adding or omitting (a), alter the construction; differences in these respects, from time and change of circumstances, being naturally to be expected. But it is observable, that in cases where legatees named in the first instrument are altogether omitted in the second, the former, so far as regards those legatees, will not, it seems, be considered revoked (b); and further, that although a diminishing by the second instrument of some of the legacies given in the first will not repel the supposed general substitution, yet if all the legacies contained in the second be considerably less than those previously given to the same legatees, the general rule will prevail (c).

Parol declarations, offered as evidence of the testator's intention to give only a single legacy, where the presumption of law opposes such construction, are not admissible. A different rule would break in upon the principle that parol evidence shall not be received to contradict the literal and express signification of a written instrument (d). But when the legal inference-gathered from identity in the motive and nature of the two gifts, or from other internal circumstances-is against their being accumulative, declarations showing the intention to have been a double provision will be allowed; for here the effect of the evidence is to prove, not that the testator has said what

he did not mean, but that he has expressed himself agreeably to his intention: it is to support, not overthrow, the strict and obvious interpretation (a). In like manner, evidence of a change in the testator's circumstances (as an increase in his fortune) between the times of giving the first and second legacy, has been considered effectual to show, that in bestowing the latter the intention was to enlarge the preceding bequest (b).

(a) Windham v. Windham, Finch, 267; Coote v. Boyd, 2

Bro. C. C. 521. See also 5 Madd. 360.

(b) 1 P. Wms. 424; 2 Ves. 242.

CHAPTER X.

PRESUMPTIONS OF LAW CONTINUED.

Of the Exclusion of Executors from the Residuary Estate.

THE appointment of an executor amounts, in the consideration of law, to a gift to the person appointed of the undisposed surplus of the testator's personal estate after payment of his debts. In equity, however, which in the present instance exercises a controul over the rule of law, this doctrine obtains with considerable modifications; for there, whether the executor takes beneficially, is primarily a question of intention (a). Some judges, indeed, have been disposed to allow the most trifling indications of the testator's mind to be sufficient to exclude the executor;-almost, in fact, to put the executor upon proof of an express intention in his favour (b). But the rule now established is, that the executor shall hold to his own use, unless there be a strong and violent, though not an irresistible (c), presumption to the contrary (d).

There are four principal divisions into which the

(a) See 9 Mod. 28; 2 Ves. 166;

7 Ves. 228; 12 Ves. 308; 18 Ves. 254.

(b) See 14 Ves. 197

(c) Ibid.

(d) 2 Ves. 96; 2 Ves. jun. 474; 14 Ves. 197; 19 Ves. 646.

In the

cases to be here treated of may be distributed. first, the inference against the executor being meant to take arises immediately from the manner of the appointment, or from directions connected with it importing the nomination to be merely to the fiduciary office of executor; in the second, from the testator's manifesting a design to give away the residue to strangers. The principles thus furnished, are of universal application. In the third and fourth divisions, the ground of inference is in a great measure the same as in the first, but the rules they supply admit only of a confined application; those deducible from the former, to cases where there is only one executor; from the latter, to cases where there are at least two.

1. The first class of cases in the above distribution we have stated to comprise those, in which, from expressions used in making the appointment or from directions connected therewith, it appears that the executor was named only with a view to discharge the duties of the office. The conclusion against the executor's claim in these cases arises from hence, that the limited object of the testator in making the appointment is by such means distinctly marked out, and supplies at the same time indirect evidence, that the beneficial rights attaching by law to an executorship were not in his contemplation.

Of the indications of a testator's mind in this respect, the fact of the executor being designated a trustee is perhaps the most pointed; it strongly denotes the apprehension of the party as to the nature of the interests

bestowed. Accordingly, it has been resolved, that where the executor, in the clause making the appointment, is styled an "executor in trust," he cannot claim the undisposed surplus. The mention of a trust, though not declared for whom, shows at least that the executor is not the object of bounty. In the case, therefore, of a partial or defective disposition, equity holds him to take as trustee for the testator's next of kin (a).

The same argument applies with greater force, where the personal estate is given generally to the executor as such, in trust for specified purposes. Nor is it material in this case, that the whole estate be not exhausted in fulfilling those purposes; as where the trust is to devote all to the payment of debts, legacies, and annuities, and a surplus remains (b); or that the testator's intention from the deaths of parties (c), from objects meant to be benefited not coming into existence (d), or from uncertainty in the objects themselves (e), cannot be carried into execution: for the specific direction to hold in trust is in every event incompatible with a right to the beneficial interest.

Whether an executor, to whom, by his proper name,

(a) Pring v. Pring, 2 Vern. 99; Bagwell v. Dry, 1 P. Wms. 700; Woollett v. Harris, 5 Madd. 452; Vezey v. Jamson, 1 Sim. and Stu. 69. See also 2 Atk. 18; 14 Ves. 198. Contra, Anon. 2 Freem. 105. (b) Southouse v. Bate, 2 Ves. and Be. 396; Robinson v. Taylor, 2 Bro. C. C. 589. See also 10 Ves. 527; Starkey v. Brooks, 1

P. Wms. 390; Cruse v. Barley, 3 P. Wms. 20; North v. Crompton, 1 Cha. Ca. 196, contra.

(c) Bagwell v. Dry, 1 P. Wms.

700.

(d) Woollett v. Harris, 5 Madd.

452.

(e) Vezey v. Jamson, 1 Sim. and Stu. 69.