erty which cannot, is combined, in the same gift, with funds which can, be bequeathed for charitable purposes, and the disposition embraces several objects or purposes, some charitable and others not, the courts hold that the purposes not charitable cannot be thrown exclusively upon that part of the subject of disposition which is incapable by law of being devoted to charity, in order to let in the charitable purposes upon the remainder. (t)

Thus, if a testator give his real and personal estate to trustees, upon trust to sell and pay his debts and legacies, and to apply the residue for charitable purposes, the court will not throw the debts and legacies exclusively on the proceeds of the real estate, and the mortgage securities and leaseholds, in order that the charitable bequest may take effect so far as possible; nor, on the other hand, will it direct the debts and legacies to come out of the pure personalty for the purpose of defeating the charitable residuary bequest to the utmost possible extent. Steering a middle course, equity directs the debts and legacies to come out of the whole estate, real and personal, pro rata; for instance, supposing the real funds (including the leaseholds and mortgage securities) to constitute two-fifths of the entire property, then two-fifths of these charges would be satisfied out of such real funds, and the remaining three-fifths out of the pure personalty; (u) and, after bearing the charges in these several proportions, the former would belong to the heir or next of kin (as the case might be,) and the latter to the charityresiduary legatee. And, by parity of reasoning, if a testator bequeath pecuniary legacies to charities, and leave a general residue to others, consisting partly of leaseholds or real securities, and partly of pure personalty, the legacies will be void pro tanto, i. e. in the proportion which the funds savoring of realty bear *to the entire property, though the pure personalty should be sufficient to pay all the legacies.

(4) Mogg v. Hodges, 2 Ves. 52, [1 Cox 9;] Att.-Gen. v. Tyndall, 2 Ed. 207, Amb. 614; Foster v. Blagden, Amb. 704; Middleton v. Spicer, 1 B. C. C. 201; Att.-Gen. v. Earl of Winchelsea, 3 B. C. C. 373; Makeham v. Hooper, 4 Id. 153; Hobson v. Blackburn, 1 Kee. 273; [Williams v. Kershaw, 5 L. J. (N. S.) Ch. 84, 5 Cl. & Fin. 111.]

(u) Howse v. Chapman, 4 Ves. 542; Paice v. Archbishop of Canterbury, 14 Ves. 372; Curtis v. Hutton, Id. 537; Currie v. Pye, 17 Ves. 464; Crosbie v. Mayor

The

of Liverpool, 1 R. & My. 761, n.; see also Fourdrin v. Gowdey, 3 My. & K. 397; Johnson v. Woods, 2 Beav. 409; Att.-Gen. v. Southgate, 12 Sim. 77; and that too, though the purely personal part of the residue was alone disposed of by the will for the charitable purposes, and the remaining part was left undisposed of, Edwards v. Hall, 11 Hare 22. Lapsed or void specific legacies form part of this general fund, Scott v. Forristall, 10 W. R. 37.

proper course, in such case, is to pay the debts and funeral and testamentary expenses, (being all the prior charges to which the general residue was liable,) in the first instance, out of the whole property, pro rata, (x) and then to provide for the pecuniary legacies in like manner; the effect of which is that the charity legacies, so far as this ratable apportionment throws them upon the leaseholds and real securities, are void. (y) Thus, every charitable legacy bequeathed by any testator whose will does not contain the usual clause directing such General conlegacies to be paid exclusively out of the pure personalty,

clusion.

and the general residue of whose property consists partly of leaseholds or real securities, is void pro tanto.

[The effect of this doctrine may sometimes be to render the whole legacy void. Thus, in Cherry v. Mott, (2) the testator directed his executors to purchase of the governors of Christ's Hospital a presentation to that charity for a boy, the son of a freeman of the borough of Hertford; the purchase-money to be paid out of his personal estate. The testator's personal estate not being all pure personalty, Sir C. Pepys, M. R., was of opinion that the bequest never could take effect ; for if the executors had agreed for the purchase at a given sum, that sum must have been raised proportionably out of the two sorts of personalty, and the gift of so much as it was necessary to raise out of the personalty savoring of the realty, would have been void, and consequently the full purchase-money never could be raised; and the testator's intended gift failed by reason of the impossibility of making the purchase.

himself mar

Where the testator has directed a charity legacy to be paid out of his pure personalty, which, however, is all exhausted by his Testator may specialty creditors, the charity may stand in the place of shal his assets. the creditors on the real estate. (a) In such a case, it is, the testator himself who has marshaled (so to speak) his own assets, and the court only prevents the arrangement made by him from being defeated by accidental circumstances. The efficacy of such a direction to make a charity legacy payable in full, out of the *pure personalty in priority

[(x) In making the apportionment, the respective values of the real and personal estates are to be taken as at the time of the death of the testator, and not as at the time of apportionment, Calvert v. Armitage, 1 H. & M. 446, overruling Robinson v. London Hospital, 10 Hare 29.

(y) Philanthropic Society v. Kemp, 4 Beav. 581; Sturge v. Dimsdale, 6 Beav. 462; Cherry v. Mott, 1 My. & Cr. 123; Briggs v. Chamberlain, 18 Jur. 56. (z) 1 My. & Cr. 123.

(a) Att.-Gen. v. Lord Mountmorris, 1

Dick. 379.

to other legacies, was established by Lord Truro in Robinson v. Geldart. (b) As between the charity and the other legatees, he said the case was analogous to that of a demonstrative legacy. But this was by way of illustration only, and not of definition: the direction does no more than regulate the priority of the legatees inter se; it does not exempt the charitable legacy from contribution to the payment of debts, funeral and testamentary expenses, as it would do if it made the legacy strictly demonstrative. These prior charges will still come ratably, and, in the first place, out of the pure and impure personalty. (c) Therefore, in order to make charitable legacies effectual as far as possible, the debts, funeral and testamentary expenses should be expressly and exclusively charged on the personalty savoring of realty. (d)

shaling where the charitable bequest is residuary.

And where the charitable legacies are themselves residuary, this is Express mar- the most appropriate form of direction with regard also to the payment of other legacies. (e) But of course it matters not what the form is if it sufficiently shows the testator's intention. Thus, in Wills v. Bourne, (ƒ) where a testator directed his debts, legacies, and funeral and testamentary expenses to be paid out of his real estate, and, so far as that was deficient, out of his personal estate, and bequeathed the residue of his personal estate to certain charities, declaring that "only such part of his estate should be comprised in the residue as might by law be bequeathed for charitable purposes" it was held by Lord Selborne that the testator had thereby excluded impure personalty from the residue; and that it followed by necessary implication that the realty and impure personalty must be applied for those purpose (debts as well as legacies) which were to be satisfied before a residue was arrived at. So, in Miles v. Harri

(b) 3 Mac. & G. 735; and see Nickisson v. Cockill, 3 D., J. & S. 622, 635; Beaumont v. Oliveira, L. R., 4 Ch. 309. In Sturge v. Dimsdale, 6 Beav. 462, Lord Langdale had doubted the sufficiency of such a direction, and in Philanthropic Society v. Kemp, 4 Beav. 581, had decided that it was insufficient to counteract in favor of the charities some special words which he thought expressly regulated the order in which the several portions of the personal estate were to be applied in payment of debts and legacies. But as to this see Miles v. Harrison, L. R., 9 Ch. 321.

(c) Tempest v. Tempest, 7 D., M. & G. 470; Beaumont v. Oliveira, L. R., 4 Ch. 309.

(d) See Williams' Executors, p. 1234. (5th ed.)

(e) As in Jauncey v. Att.-Gen., 3 Giff. 308; or in the more sweeping form used in Wigg v. Nicholl, L. R., 14 Eq. 92, that "the estate shall be so marshaled and administered as to give the fullest possible effect to" the charity legacies. See also Gaskin v. Rogers, L. R., 2 Eq. 284; In re Fitzgerald, W. N. 1877, p. 216. (f) L. R., 16 Eq..487.

son, (g) where a testator directed that his personal estate should be con*verted, and that out of the proceeds his debts and legacies should be paid, and gave the residue to three charities in equal shares, with a direction to pay the charitable legacies out of the pure personalty, "which shall be reserved by my trustees for that purpose," it was held that the debts and other legacies were thrown wholly on the impure personalty. Lord Cairns observed, that although the testator intended creditors and those other legatees to have the security of his whole personal estate, yet that, as between them and the charities, those who had the two funds should go first on that which the charities could not take.

Again, the pure personalty may be the subject of a specific bequest to a charity, in which case it will be entitled to the privileges and exemptions that belong to a legacy of that character. (h)

In Miles v. Harrison, there was also a particular pecuniary bequest to another charity, unaided by any direction concerning its payment; and the further question arose whether this legacy, which could in no part be satisfied out of the impure personalty, was not also debarred from the pure personalty by the direction reserving the latter for payment of the residuary bequest. "If, as I assume," said Lord Cairns, "the gift of the residue amounts to a direction that the personal estate shall be marshaled, a direction of that kind cannot operate to defeat in toto the pecuniary legacy to the charity: that legacy will stand as if nothing at all had been said about marshaling in the residuary gift; for the essence of marshaling is that it puts those only to marshal who have got two funds, and this charitable legatee has only one."]

Effect where land is charged as an auxiliary

Where a charitable legacy is charged on real estate as an auxiliary fund in aid of the personalty, (and such, it will be hereafter seen, is always the effect of a mere general charge,) the legacy will be valid or not, and either wholly or in part, according to the event of the personalty proving sufficient for its complete liquidation, or not. 9

(g) L. R., 9 Ch. 317. Cf. Lewis v. Boetefeur, W. N. 1878, p. 21, 1879, p. 11. (h) Shepheard v. Beetham, 6 Ch. D. 597. "A legacy is not the less specific for being general," per Lord Cottenham, 1 My. & Cr. 117.]

fund.

G., J. & S. 622, where there were charitable and other legacies with a power to the executors to sell the land for legacies and debts, and the charitable legacies were directed to be paid out of the personal estate, there being pure personalty

9. Thus, in Nickisson v. Cockill, 3 De sufficient to pay the charitable legacies,

As the validity of a charity legacy depends on its not being to come out of a real fund, the point of construction whether the legacy is payable out of personal or real estate, is sometimes warmly contested on this account; and in the consideration of this question, it scarcely need be observed, no disposition has *been manifested by the courts to strain the rules of construction in favor of charity. (e)

ment of act of

Never, indeed, was the spirit of any legislative enactment more Judicial treat vigorously and zealously seconded by the judicature, than 9 Geo. II., c. 36. the statute 9 Geo. II. This is abundantly evident from the general tone of the adjudications; but the two points in which it is most strikingly displayed are, first, the holding a gift to charity of the proceeds of the sale of real estate to be absolutely void, instead of giving to the charity legatee the option to take it as money, according to the rule formerly adopted in the case of a similar gift to an alien; (f) and, secondly, the refusal of equity to marshal assets in favor of a charity, in conformity to its general principle; that principle being evidently founded on an anxiety to carry out, as far as possible, the intentions of testators. In this solitary case, the intention has been

the executors were directed to marshal the assets, set apart the pure personalty for the charitable legacies, and sell land sufficient with other personalty to pay the other legacies and the debts; likewise in Beaumont v. Oliveira, 4 L. R., Ch. App. 309, (1869.) the assets were marshaled by direction of the testator for the benefit of the charitable donations; so in Lewis v. Allenby, 10 L. R., Eq. 668, (1870,) where the residue was bequeathed in trust to divide among such charities in England as the trustees "in their sole and uncontrolled discretion shall think proper, and the residue included both pure and impure personalty, the gift was valid as to all, the latter being applied to charities exempt from the operation of the act. In this case Stuart, V. C., quotes Hardwicke, L., in Grimmett v. Grimmett, Amb. 210: "If a devise is in the disjunctive and leaves the executors to two methods to do a particular thing by, one of which is lawful and the other prohibited by law, can any court say because one method is unlawful that therefore the

other is so too and the whole bequest void? No, for if one method is lawful this should be pursued and take effect;" and to the same effect is Wigg v. Nicholl, 14 L. R., Eq. 92 (1872); see also Wills v. Bourne, 16 L. R., Eq. 487 (1873); Thomas v. Howell, 18 L. R., Eq. 198 (1874); Miles v. Harrison, 9 L. R., Ch. App. 316 (1874).

(e) See Leacroft v. Maynard, 1 Ves., Jr., 279, ante p. *185. But where a testator shows by his will that he uses the term "personal estate" as contradistinguished from "leaseholds," occurring in the same bequest, and he afterwards by a codicil directs a charitable legacy to be payable out of his "personal" estate, the expression is considered as used in the same restricted and peculiar sense as in his will; and the legacy is payable out of the pure personalty, and is therefore good, Wilson v. Thomas, 3 My. & K. 579.

(ƒ) Ante p. *69. [However, the disherison of the heir, against which the statute is directed, is equally produced whether the land is sold or not.]