that A. and B. are entitled to share in the residue, as well as C., D., &c.

A receiver, though prayed for, will not be appointed at the hearing, unless a motion or petition for that purpose has been previously made or presented, and ordered to come on at the same time with the cause.

Joshua Rose, by his last will, gave and devised to Thomas Banning and Charles Clements all his real and personal estates, upon trust to sell; and then, after directing them to pay his debts and funeral expenses, proceeded in the following words: "It is my will that my trustees above named do pay unto Jane Anderson 1000l., and to her daughter Eliza and son Joshua 50%. each annually, until they arrive at the age of twenty-one years, at which period they or the survivor of them shall receive the principal sum of 2000l.

"And I also direct my said trustees to pay to my devisees as under, as soon as they can, to the son of Thomas Banning, named Joshua, or his guardian, 1000%; and to Captain Grantham Hodgson, 10007.; and to my nephew William Dench, 1000l.; and to my niece Ellen Lunt, wife of Thomas Lunt, 1000l.; and to Hannah Potter 1000l., &c.

"And the rest, residue, and remainder I give unto all my devisees above named, share alike, in proportion to their several legacies. "

The bill was filed by Jane Anderson and her two children, against the executors of the testator and the other persons claiming an interest under his will.

Mr. Bell and Mr. Roe, for the plaintiffs; Mr. Hart, Mr. Agar, Mr. Sugden, Mr. Blenman, and Mr. Cooper, for the different defendants.

The question was, whether Jane Anderson and her children were entitled to a share of the residue; or whether the gift in the residuary clause, to all my devisees above named, was to be confined to those, who, in the second paragraph of the will, were distinguished by the appellation of devisees as under.

For the defendants it was argued, that the separation of the will into distinct paragraphs was a circumstance not unworthy of notice, as marking the intention of the testator. In the first paragraph he bequeathed legacies to the Andersons: in the

second, he gave benefits to certain other persons, whom he named devisees as under: and then he disposes of the residue in favour of all his devisees above named. "The devisees above named "in the residuary clause, must be held to refer to "the devisees as under" in the second paragraph of the will. Besides, the testator clearly meant, that the whole of the property should be distributed immediately, and that all the persons described as devisees should take present shares; and this intention would be effectuated, if the residuary clause were construed to extend only to those who were named devisces in the second paragraph of the will. If, on the contrary, it were interpreted so as to include the Andersons, the immediate distribution contemplated by the testator could not take place for the legacies to Eliza Anderson and Joshua Anderson were contingent upon the event of these infants attaining the age of twentyone years.

Vice Chancellor.-In cases like this, the court is not at liberty to conjecture what the intention of the testator may have been, but it is to satisfy, in a clear and simple manner, the words which he has thought fit to use.

The testator begins by giving Jane Anderson a sum of money, and directing an annual payment to be inade to her two infant children, till they attain the age of twenty-one, at which time they or the survivor of them are to receive 2000l. then goes on to direct his trustees to pay to his devisees as under (that is to his devisees as under mentioned) certain other

He

pecuniary legacies. Can it be supposed, that he used the term devisee in any peculiar signification? Is it not clear, that, in his mind, it was synonymous with legatee? He was not aware of any distinction between these two words.

Assuming, therefore, as I must, that he used the word devisee as synonymous with legatce; -when I find, that, after he has completed his gifts of absolute sums to the Andersons, and to certain other objects of his bounty, he directs the residue to be divided among "all his devisees above named share and share alike, in proportion to their several legacies; " must I not read it, just as if the term "legatces" had been used? His direction, in truth, is, that the residue

should be divided among his legatees in proportion to their respective legacies. The Andersons are legatees: on what principle, therefore, are they to be excluded?

The share of the residue to which Eliza and Joshua Anderson are entitled, will be in proportion to their legacy of 2000l.

No difficulty is occasioned by the circumstance of that legacy being contingent. The share of the residue, which is annexed to the legacy, will be subject to the same contingency as the original gift.

A receiver was prayed for by the bill; and accordingly the plaintiffs, upon obtaining a decree, asked for the appointment of a receiver.

Vice Chancellor.-I cannot appoint a receiver in this decree. The propriety of granting or refusing such an application depends on circumstances collateral to the issue in the pleadings; and these circumstances cannot be fully before the court when it pronounces its decree. In order to have a receiver appointed at the hearing, a petition ought to have been presented, or a motion made for that purpose; that petition or motion might have been ordered to come on with the cause; and by that means, a receiver might have been appointed at the hearing.

If a bill, which has been dismissed for want of prosecution, is restored on the terms of the plaintiff paying the costs occasioned by the dismissal, and the cause comes to a hearing before these costs are paid, the defendant cannot then object, that the terms of the order of restoration have not been complied with.

The bill in this cause had been dismissed for want of prosecution; but was afterwards restored on the terms of the plaintiff paying the costs of dismissal. The costs had not yet been paid, and were under taxaiton in the Master's office.

The cause having now come to be heard,

Mr. Knight submitted as a preliminary objection, that the plaintiff could not be heard, till the costs of the dismissal were paid.

Vice Chancellor.-An earlier application should have been made on the subject of the costs the court would not have permitted the cause to be advanced, till they were paid. But after the defendant has remained idle so long, without taking proper steps to enforce payment, he cannot now avail himself of the objection.

1823. Νον.

}

HAYNES V. LITTLE FEAR.

A testatrix, after some specific bequests, gives to A., for his life, all monies, dividends of stock, and all other monies due to her; she directs, after his decease, the principal and interest to be divided among his children in the following manner (giving 500l. to one child, and 300l. to each of three others); and she then appoints A, and B. her executors: these legacies were sufficient to exhaust all the testatrix's property as it stood at the date of the will; but in consequence of subsequent acquisitions, there remained at her death a large residue: Held, that the executors were entitled to take the residue beneficially.

Sarah Haynes, by her last will, dated the 16th of May 1812, made the following disposition of her property: "Such worldly estates wherewith I am possessed, I dispose of in the following manner. First, I direct that all my just debts and funeral expenses be paid. I give to my brother all my household furniture and household linen for his own use. I likewise give to my brother William Haynes all my plate and china for his life, and after his decease not to be sold, but to be divided between his five children, as many as shall be living at that time, and to be kept by them in remembrance of their ancestors. I give to my brother William Haynes all monies, dividends of my property that is invested in the public funds in my name; and all other monies, whatsoever and wheresoever, that shall be due to me, for his life, and him to receive all dividends as they become due, or be at liberty to empower to receive for

him; and after his decease, I direct all principal and interest to be divided between his children in the following manner :-I give to his son William W. Haynes 500l., to John H. Haynes 300l., to Elizabeth Littlefear 300l., to Ann Haynes 300l.; but there shall be no division, till after the decease of my brother William Haynes. I likewise nominate, constitute, and appoint my brother William Haynes and Thomas Littlefear my executors of this my last will."

The testatrix did not die, till ten years after the date of her will. The legacies, which she bequeathed, were sufficient to exhaust all the property she possessed at the time when the will was made; but in the interval between 1812 and her death, her fortune was greatly increased; so that, after payment of all her debts and of all the legacies expressly given, a large surplus remained. To this surplus three claims were set up.

The plaintiffs (they were the children of William Haynes, who survived the testatrix, but died shortly afterwards) contended, that the gift to them of all principal and interest was a complete disposition of the whole of the residue, and that the specific sums afterwards mentioned, were intended to express, not the absolute amount of the bequest to each, but the proportions in which they were severally to take the residuary fund.

The executors contended, that there was no disposition of the residue by the will, except to them as executors; that there were no words to convert them into trustees; and, therefore, that they took it beneficially.

The next of kin insisted, that there was no intention to give the residue to the executors beneficially; that the testatrix meant only to dispose of what she had in 1812; that the residue, consisting of property subsequently acquired, could not be meant either to vest beneficially in the executors, or to go to the legatees, to whom specific sums were bequeathed; and, therefore, that the next of kin were entitled to the fund, as altogether undisposed of.

Mr. Hart, Mr. Heald, and Mr. Whitmarsh, for the legatees.

Mr. Bell and Mr. Roupell for the surviving executor.

Mr. Sugden and Mr. Norton for the next

of kin.

Vice Chancellor.-In construing a will, the court is not at liberty to enter into any consideration of the expressions which the testatrix might have used, if a different state of circumstances had been present to her mind-different, I mean, from those circumstances with a view to which the will was actually framed. I can look only at the will as it stands; and the sole question is, what is the true construction of the expressions, which the testatrix has actually used.

The first point, which has been insisted upon for the plaintiff, is, that the words "all monies," &c. and "all principal and interest" carry not merely monies, but the whole personal estate; and the argument alleged for this construction, is, that the testatrix begins by expressing an intention of disposing of all her worldly estate, and that she will not have effectuated that intention, unless that ample interpretation be given to the words in question. Previous, however, to the gift of the money, I find a bequest of all household furniture, of all plate and china. The same argument would apply to these bequests, as to the bequest of the monies; and it might be alleged, that because she had expressed an intention to dispose of all her worldly estate, and yet had made no express disposition of it, the gift of the china must carry the whole residue.

Has this testatrix given to these legatees certain sums, or certain proportions of all the monies, to which she was entitled or of which she was possessed at the time of her death? She gives to her brother for his life, all monies, dividends of stock standing in her name, and all other monies due to her; next she directs, after his decease, "all principal and interest to be divided between his children in the following manner," and then proceeds to give certain sums to each of these children. Now, what do the expressions here used convey to us with respect to the state of the mind of the testatrix at the time when she made her will? undoubtedly, that she believed that the property, which her brother was to have for his life, would amount precisely to the specific sums enumerated in her will; that, after his decease, the whole residue would

be exhausted by these legacies; and that her intention was, that the legacies should consist of these specific sums, and not of certain proportions of the general residue. It turns out, that, in the interval between the making of her will and her death, she acquires considerable additional property. But is it for a court to say, that she meant by her will to give, and has given, property which was not in her contemplation, and which the words she has used are not sufficient to carry? She might have so framed the will, as to dispose of whatever she might afterwards acquire. But that is not the intention which she has expressed: she did not happen to contemplate the event of the increase of her fortune. Had she contemplated that event, she probably might have used different words; but I am not at liberty to act upon any conjecture with respect to the words, which, in that case, she might have used. Even if a court had the power and the inclination to act upon such suppositions, it would still be altogether uncertain, whether, with the increase of her fortune, the testatrix would have remained in the same intentions towards the different objects of her testamentary bounty. Upon the whole, it is quite plain, that she considered that her whole property would be exhausted by the particular sums which she bequeathed, and that her purpose was, to give particular sums, and not proportions of an undefined residue.

Mr. Sugden, for the next of kin.

The court having now decided, that the intention of the testatrix was to give only what she had at the time of making her will, it cannot have been her meaning, that the executors should take a residue which is composed altogether of subsequently-acquired property. And though there are no words of positive exclusion, yet, as on the whole will taken together, there is no expression of intention in favour of the execu tors, the residue must be regarded as not disposed of, and must go to the next of kin.

Vice Chancellor.-By law, all personal estate vests in the executor; and the nomination of an executor is a disposition of the whole of it. Being by his office possessed

of the whole personal estate, he must take it for his own benefit, unless it appear in the will that he was intended to be a trustee. It is not necessary that there should be any particular expression of an intention that he should take beneficially: the appointment to the office is enough, unless there be something to exclude him from taking for his own benefit.

Now, in this will, there is nothing that indicates, that these executors are to be trustees of the residuary estate. It has indeed been argued for the next of kin, that the testatrix expresses an intention to dispose of her whole personal estate; that in fact, however, a part of it has not been disposed of, and, therefore, that a trust must be held to attach upon the part thus undisposed of. The answer to that argument is, that the nomination of executors is a disposition of the whole.

An agent, not having his accounts ready within a reasonable time, will be made to pay costs, even though he should have offered to pay on account of what might be due from him, a sum equal to the balance with which he was actually chargeable.

Where an executor institutes a suit properly, and a co-executor refusing to join in it is made a defendant, this co-executor will not be allowed his costs.

This bill was filed by an executor for an account, against Mr. C. D., a solicitor, who had been agent to the testator. The testator died in 1816, and from that time up to 1821, frequent applications were made to C. D. for a delivery of his accounts. These applications not having been complied with, the bill was filed, and his answer was sworn in 1821. Before the answer was put in, he had offered to pay 500l. to the executors, to the credit of what might be found due from him; and excused his delay in not having his accounts ready, on the ground of the pressure of business. The sum of 500l. was about equal to the balance, which

upon the account being taken, was found to be due from him.

The question now was, whether he ought to be charged with the costs of the plaintiff.

Master of the Rolls.-A professional gentleman, who places himself in the situation of an agent, must be ready with his accounts. Where a party is employed in collecting money and in making disbursements, suspense as to the actual state of balance is most injurious. It is no satisfaction for delaying to deliver the accounts, that he offered to pay 500l., which, it now appears, would have covered all that was due from him. That offer (to say nothing of its being made after the bill was filed) did not compensate for the inconvenience arising from the non-delivery of his ac

counts.

He had two duties to perform; the one, to deliver clear accounts; the other, to pay the balance which might be due

from him. The offer to fulfil the latter obligation cannot free him from the former. This agent must, therefore, pay the plaintiff the costs of the suit, which his delay rendered necessary. One of the executors having refused to join as a plaintiff in the suit, had been a defendant:

The Master of the Rolls refused to allow this defendant his costs: he ought to have concurred as a plaintiff with his co-executor.

appearance.

Upon a petition in this cause, Mr. Belt appeared for a party, who had no interest in the matter of the petition, and asked for his costs.

Mr. Agar, contrà, insisted that the party, though served, ought not to have appeared.

It was stated by several gentlemen of the bar, that the practice before the Lord Chancellor and the Vice Chancellor was, to allow costs to every party who was served and appeared.

Master of the Rolls.-Such has never been the practice here. The rule not to give costs to parties, who, being served, appear upon petitions in the subject of which they have no concern, was established by my predecessors; and I have followed it, practice would be ruinous in the extreme. as most useful to the public. A contrary Suppose that an infant presents a petition for maintenance in a cause in which there are half a dozen of parties; these parties they should all appear, when they can have are all served; but is it to be borne, that no objection to the prayer of the petition?

The costs were refused to Mr. Belt's client.