brown case james NOKE Appellant richard darby et UX Respondents that April  Mews dig way personal estate be the first and immediate fund for the payment  of debt and therefore though a man devise part of his real estate in trust to  be sell and the money apply in payment of his debt legacy etcetera and give  the residue of his personal estate not specifical bequeathe to his nephew yet  the personal estate shall be first apply in payment of the debt in case of the  trust estate which be not to be sell unless the other fund prove deficient  viner vol p can Eq can ab can Judith Medlicot be seize in fee of several  freehold and copyhold land and hereditament in Sussex and entitle to the  remainder of certain lease of house in watlingstreet London for a long term of  year expectant upon the death of dame mary Selwyn widow and be also possess of  a very considerable personal estate duly make her will date the that of  September and thereby inter alian devise as follow item I give unto the say  Selwyn samber the sum of pound sterling to be pay her at her age of twentyone  year or day of her marriage which shall first happen item I give unto the  aforesaid Selwyn samber one small silver tankard work round with ridge like  hoop item if it shall happen that the say lady mary Selwyn my late brother  widow shall depart this life before the expiration of the lease of the two  house in watlingstreet London the remainder of the say term of or in the say  lease will be vest in I or my executor and therefore I do hereby give and  bequeathe all my right title and interest of in and to the say lease and house  unto my aforesaid nephew James Noke and my goddaughter Selwyn samber and her  part and proportion to be apply towards her better maintenance and education  and to the intent all my debt legacy and funeral expense may be just and  honest satisfy and pay I give and devise all that my moiety part purpart and  share of all that my mansionhouse call Bechington in the parish of Friston and  also of all that the manor of peak dean alias Peakthen and also of all the  freehold message land tenement hereditament and appurtenance whatsoever within  the several parish of Friston Eastdean Eastborn Willingdon Pevensey Westham  Hailsham Falkington and Jevington or elsewhere in the county of Sussex call or  know by the several brown er p name or name of Bechington Friston peak dean  Eastlees Hobney late Baldeys east skeens the Monts and studley land or by  whatsoever other name or name the same or any part thereof be or be call or  know and also all my estate interest right title property claim and demand  whatsoever of in and to the same or any part thereof and also all that my  moiety of the windmill call brown Fristonmill and all those my two acre of  copyhold land lie in Friston holder of the manor of Wilmington and all other  my freehold and copyhold message land and tenement whatsoever not herein  before give away nor dispose of with their and every of their appurtenance  unto my love friend Nicholas Gilbert of Eastborn in the county of Sussex  gentleman and Thomas Willard of the same place gentleman and to the survivor  of they and his heir in trust that they and the survivor of they and his heir  shall and do within two year next after my death sell and dispose of all the  say premise before to they devise for the best price they can get for the same  and with the money raise by sale thereof first pay all my debt legacy funeral  and other expense which they shall be at in and about my funeral and sell of  the say estate and the overplus of the say money remain in their hand after  such my debt legacy funeral and other expense whatsoever be pay and discharge  I give and bequeathe unto my aforesaid nephew James Noke to the intent and  purpose he shall purchase my moiety of Friston peak dean and the Monts and  come and inhabit at Friston and when he marry if he have issue shall have his  son baptise by the name of Selwyn as I also desire his other child may be in  memory of that ancient family and my will be that if my aforesaid nephew James  Noke shall refuse or neglect to purchase the aforesaid moiety of Friston peak  dean and the Monts within one year next after my death that then he shall not  have the overplus money remain in my say trustee hand after sale of the estate  and payment of my debt legacy and other expense as aforesaid but such overplus  money shall be equal divide between he the say James Noke his brother Charles  Noke my niece Penelope samber and Selwyn samber her daughter share and share  alike all the rest and residue of my good chattel money plate and personal  estate whatsoever not herein before give away nor dispose of my debt legacy  funeral and other expense be first pay and discharge I give and bequeathe unto  my aforesaid nephew James Noke who the testatrix make sole executor of her  will and desire he to be very kind to and take care of the say Selwyn samber  and be assist to her in manage the estate which she shall leave her and that  she shall have the rend and profit thereof duly pay and apply towards her  maintenance and education and the testatrix before the publication of her will  desire the say Selwyn samber shall have a gold seal on the that of February  the testatrix die and thereupon the appellant prove the will and possess  himself of the personal estate of the testatrix more than sufficient to pay  her debt legacy and funeral and he and the trustee Gilbert and Willard enter  upon the trust estate and receive the rend and profit thereof in Hilary term  Penelope samber mother of the respondent Selwyn to who several pecuniary and  specific legacy be brown devise by the say will over and above her contingent  share of the overplus of the trust estate and also the respondent Selwyn then  a infant exhibit their bill in the court of exchequer against the appellant  and Thomas Willard Thomas medley Robert Baylis and jasper web for a account of  the testatrixs personal estate and that the same may be make liable to her  debt legacy and funeral expense that the trust estate may be sell and that the  respondent selwyn share of the surplus of the purchasemoney may be pay  together with her other legacy the appellant put in his answer to his bill and  thereby set forth a indenture date the that of November whereby the plaintiff  Penelope and Charles samber her husband agree to release all their title to  the share of the surplus after sale of the trust estate and also to the  respondent selwyn share in case she shall die before age or marriage and a  indenture tripartite date the d of December make between Gilbert and Willard  the trustee of the first part the appellant and Abigail Stevens and William  snatt and his wife the say Charles samber and Penelope his wife of the second  part and the defendant medley of the three part brown er p recite inter alian  that medley have a mortgage on the trust estate to the value of pound and have  pay pound S d for debt and legacy and pound S d for obtain a decree of the  court of chancery thereinmentioned and have undertake to pay the respondent  Selwyn her pound at her age or marriage and to pay the rest of the creditor  and legatee and that the overplus be pound S d which be to be divide accord to  the will and that Charles Noke and the respondent be infant medley have secure  their share thereof at interest at pound percent and by this indenture the  trust estate be sell to medley and his heir at the price of pound the  appellant also set forth a indenture quinquepartite of the same date with the  last deed recite that the trustee have not intermeddle in the trust and be not  to stand to any error in the computation of the overplus which to prevent all  mistake the appellant and Charles samber as next friend to Charles Noke and  the respondent Selwyn have with great care revise and recite that the trustee  and the survivor and his heir shall be indemnified in all event medley demise  to the trustee their executor etcetera five piece of marsh land for the term  of year condition for medley procure release from Charles Noke and the  respondent Selwyn and in the mean time for indemnifying the trustee from all  suit etcetera on account of the trust and overplusmoney the appellant then  insist that the trust estate be sell within the time limit by the will for  pound and no more and that the surplus be no more than pound S d and he deny  receive any part of the respondent selwyn share but say that the same remain  in medley hand secure as aforesaid together with her pound legacy the other  defendant have answer and the cause be at issue be hear on the that of July  when the court brown declare that the respondent Selwyn be well entitle to the  say pound Payable at her age of twentyone or marriage and also to the silver  tankard and gold seal specifical bequeathe and to a moiety of the rend profit  and produce of the house in watlingstreet from the time of lady selwyn death  and to interest for the net produce thereof from the respective time the same  as receive and likewise to a four part or share of the surplus of the trust  estate and to interest for her share of the net money arise by the sale  thereof and it be therefore decree that the appellant shall account before the  deputy for all the personal estate of the testatrix come to his hand and shall  be examine upon interrogatory touch the same and the deputy be to see whether  the trust estate be fair sell and for the most money that can be get for the  same and that the appellant and the defendant medley shall account before the  deputy for all the money arise by sale of the trust estate and for the  interest of the respondent selwyn share thereof from the time of the sale and  for her share of the rend and profit thereof until such sale all just  allowance be make to the appellant and the say defendant medley and it be  further order and decree that all the personal estate of the testatrix not  specifical devise shall stand charge in the first place with the payment of  her debt funeral expense and legacy so far as the same will extend and shall  be apply towards satisfaction thereof in case of the trust estate and if the  personal estate shall not be sufficient to satisfy the same then the surplus  of the trust estate shall be subject and liable to the payment thereof and  that in take the say account the deputy shall charge the same accord and state  what be due to the respondent Selwyn for her share of the surplus of the trust  estate and for the interest thereof as aforesaid and for the profit thereof  until the same be sell after this decree the respondent Derby intermarry with  the respondent Selwyn whereupon the suit be revive and the cause be reheard  upon the appellant petition on the that of June the say decree of the that of  July be ratify and confirm from this decree and the order of affirmance the  appellant appeal contend p York W peer William that the benefit of the devise  of the residuum of the testatrixs personal estate though express bequeathe to  he by the will be take away from he by the decree that the testatrix by her  will have first create a particular fund for the payment of all her debt  legacy and funeral expense by devise her real estate to trustee to sell and  with the money thereby brown er p arise in the first place to pay the same and  then give the overplus remain in her trustee hand after all such debt legacy  funeral and other expense whatsoever shall be pay and discharge to the  appellant upon the term thereinmentioned but if he do not comply with those  term then he shall not have the whole overplusmoney but only a four part  thereof remain after sale of the say estate and payment of her debt legacy  funeral and other expense as aforesaid by all which brown repeat expression it  be conceive the testatrix have full declare her intention that all her debt  etcetera shall be pay out of the money arise by sale of her real estate that  the testatrixs debt and legacy amount to abundant more than the value of the  whole personal estate which remain over and above the specific legacy and  therefore the testatrix know at the time of make her will that if such  personal estate be in the first place to be apply in payment of her debt and  legacy no surplus will remain to satisfy the bequest of the residuum to the  appellant which be a strong evidence of the intention of the testatrix that  the money arise by sale of the trust estate shall in the first place be so  apply and her personal estate discharge therefrom unless the trust estate  shall by any mean prove deficient for that purpose and in that case only the  personal estate shall be apply to make good such deficiency and that although  the bequest to the appellant be make by the description of the rest and  residue of her good chattel and personal estate yet those word be sufficient  answer and satisfy by the specific legacy before give be first take out  without make the whole personal estate applicable to the debt and legacy in  exoneration of the trust estate express devise for that purpose which in the  present case appear to be contrary to the testatrixs intention on the other  side it war argue c Talbot n fazakerly that the personal estate be by law the  immediate fund for payment of debt and legacy the testatrix make her real  estate likewise liable to the payment thereof do not exempt the personal  estate from be first apply for that purpose that the word of the devise of the  residuum of the personal estate videlicet all the rest and residue of my good  chattel money plate and personal estate whatsoever not hereinbefore give away  nor dispose of my debt legacy funeral and other expense be first pay and  discharge I give unto my nephew James Noke etcetera plain demonstrate that the  testatrix intend her debt and legacy shall be pay out of her personal estate  before the residuary legatee shall take any benefit by that bequest beside the  trustee be not by the will oblige to sell the trust estate until two year  after the testatrixs death and it will be very unreasonable and absurd that  the debt legacy and funeral expense shall remain unsatisfy until sale of the  trust estate and the personal estate which be subject to the payment thereof  remain untouched and not apply for that purpose it be therefore hope that the  decree and the affirmance thereof will appear to be just and agreeable to the  rule of equity and that the appeal will be dismiss with cost accord after hear  counsel on this appeal it be order and adjudge that the same shall be dismiss  and the decree and affirmance therein complain of affirm jour vol p