attorney general agt Tomkins march a Le bequeathe among other personalty for  the sum port of a charity under a devise void by stat Geo c be applicable in  the first place as asset undisposed of to the payment of debt c and the  residue be to be appropriate accord to the testator intention Ambl S c a by  his will direct that out of his personal estate four man and four woman who be  to be inhabitant of the hospital in Abingdon shall be cloth and add that if  there be no such hospital the whole shall go over to another charity it be  admit there be such bospital Kenyon but it appear that a leasehold estate be  among the personal effect subject to this charity it be contend to be a void  bequest within the statute of mortmain as it be agree that a specific devise  of a leaseholdestate will be void within that statute on the part of the  charity it be urge that though a devise of a particular leasehold to a charity  have be determine to be void there be a great difference between that case and  a chargefor the benefit of a charity upon a residuary estate in which a  leasehold be include for in this case the whole belong to the executor who may  turn it all into money and then nobody can say what be the money arise from  the leaseholdestate and what from the rest or at least that the court as in  the case of the attorneygeneral v grave will so marshal the asset as to make  the leaseholdestate applicable in the first place to the payment of debt and  legacy so that out of the other asset the devise to the charity may be satisfy  on the other hand it be answer by Mr Noel and Mr Wilbraham that a specific  devise of a leaseholdestate be agree to be void because it be what the  testator have particular in view that in a general devise include a leasehold  estate it be equal in view the insert it nominati can make no such difference  that if such a distinction be establish man have nothing to do but to lie out  their fortune in leaseholdestates lease of year if they please instead of  short lease like the present and then by devise they in general word the Act  may be elude but if the court shall think fit to marshal the asset Kenyon in  the manner contend for the surplus will be too large for the purpose of the  charity and therefore only what shall be think sufficient shall be so apply  the personal estate be say to amount in the whole inclusive of the  leaseholdestate to pound and the debt and legacy to about pound so that upward  of pound will remain Lord chancellor there can be no doubt but a devise of a  leaseholdestate be void under this Act of parliament and such be my opinion in  the attorneygeneral v grave on this consideration that be it otherwise the Act  may be entire evade and on the foundation of former determination with respect  to act disable papist c on which it have be determine that a devise of a  leasehold estate to they be void and the word of those act and this be near  the same then it be question whether this not be devise eastern nomin but as a  part of a general residue shall not material vary the case but I shall not  find my opinion on such a distinction a distinction be attempt in the  attorneygeneral v grave not on the foundation of a difference between a  specific devise and a general one that will be frivolous but the ground of the  distinction be this that where it be give out of the personal estate in  general there be to be a liquidation of the whole so that no part of it can be  proper say to be the produce of land any more than the other part of the  personal estate I remember I give no opinion on this point though upon the  whole I incline to think it will be bad nor do I now give any opinion on it my  determination turn upon the last point and I be Kenyon of opinion the asset  ought to be marshal in such a manner as the plaintiff contend in support of  this charity this court have establish several rule in marshal of asset and  have always so proceed ut res to greater extent to be strong where legacy be  bequeathe in such a manner that some of they be a charge on the real and  personal estate both and other affect the personal estate only the latter be  to be pay from thence and the other make good from the real if the personal be  not sufficient for both so where in enumerate the several particular of which  a personal estate consist some be Ambl Kenyon er p omit and not comprehend in  the bequest of the residde those be undisposed of by the will shall be first  apply to pay debt and legacy that the other part which have be well dispose of  may go to the residuary legatee so where debt or legddies be direct to be pay  out of the personal estate and if that be not sufficient out of the real  estate part of which be devise and part omit the court will first apply the  real estate descend before they break in upon the devisee though the heiratlaw  be in general favour in this court yet the reason of the case consistent with  the testator intention require it and of that opinion I be in the case of  Galton v Hancock though first of a different one on rearguing and full  consideration and so it have be take ever since and I be of opinion this case  will fall within the same rule and though I have say more than once that the  court ought not to set up new rule of marshal asset to evade this Act yet  ought we to apply our old rule if then the devise which include both sort of  personal estate be good to pass both it be sufficient that way if not it be  void in respect of the leasehold that leasehold if the devise of it be void be  undisposed of by the will where then must it go not to the executor for the  testator do not intend it and it never go to the executor where the testator  have use word that imply a intention of give it from he shall it go to the  next of kin that will be contrary to the rule I have mention in the case of a  heiratlaw to who asset undisposed of descend they ought therefore for the same  reason to be apply in payment of debt ei another question have beer whether  this fund will not be too much pound at per cent will produce but pound a year  and that be no great matter and the testator after direct these poor people to  be furnish with new gown c add and whatever else what I have leave will admit  of if a great surplus appear beyond what there be any colour to say the  charity require there may be room for the next of kin to put in their claim  but here that be not the case accord it be decree that the leaseholdestate  shall be first apply to the payment of debt legacy and fanerals and then the  other part of the personal estate the surplus of which to be lie out in the  fund and the produce thereof to be apply to the purpose of the charity