H. 1697, Earl of Bristol and Hungerford. The testator devised lands to be sold for payment of his debts, and ordered that the surplus should be deemed part of his personal estate and go to his executors, and gave to his executors 100l. a piece as a legacy. The question was, whether the executors should have the surplus to their own use, or should distribute according to the statute of distribution. For the executors it was insisted, that the surplus should be part of his personal estate, and go to them, and that he meant it to their own use; and his giving them a legacy of 100l. a piece cannot alter the case, for the surplus perhaps might be nothing; and therefore he gave them the 100l. that they might at all events be sure of something, and not to exclude them the benefit of the surplus: and this being a devise of the surplus, after debts and legacies paid, cannot be a trust in them, for then all their trust is performed, when debts and legacies are paid. On the other side it was said, that the words in the will, that the surplus should be part of his personal estate and go to his executors, were only intended to exclude the heir, who else would have had it, and not to give any greater interest to his executors than they would have had otherwise. And of that opinion was the lord chancellor, who decreed that they were trustees of the surplus for the next of kin. 1 Abr. Cas. Eq. 244. But in the case of Griffiths and Rogers, T. 1704, where a man deviseth his library of books to one, except ten books, such as his wife should choose, and made her executrix: it was decreed, that she should not by this devise be excluded from the benefit of the surplus of the personal estate. 1 Abr. Cas. Eq. 245. In the year 1725, in order to settle this point, the lord chan- [193] cellor King brought a bill into the house of peers, which passed that house, but was thrown out by the commons. to have settled it for the benefit of the executor. The bill was July 15, 1740, Newstead and Johnston. Grace Lawson by her will gave several legacies to her children, and then directs 1000%. to be taken out of her partnership stock in trade, and settled in strict settlement on her son; the residue of her partnership stock she gave to a trustee, with very particular directions as to the management, in trust for the separate use of her daughter Elizabeth Johnston, who was a feme covert, and appoints Elizabeth Johnston her executrix, but makes no disposition of the surplus. The bill was brought for an account of this surplus, and that the executrix might be a trustee of the same for the next of kin to the testatrix. -By the lord chancellor Hardwicke: The cases in regard to excluding executors from taking the surplus of the personal estate, by reason of the particular legacies before given to them, have been very various, and undergone different determinations, according to the different circumstances and a suit is brought in such a case for a distribution of the residuum undisposed of by the will, this court will prohibit them from proceeding in such suit; because they are bound to give the residuum to the executor. And this court interposes upon a supposed trust in the executor, of which that court has no cognizance. And I remember some cases, one at the latter end of queen Anne's time, and another since, and another when I sate as chief justice in the king's bench, where such prohibitions have gone. So that the ground upon which executors have been in any cases compelled to distribute the surplus, has been, upon certain circumstances in equity, which have induced a violent presumption, amounting to evidence, that the executor was [194] intended only a trustee.- The first case was Foster and Munt ; where it was sent to the master to inquire what the surplus amounted to. And I have heard that arose in a great measure from an ill opinion the lord chancellor Jefferies had of the executor's behaviour in obtaining that will. And it being reported to amount to 5000l. he thought it was absurd to say the the testator would have given the executor so small a legacy as 107. for his care and pains, if he had meant at the same time to give him the surplus. But there was no particular evidence of any fraud in the case, but only such a general charge in the bill. So that the decree was founded wholly on that single point. From that time, it was taken, where a legacy was given to an executor for his care and trouble, without any disposition of the surplus, that he should be considered as a trustee. And that was founded upon good reason: for such a legacy for care and pains, was a plain declaration of the testator's intention, that as to the rest, the executor should not take it to his own use; for it were ridiculous to suppose, that the testator should give him a small legacy for his trouble in managing an estate for himself. Afterwards the court went further in the like kind of reasoning, and held, that where a particular legacy was given to the executor generally, without saying for care and pains, even this would exclude him from the surplus, because of the absurdity (as no doubt there would be) in giving him some, and giving him all. From whence the court raised an implication, that since the testator had given him a part, he never intended him the whole. And this point is now established: though it was at first objected, that the particular legacy might be owing to a doubt of the testator, that the whole personal estate might not prove more than sufficient to pay all the legacies; in which case the executor could have nothing. For which reason the testator might be unwilling to leave him to the chance of the surplus, but would secure something to him by a particular legacy, and then in case of a deficiency he would abate only in proportion. However this point has been now long established, and is not to be controverted by such an argument. And I remember in the case of Farrington and Keetly, lord Macclesfield said, that he had consulted Mr. Vernon, who had then left the bar, who told him that he did not then trouble himself with taking notes of modern resolutions upon this point; because he looked upon it to be as plain and settled, as that an estate to a man in fee should descend to a man and his heirs. -Other cases have [195] been determined in favour of the next of kin, upon the circumstances of the proximity of blood: But these determinations have been overruled in later cases; because that reasoning might produce great uncertainty. For if that distinction were to be admitted, then a distinction would arise as to those of a nearer degree of kindred and those who are more remote; and if the testator's estate was to depend on such circumstances, it would bear a very uncertain construction: though in the case of Ball and Smith, there was a distinction in favour of a wife. -I mention these things to lay them out of the case: For the ground of my determination is, that the legacy is given to a feme covert of stock in trade, in trust for her separate use, and under very particular circumstances. The intent of the testatrix is manifest. She gives the particular legacy in trust for the wife, who was her daughter; because otherwise it would have passed to the husband as his absolute property; for though upon her death it would have passed from her to the administrator de bonis non, yet the husband would have it in point of property and interest, as he would be intitled to it after the debts and legacies were paid out of the assets: Which reason does not extend to the residuum; for that it does not appear but she intended the husband should have that as well as her daughter; and no implication can arise upon a will but by a necessary construction; if so, the testatrix had no occasion to make an express devise of that in trust, as she did of the other. It was said in the argument of this cause, that a particular legacy given in trust for an executor, will have the same effect in point of law, and bar him of the residuum, as much as if the legal interest of the legacy were given him. And that is certainly true: because it implies nothing which makes any difference between such a devise in trust, and an absolute one: but, as I said before, here was a [ 196] particular reason why this legacy was expressly given in trust, for the husband could not have been otherwise excluded; and it is, that the trustee may enter into partnership with the son, and he is to improve the stock for the separate use and benefit of the wife; which prevents the common implication, that the residuum should not pass. Therefore I think there is no ground in this case, to make the executrix account for the surplus; and, as to that, the bill must be dismissed. (q) June 9, 1745; Southcot and Watson. General Pulteney by his will gives in the first part of it, to Mrs. Watson, an annuity of 4007.; and in the last clause gives her all his houshold goods and furniture (three pictures excepted), and all his plate, linen, watches, jewels, and cloaths whatsoever, and declared her sole executrix. The bill was brought for an account of such part of the personal estate as is undisposed of, and for a distribution. And by the lord chancellor Hardwicke: The bequest of the specific things to Mrs. Watson excludes her from the residue. 3 Atk. 226. Oct. 24, 1750; Blinkhorn and Feast. The testator gave a pecuniary legacy to A. and another of a different value to B., both infants, and made them his executors. The question was, as to the residue of his personal estate, whether it should result to the next of kin, or go to his executors. By the lord chancellor Hardwicke: Though the law casts the whole personal estate upon the executor; yet as a will is to be construed chiefly according to the intention of the testator, if it appear manifestly his design that the executor shall not have it, it shall be distributed by this court. As where a specific legacy is given to an executor, he shall not have the residue; as it would be absurd to think, that the testator after he had given him what he thought convenient, should also intend to give him the whole residue, which would include the particular legacy. Yet in many cases this construction may be improper; and therefore the rule of law has been suffered to take place. As in the case of Griffith and Rogers, where the executrix had a specific legacy of ten books. And in the case of Jones and Westcomb (Prec. Ch. 316.) where a man, possessed of a long term, devised it to his wife for life, and after her death to the child she was then ensient with, and made her executrix. For in this case it was necessary to devise the term to her specifically, for the sake of the limitation to the child. In the present case, not to mention that it is improbable the testator would have made these persons who are infants his executors, merely for the purpose of distributing his personal estate, without any benefit to themselves; it was very proper he should give them these legacies, though he might intend they should after (q) S. C. 2 Atk. 46. have the residue; for they do not take the legacies, as they will the residue; for this they are entitled to jointly and equally, and the survivor will take the whole. But the legacies are unequal in value, and their interest in them different and separate. And [197] it cannot be inferred that the residue includes the particular legacies; for as they are bequeathed, the legatees are entitled to them in severalty, and with different interests; whereas if he had not separated them, they would have devolved jointly, and otherwise than he intended they should. And he decreed the residue to the executors. Finally; in the case of Lawson and Lawson, Apr. 19. 1777, upon an appeal from the chancery to the house of lords, it was determined, that unless in cases where the contrary is inconsistent and incompatible with the apparent intention of the testator, or there is violent presumption of fraud, the residue of the personal estate, after payment of debts and legacies, shall go to the executor. (r) (r) 7 Bro. P. C. 511. In this case, the wife was executrix, and had property specifically given to her, which was hers before marriage. And the authority was cited in Martin v. Rebow, 1 Bro. C. C. 154. to prove that a wife having a specific legacy bequeathed to her, might take the residue, although any other executor having a pecuniary legacy could not. But per lord Thurlowe, C.: The case of a wife may make a circumstance in evidence, but it cannot make a rule of law. The rule (of Foster and Munt) is laid down, and has been acted upon for years past, that where a testator gives the executor a legacy, he him for his trouble, and turns him, as to the residue, into a trustee. And here the wife, who was executrix, having a real estate bequeathed to her, with a house in town, plate, &c., but no pecuniary legacy, an account was decreed to be taken of the residue, to be distributed according to the statute. pays In White v. Evans, one executor being by a legacy for his care clearly a trustee of the residue for the next of kin, the other was held to be a trustee also. 4 Ves. 21. And in Urquhart v. King, where no legacies were given to the executors, they were under the circumstances held to be trustees of the residue for the next of kin. 7 Ves. 225. But executors are prima facie intitled to the residue undisposed of: and it requires strong and violent though not irresistible presumption to make them trustees. Pratt v. Sladden, 14 Ves. 193. [199. 200. 18 Ves. 247. S. C.] [The result of the many cases on this subject appears to be this; by law, the appointment of an executor vests in him all the personal estate of the testator, and if any part (after payment of the funeral expenses and debts) remains undisposed of by the will, it vests with the executor beneficially; but wherever courts of equity have seen on the face of the will sufficient to convince them that the testator did not intend the executor to take the surplus, they have turned the executors into trustees for those on whom the law would cast the surplus in case of a complete intestacy, i. e. the next of kin; as where |