see whether there is a sufficient fund left to pay the debts of the testator: the rule of equity being, that a man must be just, before he is permitted to be generous; or, as Bracton expresses the sense of our ancient law, (z)" de bonis defuncti primo deducenda sunt ea quæ sunt necessitatis, et postea quæ sunt utilitatis, et ultimo quæ sunt voluntatis." And in case of a deficiency of assets, all the general legacies must abate proportionably, in order to pay the debts; *but a specific legacy (of a piece of plate, a horse, or the like) is not to [*513] abate at all, or allow any thing by way of abatement, unless there be not sufficient without it. (a) (32) Upon the same principle, if the legatees had been paid their legacies, they are afterwards bound to refund a ratable part, in case debts come in, more than sufficient to exhaust the residuum after the legacies paid. (b) And this law is as old as Bracton and Fleta, who tell us, (c) “si plura sint debita, vel plus legatum fuerit, ad que catalla defuncti non sufficiant, fiat ubique defalcatio, excepto regis privilegio.”

If a legatee dies before the testator, the legacy is a lost or lapsed legacy and shall sink into the residuum. (33) And if a contingent legacy be left to any one, as when he attains, or if he attains, the age of twenty-one, and he dies before that time, it is a lapsed legacy. (d) (34) But a legacy to one, to be paid

(2) 1. 2, c. 26.

(a) 2 Vern. 111. (d) Dyer, 59. 1 Eq. Cas. Abr. 295.

(b) Ibid. 205.

(c) Bract. l. 2, c. 26. Flet. l. 2, c. 57, § 11.

(32) [A specific legacy is an immediate gift of any fund bequeathed, with all its produce; and is therefore an exception to the general rule, that a legacy does not carry interest till the end of a year after the testator's death: Raven v. Waite, 1 Swanst. 557; Barrington v. Tristram, 6 Ves. 349; and, though the payment of a principal fund, bequeathed to an infant, may depend on his attaining his majority, yet, the interest accrued from the death of the testator, may belong to the legatee, notwithstanding he does not live to take any thing in the principal. Deane v. Test, 9 Ves. 153.

The criterion of a specific legacy is, that it is liable to ademption; that when the thing be queathed is once gone, in the testator's life time, it is absolutely lost to the legatee. Parrott e. Worsfield, 1 Jac. and Walk. 601. When, therefore, a testator has bequeathed a legacy of certain stock in the public funds, or of a particular debt, so described as to render the bequest, in either case, specific; if that stock should be afterwards sold out by the testator, or if that debt should, in his life time, be paid or cancelled, the legacy would be adeemed. Ashburner v. McGuire, 2 Br. 109. And it appears that there is no distinction between a voluntary and a compulsory payment to the testator, as to the question of ademption. Innes v. Johnson, 4 Ves. 574. The idea of proceeding on the animus adimendi, (though supported by plausible reasoning), was found to introduce a degree of confusion into the decisions on the subject, and to afford no precise rule. Stanley v. Potter, 2 Cox, 182; Humphreys v. Humphreys, 2 id. 185. It seems, therefore, now established that, whenever the testator has himself received, or otherwise disposed of the subject of gift, the principle of ademption is, that the thing given no longer exists: and if, after a particular debt given by will had been received by the testator, it could be demanded by the legatee, that would be converting it into a pecuniary, instead of a specific legacy. Fryer v. Morris, 9 Ves. 363; Barker v. Raynor, 5 Mad. 217. Where, indeed, the identical corpus is not given: Selwood v. Mildmay, 3 Ves. 310; where the legacy is not specific, but what is termed in the civil law a demonstrative legacy-that is, a general pecuniary legacy, with a particular security pointed out as a convenient mode of payment; there, although such security may be called in, or fail, the legacy will not be adeemed. Gillaume v. Adderley, 15 Ves. 389; Sibley r. Perry, 7 id. 529; Kirby v. Potter, 4 id. 751; Le Grice v. Finch, 3 Meriv. 52; Fowler v. Willoughby, 2 Sim. and Stu. 358; but, when it is once settled that a legacy is specific, the only safe and clear way, it has been judicially said, is to adhere to the plain rule—that_there is an end of a specific gift, if the specific thing do not exist at the testator's death. Barker v. Rayner, 5 Mad. 217; S. C. on appeal, 2 Russ. 125.

Courts of equity are always anxious to hold a legacy to be pecuniary, rather than specific, where the intention of the testator is at all doubtful. Chaworth v. Beech, 4 Ves. 566; Innes v. Johnson, id. 573; Kirby v. Potter, id. 752; Sibley v. Perry, 7 id. 529; Webster v. Hale, 8 id. 413.] There may be cases, also, where general legacies do not abate; as where they are founded upon some valid consideration, such as a release of dower, or a discharge of a debt. See what is said in Duncan v. Alt, 3 Penn. 382; Williamson v. Williamson, 6 Paige, 298; Hubbard r. Hubbard, 6 Met. 50.

(33) But by statute 1 Vic, c. 26, sec. 33, a gift to a child or other descendant does not lapse if issue of the legatee survives the testator, but takes effect as if the legatee had died immediately after the testator, unless a contrary intention appears by the will.

(34) [A legacy may be so given, as that the legatee shall be entitled to the interest or prodace thereof, from the time of the testator's death to his own, although such legatee may pot live long enough to entitle himself to the principal. Deane v. Test, 9 Ves. 153, as cited iz

note 32.

when he attains the age of twenty-one years, is a vested legacy; an interest which commences in præsenti, although it be solvendum in futuro; and if the legatee dies before that age, his representatives shall receive it out of the testator's personal estate at the same time that it would have become payable, in case the legatee had lived. (35) This distinction is borrowed from the civil law; (e) and its adoption in our courts is not so much owing to its intrinsic equity, as to its having been before adopted by the ecclesiastical courts. For, since the chancery has a concurrent jurisdiction with them, in regard to the recovery of legacies, it was reasonable that there should be a conformity in their determinations; and that the subject should have the same measure of justice in whatever court he sued. (f) But, if such legacies be charged upon a real estate, in both cases they shall lapse for the benefit of the heir, (g) (36) for, with regard to devises affecting lands, the ecclesiastical court hath no concurrent jurisdiction. (37) And in case of a vested legacy, due immediately, and charged on land or money in the funds, which yield an immediate profit, *interest shall be

payable thereon from the testator's death; (38) but if charged only on [*514]

(e) Ff. 35, 1. 1 & 2.

(f) 1 Eq. Cas. Abr. 205.

(g) 2 P. Wms. 601.

the

But where a bequest is made to a legatee, "at the age of twenty-one," or any other specified age; or, "if he attains such age:" this is such a description of the person who is to take, that if the legatee do not sustain the character at that time, the legacy will fail: the time when it is to be paid is attached to the legacy itself, and the condition precedent prevents the legacy from vesting. Parsons v. Parsons, 5 Ves. 582; Sansbury v. Read, 12 id. 78; Errington v. Chapman, id. 24. But if the legacy be to an infant, "payable at twenty-one," the legacy is held to be vested, the description of the legatee is satisfied, and the other part of the direction refers to the payment only. This distinction (as stated in the text) is borrowed from the civil law, but is adopted as to personal legacies only, not as to bequests charged upon real estate; and it has been spoken of in many cases, as a rule neither to be extended nor approved. Dawson v. Killett, 1 Br. 123; Duke of Chandos v. Talbot, 2 P. Wms. 613; Mackell v. Winter, 3 Ves. 543; Bolger v. Mackell, 5 id. 509; Hansom v. Graham. 6 id. 245.]

The tendency of the decisions clearly is in the direction of holding all legacies vested where that can be done without too great violence to the language of the will. See Hansom v. Graham, 6 Ves. 239; Lane v. Goudge, 9 id. 225; Dodson v. Hay, 3 Br. C. C. 404; Wilson v. Mount, 19 Beav. 292; Leeming v. Sherratt, 2 Hare, 14.

(35) [But it seems, if the testator's personal representatives were to be accountable for interest, and the delay of payment, as to the principal, was only directed with reference to the minority of the legatce, his executor or administrator may claim the legacy forthwith, provided a year has elapsed since the death of the original testator. Crickett v. Dolby, 3 Ves. 13; Cloberry v. Lampen, 2 Freem. 25; Anonym. id. 64; Anonym. 2 Vern. 199; Green v. Pigot, 1 Br. 105; Ponnereau v. Ponnereau. 1 Ves. sen. 119. But, a small yearly sum directed to be paid for the maintenance of the infant legatee, will not be deemed equivalent, for the purpose of vesting a legacy, to a direction that interest should be paid on the legacy. Chester v. Painter, 2 P. Wms. 328; Hansom v. Graham, 6 Ves. 249; Roden v. Smith, Ambl. 588. If a bequest, however, be made to an infant, "at his age of twenty-one years, and, if he die before that age, then over to another;" in such case, the legatee over does not claim under the infant, but the bequest over to him is a distinct substantive bequest, and is to be paid on the death of the infant under twenty-one. Laundry v. Williams, 2 ̊P. Wms. 480; Crickett v. Dolby, 3 Ves. 16.]

(36) By the wills act of 1 Vic. c. 26, § 25, unless a contrary intention appears by the will, such real estate or interest therein as shall be comprised in a lapsed devise, or in a devise which fails as being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary devise, if any, contained in the will.

(37) [Where legacies are charged upon land, or if the gift at all savors of the realty, the trusts must be carried into execution with analogy to the common law. Scott v. Tyler, 2 Dick. 719; Long v. Ricketts, 2 Sim. and Stu. 183. And the general rule of common law is, that legacies, or portions, charged on lands, do not vest till the time of payment comes. Harvey v. Aston, 1 Atk. 378, 379; S. C. Willes, 91; Harrison v. Naylour, 2 Cox, 248. But a testator may make a legacy vested and transmissible, though charged on a real estate, and payable at a future time, provided he distinctly expresses himself to that effect, or the context of the will affords a plain implication that such was his intention. See Lowther v. Condon, 2 Atk. 128; Dawson v. Killet, 1 Br. 123; Godwin v. Munday, id. 194; Smith v. Partridge, Ambl. 267; Sherman v. Collins, 3 Atk. 320.]

(38) [The old authorities are in conformity with the text, and hold, that, where a fund, of whatever nature, upon which a testator has charged legacies, is carrying interest, there interest shall be payable upon the legacies, from the time of the testator's death. But that is exploded now by every day's practice. Though a testator may have left no other property

personal estate, which cannot be immediately got in, it shall carry interest only from the end of the year after the death of the testator. (h) (39)

Besides these formal legacies, contained in a man's will and testament, there is also permitted another death-bed disposition of property; which is called a

(h) 2 P. Wms. 26, 27.

than money in the funds, interest upon the pecuniary legacies he has charged thereon is now never given till the end of a year after his death. Gibson v. Bott, 7 Ves. 97. The rule is different with respect to legacies charged on land. Whether the reason assigned for this distinction in the text, and in Maxwell v. Wettenhall, 1 P. Wms. 25, be the true one, has been doubted: a fund, consisting of personalty, may be "yielding immediate profits," as well as lands, but, it is obvious that the reason of the rule as to the commencement of interest upon legacies given out of personal estate, which is a rule adopted merely for convenience (Garthshore v. Chalie, 10 Ves. 13; Wood v. Penoyre, 13 id. 333), cannot apply to the case of legacies not dependent on the getting in of the personal estate, and charged upon lands only; in such case, interest, it has been said, must be chargeable from the death of the testator, or not at all. Pearson v. Pearson, 1 Sch. and Lef. 11; Spurway v. Glynn, 9 Ves. 483; Shirt v. Westby,

16 id. 396.]

(39) [As a legacy, for the payment of which no other period is assigned by the will (Anonym. 2 Freem. 207), is not due till the end of a year after the testator's death: Hearle v. Greenbank, 3 Atk. 716; and as interest can only be claimed for non-payment of a demand actually due; it is an undisputed general rule, that although a legacy vests (where no special intention to the contrary appears) at the testator's death (Garthshore v. Chalie, 10 Ves. 13), it does not begin to carry interest till a year afterwards, unless it be charged solely on lands. (See the last note.) That general rule, however, has exceptions. Raven v. Waite, 1 Swanst. 557; Beckford v. Tobin, 1 Ves. Sen. 310; a specific bequest of a corpus passes an immediate gift of the fund, with all its produce, from the death of the testator. Kirby v. Potter, 4 Ves. 751; Barrington v. Tristram, 6 id. 349. Another exception arises when a legacy is given to an infant by a parent, or by a benefactor, who has put himself in loco parentis; in such case, the necessary support of the infant may require immediate payment of interest. Lowndes v. Lowndes, 15 Ves. 304; Heath v. Perry, 3 Atk. 102; Mitchell v. Bower, 3 Ves. 287. It must, however, be observed, this latter exception operates only when the child is otherwise unprovided for; when a father gives a legacy to a child, it will carry interest from the death of the testator, as a maintenance for the child, where no other fund is applicable for such maintenance: Carew v. Askew, 1 Cox, 244; Harvey v. Harvey, 2 P. Wms. 22; but where other means of support are provided for the child, then the legacy will not carry interest from an earlier period than it would in the case of a bequest to a perfect stranger. Wynch v. Wynch, 1 Cox, 435; Ellis v. Ellis, 1 Sch. and Lef. 5; Tyrrel v. Tyrrel, 4 Ves. 5. And the general rule as to non-payment of interest upon a legacy, before such legacy becomes due, must not be broken in upon by an exception in favor of an adult legatee, however nearly related to the testator: Raven v. Waite, 1 Swanst. 588; nor as illegitimate children are no more, in legal contemplation, than strangers (Lowndes v. Lowndes, 15 Ves. 304), will interest be allowed, by way of inaintenance for such legatees: (Perry v. Whitehead, 6 Ves. 547), unless it can be satisfactorily collected from the will that the testator intended to give interest. Beckford v. Tobin, 1 Ves. Sen. 310; Ellis v. Ellis, 1 Sch. and Lef. 6; Newman v. Bateson, 3 Swanst. 690. Even in the case of a grandchild, an executor must not take upon himself to pay interest upon a legacy by way of maintenance, when that is not expressly provided by the will; for, though a court of equity will struggle in favor of the grandchild: (Crickett v. Dolby, 3 id. 12; Collis v. Blackburn, 9 Ves. 470), yet it seems, there must be something more than the mere gift of a legacy, something indicating that the testator put himself in loco parentis, to justify a court in decreeing interest for a grandchild's maintenance. Perry v. Whitehead, 6 Ves. 547; Rawlins v. Goldtrap, 5 id. 443; Hill v. Hill, 3 Ves. and Bea. 186. But of course, even when a legacy to a grandchild will never become due unless he attains his majority, still, maintenance may be allowed for his support during his infancy, provided the parties to whom the legacy is given over in case of the infant's death are competent, and willing, to consent. Cavendish v. Mercer, 5 Ves. 195, in note. Under any other circumstances, when a legacy to infants is not given absolutely, and in all events, but is either not to vest till a given period, or is subject to being devested by certain contingencies, upon the occurrence of which it is given over: Errington v. Chapman, 12 Ves. 25; if the words of the will do not authorize the application of interest to the maintenance of the infant legatees, a cour of equity never goes further than to say that, if it can collect before it, all the individuals who may be entitled to the fund, so as to make each a compensation for taking from him part, it will grant an allowance for maintenance: Erratt v. Barlow, 14 Ves. 203; Marshall v. Holloway, 2 Swanst. 436; Ex parte Whitehead, 2 Younge and Jerb. 249; or, where there is no gift over, and all the children of a family are to take equally, there, although other children may possibly come in esse after the order made, yet, all the children, born or to be born, will be held to have a common interest; and therefore, the interest of the fund, as far as it may be requisite, will be applicable for maintenance. Fairman v. Green, 10 Ves. 48; Greenwell v. Greenwell, 5 id. 199; Errat v. Barlow, 14 id. 205; Haley v. Bannister, 4 Mad

donation causa mortis. And that is, when a person in his last sickness, apprehending his dissolution near, delivers or causes to be delivered to another the possession of any personal goods (under which have been included bonds, and bills drawn by the deceased upon his banker,) to keep in case of his decease. This gift, if the donor dies, needs not the assent of his executor: yet it shall not prevail against creditors; and is accompanied with this implied trust, that, if the donor lives, the property thereof shall revert to himself, being only given in contemplation of death, or mortis causa. (i) (40) This method of donation

(i) Prec. Chanc. 269. 1 P. Wms. 406, 441. 3 P. Wms. 357.

280. But, if the will contain successive limitations, under which persons of another family, and not in being, may become entitled; it is not sufficient that all parties presumptively entitled, then living, are before the court; for none of the living may be the parties who, eventually, may become entitled to the property. In such a case, an order for interest by way of maintenance might be, in effect, to give to one person the property of another. Marshall v. Holloway, 2 Swanst. 436; Ex parte Kebble, 11 Ves. 606.

No exception is to be made, in favor of the testator's wife, to the general rule that a pecuniary legacy does not bear interest before the time when the principal ought to be paid, unless a distinct intention to give interest from an earlier period can be fairly collected from the testator's will. Stent v. Robinson, 12 Ves. 461; Lowndes v. Lowndes, 15 id. 304; Raven v. Waite, 1 Swanst. 559.]

(40) A donatio causa mortis is a gift of personal chattels made by a person with a view to his own death, and conditioned to take effect only on the donor's death by his existing disorder. Smith v. Kittridge, 21 Vt. 245; Wells v. Tucker, 3 Binn. 370; Raymond v. Sellick, 10 Conn. 480; Smith v. Downey, 3 Ired. Eq. 263; Knott v. Hogan, 4 Met. Ky. 99. The gift is therefore defeated if the donor survives the disorder. It has many of the properties of a legacy: it may be revoked at any time; it is lost if the donor survives the donee, and it is liable to the donor's debts in case of deficiency of assets. Jones v. Selby, Prec. in Ch. 303; Tate v. Hilbert, 2 Ves. 120; Walter v. Hodge, 2 Swanst. 98; Miller v, Miller, 3 P. Wms. 357; Wells v. Tucker, 3 Binn. 370; Grant v. Tucker, 18 Ala. 27; Jones v. Brown, 34 N. H. 439; Huntington v. Gilmore, 14 Barb. 244. But it does not require to be probated as a will. Ward v. Turner, 2 Ves. Sen. 435. There must be a delivery of the chattels by the donor in his lifetime; and this delivery ought to be an actual delivery into the hands of the donee, or as near such a delivery as the circumstances render practicable. Bowers v. Hurd, 10 Mass. 427; McDowell v. Murdock, 1 Nott and McC. 239; Miller v. Jeffress, 4 Grat. 479; Harris v. Clark, 3 N. Y. 93; Cutting v. Gilman, 41 N. H. 147; Lewis v. Walker, 8 Humph. 503; Michener v. Dale, 23 Penn. St. 59. A previous and continued possession, or an after-acquired possession by the donee will not generally be sufficient. Gough v. Findon, 7 Exch. 48; Miller v. Jeffress 4 Grat. 479; Dole v. Lincoln, 31 Me. 422. Delivery to a third person for the donee is a good delivery: Coutant v. Schuyler, 1 Paige, 316; Sessions v. Moseley, 4 Cush. 87; Dresser v. Dresser, 46 Me. 48; Jones v. Deyer, 16 Ala. 221; and such delivery may be made to one in trust for another. Dresser v. Dresser, 46 Me. 48; Kemper v. Kemper, 1 Duv. Ky. 401. It is doubtful if a written instrument of transfer which is delivered is sufficient as a substitute for actual delivery of the chattels, but in Powell v. Leonard, 9 Fla. 359, a deed of a mother and children, slaves, was sustained as a good gift of all, where the mother was present at the time and the usual words of delivery were spoken, though the children were absent and not delivered. Negotiable securities may be the subject of this species of gift: Bradley v. Hunt, 5 Gill and J. 58; Holley v. Adams, 16 Vt. 206; Grover v. Grover, 24 Pick. 261; Harris v. Clark, 3 N. Y. 93; Bedell v. Carll, 33 N. Y. 581; and so it seems, may a bond, or any other written contract of a third person: Brown v. Brown, 18 Conn. 410; Meach v. Meach. 24 Vt. 591; Parish v. Stone, 14 Pick. 198; Waring v. Edmonds, 11 Md. 424; Sessions v. Moseley, 4 Cush. 87; Bonneman v. Sidlinger, 21 Me. 185; but not the donor's own note or other executory promise: Holley v. Adams, 16 Vt. 206; Copp v. Sawyer, 6 N. H. 386; Thompson v. Dorsey, 4 Md. Ch. Dec. 145; Parish v. Stone, 14 Coun. 198; Michener v. Dale, 23 Peun. St. 59; Harris v. Clark, 3 N. Y. 93; Smith v. Kittridge, 21 Vt. 238; Dole v. Lincoln, 31 Me. 422; Flint v. Pattee, 33 N. H. 520; nor his order on a third person, or his check on a bank, which remains unaccepted at his death. See Nat. Bank v. Williams, 13 Mich. 282; Brown v. Moore, 3 Head. 671; Ashbrook v. Ryon, 2 Bush, 228. A life insurance policy may be the subject of this gift: Witt v. Amis, 1 El. B. and S. 109; and so may a certificate of stock: Allerton v. Lang, 10 Bosw. 362; though this has been doubted. Pennington v. Gittings's Ex'r, 2 Gill and J. 208. The gift may be made by wife to husband and husband to wife; Caldwell v. Renfrew, 33 Vt. 213; but if by law the wife cannot make a will except with the consent of the husband, the power to make this gift is subject to the same limitation. Jones v. Brown, 34 N. H. 439. Resumption of possession by the donor revokes the gift. Bunn v. Markham, 7 Taunt. 232; S. C. 2 Marsh. 539. The same dangers attend these gifts as attend nuncupative wills, and they are not favored in the law. Westerloo v. De Witt, 35 Barb. 215. If made upon condition, e. g., that the gift shall be all the donee shall have from the donor's property-they must be accepted subject to the condition. Currie v. Steele, 2 Sandf. 542.

might have subsisted in a state of nature, being always accompanied with de livery of actual possession; (k) and so far differs from a testamentary disposi tion: but seems to have been handed to us from the civil lawyers, (7) who themselves borrowed it from the Greeks. (m)

7. When all the debts and particular legacies are discharged, the surplus or residuum must be paid to the residuary legatee, if any be appointed by the will: and if there be none, it was long a settled notion that it devolved to the executor's own use, by virtue of his executorship. (n) But whatever ground there might have been formerly for this opinion, it seems now to be understood (0) with this restriction; that although where the executor has no legacy at all, the residuum shall in general be his own, yet wherever there is sufficient *on the [*515] face of a will (by means of a competent legacy or otherwise,) to imply that the testator intended his executor should not have the residue, the undevised surplus of the estate shall go to the next of kin, (41) the executor then standing upon exactly the same footing as an administrator, concerning whom, indeed, there formerly was much debate, (p) whether or no he could be compelled to make any distribution of the intestate's estate. For, though (after the administration was taken in effect from the ordinary, and transferred to the relations of the deceased) the spiritual court endeavoured to compel a distribution, and took bonds of the administrator for that purpose, they were prohibited by the temporal courts, and the bonds declared void at law. (9) And the right of the husband not only to administer, but also to enjoy exclusively, the effects of his deceased wife, depends still on this doctrine of the common law the statute of frauds declaring only, that the statute of distributions does not extend to this case. But now these controversies are quite at an end; for, by the statute 22 and 23 Car. II, c. 10, explained by 29 id. c. 30, it is enacted, that the surplusage of intestates' estates, (except of femes-covert, which are left as at common law), (r) shall, after the expiration of one full year from the death of the intestate, be distributed in the following manner: One-third shall go to the widow of the intestate, and the residue in equal proportions to his children, or, if dead, to their representatives; that is, their lineal descendants: if there are no children or legal representatives subsisting, then, a moiety shall go to the widow, and a moiety to the next of kindred in equal degree and their representatives: if no widow, the whole shall go to the children: if neither widow nor children, the whole shall be distributed among the next of kin in equal degree and their representatives: but no representatives are admitted, among collaterals, farther than the children of the intestate's brothers and sisters. (s) The next of kindred, here referred to, are to be investigated by the same rules of consanguinity, as those who are entitled to letters of administration; of [*516] whom we have sufficiently spoken. (t) *And therefore by this statute

the mother as well as the father, succeeded to all the personal effects of their children, who died intestate and without wife or issue; in exclusion of the other sons and daughters, the brothers and sisters of the deceased. And so the law still remains with respect to the father; but by statute 1 Jac. II, c. 17, if the father be dead, and any of the children die intestate without wife or issue,

(m) There is a very complete donatio mortis causa, in the Odyssey. b. 17, v. 78, made by Telemachus to his friend Pirns; and another by Hercules in the Alcestes of Euripides, v. 1020. (n) Perkins, 525. (0) Prec. Chanc, 323. 1 P. Wms. 7, 544. 2 P. Wms. 338. 3 P. Wms. 43, 194. son. Dom. Proc. 23 Apr. 1777.

(p) Godolph, p. 2, c. 32. (9)1 Lev. 233. Cart. 125. 2 P. Wms. 147. (8) Raym. 496. Lord Raym. 571. (t) Page 504.

Stra. 559. Lawson v. Law(r) Stat. 29 Car. II, c. 3, § 25.

(41) But the rule is now otherwise under statutes 11 Geo. IV, and 1 William IV, c. 40, which enacts that executors shall be deemed by courts of equity to be trustees for the persons who would be entitled under the statutes of distributions, in respect of any residue not expressly disposed of by any testator's will, unless it shall appear by the will, or a codicil thereto, that the persons appointed executors were intended to take such residue beneficially.