A provision for the executor's indemnity, or a [*]general direction for his conduct inconsistent with the supposition that he takes a private interest in the residue, is likewise esteemed presumptive evidence of his sustaining only a fiduciary character. Thus it has been held, that provisions for reimbursement of expenses incurred in journies, &c. (a), in remitting legacies to residents abroad (b), or against liability for losses from placing out the estate on insufficient security (c), are demonstrative of intent to impose merely a charge. A direction to keep accounts has been also considered to furnish a similar inference (d). Where executors are appointed to act within a certain district and for the performance of a particular duty only, there the rule is to hold them trustees : the appointment being confined to the attainment of a single object affords a clear presumption against their being designed to derive advantage from it. This was decided in a case, where a testator having property both in England and India appointed different executors to act in each country, ordering the executors in India to collect his effects there, and transmit them to the executors in England (e). C. 634, . (b) Urquhart v. King, 7 Ves. 225. (c) Woollett v. Harris, 5 Madd. 452, 7. Cox; Davers v. Dewes, 3 P. Wms. 56, (d) Gladding v. Yapp, 5 Madd, (e) Sadler v. Turner, 8 Ves, [*157] Another particular relied on as indicative of the testator's intention, is the fact of the executors being nominated, not from motives of personal regard, but on account of the occupation they follow, or the [*]station they hold in society: whence, especially if the selection contribute to facilitate the objects immediately in view, an inference is considered deducible, that the office was not meant to be productive of benefit. Thus, where a testator appointed a partnership in London (not individually, but as a firm-the house of P. and Co.) executors, and also guardians of his children, Lord Rosslyn decreed the residuary estate to go to the next of kin. No man, said his Lordship, could be absurd enough to make a partnership executors in order to take beneficially; though it is very plain that they are fit to conduct the office and if probability be consulted, how much more likely is it, that the testator should intend persons he knew to take the residue, than the members of a partnership who may at his death be composed of very different individuals from those at the date of his will (a). So, in a later case, where the American ambassador, or such person as at the time of the testator's death should be the American ambassador, was appointed executor; Sir W. Grant, M. R. held that circumstance, coupled with others of like significancy, to be evidence of intention to confer a trust only. The appointment of the ambassador, his Honor observed, was not in his individual capacity as a friend, but in that of minister from the United States (b). (a) De Mazar v. Pybus, 4 Ves. 644. (b) Urquhart v. King, 7 Ves. 225. See also 12 Ves. 309. Where the intent to make the executors trustees is sufficiently apparent, slight circumstances which might [*]otherwise call for a contrary construction, will not exclude the next of kin. Therefore, where an executor was appointed evidently because an executor was thought necessary to carry the will into effect, it was held, that a request to him "to make such little arrangements as he had reason to think the testator wished," did not necessarily imply, that he was to take the residue to his own use; for if the testator knew what the duty of an executor was, he must also have known, that it was proper to address to him every testamentary request he might have to make (a). In a late case, the testator gave the whole of his property both real and personal to his executors, directing the rents and profits, "together with the interest of any money in the public funds," to be applied for the benefit of his daughter during her life, and that if she was not molested by her husband (from whom she lived separate), the real estate after her death should become absolutely his; but that in case of his noncompliance in that point, the executors should dispose of it, at their discretion, among testator's relatives. The will then proceeded,-" And should I leave any money in the public funds, I direct that one-half of it shall go and be subject to the same conditions as the other property for the benefit of my daughter, and after her decease to go to her husband, and the other half to be disposed of by my executors as they may judge right; but in case of my son-in-law's decease, then I direct the whole of my property shall go and be applied for the benefit and support of my daugh (a) Lord Cranley v. Hale, 14 Ves. 307, 312. ter." On a claim [*]by the executors to a beneficial interest in one-half of the funded property, under the clause directing a moiety to be at their disposal as judged right (a), Sir T..Plumer, M. R., conceiving that the testator's clear intention was to give all his estate to the use of his daughter for life, and the absolute interest in reversion on a contingency declared that the demand of the executors could not be sup ported (b). But it must be observed, that the rule which prevents executors who are expressly constituted trustees from appropriating to their own use the undis posed of residue, is limited to those cases where the trust extends to the whole personal estate. Where the trust is partial, affecting only a particular portion of the property which the testator has separated from the rest, as where certain sums are directed to be applied to given purposes, a different construction prevails. There, the nature of the trust affording no decisive inference against the claim of the executors generally, they will be entitled to stand on their legal rights (c). And the principle, that executors who as such take a beneficial interest in the residue are entitled to every accession to that residue, applies even to those legacies or sums of which they have been expressly named trustees in the will. If these legacies should by lapse or otherwise so fail that in ordinary cases they would become residue, the nomination of the executors as trustees of such (a) See on this point the cases cited infra, p. 162. (c) Batteley v. Windle, 2 Bro. C. C. 31; Pratt v. Sladden, 14 (6) Munyard v. New, 3 Swanst. Ves. 193; Griffiths v. Hamilton, 119. 12 Ves. 298. [*]legacies will not be sufficient in that event to exclude them from taking therein a beneficial interest also; for if executors be not altogether excluded, they occupy the place of residuary legatees to all intents and purposes, and take every thing that becomes residue,-no matter how given originally (a). It is further observable, in cases of this description, that provisions for reimbursing the executors' necessary expenses, or for indemnifying them against involuntary losses, will not prejudice their title. For although such provisions would be unnecessary in the general terms in which they are expressed, if the parties were meant to take beneficially, the answer to that is, that no reliance can be placed upon clauses merely unnecessary, many clauses of that kind creeping into wills even when inartificially drawn: besides which, the directions in question may, with much reason, be confined to the trust funds, so as to make them bear their own proper charges (b). With this may also be connected the remark, that legacies to the executors for their trouble in a distinct and independent trust have never been adjudged to exclude them from the surplus, such legacies being manifestly unconnected with the office of executor (c). The inference is still stronger, where the legacies are directed to be paid out of the testator's real estate (d). Care must likewise be taken to distinguish between cases where a bequest is made to executors in trust to [*]pay debts, legacies, &c., in general terms,— (a) See 14 Ves. 199, 200. See also Wilson v. Ivatt, 2 Ves. 166. (b) See 14 Ves. 200, 201. (c) Dix v. Reed, 1 Sim. & Stu. 237. (d) M'Cleland v. Shaw, 2 Scho. & Lefr. 538. |
