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his will had suffered an interruption, [*]which prevented him making a complete disposition of his property (a).

It should be observed, however, that the fact of a blank space between the last line of a will and the signature furnishes no such indication of intent to dispose of the residue as will preclude the legal right of the executor (b). So, although a clause expressive of an intention to give away the residuary estate followed by bequests which consume certain parts of it only, is notwithstanding considered a sufficient indication of design to exclude the executor, yet an introductory clause prefixed to a will, declaring it to be the testator's object to make a general disposition of his property, will not produce that effect; the intention manifested by such preface, unless coupled with other circumstances (c), being too vague and indeterminate to afford a presumption, that the office of executor was meant to be imposed without its legal advantages (d).

For reasons similar to those which govern in cases where a residuary bequest is begun but not finished, it has been held, that a gift of the residue, though erased or become illegible (e), or partially cancelled by the legatee's name being struck out whether by

(a) Farrington v. Knightly, 1 P. Wms. 544.

(b) White v. Williams, 3 Ves. & Be. 72; Coop. C. C. 58, S. C. (c) See 14 Ves. 370.

(a) Nourse v. Finch, 1 Ves. jun. 344, 356; Haynes v. Littlefear, 1 Sim. & Stu. 496.

(e) See 1 P. Wms. 549.

pencil or otherwise (a), is still sufficient to disappoint the claim of the executor.

[*]A will directing the testator's general personal estate "to go according to law" gives no beneficial interest to the executor. The direction clearly applies to the whole personal estate, and the words "to go according to law" are construed to import a distribution according to the statute (b).

Indeed universally, whenever what necessarily comprehends all a testator's property at the time of his death is or is meant to be given away, there the executors can claim nothing. But to have this effect, the disposition must be of the entire estate: the gift of legacies which may or may not exhaust it, according to circumstances, will not, in the event of there being a surplus, defeat the executor's title. therefore, where a testator gave pecuniary legacies which at the date of his will exceeded the amount of his fortune, but in the result a considerable surplus was undisposed of, the residue was adjudged to belong to the executors (c).

And,

III. The third division of cases on this subject are characterized by the appointment of only one executor, to whom an express legacy is given.

The gift of the legacy, though made without any allusion to the office, is held to raise a presumption

(a) Mence v. Mence, 18 Ves. Ves. 307.

348.

(c) Haynes v. Littlefear, 1 Sim. (b) Lord Cranley v. Hale, 14 & Stu. 496.

that the executor was not meant to take the residue beneficially, in other words, that he was intended to [*]take simply what is expressly given, but not more; and for this reason, that otherwise the particular bequest would be unnecessary,-as the legacy given to him must necessarily come out of the residue, and, to adopt the usual expression, it is absurd to suppose the testator intended him to take all and some (a). This reason, it is true, has not in modern times been thought satisfactory, since the object of the testator might merely be to secure some recompense to the executor in case the other legacies should exhaust the whole estate, because he would then have only to abate in common with the other legatees. But this argument however just, has not prevailed to alter the equitable rule; which having been long established, being well known, and having been extensively acted on, possesses an importance too great to be sacrificed on account of the unsoundness of its foundation(b). Another and perhaps better ground in support of the rule is, that a legacy to an executor amounts, in common acceptation, to a compensatory gift for his services; adopting which idea; equity, on a principle before mentioned, converts him into a trustee (c).

The construction is the same whether the legacy to the executor be given by the identical instrument which appoints him to the office, or by a subsequent

(a) See 9 Mod. 28; 3 Atk. 228; 1 Ves. jun. 356; 2 Ves. jun. 79, 471; 12 Ves. 309; 19 Ves. 643. Contra, 2 Cha. Ca. 187.

(b) See 2 Ves. 97; 1 Ves. and Bea. 277; also Hatton v. Hatton,

mentioned 2 Madd. Prin. and Prac. 102, 2d edit.

(c) See 2 Eq. Abr. 444, pl. 58; 1 Bro. C. C. 155; 12 Ves. 309.

[*]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) 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.

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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.

a third [*]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 [*]prevail, seems at one time to have ob

(a) See 3 Atk. 229; also Se- kinson, 2 Vern. by Raithby, 673; ley 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. At

and 2 Ves. 166.

(d) See Stackpole 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, 4 Ves.

725.

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