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![handle is hein.slavery/ssactsengr0689 and id is 1 raw text is: BRUMMEL V. PROTHERO
not mean to give it to him as executor, but specifically for his own use and benefit and
exempt from the payment of debts. I have had great difficulty ; and am much afraid
of breaking in upon established rules ; which I never desire to do. There is a case,
which is not reported; and was suggested by me; and deserves some account, to
shew, that the principles of it are not broken in upon. It is Gaskill v. Hough, February
1774 ; in which I was Counsel. The Court thought the personal estate exempte&
That depends upon a very different principle. It was neither a charge for debts, nor a
devise for payment of debts ; for 1 [111] am not one of those Judges, who think there is
much difference, whether it is the one or the other, unless there is demonstration, that
the personal estate is intended to be exempted. That case was, not a charge upon
the real estate, but an express direction and declaration, that the debts, funeral expences
and charges of probate, should be paid out of the real estate; and the testator then gave
his personal estate to his wife, except a leasehold estate in Stockport ; which he gave to
another. The heir was an infant. The Court has never gone the length of saying,
that in such a case the real estate is not particularly appropriated ; and from that very
appropriation the personal estate is exempt.
Fully acquiescing in The Duke of Ancaster v. Mayer, I am perfectly satisfied, that
I am warranted in holding, that this personal estate is given to Joseph Welch exempt
from the payment of debts. (See the preceding and the two following cases, and the
note, 3 Ves. 106.)
BRUMMEL V. PROTHERO. Rolls. Dec. 16th, 1795; July 27th, 1796.
[See note to Burton v. Knowlton, 3 Ves. 107.]
To exempt the personal estate under a devise for payment of debts the intention must
appear plainly on the will ; and the Court cannot look to extrinsic circumstances.
John Blewitt devised all his manors, messuages, lands, tenements and hereditaments,
and all his real estate, whatsoever and wheresoever and of what nature and kind
soever, in possession, reversion, remainder or expectancy, with their and every of their
appurtenances, unto Thomas Prothero and his heirs, to, for and upon the several uses,
ends, intents and purposes, hereinafter limited, expressed and declared, of and concerning
the same : that is to say, in trust in the first place to pay all his just debts; and also
to and for the use, intent and purpose, that his mother Mary M'Namara and her
assigns should after his decease receive out of all and every his said manors, messuages,
lands, tenements and hereditaments and real estate, an annuity or rent-chargo of
£120, and also to and for this farther use, intent and purpose, that his four sisters of
the half blood then living and their assigns should from and immediately after the
decease of the survivor of him and his mother during their respective natural lives
have, receive and take, out of all and every the said manors, messuages, lands, tenements,
and hereditaments and all his real estate, an annuity of rent-charge [112] of £200. in
equal shares and proportions ; with power to his mother and sisters to enter and
distrain and take the rents, issues and profits ; and as to, for and concerning, all and
every the said manors, messuages, lands, tenements, hereditaments and real estate,
with their and every of their appurtenances from and immediately after his decease
charged and chargeable with the payment of the said annuities or rent-charges of £120
and £200 as aforesaid, and subject thereto, and to the means and remedies herein-
before provided for the recovery thereof, to the use of his brother Edward Blewitt
and his issue in strict settlement ; remainder to the use of his half brothers John and
Michael M'Namara and their issue successively in the same manner; remainder to
the use of his said sisters and their heirs, as tenants in common ; and he directed his
said brothers of the half blood and their issue, when in possession, to take the name of
Blewitt. Lastly, he gave and bequeathed unto his said brother Edward Blewitt all
his monies, goods, chattels, rights, credits, personal estate and effects, whatsoever and
wheresoever ; and he appointed his said brother sole executor.
The bill was filed by bond creditors ; and the question was, whether the real or the
personal estate should be first applied in discharge of the debts 7
Mr. Stanley, Mr. Richards, Mr. Thomson, and Mr. Hubbersty, for the Executor.
This is stronger than Walker v. Jackson, 2 Alk. 624, being for payment of all debts.
The testator must have intended a benefit by the gift of the personal estate. It is too
3 VES. JUN. 111.](ViewImageLocal?handle=hein.slavery/ssactsengr0689&div=1&collection=&method=preview&ext=.png&size=3)