SECTION VI.

Of the presumptive Trust in the Executor for the next of Kin of the Testator as to the Surplus undisposed of by the Will.

AN executor, to whom a legacy is given, is generally, by the equitable presumption raised by that circumstance, deprived of the benefit of his legal title; and becomes a trustee of the surplus, undisposed of by the will, for the nearest of kin to the testator; which is a presumptive construction, arising out of the instrument itself, and resting on an implied exclusion from the whole, by a specific gift of part (1).

(1) A similar question sometimes arises in the case of a devise of real property, where the estate is devised subject to various charges and partial dispositions of the rents and profits, but without any express disposition of the beneficial residue: viz. whether such residue is to remain with the devisee, or to become a resulting trust for the heir at law. This was the point in the late case of King and Denison, 1 Vez. and Beames 260. in which the court, collecting the intention from the whole of the will, construed it a beneficial devise, and not a resulting trust.

His Lordship observed, that the principles applicable to the case were well settled. He adopted those expressed in Hill v. the Bishop of London, 1 Atk. 618. as affording the grounds upon which Lord Hardwicke proceeded. The distinction, his Lordship said, upon which the court had gone, was this. If I give to A. and his heirs all my real estate, charged with my debts, this is a devise to him for a particular purpose, but not for that purpose

The question, as to the admissibility of evidence to rebut this presumption, will only properly arise where the legacy to the executor is accompanied by no particular words, denoting in a special manner, the intention of the testator; for there may be cases,

only. If the devise be upon trust to pay my debts, that is a devise for a particular purpose, and nothing more. The former is a devise of the estate of inheritance, for the purpose of giving the devisee the beneficial interest, subject to a particular purpose; the latter is a devise for a particular purpose, with no intention to give to the devisee the beneficial interest. This, he observed, was the meaning of the several passages in Hill v. the Bishop of London, and other cases before Lord Hardwicke, who marked the distinction that the word trust was not made use of. That was a circumstance to be attended to, but nothing more. If the whole frame of the will created a trust, for the particular purpose of satisfying which the estate was devised, the law was the same, although the word trust was not used.

The case just adverted to turned mainly upon the distinction between a direct trust and a charge, or a devise upon trust and a devise subject to a charge; though in equity these objects are enforced in the same way. And it was considered by the court to be very clear that a devise, after a direction that all the debts should be paid, amounted only to a charge. This, then, was the ground of the decision, though the court gave some weight to the circumstance that the devisees were infants, and that it was difficult to consider an infant as intended to be a trustee; and also to the fact that the heir took a benefit under the will. In general, however, a legacy to the heir has not been considered as sufficient to defeat his title to the real estate undisposed of. See Kellett v. Kellett, 1 Ball and Beatty, 543. And where the question was upon the construction, whether the real estate passed under the word ef fects in the residuary clause; and there was nothing positive in the will to shew that real estate was intended to be included in the term; the reversion in fee was held to descend to the heir, although he had a rent-charge devised to him for his life, out of the same estate. See Camfield v. Gilbert, 3 East, 516.

as Rachfield v. Careless (2), wherein the language whereby the legacy is given, may carry the presumption so high as to place it on a level with an explicit declaration, and above all parol proofs to the contrary. Mr. J. Powis, who sat for the Chancellor, in the last-mentioned case, declared his ge

(2) 2 P. Wms. 157. in which case a legacy of 51. was given to the executor for his care in fulfilling the will. Vide May v. Lewin, 2 P. Wms. 158. n. 1. and the numerous distinctions on this subject in Mr. Coxe's note to Farrington v. Knightley, 1 P. Wms. 549. and the cases in the note at the end of Nisbett v. Murray; see also Abbott v. Abbott, 6 Vez. Jun. 225. and the cases therein cited. From the whole of which it appears, that a legacy will not take away an executor's right to the surplus, unless such legacy is inconsistent with the supposition that he was meant to take the whole. But the executor is always excluded where the words of the will indicate an intention to impose a burthen rather than to confer a benefit, whether there be any legacy given to the executor or not. Urquhart v. King, 7 Vez. Jun. 225. Selley v. Wood, 10 Vez. Jun. 71. Where an executor had a legacy for his trouble, parol evidence was admitted on behalf of his co-executrix, an infant, to rebut the presumption for the next of kin. Williams v. Jones, 10 Vez. Jun. 77. And the Chancellor decreed to the infant the whole residue. In the case of White and Evans, both the executors had legacies, and the legacy to one was for his care and trouble, but no evidence was offered in favour of him whose legacy was not said to be for his care and trouble, 4 Vez. Jun. 21. Unequal legacies given to executors by their own names will not exclude them from the residue, 1 Bro. C. C. 328. and see Griffiths v. Hamilton, 12 Vez. Jun. 298. and Rawlins v. Jennings, 13 Vez. Jun. 39. A legacy to the next of kin does not exclude such next of kin from his title as such, 10 Vez. Jun. 74.

If a testator shews an intention to give the residue away from the executors, though the bequest fails the executor is excluded, as where the testator gives it in the manner he shall appoint, and he makes no appointment, or where a blank is left for the residuary devisees, the executors are not entitled. And a general bequest upon trusts, not sufficient to exhaust the whole property, raises a trust for

When a legacy takes away an execu tor's right to the surplus.

neral repugnance to admit parol evidence in opposition to this equity for the next of kin, and stated it to have been a vexata questio, on which there had been the greatest variety of opinion in all the tribunals in which it had been agitated.

It seems that in the earlier cases, the hesitation in

tinction be

dence to raise and

to rebut an equity.

the next of kin. If, however, a particular legacy lapses, or is void, it falls to executor where he is entitled to the surplus; for the rule is, that executors take the residue precisely in the same plight as a residuary legatee. Dawson v. Clark, 15 Vez. Jun. 409.

It is to be observed, that in the case of Rachfield v. Careless, evidence seems to have been admitted in favour of the next of kin, upon which Mr. Coxe remarks, that it appears to be the only case in which parol evidence has been admitted in favour of the next of kin. Nothing, indeed, is more obvious than the distinction beOf the dis- tween raising and rebutting a presumption or an equity, for the tween ad- former of which objects, parol and extrinsic evidence can never, mitting evi- without great violation of principle, be admitted; but the equity ought first to be raised by the presumptive construction of the instrument, to which equity parol evidence may be opposed; and then I conceive it follows upon sound maxims both of law and equity, that parol evidence may likewise be adduced in opposition to this rebutting evidence, and in support of the original presumptive equity. And this, I apprehend, has always been the rule of proceeding; so that the observation of the learned editor just alluded to, must be understood as adverting only to the inadmissibility of parol evidence, in the first instance, and for the purpose of raising the equity for the nearest of kin, against the legal title. Indeed, the parol evidence, in the case last-mentioned, for the next of kin, seems to have been superfluous, since the presumption against the executor, from the particular language of the bequest to him, was so strong as to amount to a declaration by the will itself. The last case in the books upon this subject, is the case of Langham v. Sandford, 17 Vez. Jun. 435. which agrees with all that has before been said in this note, and though in that case the particular legacy given to the executor was accompanied

admitting parol evidence to repel this trust for the next of kin, arose in a great degree from the doctrine that in courts of equity an executor was not to be considered as any thing more than a trustee (3). · But since the case of Foster v. Munt, an executor has been uniformly regarded as entitled to the whole undisposed of residue, unless there is a violent presumption to the contrary, which, a legacy given to him by the testator, without any disposition of the surplus, was by that case considered as affording.

Buller's

It would be endless to enumerate the cases upon Mr.Justice this subject (4), but it may be useful to observe that observa

tions on the

by an exception of part of the property which was the subject of it, and which part, not being otherwise disposed of, would have fallen into the residue, and so have defeated the testator's purpose, considering the legacy not as an exclusion, yet such exception was not held to afford any inference in prejudice of the executor. The case was, however, decided against the executor, on account of the weakness of the evidence which was adduced on his side. Upon the whole, it may be stated, that the leaning of courts of equity is strongly against the executor's being excluded by having a particular legacy bequeathed to him; and in the recent case of King v. Denison, 1 Vez. and Beames 278. it was observed, by the present Chancellor, that the doctrine had given so little satisfaction that case upon case had occurred paring down its application, until it was not easy to say upon what foundation it stood.

(3) See the case of the Duke of Rutland v. the Duchess of Rutland, 2 P. Wms. 212. and the observations of Powis J. in Rachfield v. Careless, 1 P. Wms. 548. That an executor and administrator having paid all debts, legacies and funeral expences, was compellable to divide among the next of kin, was a proposition in 2 Inst. 33. inadvertently laid down.

(4) In Clennell v. Lewthwaite, 4 Vez. Jun. 471. which was