Vide 2 Ves. 272. Burke v. 2 Ves. & other the profits. If indeed negative words were added, it could not go further; but he took those negative words, and no more, to be applied to the maintenance. There were several cases of a general charge, by words not nearly so strong as here, and a devise afterwards of a particular estate for that purpose, yet that was not sufficient to restrain it. This general charge then subsisted; and he could not make any other construction. 17. A devise in trust for payment of debts does not revive a debt upon which the statute of limitBeam, 275. ations had taken effect, by the expiration of the time, before the testator's death. Copyholds liable as well 18. In all cases of this kind, customary and copyas Freeholds. hold lands will be applied in payment of debts as well Godolphin V. Penneck, 2 Ves. 271. Coombes as freeholds. 19. T. Penneck declared by his will that all his debts and funeral expences should be first paid and satisfied. The question was, whether certain customary lands held of the duchy of Cornwall, which had been mentioned in the will, in distinct parts from the rest of the fee simple lands, were subject to debts; the testator having surrendered those lands to B. P., who declared a trust thereof by deed, for several persons, and for the use of such as the testator should appoint. Lord Hardwicke said, he was satisfied that by the will these lands were subject to debts. 20. A question arose, whether in failure of the 1 Bro. R. 273. personal estate, copyhold lands were liable to debts, v. Gibson, under the common commencement of a will:—“ As to all my worldly estate, I desire all my just debts should be first paid." Lord Commissioner Ashurst said, the doctrine was, that where the introductory words made the real estate liable, it should extend as well to the copyhold as to the freehold lands. The freehold was as unnatural a fund for the payment of debts as the copyhold. It was admitted that if there had been no freehold, the copyhold would have been liable. If the freehold had been devised to one person, and the copyhold to another, the freehold might have been first applied. But he was clearly of opinion they were both liable. Lord C. Hotham said, if the copyhold was charged by the will, there was nothing in the case to discharge it. The law followed the testator's intention, to apply the whole real estate to the payment of debts; which covered the copyhold as well as the freehold. 21. A clause in a will, directing the payment of Legacies all the debts and legacies, is not alone sufficient to not preferred to specific charge legacies on real estates specifically devised; for there the intention must be clearly expressed. 22. Thus where a testator first directed that all Kightley v. his debts, legacies, and funeral expences should be 2 Ves. junr. Kightley, fully paid and discharged; and afterwards devised 328. two freehold estates specifically to two persons and gave some legacies; the question was, whether the legatees were entitled to have the devised estates sold for payment of their legacies. Sir R. P. Arden, M. R. said, it had been contended, that where a testator had charged his real estate by will, both debts and legacies should take place of every other disposition. That the legacies should stand in the same place as debts, and that there was no reason why they should not have the same preference. The principle, however, was perfectly dif ferent, the one being purely voluntary, the other obligatory. Wherever a man made a will, he was supposed to do that which conscience obliged him Vide 3 Ves. 551. What Words enable Persons to sell Lands. Lit. 169. to do; and if he showed an intention that his debts should take place of every other disposition, and that he meant they should be paid, the Court would strictly enforce that intention. The same principle would not apply to legacies. The estate contended to be charged was specifically devised, and he could not see any reason why pecuniary legacies should have any preference to such specific devises. If he was to direct these legacies to be so raised and paid, it would be giving them that undue preference. 23. Littleton says, that where a person had a power, by the custom, of devising his lands, he might devise that his executors might alien and sell them for a certain sum, to distribute for his soul. In this case though the devisor died seised of the tenements, which descended to his heir, yet the executors might sell the tenements so devised to them, and put out the heir, and thereof make a feoffment, alien1 Inst. 113a. ation, and estate by deed. And Lord Coke observes, that the feoffee shall be in by the devisor. Idein. Bonifaut v. Fearne's 24 From this doctrine arose a custom for testators to direct that their executors should sell their lands for payment of their debts; or to devise their lands to their executors for that purpose. In the latter case, the lands vest in the executors; but in the former, they have only a bare authority. And it being formerly held, that if one executor refused to join, the others could not sell, it was enacted by the stat. 21 Hen. VIII., that where lands were willed to be sold by executors, though some of them refused, yet the rest might sell. And though the letter of the law extended only where executors had power to sell, yet being a beneficial act, it was by construction ex tended to the case of lands devised to executors to be sold.* 25. It has been doubted whether a power of sale, 1Inst. 113 a. given to executors, be capable of survivorship or n. 2. transmission. But Mr. Hargrave observes, that this question is now of little consequence; for such a power, though extinct at law, would certainly be enforced in equity; which rightly deeming the purpose for which the testator directs the money arising from the sale to be applied, to be the substantial part of the devise, and the persons named to execute the power of selling, to be mere trustees, the case fell within the general rule of equity, that a trust shall Tit. 12. c. 1. never fail of execution for want of a trustee ; and that if one is wanting, the Court will execute the office. § 91. 26. It has been stated that where a man devises Tit. 8. § 7. his lands to his executors, for payment of his debts, and until his debts are paid; although the determination of such estates be uncertain, yet it is a chattel interest, transmissible to their executors. 27. Any words, from which it can be inferred to have been the intention of the testator that his lands should be sold for payment of his debts, will operate as a power of sale. Johnson, 28. A person having surrendered his copyhold Newman v. lands to the use of his will, devised in these words:- 1 Vern. 45. My debts and legacies being first deducted, I devise all my estate real and personal to J. S." * It is said by Littleton, § 169., that in the case of an authority to sell, the executors may make a feoffment, alienation, and estate, by deed, or without deed. The reason is, that the purchaser is in by the devisor; the executors having a mere right of nomination. Vide Vin. Ab. Tit. Authority, B. Bateman v. Bath v. 2 Ves. 587. Lancaster 2 Burr. 1027. It was decreed by Lord Nottingham that these words amounted to a devise to sell, for the payment of debts. 29. R. Bateman by his will, taking notice that he had surrendered a copyhold estate to the use thereof, directed that the said copyhold should remain, one third to his wife for life, and the other two thirds to his son, paying to his two daughters 150 7. a-piece at twenty-one; but by a latter clause in the will he said, "Provided that if my personal estate and my house and lands at W. should not pay my debts, then my executors to raise the same out of my said copy. hold premises." Lord Hardwicke said, the question was, whether the latter devise would entitle the executors to sell the copyhold estates; and he was of opinion it would: for as the rents were not near enough to discharge the testator's debts, these words would give the trustees a power to sell, to satisfy the testator's intention of paying his debts. It was therefore decreed that the copyhold estate should be sold. 30. In a subsequent case, where a testator had created a trust for payment of debts, Lord Hardwicke said, that the trustees might raise the money by mortgage or sale, without the assistance of the Court of Chancery; that it was common for trustees to do so, and that Court, if it came before them afterwards, had always supported it. 31. G. Lancaster, being seised in fee of some lands, v. Thornton, and possessed of others for a term of years, made his will; and after giving certain legacies, proceeded thus: "I do hereby charge and make chargeable all and every my lands and inheritance, and leasehold, with the payment of my debts, funeral expences, and legacies; and for more speedily raising money for |