legacies of [*]different values are at the same time bequeathed to the executors (a).

Distinct specific legacies of equal worth to two or more executors will also preclude their right to the undisposed surplus; but to have this effect, it is conceived, that the articles given must be such as possess something like a current value, capable of being accurately estimated. On this principle specific legacies of equal quantities of stock (b), or of mortgage or other debts of equal amount, or of equal portions of particular debts, may, with the same propriety as legacies of money, be accounted as given in compensation for the trouble attendant upon the office of executor. In like manner, and for a similar reason, articles of plate or pieces of furniture may be construed to negative the claim of the executors, provided the equality of price be obvious. But pictures, or natural or artificial curiosities, the value of which is arbitrary and dependent on taste and fancy, can scarcely, it is imagined, be deemed to induce the same result; for, although the gifts in the estimation of particular judges may be equal in value, yet non constat they were so regarded by the testator. It is observable, however, that where specific bequests are made to the executors jointly, the sameness of the interests given to each brings the case within the general principle (c).

(a) Ommanney v. Butcher, 1 Turn. 260, 268-9. See also 6

Ves. 64.

& Be. 396.

Shrimpton v. Stanhope, there cited; which case is also mentioned in Mr. Cox's note, 1 P. Wms. New

(b) Southouse v. Bate, 2 Ves. 550-1. See also Heron v.

(c) See 3 Atk. 230, particularly

ton, 9 Mod. 11.

[*]Where legacies of unequal amount are given to the executors (a), or where legacies are given only to some of them (b), a different construction obtains. In such instances, the testator is supposed to have intended, not a remuneration to the executors for their trouble,-in the latter case indeed that supposition is not possible,-but a preference pro tanto. They will, therefore, be entitled to hold the surplus beneficially.

But to this latter rule an exception occurs where the bequests to one or more of the executors are expressed to be in consideration of the pains and care incident to the office. Such legacies undeniably proving the executors to whom they are given to be trustees, it is concluded, that the other executors take as trustees likewise; for as they must all claim together, and none can claim the beneficial interest but jointly with the rest under the same general character and in the same right, it follows, on a principle of uniformity, that as part are excluded by the ex

(a) Brasbridge v. Woodroffe, 2 Atk. 69; Blinkhorne v. Feast, 2 Ves. 27; 1 Wils. 285, S. C.; Bowker v. Hunter, 1 Bro. C. C. 328; Rawlings v. Jennings, 13 Ves. 39. See also 12 Ves. 309; 19 Ves. 648; 2 Jac. & Walk. 410-411.-Contra, Bayley v. Powell, 2 Vern. 361; Prec. Cha. 92, S. C.; and Vachell v. Jefferies, Prec. Cha. 170; 5 Bro. P. C., by Toml. 51: but see on these cases per Lord Loughborough, 1 Bro. C. C. 333-4.

(b) Hawkins v. Mason, Mose. 20, 26; Buffar v. Bradford, 2 Atk. 220; Bishop of Cloyne v. Boung, 2 Ves. 91; Wilson v. Ivat, ib. 166; Johnson v. Twist, ib. 167, cited; Oliver v. Frewen, 1 Bro. C. C. 590; Frewen v. Relfe, 2 ib. 220; Pratt v. Sladden, 14 Ves. 193; Haynes v. Littlefear, 1 Sim. & Stu. 496. See also 19 Ves. 648.-Contra Darwell v. Bennet, 2 Vern. 677, cited, and Colesworth v. Brangwin, Prec. Cha.

323.

press legacies given to them, none can be entitled to a personal interest (a).

[*]On similar grounds we find, that, in De Mazar v. Pybus (b), where there were different sets of executors, one for England, the other for India, the former being appointed merely under the designation of a partnership or firm ;-in Sadler v. Turner (c), where executors in India were nominated for the sole purpose of transmitting the testator's effects to other executors in England ;—in Urquhart v. King (d), where the American Ambassador for the time being and a private individual were made executors, the Ambassador simply on account of his station;—and in Milnes v. Slater (e), where to one of two executors the general surplus was given upon trusts which ultimately failed;—in each of these cases some or one of the parties being held to take only in a fiduciary character, the whole residuary estate was adjudged to belong to the next of kin.

The presumption arising from gifts of equal legacies to the executors generally, is of course rebutted, by an express bequest of the residue (ƒ), though the legacies be even mentioned to be in recompense for the services incident to the office (g). It may also be met by any expressions in the will which show, that the testator's mind was possessed with an idea that

the executors would take an absolute and beneficial interest in the residue. Thus, where a testator desired his [*]executors to be kind to an old servant, and to give her certain pieces of furniture if she wished for them; the court considered this direction to evince the testator's intention that the executors should take the residue absolutely (a).

And where legacies are given to two of three executors for the performing of a trust distinct from the executorship, and a legacy of equal amount is afterwards given to the third executor, in such case the legacies will not exclude from the residue. To the two first, it is clear, the bequests are not made in their character of executors, but of trustees; so that the case is reduced to that of a legacy given to only one executor where there is a plurality (b).

To repel presumptions founded on the circumstance of a legacy being given to a sole executor (c), or of equal legacies being given to two or more executors (d),

11.

(a) Heron v. Newton, 9 Mod. S. C.; Lake v. Lake, Amb. 126; Nourse v. Finch, 1 Ves. jun. 344; (b) Dix v. Reed, 1 Sim. and 2 ib. 78; Clennell v. Lewthwaite, Stu. 237. 2 Ves. jun. 465, 644; Langham v. Sanford, 17 Ves. 435; 19 Ves. 641; 2 Mer. 6, S. C.; Gladding v. Yapp, 5 Madd. 56; Lynn v. Beaver, 1 Turn. 63. See also 2 Atk. 373.

(c) Lord Gainsborough v. Lady Gainsborough, 2 Vern. 252; Littlebury v. Buckley, 2 Vern. 677, cited 3 Bro. P. C. by Toml. 43; Lady Glanvill v. Duchess of Beaufort, 2 Vern. 648; Duke of Rutland v. Duchess of Rutland, 2 P. Wms. 210; Hatton v. Hatton, 2 Bac. Abr. 426; Eq. Abr. 443,

(d) Wingfield v. Atkinson, 2 Vern. 673; Batchellor v. Searle, ib. 736; Petit v. Smith, 1 P. Wms. 7; Heron v. Newton, 9 Modd. 11;

or upon the fact of one of several executors being expressly denominated a trustee (a), parol evidence, [*]though disapproved of(b), is admissible. And it is received on this principle, that while the construction by which the executor it excluded, assumes the testator to have meant what he has not said; the effect of the evidence is to show, that the actual intention was such as exactly corresponds with the strict and literal interpretation of the instrument, and with the legal incidents and rights which attach to the office of executor.

The efficiency of a testator's parol declarations to rebut the presumption, and to restore the executor to the rights from which other circumstances might have displaced him, seems to depend rather on the occasion of making them, than on the time when they were made considered with relation to the executing of the will. For although all such declarations are alike admissible, and are accounted of weight(c), yet their importance is measured by the circumstances under which they were made, and which, as they ascertain the sincerity or insincerity, the seriousness or levity of the party at the time of utterance, properly determine the degree of consideration which is due to them(d). Where seriousness and sincerity appear, it does not seem material whether the evidence con