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![handle is hein.slavery/ssactsengr0700 and id is 1 raw text is: RUSSELL V. LONG
charge makes equitable assets, Bailey v. Ekins, 7 Ves. 319. Shiphard v. Lutwidge,
8 Ves. 26.)
This testator certainly intended to give every thing. The value of the articles
omitted in the enumeration is very trifling : but he happened to sell in his life-time
a real estate, which brings about £1000 to the personal estate. He had contracted
to sell it; and the Court has directed that contract to be carried into execution.
They must give to the next of kin these things, the disposition of which fails, because
the law will not suffer them to pass : but the £1000, which makes the general residue,
must be applied to payment of debts and other charges. It is exactly within the case
of the Attorney-General v. Winchelsea with regard to the mortgages and other things,
that are taken out of the bequest, because the law takes them out of it.
The decree directed the Master to carry on the accounts and to distinguish the
general residue of the personal estate undisposed of from the specific particulars
thereof bequeathed for the improvement of the city of Bath ; to tax all parties their
subsequent costs, to be paid out of the sum of £1048, 19s. cash in the bank, part of
such general residue ; that the sum of £395 costs before taxed, and paid by the
Plaintiffs out of the general personal estate come to their hands, be repaid them ;
that the remainder of the said sum of £1048, 19s. together with the remainder of
the general residue of the testator's personal estate be applied in payment of his debts
and [5511 funeral expences in a course of administration, and then in payment of his
legacies, as far as the same will extend. (Sayer v. Sayer, Pre. Ch. 392. Nisbett v.
Murray, Barton v. Cooke, 5 Ves. 149, 461.)
It was declared, that the bequest for the improvement of the city of Bath was a
charitable bequest (Attorney-General v. Hedis, 2 Sim. & Stu. 67) ; and that the
mortgages, the five bonds of the commissioners for the improvement of the city
of Bath, and the four bonds of the commissioners of the turnpike, did not pass thereby,
but are undisposed of by the will, and belong to the next of kin of the testator. It
was directed, that the Master should distinguish such of the particulars of the personal
estate specifically bequeathed for the improvement of the city of Bath, as are well
given and passed by such bequest from such of the particulars as did not pass thereby,
but belong to the next of kin; and it was farther ordered, that the same be applied
pro rata in payment of so much of the testator's debts, legacies, and funeral expences,
and of so much of the costs of this suit, as the general residue of the testator's personal
estate undisposed of by his will will not extend to pay ; and it was directed, that such
particulars of the personal estate specifically bequeathed for the improvement of the
city of Bath, as did not pass by the bequest for that purpose, be divided, after the
payments thereout before directed, among the next of kin of the testator according
'to the Statute of Distribution : and that such particulars specifically bequeathed
for the improvement of the city of Bath, as are well given and passed by the bequest
for that purpose, be, after the payments therout before directed, paid, transferred,
and delivered, to the Defendant John Sealy Lawton, the clerk to the commissioners
for the improvement of the city of Bath, to be applied, &c.
RussELL v. LONG. Rolls. April 22d, 1799.
Words of survivorship in a will shall not defeat the effect of words importing a tenancy
in common ; but shall be referred to some time, as the death of the tenant for life ;
or even to the death of the testator, though a construction not to be adopted, if
there can be any other.
George Garden being seised of real estate in the island of Jamaica, and possessed
of a considerable personal estate, by his will, dated the 8th of May 1790, after giving
some legacies, gave and devised all the residue and remainder of his real and personal
estate, after payment of his debts, funeral expences, and legacies, [552] to trustees,
and their heirs, executors, and administrators, in trust that they should sell and
dispose of the whole of his residuary real estate and slaves, and should place out and
invest the monies arising in such sale, together with his residuary personal estate, in
the house of Messrs. Long, Drake, and Co. London; whose letter for the same should
indemnify his said trustees; and he thereby authorized and empowered the said
Messrs. Long Drake, and Co. to pay the same for the purposes after mentioned;
namely, theyearly interest of the principle to be paid to the proper hands of his mother
4 VES. JTUN. 551.](ViewImageLocal?handle=hein.slavery/ssactsengr0700&div=1&collection=&method=preview&ext=.png&size=3)