atkins case hill versus WIRLEY July as long as the fund itself exist upon  which a legacy be charge though it devolve either upon the heir or executor  yet they take it subject to the charge the word of the will on which the  principal question depend be as follow if it shall happen that my personal  estate which shall not be otherwise by this my will dispose of shall fall  short to pay my debt legacy and funeral expense then I do order and direct  that my copyhold land garden and premise which I buy of Dorothy comb shall  stand charge with such deficiency and the sum and sum of money so fall short  as aforesaid shall be pay out f the say copyhold estate then she give several  specific legacy and then follow this devise I give unto the right honourable  Henry earl of Rochfort all and singular the household good in t schedule  hereunto annex and by I sign he pay forty pound per annum to such person and  in such manner as herein aftermentioned and give security to my executor for  payment thereof then she give twenty pound per annum to one person for life  ten pound to another for life and five pound to the plaintiff for to be pay  her half yearly the first payment to begin and to be make six month after her  decease then all the remainder of her estate she give to knightly birch Esq  and appoint Wirley her executor the testatrix leave more than sufficient to  answer her annuity note but she leave no schedule annex to her will and sign  by her the question be whether under the circumstance of this case the  personal estate be sufficient the annuity of five pound per annum c ought to  be pay to the plaintiff and the other person Lord chancellor one thing be very  plain that the testator intend her legatee shall have the annuity and  therefore if there be any room to assist they the court will do it  notwithstanding the accident have happen of the testatrixs annex no schedule  of the household good the question be whether this annuity of five pound and  the rest of the annuity be not go the fund fail upon which they be charge now  it do not appear to I that there be that absolute uncertainty or no fund upon  which this legacy can attach vide the word of the devise to Lord Rochfort it  have be true say that the five pound ayear part of the forty pound atkins per  annum be give out of the household good and it be admit by the counsel for the  executor it be not necessary that the devise to Lord Rochfort shall take  effect to make the annuity legacy effectual for if he have die the executor  shall notwithstanding have be trustee for the forty pound per annum it be  admit further that if the fund have be ascertain by the schedule and Lord  Rochfort have refuse to give security then the good will have be direct to be  sell for payment of the legacy the fund itself be applicable it be just the  same as if the testator have give a particular piece of plate or a bind to  Lord Rochfort and he have die for then these thing must have be sell to answer  the legacy it be insist on here be a difference in the present case for that  if it have become void in the lifetime of Lord Rochfort still it may have be  well enough but here it be void in the original creation for the uncertainty  and this be the strength of the defendant case I do admit if this have be void  in its original creation and that it have not be in a thing naturan and  nothing consequent hard one to the executor which have be charge with the  annuity they will have be void but here the fund out of which the annuity be  to be charge be most undoubted go to the executor videlicet her atkins er p  household good for they can in any propriety of speech be take to be any other  person than the testatrixs and she not have annex any schedule to her will  those household good be of course go to her executor but say Mr attorney  general suppose the household good have be deficient and Lord Rochfort have  refuse they why then the annuity must have fall equal short and I allow that  to be right but the case cite by Mr solicitor general out of Swinbourne that  part be a full answer if a testator do bequeathe lead money or wheat not  express the quantity the bequest be unprofitable because of the great  uncertainty at least it seem the executor be deliver by deliver a very little  howbeit if the legacy consist in weight number or measure be dispose for the  performance of some act or other certain consideration as for the building of  some bridge or amend of highway or for the education or alimentation of some  person or maintain he at study or for the relief of the poor or for the re air  of the church or for other like use in these case the legacy be not void  albeit no quantity be express for so much be understand to be dispose of as  may satisfy or answer that purpose whereunto it be appoint atkins if the  testator have describe such household good as be sufficient and the executor  do not controvert that there be such household good can any thing be strong  than that the testator intend they shall be apply at all event towards satisfy  the annuity as far as they will go the word hereunto annex must be construe as  if she have say which I intend to annex to my will for she can not eastern  instant devise the household good and direct a schedule to be take but the  legacy must precede and be the same thing as if she have give they at once by  way of testamentary schedule the other point deserve to be consider whether if  there shall be a deficiency of the household good to satisfy the annuity the  executor must not make it good out of the personal estate see the first part  of the will which direct the copyhold land c to stand charge with such  deficiency it be plain that there be some legacy the testator intend her  copyhold estate c shall make good if the personal fall short all the legacy  except a month wage to her servant and these annuity be specific legacy when  the testatrix mention legacy in general she mean that all legacy which can not  find a sufficient fund out of the personal estate to be satisfy shall be throw  upon the copyhold estate c as to the devise to the servant as the testatrix  have give a month wage or a month warning nothing may have become due by way  of legacy for the servant may have be turn away and then the month warning  will have be a debt and not a legacy and therefore she can have nothing  material in her contemplation or any other legacy beside the annuity which she  can intend to charge in this manner on her copyhold estate the essential rule  in all these case be that as long as the fund itself exist upon which the  legacy be charge though it devolve either upon the heir or executor yet they  take it subject to the charge Wig v Wigg ante vol oak v heath Ves his lordship  decree the household good in the hand of the executor to be apply towards  satisfy the annuity and if those be not sufficient the residue of the personal  estate to be apply for that purpose and if there shall be still a deficiency  to be make good out of the copyhold land c Reg lib a fol there be no direction  give as to the copyhold estate