trusts, not ex and declared no other trusts. The testator appointed James Rights of next Taylor and Richard Guest, exccutors of his will, "hoping they of kin. will see the same duly performed," with the common clauses as to Where residue bequeathed to their receipts being discharges, and for their indemnity and reim- executors on bursement. By a codicil, the testator gave to James Taylor, one hausting the of the executors, a legacy of 1007. Upon the question between whole fund. the heir and next of kin, to whom the surplus of the real estate, and between the executors and next of kin, to whom the surplus of the personalty belonged, Lord Thurlow, C., decided in favour of the heir, as to the surplus of the real, and in favour of the next of kin, as to the personal estate (j). Lord Eldon observes (k), upon the above case, "that it would be very difficult to argue upon that mixed devise and bequest, that if the residue of the real estate formed a resulting trust for the heir, the residue of the personal estate would not be so for the next of kin." The subject under consideration was discussed in the case of Dawson v. Clark (1). In that case (m), George Forster bequeathed all his estate and effects whatsoever and wheresoever that he should die possessed of, to John Wealleans and Robert Clark, their heirs, executors, administrators, and assigns for ever; upon trust, in the first place, to pay, and charged and chargeable with all his debts, funeral expenses, and also the legacies to the several persons thereinafter bequeathed. The testator, among other legacies, gave 1,2007. for establishing a free school, the said sum to be laid out by his "executors thereinafter named" on freehold property, &c.; and he appointed Wealleans and Clark joint executors. The next of kin filed their bill, insisting that the legacy to the charity was void, and claiming the residue as undisposed of. The executors claimed the residue of the personal estate in two characters; first, as expressly devised to them individually, subject only to the payment of debts and legacies; but if not so devised, secondly, as undisposed of; and, therefore, belonging to them in their character of executors. Sir William Grant expressed his opinion that, though the first point should be decided against the executors, the second must be decided in their favour; and he decreed, that (j) See Mr. Belt's note to the above case, 588, and his citation from the Registrar's book, p. 593, n. (k) 18 Ves. 254, in Dawson v. Clark, upon appeal from the Rolls. (1) 15 Ib. 409; 18 Ib. 247. (m) 15 Ib. 409; Sir William Grant, in the course of his judgment, distinguished the case before him of kin. bequeathed to executors on trusts, not exhausting the whole fund. Rights of next the executors took the whole residue, including the 1,2001. Upon the question, whether that sum should be included, his Honor Where residue observed, "I have always understood, that a general residue of personal property comprehended every thing, not otherwise effectually disposed of by the will; and that there is no difference, whether a legacy falls into it by lapse, or as being void at law; and it was not much contended, that, where there is an express bequest of the residue, the next of kin can be entitled to anything. It is, however, supposed, that there is a distinction between residuary legatees, by express bequest, and executors, taking a residue, undisposed of. I am not able to find any such distinc tion. It lies upon those, who insist upon it, to shew that it is established. I see that in the case of Pratt v. Sladden (n), I declared my opinion, that executors, taking the residue, take it precisely in the same plight as residuary legatees would take it; and to that opinion I still adhere." From the preceding case there was an appeal to Lord Eldon (0), who dissented from Sir William Grant in his construction of Robinson v. Taylor, and referred to other ingredients in that case, which would influence the decision. His Lordship then proceeded thus: "The proposition, that the appointment of executor gives him every thing not disposed of, is not correct. In the strongest way of putting that, it can only be what the testator does not mean to dispose of; in the case of lapse, for instance, though not disposed of, the executor would not take it: so, suppose that the testator appoints an executor in trust, but does not express his object, he might have relinquished that object, meaning it to go to his executor: yet, in that instance, the will expressing that he intended a trust at that time, the executor would not take in respect of the interest he had by virtue of his office. The difficulties I feel are, first, that I cannot think the distinction between this case and Robinson v. Tayor maintainable: secondly, that if the case is to be decided upon the latter ground, I do not apprehend the law of this Court to be, that, if personal property is bequeathed upon trust, and the trust does not exhaust the whole, therefore the executor shall take what is not required for the trust. There is no decision so settling the law. The decisions are the other way. Where, however, the will affects to dispose of both real and personal estate, if the law has been, as it will, I think, turn out, that the trust not exhausting the whole real estate, the devisee will not take beneficially, but 1 bequeathed to executors on trusts, not exhausting the whole fund. a trust results to the heir, in the same case it will not be found Rights of next that the executor can take for his own benefit the surplus of the of kin. personal property; that gift to be operated by the mere effect of Where residue the nomination of him as executor; and I am not aware of any case where it has been said that if the whole personal estate is given to A. as trustee, who is afterwards appointed executor, he shall take beneficially, as executor, what he does not take for the purposes of the trust, he being the legatee of that personal property: that is, there is no case in which the nomination of executor operates as a gift of the personalty beneficially in equity to him, the will containing a bequest of the whole personal estate; and there is no difference whether that is a bequest of the whole personal estate to him, or to another individual. The ordinary case of lapse, that the executor will not take, though the subject is not given to any one else, proves this; that if these legatees had not been the executors, the executors clearly would not have taken the personal estate given to these legatees; and then the question is, whether they shall take it, as they are the executors, though they would not if other persons were the executors. The first point, therefore, is very material, upon which I have not the benefit of the opinion of the Master of the Rolls; and, as to the second, if the judgment cannot be put upon any other ground, I cannot at present say, I am satisfied with the principle upon which it is decided." Upon a subsequent day his Lordship observed: "My great difficulty in this case is not upon the effect of a devise and bequest of real and personal estate to trustees upon trusts, those trusts expressed not exhausting the whole interest; a case upon it is very difficult to maintain; that, as they are afterwards named executors, they are to have what is not exhausted of the property they take as trustees; but the difficulty I feel is, whether I am to construe the words " upon trust" to mean "charged and chargeable," or "charged and chargeable" to mean " in trust." As the Master of the Rolls, however, seems to have laid so much stress upon Robinson v. Taylor, I will see the Registrar's book." And, finally, his Lordship affirmed the decree, observing, "The question is, whether upon the whole will this is to be taken as a devise and bequest to these executors, with reference to their office, upon trust to pay; or as giving them the absolute property, subject only to a charge; and I think the latter was the intention" (p). (p) See Sir William Grant's observation upon the above case in Southouse Rights of next of kin. bequeathed to executors on trusts not ex hausting the whole fund. Again, in Southouse v. Bate (q), the testator, after giving two legacies of 100%. each to John Forbes and Myra Southouse, to be Where residue paid over by them to certain charitable institutions, and equal legacies of stock to them for mourning, also bequeathed to them all his property, both real and personal, " upon this especial trust, that they pay regular the following annuities." And after giving several annuities, and making other bequests, he proceeded thus: "I do hereby appoint John Forbes, my brother-in-law, and Myra Southouse, spinster, my sister, both late of Northampton, executors of this my last will and testament, and their heirs, executors, and administrators, upon this especial trust and confidence, that they devote all my property, both real and personal, to payment of my just debts, and all the legacies and annuities given by me in trust to them. The executors claimed the residue in equal moieties. For the next of kin it was contended that the whole property being given expressly upon trust, though the trust declared is confined to a particular part, it was impossible to separate the trust from the devise. Sir William Grant thought it was impossible the devisees could take any part beneficially; and after observing that a distinction had been attempted to be made, with respect to the personal property, in favour of the executors, on the ground of his opinion in Dawson v. Clark, his Honor added: “But there is no opening for the discussion of such a question here as these persons are expressly appointed executors in trust, and equal stock legacies are given to them: and, though these are for mourning, that has been in some cases held sufficient to turn executors into trustees. They are, therefore, trustees both of real and personal estate; and all the co-heiresses are entitled to the one, and the next of kin to the other." To the preceding cases that of Woollett v. Harris (r) may be added. There Catherine Collins bequeathed all her estate and effects whatsoever to Robert Harris and George Lloyd, and the survivor, his executors, administrators, and assigns, upon trust, after several specific dispositions, as follows: "To my good friend Robert Harris, my executor, I bequeath the sum of 50%, and to George Lloyd, my other executor, I give and bequeath all my plate, linen, china, and household furniture of every description whatsoever, save and except such as I may hereafter specify in a codicil to this my will:" and, after directing her executors to retain their costs, and declaring that they should not be account v. Bate, next stated; see also Wood (q) 2 Ves. & Bea. 396. of kin. trusts not ex able but for wilful default, and after payment of her debts, the Rights of next testatrix gave the residue of her estate to her executors, upon trust to pay the proceeds to her brother, Joseph Collins, for life; Where residue and if he should leave issue, to them. The testatrix appointed executors on bequeathed to Robert Harris and George Lloyd executors: and by a codicil gave busting the to a legatee certain specific articles. Joseph Collins survived the whole fund. testatrix, and died without issue. The question was, whether the executors took the residue beneficially: and Sir John Leach, V. C., decided that they were trustees for the next of kin, observing, "Taking all her estate and effects to have been, in the first place, given to Harris and Lloyd upon trust, or as mere trustees, the construction of this clause is, that after the trustees have satisfied the legacies, debts, testamentary and funeral expenses, they are then to execute certain trusts as to her residuary estate. It has turned out that the trusts so declared have not exhausted the residuary estate; but considering that the true effect of this will is, that the executors are to take the whole estate and effects upon trust, they are necessarily excluded from all beneficial interest in any part of it, and my decree must be, that as to this residuary estate, they are trustees for the next of kin" (rr). executors trus tees only for a specific pur But where the executors were called trustees, with reference Secus, where only to specific trusts, and the intention to exclude them was not otherwise apparent, their legal right would prevail against the next of kin, of which the following case of Pratt v. Sladden (s) is an instance. There, John Cloke devised a real estate to Elizabeth the wife of Thomas Simmonds, for life; with remainder to William Sladden and his heirs; and after giving to William Sladden, his executors, &c. 8007. and other legacies to his nephews, bequeathed to the children of his late nephew Hughes, the sum of 2007. and directed that the said William Sladden and Thomas Simmonds, thereinafter named and appointed, should place out the same at interest for their benefit, the interest to accumulate during minority, and from time to time to be made principal by "his said trustees;" and that "his said trustees," should divide the said legacy when the eldest child should attain twenty-one. After other legacies, the testator gave 400l. to the said William Sladden and Thomas Simmonds and the survivor, his executors, &c. upon trust (rr) Sir John Leach, in the course of his judgment, referred to the case of Dawson v. Clark, and observed that that case did not govern the one before him; see also Rhodes v. Rudge, 1 Sim. 79, 87; Mullen v. (s) 14 Ves. 193; see also Dawson pose. |