
    William Finklea vs. A. B. Jordan and Wife, and others.
    
      Will — Executor according to the Tenor — Legacy to Executor.
    
    Testator directed as follows: “I wish my executor hereinafter named to sell my land * * * * out of which he is to pay all my just debts, and funeral expenses. The balance, if any, of the money derived from the sale of my land, I give and bequeath to my brother W., his heirs and assigns, which is to be in lieu of all commissions.” No one was expressly appointed executor. Held, that W. was constituted executor according- to the tenor.
    
      Held, further, that W,, having neglected to assume the executor-ship, was not entitled to the legacy.
    Where a legacy is given to one who is appointed executor the presumption is that it was given to him in that character, and it lies on him to show something arising on the will to repel the presumption.
    BEFORE CARROLL, OH., AT MARION, FEBRUARY, 1867.
    The decree of his Honor, the Chancellor, is as follows:
    Carroll, Ch. In the consideration of this case some degree of embarrassment has been produced by the state of the pleadings. It is assumed by the bill, and apparently conceded by the answer of Jordan and wife, that an executor cannot be constituted but bjr express appointment of the testator. In his bill, the plaintiff', after averring that Hugh Finklea had executed his last will and testament, thus proceeds: “ A copy of which is herewith filed, as a part of your orator’s bill of .complaint, and to which he craves all necessary and proper reference.” The effect of such a reference is to make the whole document referred to part of the record. 1 Danl. Prac. 372.
    In their answer, the defendants, Jordan and wife, in terms, admit that Hugh Finklea died leaving a will, but no executor. Yet in effect, these respondents do maintain in the sequel of their answer, that the bequest to the plaintiff, under the will, was made to him solely iu character of its executor. If they do not touch that ground, they certainly verge most closely towards if, when they contend that the “money bequeathed to the complainant was,given as compensation for his services and trouble, as executor, and now belongs to them, as they have had the trouble of administration, and not he.” In the argument, it was maintained, on the part of Jordan and wife, that by the effect of the will, the plaintiff was appointed executor, according to the tenor that the legacy to him was upon the condition that he should assume that office, and he having failed to do so, that his right to such legacy had never been consummated. It was urged in reply, that the ground of defence had not been taken in the answer, and could not, therefore, be considered by the Court. There is certainly room for the doubt whether the answer of these defendants, fairly interpreted, does not include substantially the objection in question to the plaintiff’s claim. But though such grounds of defence were not included in their answer, yet it is apprehended that it would be competent at least for the Court to regard and consider it at the hearing. The plaintiff seeks the active aid of the Court, and must make out his right to its interposition. He sets forth in his bill the will of his brother, Hugh Finklea, and admits that he has never assumed upon himself the office of its executor, but has permitted the administration of the testator’s estate to be committed to other hands. If the objection in question be well founded, it is manifest and patent upon the plaintiff’s own statement of his claim. There is less strictness of pleading exacted here than in the law Court. Yet even there the Court will take into consideration, retrospectively, the sufficiency in law of matters to which an answer in fact had been given. “ The remedy,” says the Court, “to be afforded in a case in equity depends upon the whole pleadings in the cause.” Nix vs Harley, 3 Rich, Eq. 383. It is deemed admissible and proper, therefore, to consider the ground of defence adverted to. “ The appointment of an executor may be either express or constructive. He may be appointed by necessary implication by conferring those rights that belong to the office, or by any other language from which the intention of the testator to invest him with that character may be inferred.” 1 Wm.’s Exrs. 211, 219, and Watson vs. Mayrant) 1 Rich. Eq. 449. In the second clause of his will, the testator thus speakst “I wish my executor, hereinafter named, to sell my land according to his best discretion, publicly or privately, out of which he is to pay all my just debts, and funeral expenses. The balance, if any, of the money derived from the sale of my land, I give and bequeath to my brother, William Einklea, his heirs and assigns, which is to be in lieu of all commissions.” After the words “my executor, hereinafter named,” no male person whatever is mentioned in the disposition of the will, except the testator’s brother, the plaintiff, William Einklea, and he is designated by name in the next succeeding and concluding sentence of the clause. The testator having directed the sale of his land, proceeds to dispose of the proceeds; out of them his debts and funeral charges are to be paid, and the residue, if any, is to be received by the plaintiff, in lieu of all commissions. The fund to be disposed of, it will be observed, is regarded by the testator as being in the hands of his executor. It is he who is to receive and' disburse it — the very acts of an executor, which entitle him to a pecuniary compensation for his services; and the final disposition, in respect to that fund, is the bequest of the residue, if any, to the plaintiff, in lieu of áll commissions. Surely, the commissions intended must have been those incident to the receipt and disbursement within the testator’s immediate contemplation, and for which he was providing by the very clause in question. In common parlance, as also in the language of the Courts, the compensation of an executor, under the Act of 1789, is habitually spoken of as his commissions. It was not proved, or even suggested in argument, that the plaintiff had ever rendered the testator any service in his lifetime, as factor or agent, or otherwise, out of which could have arisen any debt that could rationally be designated as commissions; nor was any suggestion made as to the expression being susceptible of any other meaning than that which has been indicated. On the contrary, that the plaintiff was constructively appointed the executor, seems to be distinctly conceded by his bill, when he alleges that from the tenor of said will it is apparent that his said brother intended to appoint him executor of his said will, although it is added, “but no one was appointed;” The plaintiff must be regarded as the executor of his brother the testator’s will, according to the tenor. The presumption is, that a legacy to a person appointed executor, is given to him in that character, and it is on him to show something in the nature of the legacy, or other circumstances arising on the will to repel that presumption, 2 Wm. Exrs. 1153, 1156, and cases cited. It is said that this presumption is inapplicable to the bequest of a residue., In the cases cited as thusmodifying the general rule, it will be found that the bequests in question were not given to the legatees expressly as executors, as in the present case, as compensation for their care and trouble in that capacity. “Nothing is so clear,” says Lord Alvanley, “ as that if a legacy is given to a man as executor, whether expressed to be for care and pains or not, he must, in order to entitle himself to the legacy, clothe himself with the character of executor.” “ If,” he adds, “ there was any circumstance to show he was backward in undertaking the trust reposed in him, he shall not have it,” Harrison vs. Rowley, 4 Yes. 216. Certainly the plaintiff' has not been forward in taking upon himself the office of executor of his brother Hugh Finklea’s will. If he has made the slightest effort to do so, it does not appear in this cause. Having failed to assume the trust of executor, the plaintiff' is regarded as not entitled to the legacy whi'ch he claims.
    His bill should therefore be dismissed, and it is accordingly so ordered and adjudged.
    The plaintiff appealed, and now moved this Court to reverse the decree of his Honor, the Chancellor, below.
    
      Harllee, for the motion.
    Evans, contra.
   The opinion of the Court was delivered by

Dunkin, C. J.

The reasoning of the Chancellor is entirely satisfactory to show that the plaintiff was executor, according to the tenor of his brother’s will. Indeed it is so alleged in the bill. But it is insisted that the bequest of the residue of the fund to arise from the sale of the land was not made to the plaintiff as executor, and that “ being residuary devisee of the land by the express terms of the will, he was entitled to a decree for the land upon payment of testator’s debts, which he had offered to do,” — or at least to a decree for the sale of the land, and payment of the debts, and the surplus to be paid to him.

The general proposition is not questioned, that, where a legacy is given to a person appointed executor, the presumption is that it is given to him in that character, and that the burthen of proof is on him, to show something in the nature of the legacy, or other circumstances arising ou the will, to repel that presumption.

This will was executed in March, or April, 1862, just as the testator was leaving home to join the ai*my of the Confederate States. Although prepared and witnessed by a gentleman of the legal profession, it bears evident marks of haste. The instrument is without date, and, although purporting to appoint an executor, no one is nominated. The testator had a wife, but was without children. The first clause directs the payment of his just debts. The second is that recited in the decree $ and the will concludes thus: “ all the balance of my estate I give and bequeath to my wife, Elizabeth Ann, her heirs and assigns forever.” The will was proved 2d Dec. 1862, and, on 18th Dec. the widow took out letters of administration, with the will annexed, and has since been engaged in discharging her duties as such. The plaintiff was in the army at the death of his brother, but returned for a short time in 1864, and gave notice that he wanted the land, and would pay the debts. In Dec. 1865, these proceedings were instituted. In the course of litigation many references were held, the, result of which was that the market value of the land would scarcely pay the debts. But, if the plaintiff’s positions are well taken, he was entitled to a decree. Is there any ©ii-. cumstance, arising on the will or otherwise, to rebat the presumption that the bequest to the. plaintiff was in his character as executor, and consequently, never having assumed the office, he is not entitled to the bequest? The Court is at liberty, in giving construction, to look at the surrounding circumstances. The testator had a brother, the natural object of regard, and a wife, the object of his regard and solicitude. His land, if sold w-according to the best discretion of his executor, at public or private sale,” might probably sell for something more than was sufficient to pay his debts. He directs it to b.e sold by his executor,, and, “ after payment of his debts and funeral expenses, the balance, if any, of the money derived, from the sale is given, to his brother, (the plaintiff,) which is "to be in lieu of all commissions.”

The primary object of the testator’s bounty was his wife. A particular portion of his estate is set apart for the payment of his debts. His brother and executor is to have the trouble of administering the estate, and for his compensation, or in lieu of commissions, is to receive any balance which may remain of the fund especially set apart for the payment of debts and expenses, thus relieving his wife from the trouble or charge in the management and settlement of his estate, and bequeathing to her the residue of his estate, except only the portion thus set apart. If the portion set apart had been a bond which his executor was to collect, and, out of the proceeds pay testator’s debts, and retain the balance, if any, in lieu of commissions, it would not be doubtful that the presumption would prevail, and that, although the executor was the testator’s brother, he could only entitle himself to the bequest by assuming and discharging his official duties. It is not perceived that the character of the property set apart affects the conclusion.

It is ordered and decreed that the decree of the Circuit Court, dismissing the plaintiff’s bill, be affirmed.

Decree affirmed. 
      
       It does not appear who concurred with the Chief Justice, hut as nothing appears to the contrary, it is presumed the Court was unanimous.
     