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* SECTION II.

Of the right of the executor to the residue, in case there is no

residuary legatee.

to 1830.

If the testator neither makes any disposition of the residue, nor appoints an executor, the residue belongs clearly to the next of kin : But if the testator appointing an executor makes no disposition of the residue, a question arises whether it shall belong to such executor or to the next of kin : And this is an inquiry which has given rise to much litigation and difficult discussion : But since the statute 1 Will. IV. c. 40, this subject has been freed from the great variety of distinctions which were formerly established with respect to it.

At law, it was the rule, from the earliest period, that the whole personal estate devolved on the executor : and if, after

Rule at law prior payment of the funeral expenses, testamentary charges, debts, and legacies, there should be any surplus, it should vest in him beneficially (i).

In equity, prima facie, the rule was the same as at law (k). But the rule was controlled in equity, in all cases where a

Rule in equity. necessary implication or strong presumption appeared, that the testator meant to give only the office of executor, and not the beneficial interest in the residue: In all such cases, the executor was considered a trustee for the next of kin of the testator; or in cases where no next of kin can be found, a trustee for the Crown (1).

Such being the state of the jurisdiction of the courts *of equity in cutting down the right of the executor, the act of 1 Wm.

1 Will. 4, c. 40. IV. chap. 40, was passed, which, after reciting that "testators by their Wills frequently appoint executors, without making any express disposition of the residue of their personal estate ; and whereas executors so appointed become by law entitled to the whole residue of such personal estate ; and Courts of Equity have so far followed the law, as to hold such executors to be entitled to retain such residue for their own use, unless it appears to have been their testator's intention to exclude them from the beneficial interest therein, in which case

+ See American note at end of this 201. Taylor o. Haygarth, 14 Sim. 8, Section.

12. Russell 0. Clowes, 2 Coll. 648. (1) Atty.-Gen. 0. Hooker, 2 P. Wms. Cradock v. Owen, 2 Sm. & G. 241. 340. Southcot o. Watson, 3 Atk. 228. The law is not altered by stat. 1 Will. 4, Urquhart v. King, 7 Ves. 225.

c. 40, s. 2: Johnstone v. Hamilton, 11 (k) See Lowndes on Legacies, 249, 250. Jur. N. S. 777, coram Stuart, V.-C. () Middleton v. Spicer, 1 Bro. C. C.

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After

to any residue under the Statute

di

affect

not to rights of

to

they are held to be trustees for the person or persons (if any) who would be entitled to such estate under the Statute of Distributions, if the testator had died intestate (m); and whereas it is desirable that the law should be extended in that respect,” proceeds to enact, “that

1st Sept. when any person shall die, after the first day of Septembe deemed to be ber next after the passing of this Act, having by his or trustees to reopers her Will, or any codicil or codicils thereto, appointed any

of person or persons to be his or her executor or executors, Distributions, un: such executor or executors shall be deemed by Courts of rected by will:

Equity to be a trustee or trustees for the person or persons (if any) who would be entitled to the estate under the Statute of Distributions, in respect of any residue not expressly disposed of, unless it shall appear by the Will or any codicil thereto, that the person or persons so appointed executor or executors, was or were intended to take such residue beneficially" (n). *And by the second section it is further provided and enacted

“That nothing herein contained shall affect or prejudice hurt where there any right to which any executor, if this Act bad not is not any person been passed, would have been entitled, in cases where residue.

there is not any person who would be entitled to the testator's estate under the Statute of Distributions, in respect of any residue not expressly disposed of " (o).

(m) See Stewart v. Stewart, 15 C. D. by the will. Saltmarsh v. Barrett, 29 539, 543, where Jessel, M. R., discusses Beav. 474. 3 De G. & F. 279. The the effect of the statute.

statute was meant to cast on the execu. (n) It has been contended that this tor the burthen of proving, from the act provides only for the case in which testamentary instrument, a distinct inthe property is vested in the executor tention that he should take the residue by virtue of his appointment, and that it beneficially : Juler o. Juler, 29 Beav. does not apply to a case where he takes

37.

Williams 0. Arkle, L. R. 7 H. L. it by virtue of an express gift : But in 606. For instance where it has been Love v. Gaze, 8 Beav. 472, a testator held that such an intention did not suffi. appointed A. & B. his executors, and ciently appear, see Juler o. Juler, 29 he gave them all his personal estate, Beav. 34 ; and where it has been held “ that is to say, for you to pay all as that it did sufficiently appear, see Harfollows :” He then gave several lega- rison v. Harrison, 2 Hemm. & M. 237. cies, and afterward said, “I wish all Shepherd v. Nottidge, 2 Johns. & H. this to be paid in six months after my 766. death :" And it was held by Lord (o) The statute, it should seem, has Langdale, under this statute, that the made no alteration in the law except in executors did not take the unexhausted cases where the deceased has left next residue beneficially, but in trust for the of kin : Taylor v. "Haygarth, 14 Sim. 8. next of kin ; as the intention that they Russell v. Clowes, 2 Coll. 648. Re should take beneficially did not appear Bacon's Will, 31 C. D. 460, 463. See

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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 (9), 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.

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 in cases not withcases not within the statute, in order to preclude the a presumption

against the execexecutor from taking the residue beneficially.

In the first place, where the executor is expressly appointed in trust (r), or the residue is bequeathed to him in trust (8), the 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 (2).

The rule is the same where the character of trustee is plainly affixed

What is fufficient

in the act, to raise

utor's title:

"in

words trust” :

also Chester v. Chester, L. R. 12 Eq. Sir W. Grant. 18 Ves. 254, by Lord 444. If, therefore, there are no next of Eldon. Vezey 0. Jamson, 1 Sim. & kin, and no intention is disclosed on the Stu. 69. Taylor v. Haygarth, 14 Sim. face of the will that the executors shall

8, 12. be excluded from taking beneficially, (u) Robinson v. Taylor, 2 Bro. C. C. they will be entitled as against the 589. Dawson 0. Clark, 18 Ves. 257, Crown : Russell 0. Clowes, 2 Coll. 648. per Lord Eldon. Ellcock v. Mapp, 3 And the question, in such case, to be H. L. C. 492. 2 Phill. Ch. C. 793 determined is exactly the same as if the (overruling the decree of the V.-C. in testator had died before the passing of Mapp v. Ellcock, 15 Sim, 568, and the the act, and had left next of kin : Read opinion of Sir W. Grant in Dawson v. 0. Stedman, 26 Beav. 495.

Dacre v. Clark, 15 Ves. 409. 2 V. & B. 399). Patrickson, 1 Dr. & Sm, 182.

Read v. Stedman, 26 Beav. 495. So (n) See Saltmarsh v. Barrett, 29 Beav. where the trust fails under the Mort474. 3 De Gex, F. & J. 279.

main Act : Dacre o. Patrickson, 1 Drew. (7) See supra, note ().

782. Johnstone o. Hamilton, 11 Jur. (r) Pratt v. Sladden, 14 Ves. 198. N. S. 777 Dawson v. Clark, 18 Ves. 254. Vezey (2) Batteley v. Windle, 2 Bro. C. C. v. Jamson, 1 Sim. & Stu. 69.

31. Griffiths v. Hamilton, 12 Ves. 298. (8) Graydon v. Hicks, 2 Atk. 18. Pratt o. Sladden, 14 Ves. 198. Russell Pratt o. Sladden, 14 Ves. 198.

v. Clowes, 2 Coll. 648. (t) Dawson o. Clark, 15 Ves. 414, by

53

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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 (2), 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” (6); 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 (f). Again, it has been long settled that an express legacy, however

small, to a sole executor, will raise the necessary prelegacy given to a Bole executor : sumption against him (9); notwithstanding legacies are also given to the next of kin (h); and so will a legacy wbich 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 (I).

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

(2) Lord North 0. Purdon, 2 Ves. Sen. 495. Seley v. Wood, 10 Ves. 71. Langham 0. 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.

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

(c) Braddon 0. 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.

(@) Urquhart 0. 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.

(9) 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 o. Bouquet, 21. Beav. 33.

(1) Andrew r. Clark, 2 Ves. Sen. 162. Kennedy o. Stainsby, 1 Ves. 66, note.

(i) Abbott v. Abbott, 6 Ves. 343.

(k) 2 Rop. Leg. 643, 3rd edit. Ran. dall v. Bookey, 2 Vern. 425. Southcot v. Watson, 3 Atk. 226. Martin r. Kebow, 1 Bro. C. C. 154.

(1) Langham 0. Sanford, 2 Meriv. 21.

one of several ex. ecutors:

ineflectual or in.

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 (o), unless, perhaps, it be contingent (P).

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

Moreover, a legacy to one of several executors will not raise the presumption against him (r) ; unless it be given to him

legacy given to for his care and trouble (s): Nor will the presumption be otherwise raised by unequal legacies to all the executors (): 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).

Where the residuary bequest lapses, the executor is not entitled (y); nor where it is void (z) : Nor where the design of the testator to dispose of the residue, although not carried choate residuary

clauses : into effect, is evident : As where he bequeaths the resi- . due 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 (6): or where he professes to dispose of the residue, but

(m) Granville v. Beaufort, 1 P. Wms. C. C. 590. Griffiths v. Hamilton, 12 114 : Secus, where there is no ulterior Ves. 309. Russell v. Clowes, 2 Coli. disposition : Zouch o. Lambert, 4 Bro. 648. C. C. 326 : or where the gift is of the (u) Ommanney o. Butcher, 1 Turn. & residue for life : Joslin v. Brewet, Bunb. Russ. 260, 269. See also Clennell o. 112. Dicks v. Lambert, 4 Ves. 725. Lewthwaite, 2 Ves. 471, by Lord Al

(n) Grilliths v. Rogers, Prec. Chanc. vanley. Taylor 0. Haygarth, 14 Sim. 231. 2 Rop. Leg. 616, 3rd edit.

8, 12. Saltmarsh v. Barrett, 29 Beav. (0) Seley v. Wood, 10 Ves. 71. Old- 474. 3 De Gex, F. & J. 279. man o. Slater, 3 Sim. 84.

(x) See supra. (P) Lynn V. Beaver, 1 Turn. & (y) Bennet v. Batchelor, 3 Bro. C. C. Russ. 63.

28. (9) Williams v. Jones, 10 Ves. 77. (z) Atty.-Gen. v. Tomkins, Ambl.

(r) Buffar v. Bradford, 2 Atk. 222. 216. Griffiths v. Hamilton, 12 Ves. 298. (a) Davers v. Dewes, 3 P. Wms. 40.

(8) White v. Evans, 4 Ves. 21. Mordaunt v. Hussey, 4 Ves. 117. DawMay, o. Lewin, 2 P. Wms. 159, in notis. son v. Clark, 15 Ves. 414, by Sir Wm. See Dawson v. Thorne, 3 'Russ. Chanc. Grant, Cas. 235, 239.

(6) Bishop of Cloyne v. Young. 2 (1) Blinkhorne v. Feast, 2 Ves. Sen. Ves. Sen. 91. North (Lord) 0. Purdon, 27, 29. Bowker v. Hunter, 1 Bro. 2 Ves. Sen. 495. Dawson o. Clark, 15 C. C. 328. Oliver 0. Frewen, 1 Bro. Ves. 414. In Re Bacon's Will, 31 C. D.

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