PART V.

Of the presumptive Trust in the Executor for the next of Kin of the Testator as to the Surplus undisposed of by the Will.

AN executor, to whom a legacy is given, is generally, by the equitable presumption raised by that circumstance, deprived of the benefit of his legal title; and becomes a trustee of the surplus undisposed of by the will, for the nearest of kin to the testator: which is a presumptive construction, arising out of the instrument itself, and resting on an implied exclusion from the whole, by a specific gift of part.

The question, as to the admissibility of evidence to rebut this presumption, will only properly arise where the legacy to the exccutor is accompanied by no particular words, denoting in a special manner the intention of the testator; for there may be cases, as Rachfield v. Careless (1), wherein the language

(1) 2 P. Wms. 157, in which case a legacy of 51. was given to the executor for his care in fulfilling the will. Vide May v. Lewin, 2 P. Wms. 158. n. 1. and the remark by the court in Clennell v. Lewthwaite, 2 Vez. jun. 473, also White v. Evans, 4 Vez. Jun. 21. and see the numerous distinctions on this subject in Mr. Coxe's note to Farrington v. Knightley, 1 P. Wms. 549. and the cases in the

whereby the legacy is given may carry the presumption so high, as to place it on a level with an

note at the end of Nisbett v. Murray; see also Abbott v. Abbott, When a legacy 6 Vez. jun. 225, and the cases therein cited. From the whole of takes away an executor's right which it appears, that a legacy will not take away an executor's to the surplus. right to the surplus, unless such legacy is inconsistent with the supposition that he was meant to take the whole. But the executor is always excluded where the words of the will indicate an intention to impose a burthen rather than to confer a benefit whether there be any legacy given to the executor or not, 7 Vez. jun. 225. Urquhart v. King. 10 Vez. jun. 711. Selley v. Wood. Where an executor had a legacy for his trouble, parol evidence was admitted on behalf of his co-executrix, an infant, to rebut the presumption for the next of kin, 10 Vez. jun. Williams v. Jones. A legacy to the next of kin does not exclude such next of kin from their title as such, 10 Vez. jun. 74. It is to be observed, that in this case of Rachfield. Careless, evidence seems to have been admitted in favour of the next of kin, upon which Mr. Coxe remarks, that it appears to be the only case in which parol evidence has been admitted in favour of the next of kin. Nothing, indeed, is more obvious than the distinction between raising and rebutting a presumption or Of the distinc an equity, for the former of which objects, parol and extrinsic evi- tion between admitting evidence dence can never, without great violation of principle, be admit- to raise and to rebut an equity. ted, but the equity ought first to be raised by the presumptive construction of the instrument, to which equity parol evidence may be opposed, and then I conceive it follows upon sound maxims, both of law and equity, that parol evidence may likewise be adduced in opposition to this rebutting evidence, and in support of the original presumptive equity. And this, I apprehend, has always been the rule of proceeding; so that the observation of the learned editor just alluded to, must be understood as adverting only to the inadmissi bility of parol evidence, in the first instance, and for the purpose of raising the equity for the nearest of kin, against the legal title. Indeed, the parol evidence, in the case last-mentioned, for the next

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explicit declaration, and above all parol proofs to the contrary. Mr. J. Powis, who sat for the Chancellor, in the last-mentioned case, declared his general repugnance to admit parol evidence in opposition to this equity for the next of kin, and stated it to have been a vexata questio, on which there had been the greatest variety of opinion in all the tribunals in which it had been agitated.

It seems that in the earlier cases, the hesitation in admitting parol evidence to repel this trust for the next of kin, arose in a great degree from the doctrine that in courts of equity an executor was not to be considered as any thing more than a trustee (2). But since the case of Foster v. Munt (3), an executor has been uniformly regarded as entitled to the whole undisposed of residue, unless there is a violent presumption to the contrary, which a legacy given to him by the testator, without any disposition of the surplus, was by that case considered as affording.

of kin, seems to have been superfluous, since the presumption against the executor, from the particular language of the bequest to him, was so strong as to amount to a declaration by the will itself.

(2) See the case of the Duke of Rutland v. the Duchess of Rutland, 2 P. Wms. 212, and the observations of Powis J. in Ratchfield v. Careless, 1 P. Wms. 548. That an executor and administrator having paid all debts, legacies, and funeral expences, was compellable to divide among the next of kin, was a proposition in 2 Inst. 33, which appears to have been inadvertently laid down.

(3) 1 Vern. 473. 2 Vern. 676.

It would be endless to enumerate the cases upon Mr. Justice Bul

ler's observations

a on the admissi evidence in

this subject (4), but it may be useful to consider little the important case of Nourse v. Finch, which came before Mr. J. Buller, sitting for the Chancellor in 1791. The Judge made three points of the case, 1st, Whether parol evidence should be admitted at all; 2dly, if admissible at all, to what extent it could be admitted; 3dly, if all the evidence offered in the case was admissible, whether the evidence which was read was sufficient to rebut the equity of the next of kin, under the circumstances of that case. It was the decided opinion of the Judge, that the evidence tended to a conclusion directly opposed to that for which it was brought forward, but he discovered a sentiment equally strong against admitting parol evidence at all in such cases, avowing the short period of his authority in that court as his reason for declining an opposition to the series of authorities in the same court the other way. It appeared also to be the clear opinion of the Judge, that even under these authorities, at most only that part of the evidence could be admitted, which referred to the time of the making of the will, and that he probably would have rejected the evidence offered on that ground, if

bility of parol

these cases.

(4) In Clennell v. Lewthwaite, 4 Vez. jun. 471, which was decided above thirteen years ago, it was observed by the Master of the Rolls, that the cases on the question were so numerous, that it was a disgrace to the court.

Of the general admissibility of

parol evidence

to repel the presumption against the exe.cutor.

under his third view of the case it had not been clear against the executrix; and the force of Mr. J. Buller's objections have been acknowledged by great authorities since the decision above-mentioned.

The decree of the Judge was afterwards confirmed by Lord Chancellor Loughborough, on the insufficiency of the evidence offered. But since the case of Clennel v. Lewthwaite above-mentioned, in which the reasoning of the Judge in Nourse v. Finch, was much under review, and ably observed upon, it seems to have been regarded as settled, that parol evidence of all kinds is admissible to rebut the resulting equity for the next of kin, arising from any circumstances in a will by implication excluding the executor from the benefit of his legal title; and it seems to be of no importance, as to the mere question of admissibility, whether the matters in proof were contemporary with, or subsequent to the will, although there is admitted to be a great difference in the weight of the different kinds of testimony.

All the cases were then set forth in the order of time in which they were decided, and profoundly commented upon by the late Lord Alvanley, who yielded to the pressure of authorities for admitting the extrinsic evidence in these cases, except where the expressions of the will carried so prevailing an import against the executor, as to amount to a declaration of the trust for the next of kin; which, accord