ambler case Lord inchiquin against French and other Hilary t see Collis v  robin de g Sm in re Fleetwood Ch d personal estate hold not exempt from debt  and legacy by devise of a competent part of real estate to be sell to pay they  lib Reg b foe nom obrien v trench in chancery CS S c Cox will bro c c cite  hill ms bill by plaintiff as administrator to his late son Lord Obryan against  the defendant for a account of the personal estate of Lord thomond or for sale  of so much of the real estate as be direct to be sell by his will in by which  he first desire his debt to be pay and then give all his real estate to  trustee and direct they to sell a competent part of the premise in the first  place to pay off all his debt and legacy ambler er p note thereby give and  such other legacy as he shall thereafter give by any codicil or codicil and  then to reimburse themselves all charge and in the mean time till such sale to  apply the rend and profit in payment c and after payment of his debt and  legacy to convey what shall remain unsold to Lord Obryan son and heir apparent  to Lord inchiquin in tail male remainder to Percy Wyndham young son of sir  William Wyndham in tail male with remainder over he give a legacy of pound to  sir William Wyndham and direct that the whole money arise by such sale shall  be account part of his personal estate and give all the residue of his  personal estate after payment of his debt and legacy to Lord Obryan it appear  that at the time of make his will his personal estate in money be about pound  and in furniture c about pound but at the time of his death his personal  estate amount to about pound and his debt and legacy to pound three question  be make saint whether the personal estate ought to be apply towards payment of  the debt and legacy in the first place or whether it shall be exempt and the  real estate be subject thereto d by a codicil the testator have declare the  pound legacy give to sir William Wyndham to be in trust for Lord Clare note  the trust be declare by a deedpoll bear even date with the will two three of  the will and of the deedpoll be execute and one part of the deedpoll be  enclose in each part of the will the deedpoll do not appear to have be prove  as a testamentary paper see Mr Cox report of this case Cox as to the necessity  of such proof see smith v Attersoll Russ and Lord Clare be attaint question be  make whether it be not a lapse legacy d suppose the legacy of pound to be a  good legacy whether it be to be pay out of the real or personal estate the  instrument declare the trust be witness by two person only ambler as to saint  question on the part of the plaintiff it be argue that the intention of the  testator be that all his debt and legacy shall be pay out of his real estate a  competent part of which he have direct to be sell for that purpose that the  reason why he have make a collective fund of the personal estate and of the  money arise by sale of the real be that Lord Obryan may have the residue which  can not be if the personal estate be to be first apply for it will not satisfy  half the demand and that the testator must know and therefore it will be  absurd to give the residue of his personal estate when he have charge it with  debt and legacy amount to the whole of it and several case be cite as  authority on this question videlicet Walter v pink that June at the roll and  in July before Lord Talbot as a case in point Bamfield v Wyndham Prec in Ch  Stapleton v Colville at the roll that July and before Lord Talbot on that July  upon appeal can t Talb wainwright v Bendlowes vern heath v heath win  attorneygeneral v Barkham before Lord Talbot June Adam v Meyrick at the roll  in Eq can Abr pl as to d question Lord chancellor say he will not determine on  Lord Clare right without his appear in court and though his be beyond the sea  and attaint may be reason for the plaintiff not make he a party yet he say  there be no instance of such a person right be determine in this court without  his appear and it be refuse in the case of Vanliden v Vanliden see  attorneygeneral v Balliol college Mod Roger v Linton bunb Mitf Tr see the  distinction take in fall v brown bro c c between active and passive party who  be abroad see Thomson v Baskerville Ch Rep Cockburn v Thompson Ves as to d  question his lordship decline go into it for some time as think it depend upon  the d but the counsel for all the party be very desirous to have his opinion  upon it he at last consent to it after have strong recommend a method of put  off the cause for some time and order the account to be take in the mean time  of the debt and legacy when Lord Clare will in all probability enter his claim  and then the plaintiff will have a opportunity of serve he with process for  suppose the plaintiff shall prevail that the personal estate be exempt all  debt and legacy and the heir at law shall prevail ambler that the instrument  declare the trust be not sufficient to charge the real estate Lord Clare will  be defeat of the pound it be insist on behalf of the plaintiff that the pound  be Payable in the same ambler er p manner as the other legacy that be out of  the real estate which the testator have charge with such other legacy as he  shall by any codicil dispose of and though the codicil be witness by two  person only and therefore can of itself charge thereat estate yet in the  present case it be sufficient to give a legacy and be no more than a thing  refer to by the will and it be the same as if the testator have declare in his  will that his real estate shall be charge with payment of such legacy which he  shall give by such a paper write and the case of brudenell v Boughton atk see  smith v Attorsoll Russ hear on that march be cite for that purpose on the part  of the defendant the general rule of law be rely on that debt be in the first  place Payable out of the personal estate and legacy out of the personal estate  only ex way termini and that express word or necessary implication only can  exempt the personal estate from those charge and a general charge on land do  not necessary exempt the personal estate Lord Talbot in Stapleton v Colville  say that the particular word by which a fund be create out of land will make  no difference it be necessary that he who try to alter the rule of law must  show express word of exemption or what be tantamount a specific bequest of the  personal estate which last be the circumstance attend all the case cite on the  other side and it be say there be no instance where a general residue of a  personal estate that be after payment of debt and legacy be consider as a  specific bequest and exempt from payment of debt and legacy that in those case  where the personal estate be specifical bequeathe if the real estate be so too  the rule of law shall take place as in Bromhall v Wilbraham hear at the roll  on that November and afterward affirm by Lord chancellor can t Talb it be then  argue on the word of the will and the external circumstance that the testator  intend to make the ambler real and personal estate a general fund to pay his  debt and then the rule of law take place that the personal shall be first  apply that if the testator have intend to give the personal estate exempt from  the charge he will have say S and lie they on the real the reason why he make  a aggregate fund may be that as a particular sum can not be raise by sale of  the real estate therefore whatever may remain over he may intend shall not be  lie out again but shall be consider as personal estate and go to Lord Obryan  what be chief rely on by the other side be the trust of the real estate for  payment of debt in all the case cite the court consider it as a trust for  payment of what the personal estate shall not be sufficient to pay this  doctrine be take notice of by Lord Talbot in Stapleton v Colville in which  case Harwood v child be cite the view of the testator in the present case be  to continue the estate in his name and therefore he settle it on all the taker  that be in be for life only it can not for that reason be in his view to take  so much from the real estate to give to Lord Obryan to be at his absolute  disposal this case be say to differ from those where the real estate be give  to one and the personal estate to another and by such a construction the  legatee will be deprive of the benefit of his legacy for here both the real  and personal be give to one and the same person and have Lord Obryan live he  have be benefit by the real estate to d question it can not be by accident  that the codicil be witness by two person only for it be execute on the same  day the will be a distinction be take where a real estate be make security for  a legacy after to be give by a codicil in such case a will execute accord to  the civil law may alter that legacy and the real estate will stand as a  security but when it be to be pay primary out of land nothing can alter the  legacy but that be execute accord to the statute of fraud in the case of  brudenell v Boughton that march the court reason that where land be a security  if a codicil take away the legacy the security be discharge and the case of  hide v hide Ch Rep be there cite ambler if this be not Chargeable on the  personal estate it be not a legacy and it can be a charge on the real estate  because the codicil be not execute accord to the statute and the case of  Adlington v can atk be cite where there be a devise of land and a declaration  of trust but the latter not be execute accord to the statute be consider not  to affect the beneficial interest give by the will Ventr Ch can be also cite  Lord Hardwicke c after take two day to consider of it give his opinion the  true question be whether the testator have give what be strict his personal  ambler er p estate to Lord bryan exempt from debt and legacy and they be  charge on the real estate put the question the other way it be tantamount that  be whether so much of the real estate be to be sell as will answer all the  debt and legacy and that money arise by the sale be add to the personal estate  and make one aggregate fund and then so much to be take out as will pay the  debt and legacy and the rest to go to Lord Obryan under the bequest of the  residue of the personal estate this will depend on the rule establish in the  court of law and equity and the determination upon it and the application of  this ease to that general rule the general rule of law and equity be that the  personal estate be the first fund for payment of debt and as to proper legacy  it be consider as the only fund both in the ecclesiastical and in this court  if therefore the personal estate be to be exempt from these charge it must be  so express or it must appear from a plain necessary implication arise from the  word of the testator and in such case of a implication or plain intention  without express word it must appear that the personal estate be give as a  specific bequest in some shape and beside the testator must have direct  another fund to discharge they not that he can take from creditor their right  of come on the personal estate ambler but he may charge which fund he will as  between his representative there be no substantial or general difference  between the case where in order to exempt the personal estate and charge  another fund a man have direct his real estate to be charge with payment of  his debt c and where he have direct his estate to be sell for that purpose in  Mcleland v shaw Sch Lef Stapleton v Colville forest there be instance in both  those way where the personal estate have be take in aid of the real and where  it have be exempt the next thing will be to take notice of the case cite on  the part of the plaintiff the first be Walter v pink that June on appeal July  which be not at all applicable to the present the question there be whether  the personal estate be liable to a sum of money which be make a particular  charge on part of the real estate to be sell and no suit can have be institute  for it in the spiritual court but a prohibition will have lie neither be the  case of Chester v painter p W applicable twothirds of a real and personal  estate be particular charge with the payment of debt and legacy and the  onethird be give to the wife Bamfield v Wyndham in pre in Ch be not applicable  for there the personal estate be not give by way of residue but the whole  personalty be give specifical in wainwright v Bendlowes vern S c Amb Prec in  Ch the real estate be direct to be sell and the debt c to be pay out of it and  the surplus give to particular purpose the testator then give a specific  bequest out of the personal estate to his brother and the residue of the  personal estate to his wife the residue in that case be consider as specifical  devise and the reason on which the court go be the real estate be direct to be  sell out and out and in the present case there be no direction to sell out and  out but only a competent part another reason which the court go upon in that  case the testator in the latter part of his will give a particular part of the  personalty to the legatee and then follow the bequest of the residue which be  consider as a specific bequest of the personal after that particular thing  take out there be some difference in those two book of Lord cowpers reason and  I own I be not satisfy with his reason as to the bequest of the residue of the  personalty as report in vern for it be very dangerous ambler in the case of  Barkham v bethlehem hospital ante page the personal estate and not the residue  be make only liable to funeral charge Stapleton v Colville can t Talb depend  on particular pen the personal estate and not the residue be give all the case  depend on their particular pen and lie down no general rule that can extend to  this or any other case except that reason in vern which will be too dangerous  to admit these be the case cite on plaintiff part on the side of the defendant  be cite Bromhall v Wilbraham that be a gift of a personal estate and not of  the residue and yet the personal estate be apply in aid of the realty Lord  Talbot take notice of the word Chargeable but his reason in Stapleton v  Colville make no difference between the word Chargeable and charge Hazlewood v  child in the report call Harwood which be hear on that ambler er p August cite  in Stapleton v Colville for reps be direct in point in which almost everything  occur which have be argue from in the present case the next consideration will  be the particular pen of this will and the application of this case to the  general rule in the first set out the testator have no intention to separate  his estate because he desire to dispose of all his worldly estate and then  immediate direct his debt and legacy to be pay so that from thence appear no  intention to exempt his personal estate but the contrary though creditor by  those word will be entitle to come on the real estate for satisfaction accord  to the case of Codrington v lee he next direct a competent part of his real  estate to be sell and the money arise by the sale to be consider as personal  estate it have be insist that by the direction to pay all his debt all shall  be pay out of that particular fund but the case of Hazelwood v child will  govern here where the word be full as strong and the court will take it to  ambler mean that so much shall be raise as with the personal estate will be  sufficient to pay debt and legacy and as a exact sum can be raise the residue  if any shall go to Lord Obryan this be the first instance where a devise of a  residue be insist to be so of all the personal estate but indeed this will be  particular pen the next thing insist on be that the money to be raise by sale  be to be competent to pay all the debt and legacy but there be no case where  such a clause of the residue as in the present be take otherwise than as the  residue of the proper personal estate can any thing be strong to show his  intention that his personal estate shall be subject when he basically make the  money arise by sale to be part of that which be the proper fund for payment of  his deal a difference be attempt by Mr brown that the money arise by the sale  shall not be entitle to the privilege of the real estate that be true if  separate from it but the question be how much be to be raise the great  objection make by plaintiff arise from the external circumstance of Lord  thomond at the time of make his will his personal estate be pound at the time  of his death it be pound and his debt and legacy amount to pound it be  therefore say this construction will defeat Lord bryan of any benefit the debt  be more than the personal estate but that have receive a special answer that  it be not a bequest of the personal estate but of the residue after payment of  debt and legacy and many case be to be find where it be the testator intention  that the legatee shall take the residue if any shall be leave it be improper  evidence to be read what be the circumstance of Lord thomond at the time of  make his will and in the case of Stephenson v Heathcote that Feb Lord  Northington ad idem Eden Lord holt say right that the court ought not to  consider the circumstance of the testator to determine what be his intention  and he say not even with respect to his real estate which perhaps be go too  far but the personal estate be always fluctuate if the court be to go into the  evidence the most improbable reason have be give on the part of the plaintiff  can it be imagine the testator will order part of his real estate to be sell  in order to give Lord Obryan a great personal estate who be under the same  will to take the real estate and be at that time a child very young ambler the  construction I have make be agreeable to the express word and no implication  can be to overrule they and therefore the personal estate must be first apply  as to the pound it be a proper legacy and I be deliver from that question  because I have already determine that the personal estate be to be first apply  and the real estate to make good the deficiency it come within the reason of  the case of brudenell v Boughton atk S c hill ms hill ms and be strong for the  testator have charge his real estate with all legacy which he shall after  direct and bequeathe by any codicil and therefore this codicil be sufficient  to charge the real estate though not execute accord to the statute of fraud  see hannis v packer post and note there knight v knight p W haslewood v pope  ib samwell v wake bro c c a duke of Ancaster v mayor ib French v Chichester  bro p c d Edward bro p c grey v Minnethorpe Ves Brummell v Protheroe ib tait v  Lord Northwick Ves Hartley v hurl Ves bridge v Phillips Ves milner v slater  Ves Watson v Brickwood Ves tower v Lord rouse Ves Aldridge v Lord Wallscourt  ba be Mcleland v shaw Sch Lef in the follow ambler er p case the intention of  the testator be think sufficient clear to exempt the personal estate  Wainewright v Bendlowes post Stapleton v Colville for Whaley v Cox Eq can ab  walker v Jackson atk web v Jones bro c c see the case cite bro c c Bruton v  Knowlton Ves Hancox v abbey Ves Bootle v Blundell mere Gittins v steel Swanst  green v green mad Dixon v Dawson S S see in Andrews v Emmott bro c c stand v  stand Ves jun hale v Margerum Ves Bootle v Prothero Meriv and see Judd v Pratt  Ves page v Leapingwell Ves Jones v Tucker Merv Jones v curry Swanst Bronsdon v  winter post the case of stand and stand Ves jun bro p c edit Toml establish  that with regard to real estate the court may examine whether the circumstance  of the testator property be such as to give effect to the will see by sir t  plummer in Jones v curry Swanst see in Jones v Tucker Merv