which, as has been before noticed, will defeat their legal title to the residue,-and cases where the bequest is "in trust in the first place to pay, and charged with, debts, legacies, &c." In instances of the latter sort, if the trust do not exhaust the whole property, the executors will take beneficially, the construction being, that subject to the charge specified, an absolute gift was intended (a) (1).

Another distinction is to be taken between a gift to executors of the whole personal estate expressly in trust, but for an indefinite purpose, and a gift to them, which, though for an indefinite purpose, is not distinctly declared to be in trust. In the former case, the uncertainty of the objects to be benefited makes the trust void, and the declared intention to give in trust at the same time prevents the executors taking beneficially. In the latter, from the indeterminate nature of the testator's purpose, the court concludes that a proper trust could not be intended (b). Thus, while a bequest in trust for "objects of public or private charity to be selected at pleasure," confers on the executor no personal interest, though the trust be void (c); a bequest to such persons or for such purposes as the executor "shall in his discretion think fit," gives him the property absolutely (d).

(a) Dawson v. Clark, 15 Ves. 260, 270, et seq.; Vesey v. Jam409; 18 ib. 247. son, 1 Sim. & Stu. 69.

(b) See 2 Ves. and Be. 298. (c) Morice v. Bishop of Durham, 9 Ves. 399; 10 Ves. 522; Ommanney v. Butcher, 1 Turn.

(d) Gibbs v. Rumsey, 2 Ves. & Be. 294. See also 14 Ves. 370; and 3 Swanst. 119, 121, 129.

(1) See Schomber v. Jackson, 2 Wend. 14.

[*]To the preceding exceptions from the general rule it may be added, that where, after the gift of particular legacies, an actual bequest of the residue is made to the executors, they will be adjudged beneficially entitled, notwithstanding their having been denominated trustees as to the whole of the testator's estate in a former part of the will (a).

II. The second division of cases in which executors are excluded from the residue, is where the testator has manifested an intention to give it wholly away to others. And the reason for this exclusion, though the intention becomes impossible to be effectuated, is, that still the testator's mind is sufficiently shown not to make the executorship an office of profit.

First, as tending to this conclusion, may be mentioned the circumstance of the residuary estate being in express terms bequeathed to a person who dies before the testator. In this instance the original appointment being obviously only to the office, the casualty of the lapse cannot, with reasonable fairness, be construed to restore the executor's beneficial interest. The principle of course is the same, whether there be only a single residuary legatee (b), or a plurality claiming as tenants in common: in the former case, if the party solely entitled die, the entire estate-and in the latter, if one or more of the co-tenants die, his or their particular [*]shares-devolve to the next of

(a) Parsons v. Saffery, 9 Price, 578. See also infra, p. 179.

(b) Bennet v. Batchelor, 3 Bro.

C. C. 28; 1 Ves. jun. 63, S. C.; Nicholls v. Crisp, Amb. 768. Contra, Anon. 2 Freem. 105.

kin(a). The latter branch of this rule applies as well where the residue is given beneficially to the executors to take as tenants in common, as where it is bestowed on strangers (b).

The fact of the residue being given to trustees upon trust to apply it to purposes, which either as being superstitious or otherwise are contrary to public policy, or are so general and undefined in regard to the parties to be benefitted that the court cannot carry the trust into execution, may next be instanced as barring the claim of the executor. The argument here seems stronger than in the preceding case. There, from the testator's not making a new disposition after the lapse occurred, a supposition might be entertained, without any real violence to probability, that the object of favour being removed, the party no longer had a wish to separate the office from its advantages. But, in the present instance, the intention clearly remains unaltered (c).

(a) Page v. Page, 2 P. Wms. 489; Mose. 42; 2 Stra. 820, S. C.; and see observations thereon, 2 Ves. 98-9; 1 Ves. jun. 67, n.; Painter v. Salisbury, 2 Ves. 93, cited; 1 Ves. jun. 66, S. C. cited, (b) Ibid.

(c) Morice v. Bishop of Durham, 9 Ves. 399; 10 Ves. 522; Ommaney v. Butcher, 1 Turn. 260, 270, et seq.; Vesey v. Jamson, 1 Sim. and Stu. 69. In these cases, it is true, the executors themselves were the trustees. But it is conceived, that that circumstance is not material. If the residue be given

to strangers, though for purposes which cannot be effected, the intention to exclude the executors is not less clear than if the trusts were such as could be carried into execution and it is that intention which in the class of cases now under consideration, forms the main principle of decision. It must also be remarked, that in Morice v. Bishop of Durham, the bequest was not to the Bishop in his character of executor; which, if Lord Eldon's doctrine in Dawson v. Clarke (18 Ves. 253-5) be correct, makes that case an authority in

[*]Where a testator declares it his purpose to dispose of the residuary estate by a subsequent instrument, there the legal claim of the executor cannot be sustained; for, notwithstanding that the disposition contemplated be never made, the declaration of itself is still sufficient to show, that the residue was not meant to pass by virtue of the will, and consequently not by the appointment of executor (a). A gift of the surplus in trust to be applied to such uses as the testator should mention in a codicil (b), or according to private instructions which he should furnish (c), will, in like manner, disappoint the legal right of the executor to the beneficial interest. So, if a testator, after having executed a will which does not contain any residuary bequest, directs a codicil to be prepared, or begins a codicil himself, to supply the deficiency; since this also plainly evinces the apprehension of the testator, that by the appointment of an executor he had not made a complete disposition of his property (d). Instructions to a solicitor for an entire new will, directing particularly a residuary clause to be introduced, have been likewise held sufficient to show the mind and understanding of the party, and to mark an intention favourable to the executor (e).

An inchoate purpose to appoint a residuary legatee

point for the proposition in the decided on the same principle. (c) Mordaunt v. Hussey, 4

text.

(a) Davers v. Dewes, 3 P. Ves. 117. Wms. 40.

(b) Wheeler v. Sheers, Mose. 288, 290; and 15 Ves. 414. See also Cook v. Duckenfield, 2 Atk. 567, and Sherrard v. Lord Harborough, Amb. 165,-as being cases

(d) Nourse v. Finch, 1 Ves. jun. 344; 2 ib. 78; 4 Bro. C. C. 239, S. C.

(e) Langham v. Sandford, 17 Ves. 435, 453; affirmed 19 Ves. 641; 2 Mer. 6.

is also relied on as affording a presumption against [*]the demand of the executor. To this, indeed, it has been objected, that the executor himself might possibly be the person intended to have been nominated, and that therefore, while such doubt exists, the executor's legal right ought to prevail. But admiting that it might have been the testator's intention to give the residue to the executor, it is still evident, that he did not intend it should go to him by virtue of his office, but as a substantive and independent bequest. In this uncertainty the residue results to the next of kin (a).

Cases which have been held to come within this principle are the following: first, where there is a residuary clause formally expressed, but the name of the legatee is omitted (b): secondly, where after commencing a general and comprehensive residuary clause, the testator proceeds to give certain fractional portions of the surplus, but fails to give all (c): thirdly, where a residuary clause is begun, but before its completion the will abruptly terminates (d) and fourthly, where the will, though containing no direct allusion to the residue, breaks off suddenly after a disposition of particular parts of the testator's estate, without any expression signifying that the will is completed, and without the subscription of the party. In the latter case, the probability under the circumstances is, that the testator while engaged in writing

(a) See 2 Ves. 99.

(b) Lord North v. Purdon, 2 Vcs. 495. See also 15 Ves. 414. (c) Oldham v. Carleton, 2 Cox,

399.

(d) Bishop of Cloyne v. Young, 2 Ves. 91; Nevil v. Parker, ib. cited, 93, 100; Knewell v. Gardiner, Gilb. Eq. Ca. 184. See also 18 Ves. 352.