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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 (f).

It remains to consider briefly the subject of the admissibility of when parol evi- parol evidence with reference to this question. Such dence admissible. evidence is not admissible in the first instance, on behalf of the next of kin, to raise the presumption for the exclusion of the executor (9). 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 (); and such evidence

460, where the blanks left by the testa-
trix 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 en.
title 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 0. 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 0. Lewthwaite, 2 Ves. 474. Langham v. Sanford, 17 Ves. 442, 443. Lynn o. 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 o. Beaver, 1 Turn. & R. 66.

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may *then be opposed by similar evidence on behalf of the next of

kin (i).

Not admiesible in cases within the statute 11 Geo.

c. 40.

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 (1), parol evidence is not admissible to support the claim ; for that would be to allow parol evidence to contradict the will (m).

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 of

ciently declared. 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).

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 Trusts not appearmade it, has been induced not to revoke it by a promise will, but commu

ing on the part of the legatee to deal with the property in nicated to and aca specified manner : in these cases the court treats the enforced as bind

ing on his contrust as binding on the conscience of the donee (9). The communication to the trustee of the object of the trust may be

Trust for next of kin where trust expressed on face

will insuffi

by legatee,

science.

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

(k) Gladding v. Yapp, 5 Madd. 59.

(1) 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.

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after the date of the will (r), but it is essential, in order to make the trust binding, that it shall be communicated to the legatee in the testator's lifetime, and that he should accept that particular trust (s). Vice-Chancellor Hall, in his judgment in Re Fleetwood (1), refuses to accept Att.-Gen. v. Dillon (u), and McCormick v. Grogan (c), as establishing contrary to the authorities mentioned in his judgment, that where the trust is referred to on the face of the will, the court will not give effect to the intended trust, although there is conclusive evidence upon which the court would have given effect to the intended trust had the will been altogether silent as to the trust. The judgment of the vice-chancellor is difficult to reconcile with the cases cited in note (p), but whether or not the principle, which led courts of *equity to hold that the Statute of Frauds and the Statute of Wills were not to be used as instruments of fraud, applies to cases where the will shows some trust was intended, as well as to those where this does not appear, it seems clear that in either case the trust must be definite, communicated to the legatee, and accepted by him. The judgment in the case of Riordan v. Banon (y) assumes that a court of equity will enforce the trust in favor of the person for whose benefit the legatee accepted the trust, even though the legatee make no claim to take the property beneficially ; for although no doubt the fraud would be of a different kind, if the legatee could by means of it retain the benefit of the legacy for himself, yet it would also be a fraud, though the result would be to defeat the expressed intention for the benefit of the beir, next of kin, or residuary donees. In Re Fleetwood (2),

Vice-Chancellor Hall held that one of the witnesses to Parol trusts not enforced in favor the will being interested under the parol trust such

interest failed, but if the trust was enforced not under the will but to prevent the Wills Act being used for fraud, the decision would seem difficult to support.

It may be mentioned, in conclusion of this subject, that where there If the residue be is no gift of the undisposed of residue, a testator cannot, must be divided by negative words, exclude one of his next of kin from next of kin, not participating in it. Thus, where a testator, by his will, withstanding the

cut off his widow and one of his daughters from any one of them shall part of his property, and directed that they should not bave noue of his receive any benefit therefrom, but he made no disposi

to

amongst all the

testator declares

(r) Moss v. Cooper, 1 J. & H. 352.
(8) Re Boyes, 26 C. D. 531.
(t) 15 C. D. 594.
(u) 13 Ir. Ch. Rep. 127.

(x) L. R. 4 H. L. 82.
(y) 10 Ir. Eq. Rep. 649.
(2) 15 C. D. 594.

tion of his property; it was held that the widow and daughter were, nevertheless, entitled to their share in the undisposed of residue, under the Statute of Distributions (a).

(a) Johnson o. Johnson, 4 Beav. 318. But see Bund v. Green, 12 C. D. 819.

+ In the United States the distribution of all surplus personal property not disposed of by will is provided for by the Statute of Distributions. Paup v. Mingo, 4 Leigh 163 ; Hill v. Hill, 2 Hayw. 298; Matter of Tilford, 4 Dem. 524 ; Twitty 0. Martin, 90 N. C. 643. Even before the present statutes such property was held to go to the executor only as trustee for the next of kin. Grasser v. Eckart 1 Binn. 575; Wilson v. Wilson, 3 Id.

557. An intention to exclude from such distribution any one of the next of kin will not be inferred from the fact that a gift was made to him in another part of the will, McDougald v. Gilchrist, 20 Fla. 573 ; or that he was omitted in such a gift to the other next of kin, Hoffner v. Wynkoop, 97 Pa. St. 130; or that the entire estate was given to him for life. Nickerson v. Bowley, 8 Met. 431.

*BOOK THE FOURTH.

OF DISTRIBUTION. The office of an administrator, as far as it concerns the collecting of the effects, the making of an inventory, and the payment of debts, is altogether the same as that of an executor : But as there is no will (unless the administration be cum testamento annexo), to direct the subsequent disposition of the property, at this point they separate, and must pursue different courses (a).

CHAPTER THE FIRST.

OF DISTRIBUTION UNDER THE STATUTE. After the Ordinary was divested of the power of administering an intestate's effects, and compelled, in the manner mentioned in the preceding part of this treatise (), to delegate such authority to the relations of the deceased, the Spiritual Court attempted to enforce a distribution, and took bonds of the administrator for that purpose : But such bonds were prohibited by the temporal courts, and declared to be void in point of law, on the ground, that by the grant of administration, the ecclesiastical authority was executed, and ought to interfere no further (c). Thus the administrator was entitled, exclusively, to enjoy the residue of the testator's effects, after payment of the debts and funeral expenses (d).

*The hardships of this privilege upon those of kin to the intestate in equal degree with the administrator was the occasion of making 22 & 23 Car. 2,

the Statute of Distributions, 22 & 23 Car. II. c. 10 (e).

That statute, after empowering the Ordinary, on the tributions :

granting of administration, to take a bond of the administrator, with two or more sureties, conditioned as before men(a) Toller, 369.

(d) Carter o. Crawley, Sir T. Raym. + See American note at end of this 500. Edwards o. Freeman, 2 P. Wms. Chapter.

441. 2 Black. Comm. 515. Bac. Abr. (6) Ante, p. *341.

Exors. (I). (©) Edwards v. Freeman, 2 P. Wms. (e) Petit v. Smith, 1 P. Wms. 8, by 441, by Sir Joseph Jekyll. Hughes v. Lord Holt. There are two objects of Hughes, 1 Lev. 233. S. C. Carter, 125. that statute: one that the residue shall 2 Black. Comm. 515. Toller, 370. be forthcoming, and another that it.

c. 10.
Statute of Dis.

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