It is necessary, however, with relation to questions which may yet arise respecting wills of persons who have died previously to September 1st, 1830, and respecting wills to which the statute does not apply by reason of the residue being expressly disposed of (p), or by reason of the deceased having left no next of kin (2), to review briefly the grounds on which the courts of equity had proceeded, until the time. of the passing of the above act, in deciding either that the executor was entitled to the residue beneficially, or that he was merely a trustee for the next of kin.

What is sufficient

in cases not with

For this purpose it is necessary to consider what circum*stances have been held sufficient to raise that presumption, which, according to the rule above laid down, must exist, in cases not within the statute, in order to preclude the executor from taking the residue beneficially.

a

in the act, to raise presumption against the executor's title:

trust":

In the first place, where the executor is expressly appointed in trust (r), or the residue is bequeathed to him in trust (s), the words "in though no trusts are declared (t), or though the trusts declared do not exhaust the whole property (u), he shall be a trustee for the next of kin : But it may be otherwise, where he is made trustee of some particular fund, and not the whole residue (x). The rule is the same where the character of trustee is plainly affixed

also Chester v. Chester, L. R. 12 Eq.
444. If, therefore, there are no next of
kin, and no intention is disclosed on the
face of the will that the executors shall
be excluded from taking beneficially,
they will be entitled as against the
Crown Russell v. Clowes, 2 Coll. 648.
And the question, in such case, to be
determined is exactly the same as if the
testator had died before the passing of
the act, and had left next of kin : Read
v. Stedman, 26 Beav. 495.
Patrickson, 1 Dr. & Sm, 182.

Dacre v.

(p) See Saltmarsh v. Barrett, 29 Beav. 474. 3 De Gex, F. & J. 279.

(9) See supra, note (0).

(r) Pratt v. Sladden, 14 Ves. 198. Dawson v. Clark, 18 Ves. 254. Vezey v. Jamson, 1 Sim. & Stu. 69.

(s) Graydon v. Hicks, 2 Atk. 18. Pratt v. Sladden, 14 Ves. 198.

(t) Dawson v. Clark, 15 Ves. 414, by

53

Sir W. Grant. 18 Ves. 254, by Lord
Eldon. Vezey v. Jamson, 1 Sim. &
Stu. 69. Taylor v. Haygarth, 14 Sim.

8, 12.

(u) Robinson v. Taylor, 2 Bro. C. C. 589. Dawson v. Clark, 18 Ves. 257, per Lord Eldon. Ellcock v. Mapp, 3

H. L. C. 492. 2 Phill. Ch. C. 793 (overruling the decree of the V.-C. in Mapp v. Ellcock, 15 Sim. 568, and the opinion of Sir W. Grant in Dawson v. Clark, 15 Ves. 409. 2 V. & B. 399). Read v. Stedman, 26 Beav. 495. So where the trust fails under the Mortmain Act: Dacre v. Patrickson, 1 Drew. 782. Johnstone v. Hamilton, 11 Jur. N. S. 777.

(a) Batteley v. Windle, 2 Bro. C. C. 31. Griffiths v. Hamilton, 12 Ves. 298. Pratt v. Sladden, 14 Ves. 198. Russell v. Clowes, 2 Coll. 648.

[*1345]

character of trus-
tee
fixed:

to him, though not by express words: As where there is a direction to the executor to "keep a proper account" (y): or plainly af- where the testator appoints him, entreating him to take the office (z), or directs that the executor shall be saved harmless from all expenses attending the execution of the will (a); or declares that the whole of the property shall pass by the will "according to law" (b); or appoints the executor "to see my Will put in force" (c).

*So a presumption against the executor may arise from the condition of the party appointed, as where the testator names a mercantile firm to be his executors (d); or the person who shall for the time being fill a certain office, as that of ambassador from a particular country (e).

If the character of trustee is affixed by the will to one of several executors, they are all trustees; for there is no instance of making one a trustee, and the others not (ƒ).

Again, it has been long settled that an express legacy, however small, to a sole executor, will raise the necessary prelegacy given to a sole executor: sumption against him (g); notwithstanding legacies are also given to the next of kin (h); and so will a legacy which is given to him as one of a class, as a legacy to the children of A., of which the executor is one (i); and notwithstanding the legacy is specific (). Nor will it make any difference that the appointment to the office and the gift of the legacy are in different parts of the will; though it may be questionable whether the presumption arises, when a legacy is given by the will, and the executor appointed by a codicil ().

(y) Gladding v. Yapp, 5 Madd. 56.

(2) Lord North v. Purdon, 2 Ves. Sen. 495. Seley v. Wood, 10 Ves. 71. Langham v. Sanford, 17 Ves. 451. Giraud v. Hanbury, 3 Meriv. 150.

(a) Dean v. Dalton, 2 Bro. C. C. 634. Saltmarsh v. Barrett, 29 Beav. 474. 3 De Gex, F. & J. 279.

(b) Cranley v. Hale, 14 Ves. 307.

(c) Braddon v. Farrand, 4 Rus. Chanc. Cas. 87. Barrs v. Fewkes, 2 H. & M. 60. The question in these cases is, whether such words merely import the motive of the gift, or whether they express the very object of the bequest, ibid. 66.

(d) De Mazar v. Pybus, 4 Ves. 644.

(e) Urquhart v. King, 7 Ves. 225. Griffiths v. Hamilton, 12 Ves. 309.

(f) White v. Evans, 4 Ves. 21. Milnes v. Slater, 8 Ves. 295. Sadler v. Turner, 8 Ves. 617.

(g) Farrington v. Knightly, 1 P. Wms. 545. Southcot v. Watson, 3 Atk. 226. Cradock v. Owen, 2 Sm. & G. 241. But not a legacy to his wife: Fruer v. Bouquet, 21. Beav. 33.

(h) Andrew v. Clark, 2 Ves. Sen. 162. Kennedy v. Stainsby, 1 Ves. 66, note. (i) Abbott v. Abbott, 6 Ves. 343.

(k) 2 Rop. Leg. 643, 3rd edit. Randall v. Bookey, 2 Vern. 425. Southcot v. Watson, 3 Atk. 226. Martin c. Rebow, 1 Bro. C. C. 154.

(1) Langham v. Sanford, 2 Meriv. 21.

The presumption, however, will not be raised against the executor by a particular legacy to him for life, with remainder over (m), or by an exceptive bequest to him out of a subject *bequeathed to another (n). But a gift of a reversionary interest will have that effect (0), unless, perhaps, it be contingent (p).

Again, the presumption will not arise, where the executor legatee is an infant (9).

legacy given to one of several executors:

Moreover, a legacy to one of several executors will not raise the presumption against him (r); unless it be given to him for his care and trouble (s): Nor will the presumption be otherwise raised by unequal legacies to all the executors (t): But where equal legacies are given to them all, the presumption is as strong as in the case of a legacy to a sole executor (u). If a legacy be given to one of several executors for his care and trouble, it makes all the executors trustees (x).

ineffectual or in

clauses:

Where the residuary bequest lapses, the executor is not entitled (y); nor where it is void (2) Nor where the design of the testator to dispose of the residue, although not carried choate residuary into effect, is evident: As where he bequeaths the residue in such manner as he shall appoint, and never makes any appointment (a) or where he leaves a blank for the name of *the residuary legatee (b) or where he professes to dispose of the residue, but C. C. 590. Griffiths v. Hamilton, 12 Ves. 309. Russell v. Clowes, 2 Coll. 648.

(m) Granville v. Beaufort, 1 P. Wms. 114: Secus, where there is no ulterior disposition: Zouch v. Lambert, 4 Bro. C. C. 326: or where the gift is of the residue for life: Joslin v. Brewet, Bunb. 112. Dicks v. Lambert, 4 Ves. 725.

(n) Griffiths v. Rogers, Prec. Chanc. 231. 2 Rop. Leg. 646, 3rd edit.

(9) Williams v. Jones, 10 Ves. 77. (r) Buffar v. Bradford, 2 Atk. 222. Griffiths v. Hamilton, 12 Ves. 298. (8) White v. Evans, 4 Ves. 21. May v. Lewin, 2 P. Wms. 159, in notis. See Dawson v. Thorne, 3 'Russ. Chanc. Cas. 235, 239.

(t) Blinkhorne v. Feast, 2 Ves. Sen. 27, 29. Bowker v. Hunter, 1 Bro. C. C. 328. Oliver v. Frewen, 1 Bro.

does not (c) or where, by an unexecuted codicil, he refers to the will as not having disposed of the residue, and sketches out a disposition of it, which he leaves imperfect (d). So the presumption will be raised against the executor where the testator partially obliterates the residuary clause, leaving nothing but the introductory words (e): or where he professes to dispose of part only of his personal estate (ƒ). It remains to consider briefly the subject of the admissibility of when parol evi- parol evidence with reference to this question. Such evidence is not admissible in the first instance, on behalf kin, to raise the presumption for the exclusion of the But when such presumption is raised from the words of the will, parol evidence is admissible, on behalf of the executor, for the purpose of rebutting such presumption (h); and such evidence.

dence admissible.

of the next of executor (g).

460, where the blanks left by the testatrix were on a printed form from which it appeared conceivable that she might have left them there purposely in the belief that by so doing she would entitle the executor to the residue, parol evidence was held admissible to rebut the presumption against the executor.

(c) Oldham v. Carleton, 2 Cox, 399. (d) Nourse v. Finch, 1 Ves. 344. S. C. 2 Ves. 78. But merely leaving a blank between the end of the will and the signature is not sufficient to exclude the executor: White v. Williams, 3 Ves. & B. 72.

(e) Mence v. Mence, 18 Ves. 348. (f) Urquhart v. King, 7 Ves. 225. (g) White v. Williams, 3 V. & B. 72. Langham v. Sanford, 2 Meriv. 17.

(h) Clennell v. Lewthwaite, 2 Ves. 474. Langham v. Sanford, 17 Ves. 442, 443. Lynn v. Beaver, 1 Turn. & R. 66. Bishop of Cloyne v. Young, 2 Ves. Sen. 95. It will be observed that parol evidence is not admissible in cases where it is conclusively apparent on the will itself that the executor was meant to be a trustee only (per Lord Eldon in Langham . Sanford, 2 Mer. 6, 17), as distinguished from the case where there is a mere presumption against the executor from the words of the will, e. g.,

the presumption arising from a particular legacy to the executor. The case of an imperfect will manifesting an inchoate intention to appoint a residuary legatee seems to be on the border line; it may, or may not, be conclusive to show an intention that the executor was meant to be a trustee only and in Re Bacon's Will, 31 C. D. 460, where a testatrix made her will on a printed form, and after giving certain legacies gave all her estate real and personal unto

to and for — own use absolutely, and then appointed C. W. C. to pay all her debts, &c., and to be the executor of her will, Kay, J., held that it was quite conceivable that the testatrix believed that the effect of the blanks would be to entitle the executor to the residue, and that the effect of the blanks under the circumstances was only to raise a presumption against the executor of a resulting trust for the next of kin, and that parol evidence was admissible to rebut that presumption. No allegation is necessary to put in issue that he is entitled by the effect of parol evidence, that being included in the allegation that he is entitled as executor: Lynn v. Beaver, 1 Turn. & R. 66.

may *then be opposed by similar evidence on behalf of the next of kin (i).

If, however, the will conveys upon the face of it an unequivocal indication of an intention to clothe the executor with a fiduciary character only, as where he is expressly appointed in trust (k); or a legacy is expressly given to him for his care and trouble (7), parol evidence is not admissible to support the claim; for that would be to allow parol evidence to contradict the will (m).

Not admissible in cases within the statute 11 Geo.

c. 40.

Trust for

next

of kin where trust

In cases within the operation of the statute 1 Wm. IV., c. 40 (n), parol evidence is, in all cases, inadmissible to show that the testator intended his executors to take beneficially; for the act required that the intention should appear by IV. & 1 W. IV. the will (o). Sometimes where there is a gift of the residue to a trustee *other than the executor, the gift fails because the trusts are insufficiently declared, in such a case the trustee can take no beneficial interest, neither can anyone claim successfully as a cestui que trust, and the result is that the residue will have to be distributed as upon an intestacy under the Statute of Distributions. If it is expressed on the face of the will that the legatee is a trustee, but the trusts are not thereby declared, no trust afterward declared by a paper not executed as a will can be binding in such a case the legatee will be a trustee for those entitled under the Statute of Distributions (p).

expressed on face

of will insuffi

ciently declared.

Trusts not appearwill, but communicated to and acenforced as bind

ing on face of

There are cases where no trust appears on the face of the will, but the testator has been induced to make the will or, having made it, has been induced not to revoke it by a promise on the part of the legatee to deal with the property in a specified manner in these cases the court treats the trust as binding on the conscience of the donee (g). The communication to the trustee of the object of the trust may be

(i) Bishop of Cloyne v. Young, 2 Ves. Sen. 91, 95.

(k) Gladding v. Yapp, 5 Madd. 59. () Langham v. Sanford, 17 Ves. 443. Whitaker v. Tatham, 7 Bing. 628: but see Williams v. Jones, 10, Ves. 77, as to one of several executors.

(m) Langham v. Sanford, 17 Ves. 443. Hall v. Hill, 1 Dr. & W. 115, per Sugden, C. of Ireland. Barrs v. Fewkes, 11 Jur. N. S. 669.

(n) Ante. p. *1342.

cepted by legatee,

ing on his conscience.