instrument (a); for in both cases, the bequest may with equal reason be referred to the testator's desire to remunerate the executor for his trouble. Whether the converse of this proposition be sustainable, that is, whether a legacy by will to a person appointed executor by codicil will bar the executor's right, is not yet settled; though, as such legacy, except under particular circumstances, cannot be supposed to have been given with a view to reward the trouble of the office, it is probable that the point will ultimately be decided in the negative (b).

With regard to the nature of the bequest which thus operates an exclusion from the residue, it may be laid down, that a legacy, pecuniary (c) or specific (d), immediate or reversionary (e), whether given directly to the legatee or to a trustee for his use (ƒ), and consisting either of a sum in gross or of an annuity, unless such annuity be charged on a fund given to a third

(a) Muckleston v. Brown, 6 Ves. 52, 64. See also Stackpoole v. Howell, 13 Ves. 417.

(b) See 2 Mer. 21.

(c) Cook v. Walker, 2 Vern. 676, cited; Ward v. Lant, Prec. Cha. 182; Abbott v. Abbott, 6 Ves. 343; Langham v. Sandford, 17 Ves. 435; 19 Ves. 641; 2 Mer. 6, S. C. ; Bull v. Kingston, 1 Mer. 314.

(d) Pawlett v. Lady Morley, 2 Freem. 263; Martin v. Rebow, 1 Bro. C. C. 154; (in these cases, the legacies were of jewels, plate, &c.); Randall v. Bookey, 2 Vern. 425; Prec. Cha. 162, S. C.; Nourse

v. Finch, 4 Bro. C. C. 239 ; 1 Ves. jun. 344; 2 ib. 78, S. C. (in these the legacies were of debts); Southcot v. Watson, 3 Atk. 226; Holford v. Wood, 4 Ves. 76; (in these of furniture, &c.); Southouse v. Bate, 2 Ves. and Be. 396; (in this of stock). In Martin v. Rebow, and Holford v. Wood, leasehold property also was given. See also 19 Ves. 643.

(e) Seley v. Wood, 10 Ves. 71. Sed vide Lynn v. Beaver, 1 Turn. 63, 68, 69.

(f) Per Lord Hardwicke in Newstead v. Johnston, 2 Atk. 47.

person (a), will equally defeat the claim of the executor. And the determination, it seems, will not be affected by the circumstance of the legacy being inconsiderable in point of value (b), of its being given for the purpose of buying mourning or a mourning ring (c), or simply in token of friendship (d). The same result is produced by a bequest to the executor of a life interest in the residuary estate; and this, whether given in express terms as residue (e), or by an enumeration of the specific articles of which the residue is in fact composed (f): the limited nature of the interest bestowed is in this case deemed decisive evidence of the testator's intention not to give the property absolutely.

Although in the exclusion of the executor from the undisposed residue a partial intestacy arises, and the next of kin become entitled, yet the bequest of legacies to the next of kin will not repel the inference arising from the gift to the executor and so restore his legal title. A contrary doctrine, indeed, grounded on the circumstance that the probabilities on either side were thus balanced, and that the legal title must therefore

(a) See 3 Atk. 229; also Seley v. Wood, 10 Ves. 71.

(b) See 2 Vern. 650; 2 Ves.

166.

(c) Cook v. Walker, 2 Vern. 676, cited; Nisbett v. Murray, 5 Ves. 149, 158; Southouse v. Bate, 2 Ves. and Be. 396; also 2 Atk. 222. Sed vide Wingfield v. Atkin

son, 2 Vern. by Raithby, 673; and 2 Ves. 166.

(d) See Stackpoole v. Howell, 13 Ves. 417.

(e) Joslin v. Brewett, Bunb. 112; Gobsall v. Sounden, 2 Eq. Abr. 444. See also 2 Atk. 47.

(f) Dicks v. Lambert, Ves.

725.

prevail, seems at one time to have obtained (a). But, in later determinations, the courts adhering to the broad and intelligible principle that an unqualified gift to an executor constitutes him a trustee of the surplus, have deemed it better to overlook conjectural deductions to the prejudice of the next of kin, than to encourage fresh distinctions for the sake of benefitting the executor (b). Nevertheless, it seems probable that a clause declaring the testator's intention not to give to the next of kin would serve to rebut their equity (c).

Proximity of relationship between the testator and the executor is insufficient to except the case from the rule under consideration. On one occasion, indeed, where a man appointed his wife executrix, Lord Harcourt was of a contrary opinion; he thought the nearness of the connexion was demonstrative that a bare office could not be intended (d). Subsequent authorities, however, have established the point as above stated. To allow distinctions on the score of relationship would only tend to create uncertainty; for whenever a father, brother, son, nephew, cousin, &c. should be appointed to the executorship, new questions for determination would arise, and it would be impossible to fix

(a) Harper v. Lee, Mose. 4; Att.-Gen. v. Hooker, 2 P. Wms. 338.

(b) Wheeler v. Sheer, Mose. 288, 291; Bayley v. Powell, Randall v. Bookey, 2 Vern. 361, 425 ; Vachell v. Jeffereys, Pre. Cha. 170; Farrington v. Knightly, 1 P. Wms. 544; Davers v. Dewes,

3 ib. 40, 43; Andrew v. Clark, 2 Ves. 162; Kennedy v. Stainsby, 1 Ves. jun. 66, n.; Seley v. Wood, 10 Ves. 71; also 12 Ves. 309.

(c) See Amb. 137. See also 7 Ves. 518; 19 Ves. 650; and the cases cited infra, p. 182, n. (d).

(d) Ball v. Smith, 2 Vern. 675; Mathews v. Courthope, 3 Salk. 82.

the point or degree of relationship after which the general principle should begin to operate (a).

So, it appears, that the fact of the executor being an infant affords no conclusive argument against the presumption arising from the gift of a legacy. But the incompetence, generally speaking, of an infant to fulfil the duties of a trustee is not without weight in this respect; and therefore slight auxiliary circumstances negativing an intention to exclude will vest the surplus in the infant beneficially (b).

Although a legacy to an executor be given to him. as one of a certain class or description of persons who are the immediate objects of the testator's bounty, as children or nephews (c), or, as it should seem, in common with other legacies of equal amount to different relatives or friends, it is nevertheless still effectual to exclude him from the residue.

But, on the other hand, a gift for life (à fortiori, if determinable on any earlier contingency) of particular chattels―as a term for years, plate, or furniture—which form only a part of the residuary estate, with remainder over to a third person, will not prevent the exe

(a) Randall v. Bookey, 2 Vern. 425; Ward v. Lant, Prec. Cha. 182; Pawlett v. Lady Morley, 2 Freem. 263; Lady Granville v. Duchess of Beaufort, 1 P. Wms. 114; Joslin v. Brewett, Bunb. 112; Gobsall v. Sounden, 2 Eq. Abr. 444; Lake v. Lake, Amb. 126; 1 Wils. 313, S. C.; Martin

v. Rebow, 1 Bro. C. C. 154. See also 1 P. Wms. 551.

(b) See Blinkhorne v. Feast, 2 Ves. 27, 30; 1 Wils. 285, S. C.; also 10 Ves. 83; 1 Ves. and Be. 278.

(c) Abbott v. Abbott, 6 Ves. 343. Sed vide Dix v. Reed, 1 Sim. and Stu. 237.

cutor from taking the other part of the residuary estate to his own use. In this instance (however singular the construction) the gift to the executor is not regarded as a satisfaction for his trouble, but merely as an introduction to the bequest over, and an abridgement of the ulterior legatee's interest (a). So that the case does not involve the absurdity of giving expressly a part, while the whole is meant to be bestowed (b).

On like grounds, where the legacy to the executor is taken out of, or forms an exception from another legacy, as where a dozen volumes are excepted in favour of the executor from the bequest of a library (c); or where an annuity for the benefit of the executor is charged on a fund given to a third person (d); in these and similar cases, the legacy being not so much separated from the residue as taken out of another gross legacy, is not that description of legacy which converts the executor into a trustee. In one instance, where 1,000l. to be taken out of the testator's stock in trade was directed to be settled on a son and his family, and the remainder of the stock in trade on a daughter who was appointed executrix; this latter bequest was adjudged to be not so much a legacy to the daughter as

(a) Lady Granvill v. Duchess of Beaufort, 2 Vern. 648, 1 P. Wms. 114; 3 Atk. 230, n. S. C.; Hoskins v. Hoskins, Prec. Cha. 263; Jones v. Westcomb, ib. 316; Gilb. Eq. Ca. 74; 1 Eq. Abr. 245, S C.; Mackworth v. Lewellin, 2

Eq. Abr. 444, pl. 58, cited. See also 2 Ves. 97; 4 Ves. 731.

(b) See Mr. Cox's note, 1 P. Wms. 116.

(c) Griffith v. Rogers, Prec. Cha. 231.

(d) Southcot v. Watson, 3 Atk. 226, 229.