectively; and as touching his personal estate, he bequeathed the same to the trustees, upon trust to invest the same in consols and pay certain legacies. The testator made no disposition of the residue of his estate. Held, impugning the authority of Chitty v. Parker (4 Bro. C. C. 411), and approving that of Roberts v. Walker (1 Kuss. ft M. 752), that the real and personal estate was constituted a fl DE 0. M. ft 0. 3. SIMMONS V. ROSE 1293 blended fund, and applicable, pari pasm, in payment of debts and legacies. Held, also, that the heir was not entitled to an inquiry as to the relative value of the real and personal estates, with a view to ascertain the amount for which he was liable to contribute, but that a sale of such real estate must be made. This was an appeal from the decree of the Master of the Rolls, reported in the 21st Volume of Mr. Beavan's Reports, p. 37. The testator, Lewis Eose, after directing payment of all his debts, devised the residue of his freehold and copyhold estates to trustees, their heirs and assigns upon trust, as soon as conveniently might be after his decease, to sell and absolutely dispose of the same; and the testator directed that the monies to arise from such sale should be deemed to be part of his personal estate, and that the rents and profits of the hereditaments, till their sale, should be deemed to be part of the annual income of his personal estate, and that the same monies and rents and profits should be subject to the dispositions thereinafter made concerning his personal estate and the annual income thereof respectively. And as touching his personal estate, he bequeathed the same to his said trustees upon trust to invest the same in consols and pay certain legacies; and he appointed the trustees his executors. [412] The testator died in 1853. The question which arose between the heir at law and next of kin was, whether, upon the construction of the testator's will, the debts and legacies were to be paid primarily out of the personal estate, or out of the real and personal estate rateably, as a common fund. the master of the rolls having held that the real and personal estate was blended and applicable, pan passu, in payment of the debts and legacies, the heir at law now appealed to the Lord Chancellor. Mr. Daniel and Mr. E. F. Smith, in support of the appeal. 1st. It is submitted, that the personal estate of the testator is primarily liable for the payment of his debts and funeral and testamentary expenses, the testator having, in the first clause, directed payment of his debts. It is true that the will afterwards directs a sale of the real estate for the purpose of forming a common fund; but it is to be observed that the destination of that blended fund is to be subject to the dispositions thereinafter made concerning his personal estate, and there was no subsequent disposition for payment of debts. The charge, therefore, at the commencement of...
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