limited sense. Thus in a case of frequent reference, where Lord D. gave his wife some of his plate, but declared that he intended to dispose of the residue of it by a codicil; and after giving his house at C. to his wife for life, and declaring he would dispose of the goods and furniture in it after his wife's death by a codicil to his will, bequeathed the residue of his personal estate whatsoever not before disposed of, or reserved to be disposed of by his codicil, to his wife; and afterwards made two codicils without disposing of his goods, furniture, or the residue of his plate: the Lord Chancellor was of opinion that these were undisposed of by the will, and went to the next of kin. Again, where a testator gave a legacy of 20,000l. to be laid out in lands for the benefit of the Marine Society, and after giving to other charities legacies of 2007. each, bequeathed to another charity 1007. if there remained enough of his personal estate to satisfy it; but if not, or if there should remain but little, then the 1007. was not to be paid, and the small remainder of his personal estate should be left to his executor to be disposed of in favour of certain charity schools; and if his personal estate should sufficiently reach towards satisfying all the legacies, his said executor should also dispose of the remainder in favour of the charity schools; and the 20,0007. being a void bequest, was claimed by the schools: Lord Camden was clear they had no right under the description of residuary legatees; that if the testator had circumscribed and confined the residue, then the residuary legatee, instead of being a general legatee, became Davers v. Dewes, 3 P. W. 40. a specific one; that the intention appeared strong to confine the residue to what should remain after all legacies paid; it was specific, contingent, and conditional; if the estate turned out to pay all other legacies, (which it had not,) and there should be a little more, then the testator gave that little. So where a man devised some leasehold houses to charitable purposes, and gave the residue of his property to his relations, with a declaration that they should have nothing to do with the houses; it was held that they took a special residue only, out of which the houses were expressly excepted." But without some words to restrain the import of a residuary clause, it must have its legal effect, and pass every thing which the testator possessed at his death, including therefore property to which he was not aware of being entitled. Thus in a late case, where a man by his will observed he took that method of showing the way he would have his small property disposed of, and that he thought he was possessed of 63,000l. stock, which he wished to be disposed of in the following manner, &c.; and concluded, " any thing I have forgot I leave at the disposal of B. ;" and in a codicil also added, “I may have forgot many things, such as money due to me from government, &c.; if such there is, it is to be thrown into the lump for the benefit of the legatees, to be paid to them in the proportions;" and the testator, a few hours only before his death, acquired a large addition to his fortune by the death of a relation: Sir J. Leach observed, a testator, when he gave his residue, might contemplate only • Att. Gen. v. Johnstone, Ambl. 577. Turner v. Ogden, cited 15 Ves.417. the actual state of his property at the time, and might mean to give, and might think he was giving, next to nothing, but such residuary legatee would nevertheless take an after-acquired million; that the testator, in the principal case, was sensible there might be other things of which he had power to dispose by will, which he might also have forgotten; he had forgotten that residue which might arise by a lapsed legacy or future acquisition, and it could not be said the words he had used would not embrace it. And Lord Eldon seems to have approved of this decision, on the ground that there were not any expressions in the will sufficiently definite to justify him in deciding that the residuary clause 'should only have a limited effect." II. When there is no bequest of the residue the Se law gives it to the executor for his own benefit. He is the legal residuary legatee; for the naming of an -ill My executor is a gift or donation to him of all the 10.640. personal estate of the testator. In a case, however, in 1687, where a testator devised particular legacies to his children and grandchildren, and 107. apiece to M. and S., whom he made executors, for their care, and there was a surplus of 5000l.: Lord C. Jefferies declared that the words in the will amounted to a declaration of trust, by excluding the executors from any property which the law might cast upon them; it being plain the testator never designed the surplus • Bland v. Lamb, 5 Mad. 412. Bland v. Lamb, 2 Jac. and Asgill, id. 265. N. Off. Ex. 4. 2 Freem. 263. 1 P. W. 8. 2 Atk. 46. 3 id. 228. Hills v. Brewer, 2 Ver. 104. C of his estate should go to his executors. And since this case it has been established in equity, that where there is any thing in the will to show an intent that the testator, by naming an executor, meant only to. give the office of executor, and not the beneficial interest or property, the executor shall be consi-dered a trustee of the residue for the next of kin, as under the statute of distributions; or for the crown, if there are no next of kin; or for such other person as it can be shown the testator intended it. In one case, indeed, the surplus was decreed to be distributed among the testator's relations, not according to the statute, but in proportion to the legacies given them by the will; yet subsequent Judges have disapproved of this case, and it has never in this respect been followed. We must observe that the statute will be the guide only as to the persons to take; for as there is no intestacy where an executor is appointed," the next of kin, when the executor is declared a trustee for them, will take the residue as if it had been actually given to them; so that a child advanced by its father will not be obliged to bring its Foster v. Munt, 1 Ver. 473. Lord Eldon doubts whether this was the first case, 2 Mer. 16. 19 Ves. 642; see also Mr. Raithby's note to the case, and Fane v. Fane, 1 Ver. 30. It has generally been so considered, see 2 Freem. 226. 263. 2 P. W. 160. Mos. 49. 2 Atk. 46. 2 Ves. 29. 95. 1 Ves. J. 357. It has been said also that the decree went upon fraud, 1 P. W. 116. Gilb. Eq. R. 80; but this seems a mistake, see 2 Eq. Ab. 443. Mos. 49. 2 Ves. 29. 1 P. W. 9. Wilson v. Wombwell, 2 Dick. 477. Pring v. Pring, 2 Ver. 99. • Cordell v. Noden, 2 Ver. 148 Pr. Ch. 12. See Ambl. 568. 2 Ves, J. 471. 3 Ves. and B. 6; and see Haynes v. Littlefear, I Sim. and St. 496. h Swinb. P. 4. S. 2. et passim. 2 Ves. 29. Off. Ex. 4. Bac. Ab. Wills D. Finch. 167. If a man gives ever so many legacies, but appoints no executor, he is said to die intestate; while the appointment alone of an executor, even if no legacies are given, is sufficient to make a testament. 46. 235 share into hotchpot, as required by the statute, which applies only to the case of complete intestacy. For the same reason, the residue will not be subject to the custom of York. In a case also in which a wife had covenanted that if her husband died intestate she should not take out administration to him, nor have any part of his personal estate; and he made a will, appointing his wife executrix, but did not dispose of the residue: the Court thought the covenant intended a general intestacy, and that the wife was not barred by it of her distributive share.c Lord King held that as an express legacy given Home stuff to an executor was allowed to exclude him from taking the surplus," for the same reason an express legacy to the next of kin would bar him likewise; and then there being exclusion against exclusion, the law must take place, and the executor have the surplus as executor. But notwithstanding this decision, it is now settled that a bonâ fide legacy to the next of kin affords no inference against his title. How far a mere nominal gift may have this effect seems uncertain. Where a man willed that his executors should pay to the two children of his wife (he never having acknowledged them to be his) 10s. apiece, and no more, and gave legacies to his exe |