[*]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. (1) 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

(a) See 9 Mod. 28; 2 Ves. 18 Ves. 254.

166; 7 Ves. 228; 12 Ves. 308; (b) See 14 Ves. 197.

(1) Shelton v. Shelton, 1 Wash. 53. Boudinot v. Bradford, 2 Yeates, 170. 2 Dall. 268. Grasser v. Echart, 1 Binn. 580. 584. Wilson v. Wilson, 3 Binn. 557.

established is, that the executor shall hold to his own use, unless there be a strong and violent, though not an irresistible (a), presumption to the contrary(b).

There are four principal divisions into which the [*]cases to be here treated of may be distributed. In the 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 fidu ciary 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

(a) Ibid.

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

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 (r), from objects meant to be benefited not coming into

(a) Pring v. Pring, 2 Vern. 99; Bagwell v. Dry, 1 P. Wms. 700; Wollett 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.

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.

(b) Southouse v. Bate, 2 Ves. 700.

existence (a), or from uncertainty in the objects themselves (b), 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, [*]the personal estate is given expressly upon trust, in the earlier part of the will, be or be not entitled to retain to his own use what is not needed to perform the trust, is not quite settled. In Dawson v. Clark (c), Sir W. Grant decided the point in favour of the executor; but on appeal from the Rolls (though the judgment there under the particular circumstances was affirmed), Lord Eldon appears to have entertained a contrary opinion(d). It is certain, however, that where the bequest is to particular persons under the description of "executors hereinafter named," they do not take the residue beneficially, because the gift is clearly made to them in their official character(e). And the result is the same, where, though the bequest is to persons by their proper names, who in a subsequent part of the will are appointed executors, the testator, in declaring the trusts of the bequest, notices them indiscriminately as executors or trustees(f).

A presumption against the executor's claim to the residuary estate is also held to arise from the testa

(a) Woollett v. Harris, 5 Madd.

452.

(e) Wheeler v. Shear, Mose. 289, 301; Read v. Snell, 2 Atk.

(b) Vezey v. Jamson, 1 Sim. 643, 5; Robinson v. Taylor, 2 Bro. and Stu. 69.

C. C. 589; also 15 Ves. 416.
(f) Woollett v. Harris, 5 Madd.

452.

tor's expressing himself, when making the nomination, in terms which indicate an idea that he imposes merely an office, the duties whereof are necessary to be performed :-as, for example, where a testator, "that his will might be well executed, named and appointed for his executor Mr. C., and gave him in that quality [*]every power that could be given to a testamentary executor" (a). So, where words of request are addressed to the executor, entreating him to accept the appointment,-as if he is besought to be sa kind as to undertake the office (b); or where a desire is expressed, that he would take the trouble of being executor(c), or a hope that, out of respect to the testator's wife, the executorship would be accepted(d), or an appointment if the nominee would be so good as to comply with it(e); in these several cases the supplicatory words have been considered enough to show that a burden, not a benefit, was intended.

A still stronger case against the claim of the executor is where a legacy is given to him expressly for his care and trouble; for, here, not only do the circumstances of the gift show the testator's sense of the nature of the office conferred, but the recompense offered for discharging the duties of it, his apprehension that otherwise the party would be burdened without requital(ƒ).

(a) Androvin v. Poilblanc, 3 Atk. 299. See also Lord Cranley

v. Hale, 14 Ves. 307.

150; also 18 Ves. 254.

(c) Seley v. Wood, 10 Ves. 71. (f) Fane v. Fane, 1 Vern. 30;

(b) Lord North v. Purdon, 2 Foster v. Munt, ib. 473; Cordell Ves. 495.

(c) Cordell v. Noden, Prec. Cha. 12.

(d) Giraud v. Hanbury, 3 Mer.

v. Noden, 2 Vern. 148; Rachfield v. Careless, 2 P. Wms. 158; 9 Mod. 9; 1 Stra. 568, S. C.; May v. Lewin, 2 P. Wms. 159, n. by