held otherwise, and it may perhaps be doubted whether such doctrine would now be followed.b

d

Every gift of land, even a general residuary devise, is specific; and a devise of a rent-charge out of a term is as much a specific devise as if it had been of the term itself. The same has been said of a mere sum of money given out of a lease for years, and that if the lease determines, the legatee shall not resort to the personal estate; yet in a subsequent case a legacy to be paid by the devisee of a farm was held (the L. C. Baron dissentiente) not specific.' In a gift of personal and real estate, the personal will not be specific, because combined with the real, which must be taken to be specifically given." And a bequest to be laid out in land and settled is a pecuniary legacy, the direction to apply it to a specific purpose not making the gift itself specific. So if a man gives the sum of 50l. for a ring, it is pecuniary. As the word legacy, if there is nothing to confine it, takes in all sorts of legacies, a bequest of the residue amongst the several legatees before-named, in proportion to their several legacies, was held to include specific legatees, even those to whom mourning rings only were given. But where a testator gave the residue among his said relations, in the proportion he had bequeathed the other part of his fortune:

• Bronsdon v. Winter, Ambl. 57. b See Simmons v. Vallance, 4 Bro. 345. Sibley v. Perry, 7 Ves. 522; but see Fontaine v. Tyler, 9 Pri. 94.

7 Ves. 147. 399. 8 id. 305. 10

id. 605. 1 Ves. & B. 175.

d 1 P.W.403.

Anon. 2 Freem. 22. Morgan v.

Morgan, Finch. Ch. Ca. 464.

k

8 Howe v. E. Dartmouth, 7 Ves. 137.

b Hinton . Pinke, 1 P. W. 539; and see 2 Ves. 422. Lord Cowper was of a different opinion, see 1 P.W. 127.

i Apreece v. Apreece, 1 Ves. & B. 364.

Nannock v. Horton, 7 Ves. 391;

'Cotterelle.Chamberlain, Bunb.32. but see 2 Jac. & W. 401.

the Lord Chancellor thought it clear the word "for

Heath & Wise -tune" must mean money legacies. An annuity is in
a sense a legacy, and annuitants legatees. Hence a
charge of legacies was held a charge of annuities.
But annuitants were not considered legatees, where
the testator had contradistinguished them by using
the words "legacies and annuities."
"D Compuls
Banthum & coll, con

SECTION III.

Of Residuary Bequests.
267. Bayr

Badi. Ir is clear, both by our law and the civil law,

403. Parkese that the devise of all a man's personal estate passes
Marchant whatever he dies possessed of, and not that only which
Iyo a lot. sc.
290 landen he had at the time of making his will; for personal

324.

estate being transient and fleeting, and from the nécessity of dealing and traffic liable to daily alterations, a contrary resolution would put men under the difficulty of making a new will every day. A bequest therefore to a person of the rest or residue of personal estate; or words of similar import, as of Cover homo "what remains;" or "ce que ce trouvera,” (in a 2 kee 8. down French will); or the appointing him "heir general," or "residuary legatee to the sums of money which shall remain after payment of debts and legacies;"& gives him every thing which may accrue by accident or contingency, and which at the testator's death

Maitland v. Adair, 3 Ves. 231; and see Henwood v. Overend, 1 Mer. 23. 719.

b Nannock v. Horton, 7 Ves. 391; and see id. 534.

Bac. Ab. Leg. B.3. 1 Salk. 237. 2 Ver. 688. 1 P. W. 424.

d See Crooke v. De Vandes, 9 Ves. 197. 11 id. 330.

e Duhamel v. Ardovin, 2 Ves 162 f Jackson v.Kelly, 2 Ves. 285. Devese v. Pontet, 1 Cox, 188.

8 Lynn v. Dubois, 2 Bro. 522. N. 2, Belt's ed.

turns out not to be disposed of. Hence if a bequest Salt (bat is void under the mortmain act, and the residue itself-way S. Bear. is not given to a charity; or if a legatee dies in the lifetime of the testator; or is incapable of taking;" Cor if the property is given upon a contingency which does not happen; the legacy, in all these cases, falls into the residue, and goes to the person to whom that is given. So if a legacy is directed to accumulate during the minority of an unborn legatee, the excess of accumulation prohibited by the statute becomes part of the residue. And where a man devised a house and its appurtenances to his wife during widowhood, but desired that when his eldest son for the time being should attain twenty-one, he might have it and the appurtenances, on giving notice and paying her 4007. per annum during widowhood; and the wife married again during the minority of the eldest son: it was held that the intervening interest of so much as was personal estate fell into the residue. And it makes no difference that the residuary bequest is of "the rest and residue not before particularly" or "specifically disposed of;" for whatever may have been before given, if not effectually given, is, legally speaking, undisposed of,

and consequently included in the denomination of residue."

But a residuary bequest will not include property to which the testator had no right or title at the time of his death, and which it could not be supposed he had any contemplation to dispose of. Thus, where A. H. accepted 10s. in the pound from a debtor, and made her will, bequeathing the residue of her property among her relations, and died; after which the widow of the debtor bequeathed a sum equal to 10s. in the pound to such of the creditors as accepted the composition or their personal representatives it was held that the residuary legatees of A. H. had no claim to this, which could not by any possibility be considered as part of her estate at the time of her death. So where a legacy was given to A. and if he died before the testator, to his heirs; and A. died in the testator's lifetime, having by will given the residue of his estate and effects upon certain trusts: the legacy was decreed to his next of kin.c

Ligerd. 4 Bew. Nor will a residue include what has been be231. Me queathed as such, but of which the gift fails; for That 71 having been once given away as residue, it never again becomes residue. Thus, if a man bequeaths the residue to two or more as tenants in common, and afterwards revokes the gift to one of them; or

if one dies in the testator's lifetime; this share will not accrue in augmentation of the remaining parts, but instead of resuming the nature of residue devolves as undisposed of to the next of kin, unless the testator has specially appointed some person to take upon such an event: as where a man, after giving several legacies, and the remainder of his fortune in fifths, appointed his brother heir to whatever part of his estate should be unappropriated by his will."

And words of residuary import must often of Basingstka -me 6 Linn. 67. necessity be taken with qualification. Thus the Fxon-Feetexpressions "all I am possessed of;" "the residue- Mai of my estate; "all things not before bequeathed,". and the like, have been held, under circumstances, to mean only the remainder of particular funds, or parts of a testator's property. Neither will such residue of any specified portion only of the estate include any prior bequest of it, that fails: as if a man gives certain articles of his plate to A., and the residue of his plate to B., and the residue of his personal estate to C.: here, if A. dies in the testator's lifetime, the things devised to him will go to C. as general residuary legatee, and not to B. Other expressions also in a will may show the intention of a testator to confine a residuary bequest to a more

a

Bagwell v. Dry, 1 P. W. 700. Page v. Page, 2 P. W. 489, 2 Stra. 820. Mos. 42. Owen v. Owen, 1 Atk. 494, overruling Hunt v. Berkeley, id. N. Mos. 47; but reported as a joint tenancy in 1 Eq. Ab. 243. Man v. Man, 2 Stra. 905. Peat v. Chapman, 1 Ves. 542. Ackroyd v. Smithson, 1 Bro. 503. Painter r. Salisbury, cited 2 Ves. 93. 99.

D

Androvin v. Poilblanc, 3 Atk. 299.
Roberts v. Cooke, 16 Ves. 451.

↳ Jackson v. Kelly, 2 Ves. 285.

c Wilde v. Holtzmeyer, 5 Ves. 811. Green v. Scott, 1 Ves. J. 282 Cook v. Oakley, 1 P. W. 302. Att. Gen. v. Goulding, 2 Bro. 428; and see Devese v. Pontet, I Cox, 188. Sadler v. Turner, 8 Ves. 617.

Hunt v. Berkeley, Mos 47.