case Stapleton versus colvile July see Trott v Buchanan Ch d a devise his land  to b his wife for life Chargeable with two annuity for life and with a legacy  of pound and give b power to raise by safe or mortgage of any part such a sum  as will be sufficient to pay his debt due at his decease and then recite the  great satisfaction he have of his estate be have continue long in his name and  family and his desire to perpetuate both as far as may be he devise all his  real estate after his wife death to his nephew c for life remainder to the son  of c successive in tail c upon condition of their take his name and arm and  then give all his personal estate to his wife and make her sole executrix she  shall take the personal estate free from the debt of the testator it shall not  be apply in exoneration of the real Mr colvile by will devise his land to his  wife for life Chargeable with the payment of two annuity for the life of the  annuitant and likewise with a legacy of pound and give her a power to raise by  mortgage or sale of any part of the inheritance such a sum as will be  sufficient to discharge the debt he shall owe at the time of his death and  then recite the great satisfaction he have of his estate be have continue so  long in his name and family and the great desire he have to perpetuate as far  as he can his name and estate he devise all his real estate after his wife  death to his nephew Robert Lupkin for life remainder to his first and other  son in tail c upon condition of their take and use the name and arm of colvile  for ever and then in the close of his will he give all his good chattel and  personal estate to his wife and make her sole executrix the question be  whether the wife shall take the personal estate exempt and discharge from the  payment of debt or whether the personal estate shall not accord to the general  rule be first case tempt Talbot apply it have be decree at the roll that the  charge shall be entire upon the real estate and the wife to have the personal  estate to her own use Mr attorney general Mr solicitor general Mr Verney and  Mr Hamilton argue that by the know and general rule the personal estate be the  proper fund for payment of debt and that it have be always hold that where  there be no word in a will to exempt it either particular or by necessary  implication it shall be apply first and whenever it have be hold otherwise  that have only be to satisfy the testator intent who be master of the whole  may give and dispose of it in what manner he please as in the case of a devise  to trustee to sell for payment of debt c but where the debt be only charge  upon the estate the personal estate must be first apply accord to the  distinction in wainwright and Bendlows case vern Prec in Chanc case tempt  Talbot er p that in this case the clause whereby he have dispose of his real  estate be to be consider but as auxiliary to that whereby he have dispose of  his personal estate and whether the devisee of his personal estate take as  executor or in any other manner both law and equity make he but as a trustee  for the creditor who have the best right to it and although the testator make  both real and personal estate the fund for payment of his debt yet there shall  be no average but the real estate shall be Chargeable only in case of  deficiency of the personal so where the personal estate be devise to one who  be make executor unless there be particular word to exempt the personal estate  it shall pass to the devisee but as executor and consequent applicable in the  first place accord to Cuttler and coxeter case vern and French and chichester  case vern the last of which be a very great authority be warrant by the  opinion of the Lord keeper wright and the Lord Cowper who both decree the  personal estate to be first apply notwithstanding that the trustestate be  express case tempt Talbot and direct charge with payment of debt so in  Harewood and child case hear by the present Lord chancellor August where the  word be I devise all my manor to a and b and their heir in trust that they and  their heir out of the rend and profit or by lease or mortgage or safe thereof  or any part thereof shall raise so much money as I shall owe at my death and  after payment of my debt and reimburse themselves upon far trust that they and  their heir shall stand seize of such part of the premise as shall remain  unsold to and for such person and use as the manor of c be already settle and  if any money remain after payment of my debt it shall be pay to my daughter  and such as be entitle to the say manor by the limitation aforesaid he have  already give the manor of c to his daughter in tail with remainder to his  nephew and then he give all his personal estate of what nature or quality  soever to his daughter who he make executrix and it be hold that  notwithstanding this express devise to the trustee the personal estate shall  be first apply in discharge of the real the like be decree in Bromhale and  wilbraham case at the roll the decree in which case be afterward affirm by  Lord chancellor king with post about four or five year ego where the testator  devise in the follow word videlicet all my personal estate of what nature kind  or quality soever I give to my sister a who I make my executrix and all my  real estate of what kind nature or quality soever I give unto my two son b and  c Chargeable with my debt it be hold at the roll and afterward by Lord  chancellor king that the personal estate shall be first liable and the same  have be before decree in the case of Lord grey versus lady grey Chan can and  that of mead versus hide vern in the present case there be no devise to  trustee for payment of debt but a beneficial interest be give to the wife for  life with a power to raise by safe or mortgage of the inheritance such a sum  as will be sufficient for the payment of his debt which be intend only to  enable her to dispose of the inheritance in case of necessity but not at all  to take it case tempt Talbot out of the common rule be no more in effect than  charge the real estate which can be charge only by one of the two mean chalk  out by the testator indeed without this particular power the wife be but  tenant for life can neither sell nor mortgage the inheritance but that can be  no objection since in case of a deficiency of the personal estate the  inheritance will still be liable although she have no power of charge it  beside the devise to his nephew after his wife death evince the testator  intent to thou that the real estate shall not be Chargeable but upon  deficiency of the personal it be upon condition that his nephew shall take his  arm which always imply the testator intent to give the devisee as large  beneficial and great estate as possible to perpetuate his name and family and  be one of the reason for decree a feesimple to the devisee in ibbetson and  beckwith case ante Mr brown Mr fazakerley and Mr idele insist on the other  hand that upon the whole frame of this will the testator intent clear appear  to give his personal estate to his wife exempt from the payment of his debt  and that all the case cite on the other side do but evince the general rule  without govern the present case which be quite different from every one of  they all the direction give in respect of his debt be contain in the clause  whereby he dispose of his real estate and with that clause he have close every  thing in regard to his debt the devise of the personal estate stand sole and  single without any thing therein relate to the payment of his debt and when a  express devise be to be control by implication it must be such a implication  as be absolute and necessary whereas in this case the testator intent plain  appear to give his personal estate to his wife absolute case tempt Talbot er p  without any charge have use no word which either by themselves or by any  implication can denote a intent in he that the personal estate give shall be  charge with his debt and since he have not neither this nor any other court  can narrow his case tempt Talbot expression so as to make the disposition  different from what he intend it to be have he intend the charge to lie upon  the personal estate he need only to have charge the real estate in aid of it  but will never have be so exact in describe the particular manner in which the  real estate shall be make Chargeable with his debt as he have be in his create  this power which if it be not consider as a beneficial power give to the wife  in order to ease her own estate can never have any effect and it be not at all  to be compare with a authority give to trustee to sell there be a very great  difference between such bare general power to a three person to sell or do  some other act and such a particular beneficial power as the present one which  when give to a person to do a thing that be and will be advantageous to he be  to be consider in the same light as if the giver himself have do that thing  particular in the case of a wife as it be here the devise of the personal  estate be all his good chattel c by which word unless a part can be take for  all she must take the whole personal estate discharge from any out go for the  word all imply it since though as to the creditor the personal estate can be  look upon as his after his death yet between legatee and devisees it be as  much his and to be look upon as such after his death as during his life and in  all the case where the intent have clear appear to discharge the personal  estate it have make no difference whether the devise be to charge the real  estate only or to sell it accord to Bamfield and wyndham case precedent in  Chan where the devisee of the personal estate be almost in the same word as  here and which though decree upon the reason that if the personal estate shall  not be exempt nothing will be leave for the wife yet seem likewise to have go  upon the word of the devise themselves so in the case of the attorney general  and Barkham decree in this court about two year since where the testator  devise in the follow word videlicet for the just and true performance of this  my last will case tempt Talbot and for the payment of all my debt I give and  devise all my real estate and as to the personal estate which at the time of  my death I shall be possess of and entitle unto I give the same unto my  executor and executrix herein name to defray my funeral charge and expense and  if my personal estate shall fall short to discharge the same then the  remainder to be pay to my executor out of the first rend and profit of my real  estate as they shall become due after my decease until payment be make of all  my legacy debt and funeral expense as aforesaid and if there be any surplus of  my personal estate that then my executor pay the same to my dear and love wife  and hold in this case that the personal estate shall go to the wife discharge  from the payment of debt the case of Harewood versus child ante cite and of  broomhall versus Wilbraham ante cite be very different from the present case  for in the first the daughter be to take the whole either way whether as real  or personal estate and therefore the doubt there can only be with regard to  the representative and in that of broomhall versus Wilbraham have the real  estate which be devise to the son be charge with the debt the son will have  have nothing at all and the testator sister who be the devisees of the  personal estate will have run away with the whole so that the question be  between the testator own child and his sister it be natural and just to  construe the intent in favour of his child and to lie the load on the personal  estate but what clear evince the testator intent in the present case be that  the annuity legacy and debt be all in one and the same clause and the personal  estate be as much the proper fund for the payment of legacy as debt and the  legacy be particular charge upon the land and couple and join with the power  give for sale of part of the inheritance for payment of his debt show he  intend no difference between they the annuity likewise be give in the same  clause and it can never be pretend that the annuity be design by he to case  tempt Talbot issue out of the personal estate then come a separate distinct  clause whereby he dispose of all his good chattel c without any reference to  the former or any thing that look like a intent of burden the personal estate  with the debt but those be particular provide for by a former clause with the  legacy and annuity must be consider as design by he to issue out of the same  fund and his intent as to all three to be one and the same Lord chancellor the  single question for the judgement of the court be whether case tempt Talbot er  p the personal estate shall or shall not be liable to the payment of the  testator debt what the quantum of the debt or the amount of the personal  estate be at the testator death do not appear if it do it will give a great  light into this matter indeed it be not absolute in the testator power to take  the personal estate from the creditor but he may substitute another fund in  the room of it and if so this court will take care that right be do to all  party as well the devisees of the personal as of the real estate the testator  intent must govern the construction of his will and that intent must be  collect from the will itself in case where the real estate be charge with  payment of debt and a executor appoint as in wainwright and Bendlows case ante  cite there be no room to doubt of the testator intent for it be no more than  charge his real estate for the better security of his creditor in case of a  deficiency of the personal but can never be intend a exemption of the personal  estate for the benefit of the executor a difference have be take between the  bare charge of the real estate and a devise to sell but I think that in equity  a charge of the real estate be almost equal to a devise to sell since the  court will upon the necessity of a safe order it so and in wainwright and  Bendlows case the testator intent appear to have the whole convert into money  and therefore that case do not seem to I to weigh much either case tempt  Talbot way it have also be say that where the executor be name in the same  clause the nature of the personal estate be not alter but it still remain  liable to the debt and some case have be so decree but although that reason  may have some weight yet do not I think it sufficient for the exoneration of  the real estate and unless it be acquaint with the particular circumstance of  French and chichester case ante cite wherein the book seem deficient I can  never form any judgement from it since if the reason give in the book for it  be the only one I can say that it give I entire satisfaction nor can I lie any  great stress upon it and the rather because there be a plain difference at law  between the bare make a executor and the make he likewise legatee of the  personal estate as it be in the present case for in the first instance if the  executor die intestate before probate the representative of the testator be  entitle to the administration whereas in the latter there be a express gift to  he he take as legatee and consequent up on his death his representative will  be entitle to it a interest be vest in he in his own right in the one case but  nothing at all in the other until he have convert it in the case of Harewood  versus child ante cite the opinion of the court be find upon the completion of  the will which be take together manifest the intent to be that the daughter  shall take the personal estate liable to the payment of his debt she herself  be devisee of the whole and it will have be absurd to imagine the testator to  have intend his personal estate to be exempt from the payment of his debt when  he have express provide that the surplus of the produce of what shall be raise  out of the real estate shall go to the very same person who be devisee in tail  of the real estate in that of broomhall versus Wilbraham ante cite the real  and personal estate be pretty much of the same value and the debt must have  exhaust the one or the other fund so that have the judgement of the court be  otherwise the man child will have be leave without any provision and in that  of mead versus hide ante cite there case tempt Talbot be a executor but  without any express gift make to trim but in Bamfield and wyndham case ante  cite the determination be in favour of the wife that she shall take the  personal estate exempt from the debt and there she be make executrix in the  same clause although indeed there be another reason give in the book of the  debt amount to more than the personal estate in that of the attorney general  versus Barkham ante cite the testator have lie the charge upon the real estate  and then take up his personal estate mention particular thing which he charge  it with so that the surplus there mean must be the surplus after the  particular charge which he have there specify and therefore this case be very  particular must stand upon its own bottom and reason and can be compare to the  present one all those case depend upon the intent plain appear as this must do  likewise after the gift of the annuity and legacy wherewith he have charge his  real estate wherein I do not think that the use the word charge or Chargeable  will make any difference since they be use case tempt Talbot er p then come  the power give to the wife which seem to I very clear to manifest the intent  that she shall take what he have give to her by his will to her own use for  his intent be to carry down and perpetuate his estate in his name and family  can it be suppose that have give his wife the whole power over his personal  estate by make her executrix he will likewise give her a power of dispose of  so much of the inheritance end consequent of defeat the devise to his nephew  not of so much as the personal estate shall case tempt Talbot prove deficient  but of what shall be necessary for the payment of his debt unless he have  intend her the personal estate absolute to her own use clear and discharge  from the payment of his debt his intent seem clear to give her this power of  dispose of so much of the inheritance as will satisfy his debt in order to  secure her the full enjoyment of her estate for life and of the personal  estate free from all charge whatsoever and so affirm the decree in behalf of  the wife Reg lib b fol in the decision of case upon this subject the court  seem to have adopt for the ground of its determination the distinguish  circumstance of Bach without any direct reference to any general principle as  applicable to they au admit however the general rule of the court to be  videlicet that the personal estate be the primary fund for the payment of debt  and will be so apply in the first instance unless where the testator by  express word or by plain and manifest implication have exempt the personal and  direct the real estate to bear the burden of his debt it therefore necessary  follow that in every case of the kind the principal question must thou whether  from the very word use by the testator or by plain and necessary inference the  intention of the testator to exonerate the personal estate can be satisfactory  collect wainwright v Bendlowes vern bampfield v Popham Prec in Chanc Adam v  Meyrick Eq Cas Abr hall v brooker pale yellow Eq Rep Stapleton v Colville post  walker v Jackson atk Kynaston v Kynaston bro Charles Rep cite Anderton v cook  ibidem cite holiday v Bowman ibidem cite web v Jones bro Charles Rep be case  where the intention of testator appear sufficient clear to the court to exempt  the personal estate but in French v Chichester bro p c and Edward bro p c  Fereyes v Robertson bunb Ambl Rep earl of inchiquin v obrien will Bromhall v  Wilbraham post Stephenson v Heathcote bro Charles Rep cite Samevell v wake bro  Charles Rep duke of Ancaster v mayor bro Charles Rep the court hold the  personal estate to be first liable in the latter case the material case upon  this subject be recognize and the circumstance which govern the decision of  each through consider case tempt Talbot de term S michaelis geo two in curian  porter