CHAP. XLVI. Marshalling, has several funds, and another one only. Halsey (c), thought that a clause, giving the executors "power" to pay the purchase-money out of the personal estate, was not necessarily to be construed as an absolute direction. The preceding cases, however, in which equity interwhere one party feres to prevent an eventual derangement, by the act of third persons, of the order of applying the assets, do not completely exemplify an important principle by which the Courts, in marshalling assets, are governed, and which forms the peculiar feature of the doctrine; it is this-that wherever a party has a claim upon one fund only, and another upon more than one, the party having several funds must resort, in the first instance, to that on which the other has no claim, or, in other words, the Court will so arrange the funds as to let in as large a number of claims as possible, and if the person having the several funds should, in violation of this rule, have resorted to the fund common to himself and the person having no other fund, the Court will place that person in his room, to the extent to which the common fund has been so applied (d). This principle is applied in favour of both creditors and legatees. Effect of stat. 3 & 4 Will. 4, c. 104, upon the doctrine. In regard to the former, however, it is to be remembered that the statute of 3 & 4 Will. 4, c. 104 (e), renders all real estate, including copyholds, liable to the claims of creditors of every class. But the doctrine may still be called into operation in reference even to creditors, as specialty creditors retain their priority under the new law to those by simple contract; and it is also observable, that the recent statute by widening the range of the claims of creditors has given greater scope to the application of the doctrine among legatees. Thus, as it was formerly the rule that, where a specialty creditor resorted to the personal estate, and thereby rendered it inadequate to the payment of pecuniary legacies, the legatees might claim to stand in his place in respect of his demand upon the realty, which had descended or was charged with legacies; so it is equally clear that, under the existing law, the same consequence would follow in the case of a simple contract creditor taking such a course. CHAP. XLVI. among legatces. Upon the same principle, it is settled that, where there Marshalling are two classes of legatees, the one having a charge upon real estate, the other having no such charge, and the personalty is not sufficient to satisfy both, the legatees whose legacies are so charged shall be paid out of the land, in order to leave the personal estate for those who have no other fund. Thus, in Hanby v. Roberts (g), where the testator, by his will, gave several legacies (not charging them upon the real estate), and by codicil bequeathed a legacy of £3000, with the payment of which he charged his real estate; the personal estate having been exhausted in the payment of the £3000 legacy, Lord Hardwicke held that the other pecuniary legatees should stand in the place of the satisfied legatee to this extent. where legacy, upon the land, But in Prowse v. Abingdon (h), Lord Hardwicke refused Exception to marshal assets in favour of a legatee whose legacy had as a charge been originally charged upon the land, but had failed in failed. respect of the real estate, by his death before the time of payment (i); his Lordship observing, that the rule as to (g) Amb. 127. See also Masters v. Masters, 1 P. W. 421; Bligh v. Earl of Darnley, 2 P. W. 620; Hamly v. Fisher, Dick. 104; NorVOL. II. man v. Morrell, 4 Ves. 769; Bonner R R (h) 1 Atk. 482. (i) As to this doctrine, see ante, CHAP. XLVI. marshalling would hold only where it was proper to be done at the time the legacy first took place, and not where it was owing to a fact which happened subsequently to the death of the testator (k); and this has been since followed in the case of Pearce v. Loman (1). Vol. I., p. 756; but see also Pearce auxiliary fund, and having failed as to that, should vary the construction of it as a personal legacy. (k) But is it not always the fact of some legatee or creditor resorting to a particular fund after the death of the testator that occasions the requisition to marshal? (1) 3 Ves. 135. 609 CHAPTER XLVII. LIMITATIONS TO SURVIVORS. I. On construing Survivor as syno nymous with other. II. Whether accruing Shares are subject to Clause of Accruer. Whether Qualifications affecting original Shares extend to accru- III. Words of Survivorship, to what when construed I. WHETHER the word "survivor" is to receive a con- "Survivor" struction accordant with its strict and proper acceptation, other. or is, by a liberal interpretation, to be changed into other, is a point which has been often discussed, and variously decided. On more than one occasion expressions have fallen from eminent judges calculated to create an impression that the term "survivor" might by its own inherent force, and without one single ray of light from the surrounding context, be read as synonymous with other. In particular, Sir Wm. Grant, in the case of Barlow v. Salter (a), seems to have assumed this point; and the construction recommends itself so forcibly, as carrying into effect the probable intention of testators, and as supplying a defect or inaccuracy of expression very commonly to be found in testamentary instruments, that it appears to have obtained too ready an acceptance in the profession; for we are now taught by a series of decisions which outweigh any opposing dicta or opinions, that the word "survivor," like every other term, when unexplained by other (a) 17 Ves. 479. See also Wilmot v. Wilmot, 8 Ves. 10. CHAP. XLVII. parts of the will, is to be interpreted according to its strict and literal meaning. Word "survi vors con strued strictly, not as synony mous with other. Gift to survivors and sur C. died Thus, in the case of Ferguson v. Dunbar (b), where a testator gave to his executor so much of his personal estate as would purchase an annuity of £550, which he gave to his wife for life, and he directed the principal after her decease to be paid to his children, that is to say, one-half to his son G., and one-half to his daughters E. and C., if living at the death of their mother, and if any of them should die in the lifetime of their mother, leaving issue, he gave that share to the issue of such child or children equally, at the age of twenty-one years, or day of marriage; but if any of them should die before the age of twenty-one years without issue, he gave that share to the survivors; and if all of them should die without leaving children, the same was to fall into the residue. leaving children. E. afterwards died under twenty-one, and without issue. The question was, whether the children of C. were entitled to any part of the share of E. Lord Thurlow said that this was one of those cases in which he had the mortification to see that what was most probably the testator's intention could not be executed, for want of his having been properly advised, and having sufficiently explained himself; that he thought the testator meant the children should take the share which would have accrued to the parent if living; but not having said so, but limited such share to the survivors or survivor, he must declare G., as the only surviving child, entitled to the whole of E.'s share, and decreed accordingly. So, in the case of Milsom v. Awdry (c), where a testavivor confined tor bequeathed the residue of his personal estate to trus (b) 3 B. C. C. 468, n. (c) 5 Ves. 565. See also Wollen v. Andrews, 9 Moore, 248. |