Poilblanc, 3 Atk. 299; Braddon v. Farrand, 4 Russ. 87; Giraud v. Hanbury, 3 Mer. 150; Lord North v. Purdon, 2 Ves. sen. 495. But where the trust is only inferential, evidence in favour of the executors will be admitted. Gladding v. Yapp, 5 Mad. 56. where the has not of all his 3. And a presumption against the executor's title is Cases raised if the testator shows an intention to dispose of the testator residue, though he may not actually do so: Bishop of intended Cloyne v. Young, 2 Ves. sen. 91; North v. Purdon, 2 to dispose Ves. sen. 495; Davers v. Dewes, 3 P. Wms. 40; Mordaunt property, by his will. v. Hussey, 4 Ves. 117; Mence v. Mence, 18 Ves. 348; or if he expresses an intention to dispose of part only of his property by his will: Urquhart v. King, 7 Ves. 225; or if the property is directed to go according to law. Cranley v. Hale, 14 Ves. 307. In such cases evidence in support of the executor's title is admissible. Bishop of Cloyne v. Young, 2 Ves. sen. 91; Nourse v. Finch, 1 Ves. jun. 344; 2 Ves. jun. 78. to a sole converts 4. The executor takes as trustee for the next of kin : a. If there is a legacy to a sole executor, whether A legacy general or specific, or whether in possession or reversion, executor or whether expressed to be for his trouble or not, or him into a whether for life or not, if there is no gift of the remainder. trustee. Nourse v. Finch, 1 Ves. jun. 343; 2 Ves. jun. 78; Southcot v. Watson, 3 Atk. 226; Seley v. Wood, 10 Ves. 71; Oldman v. Slater, 3 Sim. 84; Rachfield v. Careless, 2 P. Wms. 156; King v. Denison, 1 V. & B. 260; Zouch v. Lambert, 4 Bro. C. C. 326; Dick v. Lambert, 4 Ves. 725. It makes no difference that the executrix is the testator's wife or relation or that legacies are given to the next of kin. Randall v. Bookey, 2 Vern. 425; Dick v. Lambert, 4 Ves. 725; Farrington v: Knightley, 1 P. Wms. 543; and see note, ib. What legacies will not convert an executor into a trustee. Equal legacies to several executors. to some If the legacy is given in general words parol evidence is admissible in support of the executor's title. Clennell v. Leuthwaite, 2 Ves. jun. 465, 644; Langham v. Sanford, 17 Ves. 435. But not if it is given to him expressly for his trouble. Rachfield v. Careless, 2 P. Wms. 158. It seems doubtful whether a contingent reversionary interest would raise a presumption against the executor's title. Lynn v. Beaver, T. & R. 63. A legacy to an executor's wife will not convert him into a trustee for the next of kin. Wilson v. Ivat, 2 Ves. sen. 166; Fruer v. Bouquet, 21 B. 33. In these cases the presumption against the executor's title arises from the difficulty of supposing that the testator would have given him something if he meant him to have all. Therefore, if the express legacy can be accounted for on other grounds, no presumption arises. If, for instance, the legacy is an exception out of a larger gift: Griffith v. Rogers, 1 Eq. Ab. 245, pl. 8; Jones v. Westcomb, Prec. Ch. 316; and this includes the case of a gift to the executor for life, if there is a gift of the remainder: Granville v. Beaufort, 1 P. Wms. 114; or if the legacy is to an executrix, a married woman, for her separate use. Newstead v. Johnson, 2 Atk. 45; 9 Mod. 242. b. Equal legacies to several executors will also raise a presumption against their title to the residue. Ommaney v. Butcher, T. & R. 260. And this presumption, it seems, is not rebutted by the fact that unequal bounty is shown them as regards real estate. Mackleston v. Brown, 6 Ves. 52, p. 64. Legacies But legacies to some executors and not to others, or executors unequal legacies to all, raise no presumption against them, and not to since the intention may be to favour some more than others. others. Griffiths v. Hamilton, 12 Ves. 299; Pratt v. Sladden, 14 Ves. 193; Bowker v. Hunter, 1 B. C. C. 328 ; Rawlings v. Jennings, 13 Ves. 39; Dawson v. Thorne, 3 Russ. 235; In re Knowles; Roose v. Chalk, 28 W. R. 975. If, however, a legacy be given to one of several executors Legacy to expressly for his trouble they all take as trustees. one of White several executors for his v. Evans, 4 Ves. 21; Milnes v. Slater, 8 Ves. 295. But in such a case parol evidence to support their title trouble. would be admitted. Williams v. Jones, 10 Ves. 77. ticular 5. If it is clear that the executors are appointed not Executors appointed from personal motives, but merely from convenience or for parbecause they occupy a particular position, they take trustees. Urquhart v. King, 7 Ves. 224; De Mazay v. Pybus, 4 Ves. 644; Sadler v. Turner, 8 Ves. 616. as reasons. Evidence in favour of next of kin is not admissible, except to rebut evidence in favour of the executors. White v. Williams, 3 V. & B. 72. CHAPTER XLIX. I. General personal estate. Residue undisposed of. Legacy - given in lieu of a share of residue is payable ADMINISTRATION. THE ORDER OF ASSETS. THE order in which the assets of a testator are applied in administration is as follows: I. The general personal estate. Manning v. Spooner, 3 Ves. 117. 1. And as to this, if a specific fund of personalty is charged, it is primarily liable if the residue is disposed of. Browne v. Groombridge, 4 Mad. 495; Choat v. Yeates, 1 J. & W. 102; Evans v. Evans, 17 Sim. 106; Phillipps v. Eastwood, 1 Ll. & G. 294; Webb v. De Beauvoisin, 31 B. 573; Vernon v. Earl Manners, ib. 623. 2. If, however, the residue is undisposed of, the latter is primarily liable. Holford v. Wood, 4 Ves. 78; Hewett v. Snare, 1 De G. & S. 333; Newbegin v. Bell, 23 B. 386; Corbet v. Corbet, I. R. 8 Eq. 407. 3. And generally it would seem that where there is no residuary gift, but there is in fact a residue of which no disposition has been attempted, this is in all cases the primary fund for payment of debts. Howse v. Chapman, 4 Ves. 542; Taylor v. Mogg, 27 L. J. Ch. 816. Legacies, however, even if given in lieu of a share of residue, the gift of which is revoked, and thereby becomes undisposed of, are not payable out of the share undisposed of, but out of the general estate. Sykes v. Sykes, 4 Eq. 200; 3 Ch. 301; see Cresswell v. Cheslyn, 2 Ed. 123; out of the 3 B. P. C. 246; see 1 Sw. 571, n. But the testator may direct it to be paid out of the revoked share of residue. In re Wood's Will, 29 B. 236; Walsh v. Walsh, I. R. 4 Eq. 396. general personal estate. A specific legacy falling into the residue by reason of Specific legacy lapse bears its rateable proportion with the other residue. lapsed. Scott v. Forristall, 10 W. R. 37; Morley v. Tunstall, 7 Eq. 416, n. 5. On the question whether a lapsed share of residue Whether a lapsed is applicable in payment of debts in priority to a share share of effectually disposed of: residue is applicable share well a. It is settled that if there is a general charge of before a debts, a lapsed share only contributes rateably. Eyre v. disposed of. Marsden, 4 M. & Cr. 231; Burt v. Sturt, 10 Ha. 415; Oddie v. Brown, 4 De G. & J. 179; see Elborne v. Goode, 14 Sim. 165; Ralph v. Carrick, 5 Ch. D. 984. of debts. b. It may now be taken to be settled that the same rule No charge applies where there is no charge of debts. Trethewy v. Helyar, 4 Ch. D. 53; Fenton v. Wills, 7 Ch. D. 33; Blann v. Bell, 7 Ch. D. 382; overruling so far as contra Gowan v. Broughton, 19 Eq. 77; see In re Jones; Jones v. Caless, 10 Ch. D. 40. Upon this principle, if a mixed residue of pure and impure personalty is given to a charity, so that the gift fails as regards the impure personalty, the latter will not be the primary fund as against the other portion, the gift of which takes effect, but debts will be payable rateably out of both. A.-G. v. Lord Winchelsea, 3 B. C. C. 373; S. C. nom. A.-G. v. Hurst, 2 Cox, 364; Blann v. Bell, 7 Ch. D. 382. estate II. Real estate devised or ordered to be sold for payment II. Real of debts, whether it descends to the heir or not. West V. devised for Lawday, I. R. 2 Eq. 517; Phillips v. Parry, 22 B. 279; payment of Stead v. Hardaker, 15 Eq. 174. debts. |