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and heirs or de- mortgaged premises, and also of their heirs and devisees,
without any contribution by or on the part of their heirs or devisees in respect of such part of the said mortgaged premises as are, or are of the nature of freehold estates, or of estates of freehold and inheritance, any law or usage to the contrary notwithstanding.
XLI. And the said A. B. doth hereby declare and direct, that as between his heirs or devisees on the one part, and his executors or administrators on the other part, the said sum of £— remaining due to the said C. D. as aforesaid, and hereby secured to him, or intended so to be, shall be and be considered as the personal debt of him the said A. B.; so that the heirs or devisees of the said C. D. may, as against his executors or administrators, be entitled to have the said principal sum of £-, and the interest thereof, paid and discharged by and out of the personal estate of him the said A. B., any law or usage to the contrary notwithstanding.
That lands XLII. And lastly, it is hereby declared and agreed by shall be the primary fund
and between the said A. B. and C. his wife, and they do for payment of hereby severally direct and appoint, that as between them
selves and all persons claiming under them the said messuage &c. hereby granted and released or otherwise assured or intended so to be, shall in equity be deemed the fund primarily charged with, and liable to the payment of the said sum of £- now advanced by the said E. F. as well as the said several sums of £— and £- due to the said G. H. as the personal representative of the said I. K. as aforesaid; and that the covenant of the said A. B. hereinbefore contained for the payment of the said sum of £— shall in equity be deemed only as an additional and collateral security for the payment of the same sum.
That lands shall XLIII. Provided always, and it is hereby declared and be the primary agreed by and between the parties to these presents, that fund for pay: ment of mort- as to and between and against the said A. B. [tenant for gage debt. N. B. This
life], his heirs, executors, and administrators, of the one part, form is appli- and the person or persons who for the time being shall be cable to a mortgage made un beneficially entitled to the said messuages, &c. hereby assigned or otherwise assured, or intended so to be, subject to der a power to
the tenant for the said term of five hundred years, of the other part, the
life to charge, said sum of £- and the interest thereof shall not be con- and to limit a
term for raising sidered as the personal debt of himn the said A. B.; and that
the money. on the contrary thereof, the said messuages &c. hereby assigned or otherwise assured, or intended so to be, shall be and be considered as the fund primarily liable to the payment and discharge of the said sum of £— and the interest thereof, subject and without prejudice to the right of the said C. D. [mortgagee], his executors, administrators, and assigns, of availing himself and themselves of the covenant of the said A. B., as a collateral and concurrent security for enabling him the said A. B., his executors, administrators, and assigns, to enforce the payment of the said sum of £and the interest thereof.
XLIV. And it is my will and I do hereby direct, that as That testator's between my real and personal estates, my said real estates shall be the shall be the primary fund for the payment of all mortgage primary fund
for payment of debts and the interest thereof which shall be charged thereon the mortgage at the time of my decease, and so as to impose upon the said debts and inA. B. [tenant for life], the obligation of keeping down the interest of the same mortgage debts (if any) during her life, without any right to have the said real estates exonerated from such mortgage debts or the interest thereof, by and out of my said personal estate.
XLV. And further, that the said messuage &c. shall be That lands and be considered as the primary fund for the payment and shall be the
primary fund discharge of the said annuity or yearly rent of £—, any for payment of
an annuity. law or usage to the contrary notwithstanding.
sonal estate from the pay
XLVI. And it is my will, and I do hereby declare it so To exempt perto be, that the legacy which is hereinbefore by me given to the said A. B. shall not be paid or be payable out of my ment of lega
cies, and charg. personal estate, but out of my real estate only; which I do ing lhe real hereby charge with the payment of the same.
XLVII. Provided always, and it is hereby expressly de- for reduction
of annuity clared and agreed by and between the several parties to
Vide Tit. V.
shall be peace
these presents, as far as they are respectively interested, and between Eng.
it is the true intent and meaning of them and of these preland and the other European sents, that during such time, and when and as often as there (To be used shall be peace between England and all the other powers in during time of Europe, the said A. B. shall from and after the expiration war).
of six calendar months from every such peace, and during arl. xi. p. 139.
the continuance of the same, accept and take one annual sum or yearly rent-charge of £— of such lawful money aforesaid, in lieu and full satisfaction of the said annual sum or yearly rent-charge of £— hereby provided for her, and that each quarterly payment shall be reduced accordingly, when and as often as such peace shall be subsisting on any quarterly day of payment of the said rent-charge. Provided also, and it is hereby further declared and agreed, that when and as soon as all the lives upon which the said leasehold messuages, lands, hereditaments, and premises described in the fourth schedule to these presents shall have dropped, then and from thenceforth one-tenth part shall be deducted and taken from and out of the said annual sum or yearly rent-charge of £—or as the case may require; and thenceforth the said A. B. shall accept and take the said annual sum or yearly rent-charge so reduced, in lieu and full satisfaction of the said annual sum or yearly rentcharge of £ hereby charged for or made payable to her as aforesaid.
For the reduc- XLVIII. Provided also, and it is hereby further declared tion and apportionment of
and agreed by and between the parties to these presents, rent payable and the said A. B. doth hereby declare and consent that, infor vats, &c. in asmuch as the rent of £— is to be paid in respect and case any of them shall be
on account of the stone vats or cisterns lately erected and viceable. set up in, &c. the said sum of £— shall be payable
and paid only so long as the same vats or cisterns shall continue serviceable; and that in case one of them only shall remain serviceable, then £— a year, part of the said yearly rent of £
shall thenceforth cease to be payable or paid, and the said yearly rent of £— shall thenceforth be reduced to £— a year; and that if both or either of the said vats or cisterns shall prove serviceable only in part, then the said rent of £_ shall be apportioned at such sum as
shall be agreed on by the said A. B., his executors, administrators, and assigns, and by the partners for the time being, or the residue of them; and that in case any difference shall arise between the parties by reason that the said A. B., his executors, administrators, or assigns, shall contend, that both or either of the said vats or cisterns is or are serviceable in the whole or in part, and that no allowance or deduction is to be made from or out of the said rent of £-, then the apportionment, or, as the case shall require, the cesser of the said rent of £-, shall be referred to some two persons, of whom one shall be named by the said A. B., his executors, administrators, or assigns, and the other by the partner or partners for the time being, or the residue of them; with full power to such two referees to name and appoint a third person to act jointly with them; and that every award or determination which shall be made by such three persons, or any two of them, concerning the apportionment or cesser of the said rent, shall be binding and conclusive on all the parties to these presents, anything hereinbefore contained to the contrary notwithstanding.
XLIX. Provided always, and it is hereby declared and for abatement
of rent in case agreed by and between the said parties hereto, that in case of fire. the said messuage or tenement and premises hereby demised, [From MS.
collection of or any part thereof, shall, at any time or times during the John Coles, said term hereby granted, happen to be consumed, destroyed, Esq.] or damaged by fire, storm, or tempest, so as to render the same uninhabitable or untenantable, then and in such case the rent hereinbefore reserved for the same (or a just and proportionable part thereof, according to the nature and extent of the injury which the said premises may have sustained), shall be suspended or abated, and all remedies for recovering the same, until the same premises shall have been rebuilt or repaired by the said A. B., his heirs or assigns, and be in a fit state and condition for habitation; and in case of any dispute or difference of opinion between the said parties, with respect to the duration of such suspension, or the amount of such abatement respectively, or of both, the same shall from time to time be referred to the arbitrament and determination of three indifferent persons, to be named and
chosen in the usual manner of arbitrations; and the decision of the said three arbitrators, or any two of them agreeing in their award, shall be final and conclusive upon the said parties hereto, and all persons claiming through or under them respectively.
have the op
term to cease;
That if mes- L. Provided always nevertheless, and it is hereby agreed suage be burnt down or da
by and between the said parties to these presents, that if maged by fire, the said demised messuage or tenement and premises, or
any part thereof, or any messuage or tenement and erections tion, on four
built or to be built on the said demised piece or parcel of teen days' notice atter fire, ground and premises, or any part thereof, shall at any time to cease term on next rent
or times during the said term hereby granted be burnt down, day; and if in- demolished, or damnified by or by means of fire, then and surance kept on foot, and in that case the said A. B., his executors, administrators, all arrears of rent paid up,
or assigns, shall have the option, at any time within fourteen insurance mo- days after such fire, of giving notice that the term hereby ney and malerials to belong granted shall cease and determine on the next rent day to lessors, and after such fire; and in that case, and from that time, probut if lessee vided an insurance shall have been made and kept on foot, elect to continue tenant,
pursuant to the covenant hereinbefore contained, and proand reinstates vided all arrears of rent shall be paid up to that day, the building to satisfaction, re
said term shall cease and determine; and the said A. B., his maining mate. executors, administrators, or assigns, shall be discharged of rials and insurance money and from any further payment of the rent hereby reserved,
or performance of the covenants, conditions, and agreements property.
hereinbefore contained; and in that case also, the money which shall become payable by virtue of any such insurance, and the remaining materials of the buildings, shall become and be the absolute property of the said company, their successors or assigns; or the said A. B., his executors, administrators, or assigns, shall have the liberty of continuing the tenant or tenants under the term hereby granted; and in that case, if he or they shall reinstate the buildings so damaged or destroyed by fire, to the satisfaction of the surveyor for the time being of the said company, their successors or assigns, and within - after such fire, then and in that case the remaining materials of the buildings shall become the property of the said A. B., his executors, administrators, or assigns; and as soon as the loss or damage by fire shall
to become his