of kin. Rights of next case where one executor is clearly a trustee and the other is not? In this case, one is clearly a trustee. The Court will not admit When legacy parol evidence, where a legacy is given to an executor for his care and trouble (u). They have run much against the executors; and have even laid hold of the circumstance of a legacy, which is not the true criterion of the intention, to make the executor a trustee. I cannot possibly declare, that one executor shall be excluded and the other shall take." to executor for care and trouble. In May v. Lewin (v), Beatrice Miller, by her will in 1717, after payment of her debts, legacies, and funeral expenses, devised her lands and tenements, and the rents and profits thereof, and the produce of all her money and other personal estate, to the plaintiff and the defendant Lewin and their heirs, in trust to sell, and pay the interest of the money arising from the sale to her mother for life. The testatrix, after giving some small legacies to be paid after the mother's death, appointed the plaintiff and the defendant executors, giving them 50l. a piece for their trouble therein; and she made no disposition of the residue. The Court declared the executors to be trustees of the residue for the next of kin. Again, in Rachfield v. Careless (w), the testatrix being possessed of some personal estate, bequeathed to her nearest relations 51. a piece, and made the defendant Careless, who was not related to her, sole executor, giving him 51. for his care in fulfilling her will, and made no disposition of the surplus. There was some slight proof for the next of kin, who filed the bill for the surplus of the personal estate, as that the testatrix had declared her intentions to be, to give the surplus of her personal estate to her next of kin, in the same manner as her husband had disposed of the residue of his personal estate to his next of kin. But the person who drew the will, swore that the testatrix, at the time of making it, declared her intention, that if she left any surplus, her executor, who had been her very good friend, should have it, for that her relations had been ungrateful to her; and this person swore that the testatrix had directed him to give the surplus to her executor, and that he would accordingly have done this by express words, but that he thought it unnecessary, the law implying as much. Powis, J., for the Lord Chancellor: "The opinion of the Great Seal has been various and uncertain in this (u) Powis, J. of the same opinion, in the case of Rachfield v. Careless, (v) 2 P. Wms. 159, in notes. 1 to executor for trouble. point; but I do not like parol evidence of the intention, and here Rights of next we have parol evidence on both sides; however, the words of of kin. the will seem to declare a trust by giving the 57. legacy to the When legacy executor for his care in fulfilling the will, and this goes beyond care and all parol proof; so that my thoughts at present are, that the next of kin are entitled to the surplus; but as this has been determined different ways, I will take further time to consider of it, and to look into precedents." Upon another day, Powis, J., delivered his final opinion, observing, among other things, that the defendant was made executor in the same clause which gave him the legacy, whereby it should seem that the legacy was annexed to the executorship, as all the reward intended for it: and he decreed distribution among the next of kin (x). But if the legacy to executors for their “care and trouble" be a charge upon, or to be paid out of the produce of real estate, it should seem that that circumstance alone will not convert them into trustees for the next of kin (y). trustees, &c. ecutors named 3. Another class of cases, in which the executors have been 3. When exexcluded from taking the residue beneficially, and held trustees for the next of kin, is, where the testator expressly calls them executors in trust, or the residue is expressly given to them, or to one or more of them, in trust, and notwithstanding a declaration of trust is wholly omitted (z); or if not omitted, is void for uncertainty (a). Thus, in Pring v. Pring (b), a man made his will, and appointed A., B., and C. executors thereof in trust; and for a remembrance, and over and above their costs and charges, he gave them 20s. a piece. The bill was filed by the widow, alleging that her husband designed, and often declared, that she should have the benefit of his personal estate; but she being aged and infirm, he made the defendants executors in trust for her. One of the defendants denied the trust, but the other two confessed it; and it was insisted for the adverse defendant, that though the will called them executors in trust, and though it (x) See also Foster v. Munt, supra, 1686, and Dean v. Dalton, infra, 1705; Whitaker v. Tatham, 7 Bing. 628. (y) M'Clelland v. Shaw, 2 Scho. & Lefroy, 542, supra, p. 701. (z) See Milnes v. Slater, 8 Ves. 295. (a) Fowler v. Garlike, i Russ. & M. 232; Hoffman v. Hankey, 3 Myl. & K. 376. (b) 2 Vern. 99; see also Robinson v. Taylor, 2 Bro. C. C. 589; stated p. 528. Rights of next might be collected from the will that the executors were not to of kin. When executors named trustees, &c. have more than 20s. a piece, yet it was not ascertained for whom the trust was, and therefore it should be taken to be a trust for all who could claim under the Statute of Distribution, and not for the wife alone. The Court decided, that as the will declared that the executors were in trust only, without expressing for whom, the person might be averred; and that as two of the executors had confessed the trust by their answer, and it had been fully proved that it was the testator's intention, and that he declared the residue a trust for his wife, it was accordingly decreed to the plaintiff, with costs against the above defendant. In Bagwell v. Dry (c), trusts were declared of the residue, but a share lapsed: there the testator bequeathed the surplus of his personal estate unto four persons in equal shares; and made A. B. his executor in trust. One of the residuary legatees died in the life of the testator, and the question was, to whom his fourth part should belong? Lord Macclesfield, C., said, that the testator having devised the residue in fourths, by the death of one of the residuary legatees in his lifetime, that share lapsed, and was as so much of the testator's estate undisposed of by the will; that it could not go to the surviving residuary legatees, because each of them had but a fourth given to them in common, and the death of the fourth legatee could not avail them, as it would have done, had they been joint legatees; for then they would have taken by survivorship; but that, in this case, the residue having been devised in common, it was the same as if a fourth part had been devised to each of the four, which would not be increased by the death of any of them. That the lapsed share could not go to the executor, he being but a bare executor in trust; and, conse quently, that it must belong to the testator's next of kin, according to the Statute of Distributions, of which the executor was a trustee for them. 1 So also in Read v. Snell (d), trusts were declared. There the testatrix bequeathed the residue of her real and personal estate to her brother-in-law, William Snell, and Matthias King, her execu tors after named in trust; the trusts of which she then declared; and Lord Hardwicke said, that as the executors were made trustees, and therefore, from the nature of the thing, could take nothing for their own benefit, unless by particular bequest, they had no (c) 1 P. Wms. 700; also Bishop of Cloyne v Young, infra. (d) 2 Atk. 643, 645. ownership and therefore could not alter the interest of the cestui Rights of next que trusts. of kin. When execu tors named In Wheeler v. Sheer (e), reference was made to a subsequent disposition by codicil, which the testator neglected to make. By trustees, &c. a codicil to his will, he expressed himself thus: "Whereas I have by my will given the residue to my executors in trust, &c., now I do hereby direct and appoint, that the same shall be applied to such uses and purposes as by any other codicil or codicils shall be directed and appointed." The testator made a subsequent codicil, but made no disposition therein of his residue; and the question was, whether the executors or next of kin were entitled; and Lord King, C., decided that the executors were trustees for the next of kin. Again in Dean v. Dalton (f), Ann Joyce, by her will made in the lifetime of her sisters, Ann Bewnell and Martha Robinson, bequeathed to the defendants, F. Dalton, and W. Dansey, all sums of money which she should die possessed of in the public funds, after payment of her debts, &c., to certain uses; she also gave to F. Dalton and W. Dansey, for their trouble in the trusts reposed in them, 1007., and appointed her two sisters executrixes. Ann Joyce, after the death of her sister, Martha Robinson, but in the lifetime of Ann Bewnell, made a codicil to her will, in which, after taking notice of the death of Martha, one of her executrixes, she appointed the defendants, F. Dalton and W. Dansey, "joint executors with her surviving sister, Ann Bewnell, executrix,” and ratified her will in all respects not altered by the codicil; she also directed that her executors should be paid all expenses, journies, and charges which they should occasionally be put to in the execution of her will and codicil; and that they should not be answerable for each other's default. Ann Bewnell died before the testatrix, who soon afterwards died; upon which the defendants proved the will of Ann Joyce, and took administration to Ann Bewnell. The plaintiffs, the next of kin of the testatrix, claimed her residuary estate, insisting that the defendants took as executors in trust only; on the contrary, the defendants claimed the surplus, as surviving executors; no legacy being given to them by the codicil, in which they were appointed executors with Ann Bewnell, and the legacies which were given to them by the will, were so given them only for their trouble in the trusts reposed in them by such will. Lord Thurlow, C., said, "Executors are never paid for trouble and journies, &c., the legacies are their of kin. Rights of next reward. Here they must be paid for their journies, as other persons are, not merely the money out of the pocket. There is When execu- nothing in the argument that it was to give them a prior charge for their expenses, as they must come out of the residuary fund; putting in the words, therefore, is a demonstration of her intention to make them trustees." tors named trustees, &c. 4. Where residue bequeathed to executors on trust, not exhausting the whole fund. The reader is here also referred to the case of M'Cleland v. Shaw (g), before stated (h), and in which the testatrix called her executors "executors and trustees." A legacy of 20%. was given to each of them, "in compensation of the trouble they might have in the execution" of her will; and the testatrix directed it to be paid, with other legacies, out of the money arising from the sale of her real estate. There was no surplus of the personal estate, after payment of debts, &c.; and Lord Redesdale, not considering there was sufficient indication of intention to raise a charge on the real estate for the benefit of the next of kin, decreed the personal estate to be applied in payment of debts, &c., as far as it would extend; and that the executors were trustees of the surplus of the money produced by the sale of the real estate, (subject to the charges imposed by the will), for the heir-at-law. 4. It should seem to have been the better opinion, though the subject appears to be attended with some doubt, that the executors were equally excluded, where there was a general bequest of the residue of the personal estate upon trusts which were not sufficient to exhaust the whole property; and that, in such case, the next of kin would have been entitled to the surplus; unless, indeed, it appeared that the testator named the executors trustees, only with reference to a specific purpose, and did not consider them as trustees generally. In Robinson v. Taylor (i), before cited for another point, the testator, after giving several legacies, devised the residue of his real and personal estates to his "executors thereinafter named, in trust to sell the real estate, and place the produce at interest, and pay thereout and out of the remaining part of his personal property," a particular annuity. He then gave other annuities and legacies, directing the remainder of the money which should be then at interest to continue so; and he merely disposed of it during the life of his cousin, Mary Stuart, for her separate use; (g) 2 Scho. & Lefroy, 538. (h) Page 701. (i) 2 Bro. C. C. 588; 1 Ves, jun. 44, S. C.; see also Chap. IX. sect. 1. p. 528. |