tled him, both at law and equity, to all the remainder of the personal property after the payment of debts and legacies, unless it was specially disposed of by the testator in the will. Courts were always astute to find circumstances to repel the beneficial interest in the executor and to raise a resulting trust for the next of kin, or heir-at-law; and it was finally enacted, 1 Will. IV., c. 40, that such executors, should be trustees of any residue, unless it plainly appeared by the will that they were intended to take the residue beneficially. In the United States the rule never prevailed, but executors always took as trustees for those entitled to the distribution of the personal estate, unless it was expressly disposed of to some other persons, or unless it was expressly given to the executor beneficially.2

§ 156. In this connection an important exception to the general doctrine of resulting trusts should be stated. If property is given to trustees by grant or devise for charitable uses generally, and the particular purpose is not declared at all, or, if declared, does not exhaust the whole estate, there will be no resulting trust for the donor, his heirs, or next of kin, in either case; nor will the donees take any beneficial interest, but the court will direct the trustees to administer the whole estate under some scheme for charitable purposes.3 (a)

1 See 2 Story, Eq. Jur. § 1208, and the elaborate note cited from Fon. Eq. B. 2, c. 5, § 3, note (k).

2 Hill on Trustees, 1234 (Am. ed.); 2 Story Eq. Jur. §§ 1208, 1209; as the doctrine has never prevailed in America, it is not worth while to state all the learning and nice distinctions of the courts. They will be found in Hill, Story, and Fonblanque as above cited.

3 Cook v. Dunkenfield, 2 Atk. 567; Metford School, 8 Co. 130; Moggridge v. Thackwell, 7 Ves. 73; Att. Gen. v. Bristol, 2 J. & W. 308; Mills v. Farmer, 1 Mer. 55; Att. Gen. v. Haberdasher's Co., 4 Bro. Ch. 103; see post, chapter upon Charitable Trusts, where this matter is stated at large.

(a) As will appear in the chapter on charitable trusts there is an important difference of authority as to

the power of a court of equity to enforce a trust for charity in general, and as to the validity of such a trust.

§ 157. If a gift is made by deed or will upon trust, and no trust is declared,' or a bequest is made to one named, as executor, "to enable him to carry into effect the trusts of the will," and none are declared,2 or a gift is made upon trusts thereafter to be declared, and no declaration is ever made,3 the legal title only will pass to the grantee or devisee, while a trust in the equitable interest will result to the settlor, his heirs, or legal representatives, according to the nature of the property, whether real or personal; for it appears upon the instrument itself that the legal title alone was intended for the first taker, and that the equitable interest was intended to go to some other person, and as such other person cannot take the equitable interest for want of a declaration of the trust, it results to the settlor or his heirs.4 So if a testator says that he gives the residue, and stops there," or if he cancels a residuary bequest by drawing a line through it." But if it should plainly appear from the whole instrument that the donee is to take beneficially in case the trusts are not declared, no trust will result to the owner or heir.7

1 Att. Gen. v. Windsor, 8 H. L. Ca. 369; 24 Beav. 679; Gloucester v. Wood, 1 H. L. Cas. 272; 3 Hare, 131; Dawson v. Clark, 18 Ves. 254; Dunnage v. White, 1 J. & W. 583; Morice v. Durham, 10 Ves. 537; Woollett v. Harris, 5 Madd. 452; Southouse v. Bate, 2 Ves. & B. 396; Goodere v. Lloyd, 3 Sim. 538; Pratt v. Sladden, 14 Ves. 198; Anon., 1 Com. 345; Penfold v. Bouch, 4 Hare, 271; Brown v. Jones, 1 Atk. 101; Sidney v. Shelley, 19 Ves. 359; Emblyn v. Freeman, Pr. Ch. 542; Coard v. Holderness, 20 Beav. 147; Longley v. Longley, L. R. 13 Eq. 137.

2 Barrs v. Fewke, 2 Hem. & M. 60.

3 London v. Garway, 2 Vern. 571; Collins v. Wakeman, 2 Ves. Jr. 683; Emblyn v. Freeman, Pr. Ch. 541; Fitch v. Weber, 6 Hare, 145; Brookman v. Hales, 2 V. & B. 45; Brown v. Jones, 1 Atk. 188; Sidney v. Shelley, 19 Ves. 352; Taylor v. Haygarth, 14 Sim. 8; Flint v. Warren, 16 Sim. 124; Onslow v. Wallis, 1 H. & Tw. 513; 1 McN. & G. 506; Jones v. Goodchild, 3 P. Wms. 33; Sturtevant v. Jaques, 14 Allen, 526; Shaw v. Spencer, 100 Mass. 388.

4 Aston v. Wood, L. R. 6 Eq. 419; Jones v. Bradley, L. R. 3 Eq. 635. 5 Cloyne v. Young, 2 Ves. Sr. 91; Langham v. Sandford, 17 Ves. 435; Mapp v. Elcock, 2 Phill. 793.

Mence v. Mence, 18 Ves. 348; Skrymsher v. Northcote, 1 Swanst. 566. 7 Sidney v. Shelley, 19 Ves. 352. Whether a trust results to a debtor in an unclaimed dividend. Dillaye v. Greenough, 45 N. Y. 438.

§ 158. It is to be observed, however, that the intention of the instrument is to be gathered from its general scope; hence, although the words upon trust are very strong evidence of the donor's intention not to confer the beneficial interest upon the donee,1 yet it may be negatived by the context, and the general interpretation of the whole paper; 2 so, if the donee is called a trustee, the term may be shown to apply to one of two funds, and the donee may take a beneficial interest in the other, or it may be so used as to be a mere descripto persona, and although no beneficiary is named, a trust does not necessarily result to the grantor. On the other hand it may appear, from the whole instrument, that the donee is not to take the beneficial interest, although the words upon trust, or trustee, are not used; as where there is a direction that the donee shall be allowed his costs and expenses out of the fund given him, which would be without meaning if he took the whole beneficial interest in the fund." But if the conveyance is by deed for a valuable consideration, the grantee will take the beneficial interest if the trusts fail to be declared, or fail in any way; for there can be no resulting trusts where the grantee pays a valuable consideration for the estate. Where a will contained in substance this clause, "I give to my executor, P., $800 to have and to hold the same to the use of S. as follows: I desire in case S. should at any time need assistance or come to want, that my executor should expend such part of said $800 as will make her comfortable and keep her so during

1 Hill v. London, 1 Atk. 618; Woollett v. Harris, 5 Md. 452; Sturtevant v. Jaques, 14 Allen, 526; Shaw v. Spencer, 100 Mass. 526.

2 Coningham v. Mellish, Pr. Ch. 31; Dawson v. Clark, 15 Ves. 409; 18 Ves. 247; Hughes v. Evans, 13 Sim. 496; Cook v. Hutchinson, 1 Keen, 42; Dillayev. Greenough, 45 N. Y. 438.

Gibbs v. Rumsey, 2 V. & B. 294; Pratt v. Sladden, 14 Ves. 193; Battely v. Windle, 2 Bro. Ch. 31; Bingham v. Stewart, 13 Minn. 106; Pratt v. Beaupre, 13 Minn. 187; Dillaye v. Greenough, 45 N. Y. 438.

♦ Dillayev. Greenough, 45 N. Y. 438.

'Saltmarsh v. Barrett, 3 De G., F. & J. 279; 29 Beav. 474.

• Brown v. Jones, 1 Atk. 158; Ridout v. Dowding, id. 419; Kerlin v. Campbell, 15 Penn. St. 500. [Davis v. Jernigan, 71 Ark. 494, holding that the recital of payment of a consideration by the grantee is conclusive upon the grantor.]

her life. The remainder, if any, of said $800, at the decease of S. I give to the said P. and his heirs," it was held that P. held the money to the use of S. during her life, and whether she was in need or no must pay the income to her, and if in need must expend for her such part of the principal as might be requisite to make her comfortable.1

4

§ 159. If a trust for a specific purpose fails by the failure of the purpose, the property reverts to the donor or his heirs. If the gift is made upon a trust, and the trust is insufficiently or ineffectually declared, as, if it is too indefinite, vague, and uncertain to be carried into effect, it will result to the settlor, his heirs, or representatives. Whether a trust is insufficiently declared or not, depends of course upon the particular construction to be given to each individual deed or will; and so, whether a trust is too vague to be executed or not, depends upon the interpretation given to each instrument. If the declaration of trust is too imperfect to establish that purpose, and yet plainly shows that the intention was that the donee should not take beneficially, and that the sole purpose of the gift or grant was to carry out the purpose of the trust, which fails, the donee will take in trust for the donor or his heirs; (a) but if it appear,

1 Coburn v. Anderson, 131 Mass. 513.

2 Gumbert's App., 110 Penn. St. 496. [Jenkins v. Jenkins' Univ., 17 Wash. 160.]

3 Williams v. Kershaw, 5 Cl. & Fin. 111; Ellis v. Selby, 7 Sim. 352; 1 M. & C. 286; Fowler v. Garlike, 1 R. & M. 232; Morice v. Durham, 9 Ves. 399; 10 Ves. 522; Kendall v. Granger, 5 Beav. 300; Vesey v. Jamson, 1 S. & S. 69; Stubbs v. Sargon, 3 M. & C. 500; 2 K. 255; Leslie v. Devonshire, 2 Bro. Ch. 187; James v. Allen, 3 Mer. 17; Sturtevant ". Jaques, 14 Allen, 526; Shaw v. Spencer, 100 Mass. 388. [Minot v. Att. Gen., 189 Mass. 176; Re Wilcock, Wilcock v. Johnson, 62 L. T. 317; Cagwin v. Buerkle, 55 Ark. 5; Columbian University v. Taylor, 25 App. D. C. 124; Woodruff v. Marsh, 63 Conn. 125; Johnson v. Johnson, 92 Tenn. 559.] Ellis v. Selby, 1 M & K. 298. 5 Ibid.

(a) Thus where a bequest is made in trust for a purpose to be set forth

in a letter which is not part of the will, the attempted express trust

from the whole instrument, that some beneficial interest was intended for the donee, or that he was intended to take bene