the testator's decease, as should seem most advisable, either together or in separate parcels, by auction or private contract-the trustees to stand possessed of the produce of the sale, and the rents and profits accruing in the mean time upon the trusts of the willheld not to invest the trustees with an unqualified discretion in respect of the sale, or to entitle them to retain the accumulation of the rents and profits in their hands, to answer the exigencies of the will; but that the residuary cestui que trust were entitled to receive their, respective proportions of the accruing rents and profits, from the end of the year after the death of the testator, on the principle of the rule laid down in Sitwell v. Barnard (6 Ves. 520): the words " as should seem most advisable" being held to be equivalent to "with all convenient speed."

Noel and others v. Lord Henley and others 241

8. A devise of real estates to be sold to pay particular debts and legacies out of the produce, hold not to be a general exoneration so far of the testator's personal estate, in all events, but a partial exemption, only in favour of the person to whom he had bequeathed the residue of his personal estate and the bequest of such residue having become lapsed by the death of the legatee in the testator's life-time, the residue was held to be no longer exonerated on behalf of the testator's next of kin; but had again become chargeable with such particular debts and legacies, thereby again exonerating the real estate devised to be sold in favour of the trust created on

1. Devise of testator's real estates in A., derived from the bounty of a collateral branch of his family to trustees, upon trust to sell, to pay off two mortgages on another real estate in B., inherited from his ancestors and devised by his will in strict settlementand to pay to his wife 50001. in part satisfaction of 10,000l. secured to her by their marriage settlement out of certain trust fundsand to pay a legacy of 3000l. to a legatee, one of the present plaintiffs (he being also one of the devisees of the residue of the money to arise by the sale of the said real estate), as soon as sufficient monies should have arisen by the said sale, and after satisfaction of the payments in the will before directed to be

made thereout, the legacy to carry interest from the testator's death-and also to pay such part of such other of his just debts, and of the other pecuniary legacies by him thereinafter given and bequeathed, or which he should give or bequeath, as his personal estate not thereinafter specifically bequeathed and the personal estate bequeathed to him from the same source as the first mentioned real estate should not extend to pay and satisfy-and after such payment to invest the same in government securities in their (the trustees) names, in trust to pay the dividends in a certain prescribed manner for the benefit of the plaintiffs and their families and, after giving various other pecuniary legacies, the testator directed that all the legacies given by him should be paid in full, without any deduction for the legacy duty, and (where no time had been mentioned for their payment) within twelve calendar months-he then gave all the residue of his personal estate to his wife, whom he appointed executrix, and he made the trustees executors of his will-the testator's wife died in his lifetime:

Held, that the trust, for the payment of those particular debts and legacies out of the real estate devised to be sold, was not a general exemption of the personal estate to the extent of their amount, in all events; but that it was only a partial exemption, on behalf of the person to whom the testator had bequeathed the reside (his wife): and that that bequest having lapsed, the residue of the personal estate was no longer exonerated in favour of the next of kin, but had again become chargeable with all the burthens

to which personalty is primarily liable, viz. the personal and proper debts of the testator, and legacies not otherwise provided for-once more exonerating the devised estate in favour of the trust on behalf of the residuary legatees.

It was therefore declared that the mortgage on the estate in B. should be paid off out of the personalty, and that the other (which was an incumbrance on the derivative estate in A. before it became the testator's property) should be paid out of the produce of that estate: that the 5000l. which had lapsed was not a resulting trust for the benefit of the heir-at-law, but was (as well as the payment of the mortgage debt, which was not originally the proper debt of the testator) a simple charge on the devised estate, which might be discharged by the devisees: and that it was not obligatory on the trustees to sell the devised estates absolutely in the first instance. Noel and others v. Lord Henley and others

· 241

2. Vide BEQUEST. CONSTRUC TION (of Wills).-HEIR AT LAW.

DISCHARGE.

(Of Surety.)

Vide INJUNCTION.

(Of Partners.)

Vide NOTICE.-PARTNERS

(Of Bunkrupt.)

By Certificate.

Vide BANKRUPT, No. 1.

3. The Court will not, on a bill for tithes, praying a discovery of documentary evidence, order a tithe book of a former rector, shewn to have been in the possession of the defendant's attorney, to be produced, unless it clearly appear from admissions in the answer that it would assist the plaintiff's case.

But where the Court refuse such a motion for the above reason, they will not do so with costs, if enough be shewn to give colour for the application. Bligh v. Benson - 205

4. If a power to demise refer to "such ancient and accustomed, or as great and beneficial rents, duties, and services, as had formerly been reserved (&c.);" or if from its general tenor it may be collected that the creator of the power intended that the maker of the leases should have regard to the state of the property during former occupations, the form and covenants of such previous leases may be taken as a guide by the lessor in framing new leases, and the contents of the former may be received in