1819. NOEL v. and others. the immediately subsequent words, do not alter the sense; they only give authority to sell either by public auction or private contract. I admit Lord HENLEY that the direction that they should stand possessed of the rents and profits until sale is strong; but the question is, whether it is strong enough to get rid of the rule as laid down in Sitwell v. Bernard? The Court in that case put a construction on similar words, and I hold myself bound to defer to the authority of that decision; for there should prevail an uniformity in legal determinations. The convenient rule is there laid down to be, that the beneficial enjoyment should commence at the end of the year from the death of the testator; and the Court in that case avowedly overlooked such words as those which follow here, where they were inconsistent with the testator's apparent general intention. In the case of Gaskell v. Harman (a), Sir William Grant took great pains to shew that the particular words of the will necessarily excluded the operation of the rule in that instance. The case of Sitwell v. Bernard was extremely well considered, and establishedupon a review of the several authorities of Hutcheon v. Mannington, Entwistle v. Markland, and Stuart v. Bruere, (and indeed all the cases were there brought under consideration)-that the rule of convenience must prevail in directing the proper period for the payment of legacies; and that that is generally the end of the year. Lord Eldon, in that case observes, that the decisions of both Lord Thurlow and Lord Rosslyn as to time im (4) 6 Ves. 169. pose pose difficulties upon him; but he agrees as to the principle and I entirely concur with every word of Lord Eldon's judgment in that determination. At present therefore I am strongly inclined to be of opinion that the tenant for life is entitled to the rents and profits which he claims; but I will reserve my final determination till Friday, January 13. Martin, Benyon, Newland, West, and Longley, Wednesday, now submitted, that the 3000/. given to Noel was a legacy, and that the bequest of the residue of the produce of the sale of the Rowney estate was also a legacy, and that the duty on them being directed by the testator to be paid, it ought to be paid out of the personal estate, which is always to be considered the primary fund for that purpose, Dauncey, Wingfield, Shadwell, and Lovat, for the heirs at law, who were also of the next of kin, and others of the next of kin, who were not heirs at law, contended, that the personal estate was not liable, but that the duty should be paid out of the real estate, see [The Lord Chief Baron. The legacy duty is a charge upon the legacy, not upon the estate; butuc & Sheen 493. where the legacy is given free of duty, it is an 4499. increase of the legacy itself, and ought therefore to be paid out of the same fund.] It was then contended, on the part of the plaintiffs, 1819. NOEL and others v. and others. plaintiffs, that the principal and interest duè on the mortgage of 20,000l. (which was originally a debt due from Lord Wentworth) and on that of Lord HENLEY 2000l, (by which the personal estate of Lord Wentworth had been benefited to that extent) ought to be paid out of the personal estate, and also the legacy to Mr. Noel of 3000l.: and that the bequest to Lady Wentworth having lapsed by her death, it should go to the persons entitled to the fund out of which it was to have been paid, and not to the next of kin as personal estate undisposed of by the will. On the first point it was urged, that no exoneration of the personal estate was intended by the testator; or if there was, it was only a partial and particular exoneration for the benefit of the widow, the residuary legatee: and she having died before the testator, the intended exemption of the personal estate failed, which therefore would again become liable to the burthens to which by law it was subject; and the testator must be taken to have died intestate as to that: and in that respect this case was said to come within the principle of the decisions in Pickering v. Stamford (a), Waring v. Ward (b), Hale v. Cor (c), and M'Leland v. Shaw (d); for in this will there are no words shewing any intention to throw these particular burthens on the real estate, or to make that the primary fund for the payment of the specific debts. (a) 3 Ves. 332. (c) 3 Bro. C. C. 322. On 1819. NOEL and others and others. On the other hand it was insisted for the heirs at law and next of kin, that the testator intended the Rowney estate to be applied in all events in discharge of the 2000/. and the 20,000., and interest, Lord HENLEY and also of the 5000l. and the 3000/., which are directed expressly to be paid " thereout"-that it was the residue only, minus all those sums, that was intended to go to the devisees-that the personal estate was, for the benefit of the next of kin, exonerated to the extent of those debts and legacies, and that it was plain from the declaration of the testator, that the residue of the personal estate of Thomas Rowney should be considered as his (the testator's) personal estate, and not as land: that he intended, by the disposal of it, to augment his personal estate, and to such an intention the Courts have always given effect; for which they cited the authorities of Williams v. The Bishop of Landaff (a), Hancox v. Abbey (b), Gray v. Minnethorpe (c), Burton v. Knowlton (d), and Brummel v. Prothero (e), all which cases were submitted much more nearly to resemble the present than either Waring v. Ward, or Hale v. Cor; for in the former of those cases there was no exemption, and in the latter the question was not raised. [Those cases however his Lordship distinguished as turning on the intention; whereas the present was a case of intestacy as far as regarded the question before the Court.] (a). 1 Cox, 245. (c) 3 Ves. 103. (d) 3 Ves. 107. (e) 7 Ibid. 121. As 1819. NOEL and others v. and others. As to the 5000., said to be lapsed, they contended (if not also as to the other sums charged on the real estate), that if it should be held that there Lord HENLEY Was a failure of those gifts altogether, it would be a resulting trust for the benefit of the heir at law; citing Arnold v. Chapman (a), Cambridge v. Rous (b), Hutcheson v. Hammond (c), Ackroyd v. Smithson (d), and St. Barbe Tregonwell v. Sydenham (e). It was besides contended, that, if the Rowney estate should not produce money enough to pay the mortgages, the legacies given out of that fund could not have been demanded out of the personalty and, on the other hand, the gift of 5000l. having lapsed, the residuary devisee could not take that as part of the residue; and therefore that proportion, at least, of the whole of the real fund, if it might be so called, must go to the heir at law, as being an undevised part of the real estate. It was also much urged, that it appeared on the face of the will that the testator meant not only a benefit to his widow by increasing his personal residue out of the Rowney estate, but also to the takers of the Leicestershire estate, and whomsoever should be entitled to the residue of his personalty. (a) 1 Ves. sen. 108. (e) 3 Bro. C. C. 128. (d) Bro. C. C. 503. Martin, |