Whether an appoint

the fund from the

default of

But a general gift will not execute a power given to the testator by the will of a person who survives him. Jones v. Southall, 32 B. 31.

An appointment to executors of a fund, over which the ment takes testator has a general power, takes the fund away from the donees in default of appointment, though some of the donees in trusts declared by the testator may fail or trusts only appoint- exhausting part of the fund are declared. Chamberlain v. Hutchinson, 22 B. 444; Keowns' Estate, I. R. 1 Eq. 372; Brickenden v. Williams, 7 Eq. 310; Wilkinson v. Schneider, 9 Eq. 423; Scriven v. Sandom, 2 J. & H. 743; In re Pinède's Settlement, 12 Ch. D. 667.

ment in all

events.

A mere direction to pay debts will only operate as an execution of the power pro tanto, and will not make the property subject to the power part of the testator's general estate. Laing v. Cowan, 24 B. 112.

The testator may show that he did not intend to make the fund part of his general estate. Thus, where the testatrix was a married woman separated from her husband, an appointment to trustees was held not to make the fund part of her estate, as it would in that case have vested absolutely in her husband, since being married she could only dispose of it under the power, and therefore all subsequent dispositions of it as her absolute property would have been void. Hoare v. Osborne, 12 W. R. 661; 33 L. J. Ch. 586; 10 Jur. N. S. 694; the case is, however, of no authority; see 48 L. J. Ch. 743, and 3 L. R. Ir. 240.

And in Easum v. Appleford, 5 M. & Cr. 56, the decision proceeded on the ground that the testatrix distinguished between her own property and that subject to the power, and at the same time intended to leave nothing undisposed of.

Possibly where the testator expressly gives the settled property for life only, a general residuary gift to the executors will not have the effect of taking the fund away

from the persons entitled in default of appointment, so far as the trusts declared of the residue fail. Bristow v. Skirrow, 10 Eq. 1; see In re De Lusi's Trusts, 3 L. R. Ir. 232, 238.

A gift of residue directly to a donee, and not through the medium of a trust which, under the 27th section, operates as an appointment, will not take the fund subject to the power from the donee in default of appointment where the residuary gift lapses. Re Davies' Trusts, 13 Eq. 163; In re De Lusi's Trusts, 3 L. R. Ir. 232; see, too, Biddulph v. Williams, 1 Ch. D. 203; In re Ickeringill ; Hinsley v. Ickeringill, 29 W. R. 500.

a power.

The rule applicable to personalty applies also to real Real estate subject to estate, subject to a power, so that an appointment to trustees upon trust for a person, who predeceases the testator, takes the estate from the persons entitled in default of appointment. In re Van Hagen; Sperling v. Rochfort, 16 Ch. D. 18.

tration of

Where a general power of appointment over a fund is Adminis executed by will, the executors of the will are the proper appointed persons to administer and give a discharge for the fund. fund. In re Philbrick's Trusts, 13 W. R. 570; 34 L. J. Ch. 368; Hayes v. Oatley, 14 Eq. 1; In re Hoskin's Trusts, 5 Ch. D. 229; 6 ib. 281.

In the case of a special power over a fund vested in trustees the testator cannot, without special authority, appoint new trustees of the fund by his will. The fund should, therefore, be administered by the original trustees. Busk v. Aldam, 19 Eq. 16.

may take

A charge upon particular lands in favour of certain An appointment persons expressed by the testator to be made by virtue of a particular power and of all other powers enabling him, effect by will operate by way of devise upon such interest as the devise. testator has if the power is no longer subsisting at his death. Sing v. Leslie, 2 H. & M. 68.

way of

No particular

cessary to pass the residue.

CHAPTER XX.

RESIDUARY BEQUESTS.

I. WHAT IS A RESIDUARY GIFT.

SUCH words as goods, chattels, or effects will, as a rule, words ne- pass the residuary personalty; no particular words are, however, necessary for that purpose. Bland v. Lamb, 2 J. & W. 399; Hearne v. Wigginton, 6 Mad. 120; Fleming v. Burrows, 1 Russ. 276; Leighton v. Baillie, 3 M. & K. 267; In re Bassett's Estate; Perkins v. Fladgate, 14 Eq. 54.

ejusdem generis.

Doctrine of The question frequently arises whether words in themselves large enough to pass the residue, but coupled with an enumeration of particular things, will be cut down to pass only things ejusdem generis with those enumerated. Enumera- With regard to the meaning of et cætera following an enumeration of specific things, no precise rule can be laid down. The tendency of the most recent cases is to give the word the widest possible meaning, so that it would pass even real estate. Chapman v. Chapman, 4 Ch. D. 800; Mullally v. Walsh, 3 L. R. Ir. 244.

tion of par

ticulars followed by et cætera.

Large

On the other hand, in some of the earlier cases et cætera following an enumeration of particulars has been confined to things ejusdem generis. Marquis of Hertford v. Lowther, 7 B. 1; Newman v. Newman, 26 B. 220; Barnaby v. Tassell, 11 Eq. 363.

Where there are comprehensive words followed by an

enumeration of particulars, an et catera will not restrict words followed by the meaning of the large words. Kendall v. Kendall, an enu4 Russ. 360; Gover v. Davis, 29 B. 222.

meration of particu

Large words, such as goods, chattels or effects, when lars. they are followed by an enumeration of particulars, will not be limited to things ejusdem generis. Fisher v. Hepburn, 14 B. 627; Patterson v. Huddart, 17 B. 210; Ellis v. Selby, 7 Sim. 352; 1 M. & Cr. 286; Swinfen v. Swinfen, 29 B. 207; Avison v. Simpson, Jo. 43.

The same is the case though the particulars are intro- Explanaduced by words intended to be explanatory of the former tory words. words, for instance, “namely," "consisting in," "together with," "such as," "both in," or similar words. Bridges v. Bridges, 8 Vin. Abr. Devise, 295, pl. 13; Gover v. Davis, 29 B. 222. In bonis Goodyar, 1 Sw. & Tr. 127; 4 Jur. N. S. 1243; Mahoney v. Donovan, 14 Ir. Ch. 262, 388; Drake v. Martin, 23 B. 89; Dean v. Gibson, 3 Eq. 713; Maberley's Trusts, 19 W. R. 522; King v. George, 4 Ch. D. 435; 5 ib. 627; In re Fleetwood; Sidgreaves v. Brewer, 15 Ch. D. 594; Mullally v. Walsh, 3 L. R. Ir. 244; see Kendall's Trust, 14 B. 608. Timewell v. Perkins, 2 Atk. 103, is not to be followed.

And the words "whether in money or in the public funds or other securities of any sort or kind whatsoever," have an enlarging rather than a restrictive force, so far as personal property is concerned. Cambridge v. Rous, 8 Ves. 14; see Reeves v. Baker, 18 B. 372.

in certain

On the other hand, a gift of all the testator's property Property in certain securities is a gift of those securities only. securities. Enohin v. Wylie, 1 D. F. & J. 410; 10 H. L. 1.

But such a gift may be enlarged to a residuary gift, if the testator goes on to state, that it is his intention to dispose of all his property among the legatees in question. Patrick v. Yeatherd, 12 W. R. 304.

It seems that the express inclusion in the large words of Express in

clusion of

things which

some particular property, which would have passed without would have being expressly included, affords an argument for excluding passed

without from the gift things ejusdem generis with that included. mention. Steignes v. Steignes, Mos. 296.

Enumeration of par

General words following an enumeration of particulars ticulars will prima facie have their full force whether introduced preceding by the word "other" or not, if a restricted construction

large words

will not re- would cause an intestacy. Arnold v. Arnold, 2 M. & K.

strict the

latter.

365; Swinfen v. Swinfen, 29 B. 207; Campbell v. Prescott, 15 Ves. 503; Michell v. Michell, 5 Mad. 69; Martin v. Glover, 1 Coll. 269; Parker v. Marchant, 1 Y. & C. C. 290; Nugee v. Chapman, 29 B. 290; Hodgson v. Jex, 2 Ch. D. 122; see, too, Re Lloyd's Estate, 2 Jur. N. S. 539; Everall v. Browne, 1 Sm. & G. 368.

The fact that specific and general legacies are given in later parts of the will is not sufficient to restrict the general words. In bonis Shepheard, 48 L. J. P. 62.

It is immaterial that certain things which would have passed under the previous words, if read in their large sense, are subsequently given to the same legatee. Bennett v. Batchelor, 1 Ves. jun. 63; 3 B. C. C. 27; Fleming v. Burrows, 1 Russ. 276.

It makes no difference, that the gift is not strictly residuary, so that there might possibly be property which it would be ineffectual to pass. Hodgson v. Jex, 2 Ch. D. 122.

The word article, however, has not the same large sense. as goods or effects. Collier v. Squire, 3 Russ. 467.

But if it is clear that the gift was not meant to be residuary, and the large words, if not confined to things ejusdem generis, would carry the residue, they must be so confined.

1. This is the case, if there is an express residuary gift. Woolcomb v. Woolcomb, 3 P. W. 112; Stuart v. Marquis of Bute, 1 Dow. 84; Lamphier v. Despard, 2 Dr. & War.