1825.-Fox v. Morewood.

fendants might be decreed to pay over the surplus to the plaintiffs as the persona! representatives of Joseph Wright,

To this bill the defendant put in a general demurrer for want of equity, which

now came on to be argued.

Mr. Cooper for the bill.

Mr. Koe for the demurrer.

The VICE CHANCELLOR :-If the estate had been sold by the mort[*325] gagee in the lifetime of the mortgagor, then the surplus moneys *would have been personal estate of the mortgagor, and the plaintiffs would have been entitled. But the estate being unsold at the death of the mortgagor, the equity of redemption descended to his heir, and he is now entitled to the surplus produce.

Fox v. MOREWOOD.

Demurrer allowed.

1825, 20th May.-Practice.

A second order to dismiss cannot be obtained on the day on which a former order to dismiss is dis charged.

On the 12th of April the defendant obtained an order to dismiss the bill for want of prosecution.

On the 30th of the same month, the plaintiff, on special grounds, moved for and obtained an order discharging the order to dismiss. On the same day, the defendant, on a motion of course, obtained a new order to dismiss the bill for want of prosecution, and, on that same day also, the plaintiff filed his replication.

The court was now moved, on behalf of the plaintiff, to discharge the last order to dismiss, for irregularity.

Mr. Swanston, for the motion:-Reynolds v. Nelson,(a) decided that an order to dismiss a bill cannot be obtained if a replication be filed on the day on which the motion is made. Lorimer v. Lorimer, (b) decided that an order to dismiss operated from the time when it was pronounced.

[*326]

"Mr. Whitmarsh, for the defendant, relied on the facts, that, after the defendant had on the 30th of April moved to dismiss the bill, he on the same day obtained the usual certificate from the clerk in court of the answer having been filed in February 1824, and that, at the time when that certificate was obtained, the replication had not been filed, and that it was not filed for some hours afterwards.

The Vice-Chancellor discharged the order to dismiss of the 30th of April, with costs, stating, that, besides the authority of Reynolds v. Nelson, there was another objection; that, there being no fraction of a day, the second motion to dismiss could not be made on the same day as the former order to dismiss was discharged.

(a) 5 Madd. 60.

(b) 1 Jac. & Walk. 284.

1825.--Dixon v. Dawson. Slawin v. Farside.

*DIXON v. DAWSON. SLAWIN v. FARSIDE.

1825, 20th and 29th June.-Will.-Leaseholds.--Conversion.

[*327]

Testatrix devised all her messuages, lands, tenements, hereditaments and real estate to trustees, in trust to sell, and out of the produce to pay her funeral and testamentary expenses and legacies, except her charitable legacies which she directed to be paid out of her personal estate, legally applicable to that purpose, and not out of any part of her said messuages, lands, &c. which she might die seised or possessed of; and she also directed her trustees to keep separate`accounts of the proceeds of her messuages, &c. and of her personal estate legally applicable for charitable purposes; and that, if the proceeds of her messuages, &c. should be insufficient to pay the lega. cies directed to be paid therewith, the trustees should apply her personal estate in payment of such legacies; Held, 1st, that notwithstanding the personal estate was more than sufficient to pay the charitable legacies, no part of it could be applied to pay the other legacies until the proceeds of the real estate were exhausted: 2d, that the testatrix's leaseholds passed to the trustees, under the devise of all her messuages, &c.; 3d, that her heirs and next of kin, and not her residuary legatee, were entitled to the surplus proceeds of her freeholds and leaseholds; and 4th, that the freeholds having been properly sold in the heir's lifetime, the surplus was part of his personal estate.

ALICE SHEPHERD devised certain messuages and other hereditaments to William Bramley, charged with the payment of 100l. to her executors and trustees, to be applied in discharging such of the legacies mentioned in her will as the same might legally be applied to discharge, and after giving some specific legacies expressed herself as follows:

"I do hereby give, devise and bequeath all my messunges, dwelling-houses, buildings, lands, tenements, hereditaments and real estate whatsoever, and wheresoever, and of what nature or kind soever, not hereby otherwise disposed of (the copyhold part whereof I have surrendered to the use of this my will,) with the rights, privileges, members and appurtenances thereto respectively belonging, unto and to the use of my friends the Rev. John Tripp, Watson Farside, *and Robert Stockdale, their heirs, executors, [*328] administrators and assigns, according to the nature and tenure thereof respectively, upon the trusts nevertheless, and to and for the uses, intents and purposes, and under and subject to the provisoes and declarations hereinafter mentioned, expressed and declared of and concerning the same; and I do hereby give and bequeath unto and to the use of the said John Tripp, Watson Farside, and Robert Stockdale, their executors, administrators and assigns, all my money, securities for money, goods, chattels, and all other my personal estate and effects whatsoever, not hereby otherwise disposed of, upon the trusts, and to and for the uses, intents and purposes, and under and subject to the provisoes and declarations, hereinafter mentioned, expressed and declared of and concerning the same (that is to say) upon trust that they the said John Tripp, Watson Farside, and Robert Stockdale, and the survivor and survivors of them, and the heirs, executors and administrators of such survivor, do and shall, as soon as conveniently may be after my decease, sell and absolutely dispose of all and singular the said messuages, buildings, lands, tenements, hereditaments and real estate devised to the:n as aforesaid, and also call in and

1825.-Dixon v. Dawson. Slawin v. Farside.

compel payment of all sum and sums of money which may be due and owing to me at the time of my decease, and do and shall absolutely sell and convert into money all other my goods, chattels, personal estate and effects bequeathed to them as aforesaid, which shall not consist of money; and that they my said trustees do and shall take and keep an account of the moneys and produce arising from the sale of my said messuages, buildings, lands, tenements, herc

ditaments and real estate, and also a distinct and separate account of [*329] the *ready money I may happen to have by me at the time of my decease, and of my money which may then be placed out at interest, and also of the money arising from the sale of such of my personal estate, substance and effects as are hereby saleable, and legally applicable for the charitable purposes herein mentioned: and upon further trust that they the said John Tripp, Watson Farside, and. Robert Stockdale, and the survivors and survivor of them, and the heirs, executors and administrators of such survivor, do and shall, in the first place, by, with and out of the money to be raised by the sale of my said messuages, buildings, lands, tenements, hereditaments and real estate devised to them as aforesaid, pay and discharge all my just debts, and also the expenses of my funeral, and of the erection of a tombstone, and of the protection, repairs, preservation thereof, and all other expenses in anywise concerning my burial, and also the probate and registering of this my will, and all other incidental expenses hereby directed to be paid thereout: and upon further trust, that they, the said John Tripp, Watson Farside, and Robert Stockdale, and the survivors and survivor of them, and the heirs, executors and administrators of such survivor, do and shall, by, with and out of the money arising from the sale of my said messuages, buildings, lands, tenements, hereditaments and real estate, if the same shall be sufficient for that purpose, pay and discharge the several annuities now subsisting and payable under and by virtue of the will of my late brother Francis Shepherd, deceased, and also the several legacies and sums of money hereby given and bequeathed, or

directed to be paid or applied, to and for the use of the several legatees [*330] and persons after named, except the annuities hereby directed to be

paid unto my relations Mary Guiseley and Sarah Guiseley, and also except the legacies and sums of money hereby directed to be paid or applied to or for charitable uses and purposes, which 1 hereby direct to be paid out of the money I may have in my possession and out at interest at the time of my decease, and out of the money arising from the sale of such of my personal substance and effects as are hereby made saleable and legally applicable for such purposes, and not out of the money arising from the sale of my said messuages, buildings, lands, tenements, hereditaments or real estate, or any part thereof. But in case the money arising from the sale of my said messuages, buildings, lands, tenements, hereditaments and real estate shall be insufficient for the payment of the several annuities, legacies and sums of money hereby directed to be paid therewith, then upon further trust that they, the said John Tripp, Watson Farside, and Robert Stockdale, and the survivors

1825.-Dixon v. Dawson. Slawin v. Farside.

and survivor of them, and the executors and administrators of such survivor, do and shall (after having first paid and applied the whole of the money arising from the sale of my said messuages, buildings, lands, tenements and real estate according to the directions of this my will) pay and apply so much of my money and personal estate, as may be necessary, in and towards the payment of the said several legacies and sums of money to and for the use of the several persons after mentioned; that is to say,-[Here followed trusts for payment of several pecuniary legacies to the testatrix's friends, relations and servants, with a direction that they should be paid at the expiration of twelve calendar months after her decease, or as soon after that time as her estate should be disposed of and the purchase money received for the same, and [*331] also for the payment of legacies of 217. and 200l. to the treasurers

of two charitable institutions,] which two said several sums of 217. and 2001. I do hereby direct shall be raised and paid out of my ready money, and such part of my personal estate as by law I may or can charge with the payment thereof, (and not out of any part of my lands, tenements, hereditaments or real estate,) and be respectively applied towards carrying on the benevolent designs of the said several societies: and upon further trust, that they the said John Tripp, Watson Farside, and Robert Stockdale, or the survivors or survivor of them, or the executors, administrators or assigns of such survivors, do and shall, by, with and out of such part of the money I may have in my possession and placed out at interest at the time of my decease, and of the money arising from the sale of my personal estate and effects hereby made saleable only as may be legally applied for the purposes after-mentioned, (and not out of any part of my said messuages, lands, tenements, hereditaments or real estate which I may die seised or possessed of,) place out and invest the sum of 3,000l., of lawful money of Great Britain, in the purchase of stock in the three per cent. consolidated bank annuities, or three per cent. reduced annuities, in their names. [The testatrix then directed her trustees to pay out of the dividends of the stock so to be purchased an annuity of 60l. to Mary and Sarah Guiseley, and to pay the residue of the dividends, and the whole after the decease of the survivor of these two annuitants, for certain charitable purposes.] And upon further trust, that they, the said J. T., W. F. and R. S., do and shall lay out and invest the sum of 2,000l. of lawful money of Great Britain, arising from the residue and remainder of my ready money, and *money out at interest, and of the money arising from the sale of [*332] my personal estate and effects, which may be legally applied for the purposes herein mentioned, and not from and out of any part of my said messuages, lands, tenements, hereditaments or real estate, and not hereby otherwise disposed of, in the purchase of stock [as in the last bequest, with directions to apply the dividends for certain other charitable purposes. The testatrix then directed her trustees to transfer into their own names 1,000l. navy five per cents, part of 1,100l. like stock then standing in her name, and to apply the dividends for certain other charitable uses, and to pay out of her

1825.-Dixon v. Dawson. Slawin v. Farside.

personal estate and effects legally applicable for such purposes, two sums of 2001. to the treasurers of two charitable establishments.] And should any part of my personal estate and effects still remain undisposed of, after satisfy ing all my just debts and funeral and other incidental expenses, and providing for the said charities herein mentioned and intended to be hereby established and augmented, and paying the several legacies or sums of money herein bequeathed or directed to be paid thereout, then upon further trust that they, my said trustees, shall and do pay and transfer the residue and remainder of my said estate and effects, not otherwise disposed of, unto my relation the Rev. Dr. Wm. Craven, his executors, administrators and assigns, to and for his and their own use and benefit."

The testatrix afterwards made a codicil to her will, as follows:

I, Alice Shepherd, of Knaresborough, in the county of York, spinster, do make, [*333] publish, and declare this to be a codicil to my last will and testament. I do hereby revoke the devise unto my agent, Mr. William Bramley, of the dwelling-houses, hereditaments and premises in the occupation of John Wood, or his tenants; and, in lieu thereof, I do hereby give and bequeath unto the said William Bramley the sum of 3001., to be paid to him, by my execu tors, at the end of twelve calendar months next after my decease; and I do hereby give, devise and bequeath unto my executors and trustees, John Tripp, Watson Farside, and Robert Stockdale, and to their heirs and assigns, the said dwelling-houses, lands, tenements, hereditaments and premises, situate within the manor of Thornton with Bishopside, in the county of York, and now or late in the occupation of John Wood or his tenants, upon trust to surrender and convey the same unto James Ingleby, the purchaser thereof, his heirs and assigns, upon payment of the purchase money, and according to the agreement I have entered into with him; and upon trust to apply such purchase money as part of my personal estate, according to the directions and in the manner mentioned in my said will respecting my personal estate; and I do hereby confirm my said will in all other respects."

The testatrix left Philip Dixon her heir at law, and customary heir.-The trustees sold all her real estates in Dixon's lifetime, but her personal estate was more than sufficient to pay her funeral expenses, debts and charitable legacies. Dixon afterwards died, having appointed his three children his executors. William Dixon, the eldest of them, also died, leaving Sarah, the wife of John Slawin, his heir at law and personal representative..

[*334] *The parties to these causes were the surviving children of Philip Dixon; Richard Dawson, the executor of Stockdale, Dr. Wood, the executor of Dr. Craven, Richard Terry, the executor of Farside, who survived his co-executors, and Mr. and Mrs. Slawin.

Mr. Hart, Mr. Tinney, and Mr. Daniell, for the "plaintiffs, the personal representatives of Philip Dixon :

1st. The real estate is made the primary fund for payment of debts and