
    
      David Shelton, William Shelton and Samuel Shelton, Executors of Joseph Shelton, Deceased, v. John Shelton.
    October Term, 1791.
    Wills — Devises—Construction*—Caseat Bar. — Devise to five persons, brothers and nephews of the testator; to each, a tract of land, by name, with all the cattle &c., and appurtenances thereto belonging- in fee. The testator then gives all his negroes, young and old, at all his plantations above named, to be equally divided between his three brothers before mentioned; and after some pecuniary legacies, he directs that, if his two nephews should either of them die before marriage, or without issue, the legacies left to one, to go to the other; and if both .die before marriage, or without issue, then the legacies to goto the testator’s three brothers. The testator, when he made his will had no lands but those devised, nor any slaves but those that were on the said plantations. He afterwards purchased another plantation called W. and eight slaves, only three of whom were at W. at his death; the others were at the devised plantations, from whence others were removed to W., and some were out at nurse for their main-tainance. The words “all my negroes young and old, at all my plantations aboye named,” form a specilic restrictive devise of the slaves on the devised plantations, at the time of the testator's death, and not a devise of all his slaves. Nor is there any difference between the after purchased slaves, and the others; for, in this respect, they are to be considered as personal property. But their settled habitations, as fixed by the testator, ought to give the rule, and not any casual absence therefrom, at his death.
    Same-Same — Same—Same.—The negroes found on the plantation at W., at the time of the testator’s death, do not pass under this clause, but descend to the heir at law.
    Same — Growing Crops — Appurtenances —What Puss —The crops growing at the time of testator’s death, (he having died in September,) do not pass under the word appurtenances, to the devisees of the respective plantations, but go into the surplus-
    Same — Residuum—To Whom It Passes. — The residuary estate groes to the executors, as is always the case where there are two or more executors, and unequal legacies of personal estate are given to them.
    This was an appeal from a decree of the High Court of Chancery. The case was this. Joseph Shelton by his will dated the 20th of September 1770, after directing his debts to be paid, devises as follows, viz: “ to his brother David Shelton all his land at Wild-Boarcreek, in fee, with all the cattle, horses, cows, hogs and utensils and appurtenances thereto belonging.
    “To Samuel Shelton his brother, his tract of land on Ticking Hole Creek, in fee, together with the cattle, &c. ut supra, thereto belonging.”
    “To his brother William Shelton, his tract of land on Owens Creek, (his manor plantation) with all the cattle, &c, thereto belonging.”
    “To William Shelton, son of his brother John, his horseshoe tract in Louisa, in fee, with all the cattle &c. thereto belonging, and ¿200.
    “To John Shelton (the plaintiff) son of the said John after the decease of Mary True-heart, his tract of land on Totopotomoy in Hanover, and all cattle &c. thereto belonging.”
    To Mary Trueheart his sister, he lends the Hanover plantation, for her life or widowhood, a limited number of cattle, hogs and horses, and some negroes by name ; and, at her marriage or death, then immediately the land and cattle, horses, hogs and other appurtenances thereto belonging, to go to his nephew John.
    He gives all his furniture equally to his brother William and nephew John. Then follows this clause : “all my negroes, young and old, at all my plantations above named, to be equally divided between my three brothers David, Samuel and William, and those lent to sister Trueheart also after her death or widowhood.”
    He next gives some trifling pecuniary legacies to others of his female relations, and then follows this clause: “It is my *will also, that in case my brothers sons, John and William, should either of them die before marriage of without issue, then the legacy above left to one, shall fall to the other brother ; and should both die, without such lawful issue or marriage, then the legacy left them shall be equally divided between my brothers David, Samuel and William, and their heirs forever.” There is no residuary clause in the will.
    The appellees proved the will, and qualified as executors thereto.
    The testator had, at the time of making his will, no lands but those devised,' nor any slaves but what were upon those plantations. He lived till September 1784, and in the mean time purchased another tract of land, called Williamsons, and 8 or 9 slaves, three only of whom were at Williamsons at his death. The others were at the plantations devised, from whence others were removed to Williamsons, and two were out at nurse for their maintenance. There were at Williamsons at the time of the testators death about 19 slaves, young and old. The testator died in September 1784, without revoking, altering or republishing his will.
    The appellee is the heir at law of the testator, and of his brother William; he having died in the life-time of the testator. He filed this bill against the executors of Joseph Shelton, claiming the ¿200 legacy devised to his brother, also the slaves purchased after the making of the will, and not belonging to any of the plantations in the will named, and a proportion of the undevised personal estate.
    The High Court of Chancery was of opinion that the plaintiff was entitled to the ¿200 legacy with interest, from the end of one year after the testator’s death, that the slaves, of which the testator was .possessed at the time of his death, and which were not then settled on the land devised, nor, bequeathed to the testator’s sister Mary Trueheart, descended to the plaintiff as heir at law of the testator, who was also entitled to their profits from the time when they should have been delivered. That the surplus of the testator’s, personal estate — excluding such of the sheep as were on the lands devised, and including emple-ments on the lands undevised, and also the crop made on such undevised lands, the year in which the testator died, — ought to be divided.
    The decree being made final upon the report of the commissioner pursuant to the above opinion,the defendants appealed.
    
      
      Wills —Construction—Intention or Testator. — Upon the question as to how far the surrounding facts and circumstances govern the court in the construction of wills, in the endeavor to arrive at the intention of the testator, the principal case is cited in Wootton v. Redd, 13 Gratt. 205 (see note); Miars v. Bedgood, 9 Neigh 377 (see note); Com. v. Martin. 5. Munf. 134; Hooe v. Hooe, 13 Gratt. 251 (see note)-, foot-note to Tebbs v. Duval, 17 Gratt. 349; footnote to Midlothian, etc., Co. v. Finney, 18 Gratt. 304; Randolph v wright, 81 Va. 612; Senger v. Senger, 81 Va. 695, 703; Hurt v. Brooks, 89 Va. 500, 16 S. E. Rep. 358; Warner t. Brinton, 29 Fed. Cas. 240, 241; Bradley y. Zehmer, 82 Va. 689.
    
    
      
      Same — Residuum—To Whom it Passes. — In Paup v . Mingo. 4 Leigh 163, citing the principal case, at pp. 177, 181, 183, 188, it was held that the executor is not entitled to the surplus ol the profits, but such sur plus Is a part c- ~ testator’s estate undisposed of by his will, and belongs to his next of kin. Audit seems, that since the statute of distributions of 1785-the executor is not, in any case, entitled to the residuum of his testator’s personal estate not ac~ tually bequeathed by the will. See also, citing; the principal case, Granberry v. Granberry, 1 Wash. 250; Fleming v. Bolling, 3 Call 83; Hendren v. Colgin, 4 Munf. 235; Dykes v. Woodhouse, 3 Rand. 288, 312; Wernick v. McMurdo, 5 Rand. 79. See Code of 1881, § 2557.
    
   *The PRESIDENT

delivered the opinion of the court.

This was an appeal from the High Court of Chancery. It came on to be heard in June term 1791; but the questions being of consequence to the parties, and their decision important to the community, the court not having a library at hand, or leisure to digest the variety of adjudged cases relied on in argument, took time to consider of it, and directed the cause to be re-argued.

That has been done this term ; and the court, have derived much satisfaction from the’laborious researches, and able reasonings of the gentlemen at the bar. They have now directed me to pronounce their final decree.

The case depends upon the will of Joseph Shelton, a rich old bachelor, which was dated and published September 20th 1770: but he living 14 years after, and in that time purchasing other lands called William-sons, to which he removed part of the slaves from the plantations devised in his will, and purchasing other slaves, part of which were placed on those plantations ; and there being three slaves (which may deserve a distinct consideration ) which belonged to the plantations devised, but were occasionally absent at his death ; and he dying in September 1784, without having revoked, republished or altered his will ; great difficulty is occasioned in respect to the first and most important question in the cause, which is :

1st, "Whether all the testators slaves shall pass by the generality of the words “ all my slaves young and old, ” as would have been the case, had he died in 1770 ; since he had, then, no plantation but those devised, nor any slaves, but upon those plantations, to have made the words “ on all my plantations above named, ” restrictive, if such he intended it.

If all did not pass, a second subordinate qirestion has been made ; whether the devise shall be confined to such slaves as the testator had at the publication of his will, in exclusion of those after purchased ; or, whether the will shall speak at his death, and define the bequest to such as were then upon the devised plantations, including such as were at Williamsons or elsewhere.

In discussing this question, it is agreed on all hands, that, the testators intention is to be the rule of decision ; but the gentlemen at the bar have labored on the one side to enlarge, and on the other to narrow, the sources from whence we are to collect that intention.

56 *It is said, 1st, we must collect it only from the written will, disregarding the parol proof and all other circumstances.

2d. That we must confine our contemplations either to the time of the publication of the will, or to the time of the testators death.

As to the first; it would be a strange waste of time to go over the string- of decisions upon the admission of parol proof to explain, arid even to contradict, written wills, more especially as they are in direct opposition to each other, and it is impossible to reconcile them. Indeed since the case of Sel win v. Brown, cases Talbot 240 which was affirmed by the lords, the judgments have been more uniform, and the admission of parol proof less latitudinous ; and if any rule upon the subject can be said to be fixed it seems to be this ; That it is not to be admitted to contradict the common meaning or legal import of plain words in a will, but shall be allowed to explain a person or thing intended by doubtful words, or to correct mistakes in either discription. 3 Atk. 372.

But that, under the latter allowance, parol evidence of the testators circumstances, situation, connections with the legatees, and his transactions between the making of his will and his death, are to be admitted to discover his intention. The Chancery books ancient and modern abound with instances.

As to the trite objection, that counsel would not know how to advise, if judges are to go out of the written will; I answer,

1st. That counsel in general would be very inattentive not to enquire (previous to giving an opinion) whether there were no change in the testators situation and circumstances subsequent to the making of the will, especially in a case like this, where the testator lived so long after ; from whence revocations or ademptions of legacies from change of circumstances were, at least, to be suspected.

2d. That without such inquiry into extraneous circumstances, it would be difficult to discover from this will, any thing to restrain the generality of the words “all my slaves young and old on all my plantations” by the words, “ above named, ” since it does not appear by the will that he had other plantations or slaves.

As to the second objection, “ that we must confine our view of the will to circumstances, either at the date of the will or at the time of the testator’s death, and not regard both ; ” I answer, that as we should frequently come short of the intention, by being confined to either, so I conceive we are not only authorised,*but compelled to view circumstances at, and from the former period, to the latter, to discover what was his original intention, and whether that continued to the time of his death, or was legally controuled by what happened in the mean time.

And this is proved : 1st, From the legal idea of a will, which we are told has its inception from the making, and its consummation by the death, shewing it to be one continued act. 1 P. Williams, 97. Salk, 237. —2 P. Williams.

2d, From precedents.

In the case of after-purchased lands, which will not pass by a devise “of all the estate or lands I shall have at my death,” you view the date of the will, and introduce the conveyance for the purchase, to shew it to be subsequent. This land will not pass, not for want of intention, but from the controul of law upon that intention, for under the same devise, after acquired chattels would pass ; this is one instance of looking to both periods, and an intervening act.

Another is, the known disputes about the ademption of legacies. You view the will, and find the legacy given, but at the testator’s death the subject is not found in his estate.

Whether this be an ademption or not, depends on the testators intention : Ca. Temp. Talb. 227 : This is the general rule.

But an intention to revoke is not to be presumed, 3 Bac. 470.

As to a specific thing devised and after-wards sold by the testator : if merely voluntarily, it is an ademption, because no other motive appears. But if compelled to pay debts, or to provide immediate necessaries, it is not so, since here is another motive, and his intention to revoke is not presumed, and the money for which the thing was sold is to be paid out of the residue, 3 Bac. 470, Swinb. 524, 3 Bac. 480.

As to a devise of a specific sum of money, due from, or in, a certain persons hands : the testator receives the money ; this is no ademption.

In Gilb. 32, 2 Vern. 686, 2 P. Wms. 165, a distinction is made where the payment is voluntary by the debtor in which case it is no ademption. If compelled by the creditor it is.—

But this distinction is exploded upon better reasoning. 1 Abr. eq. Ca. 32, 1 P. Wms. 464, 561, 2 P. Wms. 469, Ca. Temp. Talbot 227.

The great desideratum is in the testators intention ; but in equity it is important to consider how it affects the residuary estate, which is discharged of a debt by the sale of the specific thing, and augmented by the receipt of the specified debt.

is another instance in which we must view the whole case to ascertain the intention of the testator : and as this depends on parol proof, it aids the answer to the first objection as to admitting parol proof.

We may reason as to the general rule from our act of wills in 1785, upon the subject of implied revocations, tho’ it does not affect this case ; and there that must be done, which both objections oppose.

Many other instances may occur, but these may suffice to shew, that we must consider the will upon its own words, and the parol proof as to the situation and circumstances of the testator when it was made, and at his death.

On a general view of this will, the testator appears to intend the disposition of his whole visible property.

His male relations were three surviving brothers, and two nephews, sons of his elder brother and heir, who was dead.

He had five plantations, and devised one to each of those five, with the stocks, plantation utensils and appurtenances to each belonging. Whether they were nearly equal, and that he meant to pursue the Jewish system of primogeniture, giving his eldest brothers sons a double share ; or from what other motive he acted, does not appear, and is unimportant. However he makes provision out of his nephew John’s land for his sister Mary Trueheart for life or widowhood, and gives her for the same term, some slaves by name, and stocks by number ; at her death the stocks with the land, were to go to John, and he gives to his nephew William £200.

He then devises all his household furniture to his brother William, and to his nephew John, equally to de divided.

Then comes the clause on which the dispute arises.—“All my negroes young and old at all my plantations above named, to be equally divided between my three brothers David, Samuel, and William, and those lent to sister Trueheart, also after her death or widowhood.”

He then gives £130, pécuniary legacies, and adds this clause : “If my nephews, John and William, should either of them die before marriage or without issue, then the legacy above left to one, shall fall to the other brother : and should both die without such issue or marriage, then the legacy left to them, shall be equally divided between the three brothers David, Samuel, and William : ” and appoints them executors without any residuary clause.

the testator had died at that time, there could have been no doubt but that all his slaves would have passed to his brothers, since whatever he might mean by the words, on my plantations above named. they could not then have operated restrictively, he having no other plantations, nor-other slaves than were upon them.

It has been admitted, that the words “all my slaves” were sufficient to pass all he had,, if he so intended ; and it has been argued that the following words must have been added for some purpose, and that has been variously supposed to be, amplification, explanation,, restriction, or that they had no meaning, and were thrown in by the writer cúrrente cal-amo.

The words “all my slaves” were so plain and comprehensive, as not to leave, in the ordinary understanding of men, any doubts of their meaning, so that he could not intend to amplify or explain : the conjecture, that he meant to shew he did not mean to pass the slaves by the word appurtenances, used in the devise of lands and stocks, is ingenious but not found. That word appurtenances, was probably never in the testator’s, mind ; it was the writers, and unluckily used by him for the purpose (as he declares) of expressing the testator’s meaning.

“Young and old” was probably his also, and can have no effective meaning. “On alt my plantations above named,” could not in the testators view of things, at that time, act as a restriction, and therefore it struck me at first, that he could not so intend it; but X accounted for their use by supposing that he reasoned thus ; “I have severally disposed of my lands and stocks by plantations, and now give all my slaves on all those plantations as a stock, to be equally divided between my brothers differently from the disposal of the lands and stocks. And the testator not meaning them restrictive at the time, they extended to all, then ; and dying without altering his will, all at his death ought to-pass.

On more mature reflection, I discover an intention which he might have had in using those words. He disposed of all the lands, and slaves he had then, but as he might live to acquire more, which he chose should depend on his,future disposition, he used specific terms to confine the devises to the lands ' and slaves he then possessed. Whether this was really his intention or not,, is immaterial; since if it be possible that it might have been his intention, it is sufficient to prevent the Court’s rejecting the words, as having no meaning.

This must be taken therefore as a specific restrictive devise of the slaves on certain plantations, and not a devise of all his slaves.

*His intention afterwards is argued both ways : on one side it is said that intending to devise all when he made his will, and dying without altering that will; we must suppose he intended all should still pass.

On the other side it is contended that since we must suppose him to know how the devise was restrained, and finding him purchasing a plantation and making new arrangements of his slaves, fixing some on that, which would operate as an exclusion of those from the devise, and yet not altering his will, we ought to conclude he meant that those slaves as well as the land should be left to the disposition of the law.

Whatever might be his real intention, the latter supposition is what reason and precedent will impel the court to adopt.

In very many cases of local devises, the court discover a principle to influence their decision on this point; but to state a few is sufficient.

2 Vern. 747, was a hard case in itself, and I believe would not at this day be so determined under its particular circumstances. But the rule there laid down seems a good general one “that where goods in a house are devised, a voluntary removal of them in the testator’s life time, without tort or fraud is a revocation.

2 Vern. 739, goods prepared and intended to be sent to the hou.se, do not pass. 2 Vern. 688. What he had at Wouston at his death passed.

The after-purchased slaves are not to be distinguished from the others.

1st. The testator, as to lands, speaks from the date of the will; as to personals, at his death. And slaves from their nature, (from their being purchased without a conveyance recorded, and from the act of assembly where they are devised,) are to be ranked in the personal class.

2d. The restriction and devise, is not of ne-groes by name but by the plantations : they were upon them, and those found there at his death will pass, whenever acquired..

Upon this point therefore the court decide the devise to be confined to the slaves on the devised plantation at the time of the testator’s death, in exclusion of those at William-sons ; but are of opinion that their settled habitations as fixed by the testator ought to give the rule, and not any casual absence therefrom at his death, which could never be supposed to influence his intentions.

ifThe proofs furnish an instance: All the working slaves from Williamson’s were at work at the home-house, (HorseShoe,) the instant of the testator’s death. Could that circumstance make them pass ?

Many other instances occur: A servant seat on an errand: waggoners abroad on duty, and others.

The young negroes sent from the devised plantations to assist poor people, to remain there at will, or exchanged as Sampson was for Tom, furnish no proof of an intention to change (heir residence or to affect thedevise. Such too is the case of the gúrl Rachel, and the boy Cudjo sent to Williamsons to work for a short time (not to reside there,) just before his death ; so the negro Mark, sent from Williamsons in like manner to assist a poor family, is to be excluded iron the above devise. The Chancellor’s decree therefore as to this point, is to be varied so as to take from the heir the negroes Sampson, Cudjo and Rachel the spinner, and their profits ; the negro Mark, as well as all the others belonging to Williamsons, descend to the appellee as heir at law.

The slaves, devised to Mary Trueheart, being specified by name, passed in remainder to the three brothers wherever resident at the testator’s death.

2d. The next question respects the crops, whether they pass by the word “appurtenances ” used in the devise of the lands and stocks, or go into the surplus as undisposed of.

Here we encounter an objection from the act of Assembly passed in 1748, Ch. 3, § 30, which declares “ That where a person dies between the 1st of March and 25th of December, the servants and slaves he is possessed of shall be continued on the plantations until the latter day, for making and finishing a crop ; which when made and finished, shall be assetts in the hands of executors and administrators. After the expense of clothing and feeding them, of tools and utensils, quitrents of the lands, levies, and other incidental charges are deducted.” Which, it is-said, is a legislative disposition of the crops, and restrains the power of testators to dispose of such crops.

But this construction does by no means accord with my idea of the spirit of the act.

This clause was clearly intended to suspend, the devises of the lands and slaves, or their descent to heirs, until Christmas next after the testator or intestate’s death, and to appropriate both to the purpose of finishing’ a growing crop, which would otherwise be lost to the family and community. As to the crops, the ^'primary design was to ease the lands of quitrents and other charges of that year, and to provide food and clothing for the slaves, as a compensation to their proprietors, for their having been employed in this beneficial work ; but as to the surplus, it says no more but generally, that it shall be assetts in the hands of the executors or administrators.

What is the consequence of the surplus being assetts ? Does it belong to the executors ? No gentleman thinks so, but they say it will go into the residuum : this must depend on the will, and seems to admit the ground of the opinion of the court, that the testator has the same power over this surplus of his crops, as he has over his other estate.

Nay, I have no doubt but that a testator might go further than the surplus, by devising the crops entire, and directing the charges upon the lands, and the food and clothing for the slaves, to be paid out of his residuary estate; since justice, to the proprietors of the lands and slaves, is fully done, according to the intention of the act, and the testator's power over that, which the law declares shall be assetts in the hands of his executor, ought not to be restrained.

It is yet assetts, and like all other personal legacies, must pass through executors hands, and is only perfected by his assent, that if necessary, he may retain and apply it to the payment of debts, but if that be not necessary, a court of equity will compel his assent according to the will of the testator.

The case of lord Bristol v. Hungerford Chanc, prec. 81, and 1 Cas. Eq. Abr. 244, is a devise of a surplus raised by sale of lands, “ to be deemed part of his personal estate and go to his executors. ” This case is stronger than our act, yet the surplus was distributed as undisposed of, tho’ it conveys the same idea.

Upon the whole of this point, we are clear that the testator had power to dispose of the surplus of the crops. And we come to the question, whether he has done so in the devise of the lands and stocks &c. which are alike, and one only need be noticed.

“I give my brother David Shelton all my lands at Wild-Boar Creek, in Goochland county, to him, and his heirs forever, with all the cattle, horses, hogs and other utensils, and appurtenances thereto belonging.”

If the crops pass at all, it must be under the word appurtenances, which I am inclined to think sufficient for the purpose, and that it was his intention the crops should pass with every thing else on the plantations except the slaves, (a distinct and important class of property,) which he afterwards particularly devises, but is silent as to the crops.—

'To admit the evidence of Mr. Todd, (the writer of the will) that he was directed to devise the crops, and thought he had done so by this word, would be warranted by innumerable precedents in the English Chancery.

However, I am not fond of this dangerous kind of evidence, since, tho’ Mr. Todd’s function and character entitle him to credit, yet we must adopt general rules. I am therefore inclined to take it upon the words of the will itself.

The determination in Trafford v. Berrige, 1 Cas. eq. Abr. 201. 14. and others of the same kind, “ That a devise of all his goods, chattels, household stuff, furniture and other things which should be in his house at his death, should be confined to things of the same nature and species of those mentioned, and not extend to £265 specie found in his house,” does not seem to apply; since that was founded on the words other things at the close of a string of things mentioned.

But in this will, after a devise of the lands, (as the principal,) it goes on with “ all the cattle, horses, hogs, utensils, and appurtenances thereto belonging; ” making each a distinct relative description and devise, which has the land for its correlative ; and the words thereto belonging, have the same effect, as if inserted after each as “ the cattle belonging to the said lands &c.” so that we are to read the will “ I give my lands with the appurtenances thereto belonging,” which would include the crops growing according to the legal technical meaning of that term. Dor I take it that a grant of lands and appurtenances, would pass growing crops to the purchaser if no reservation were made, which would not violate the principle “ he that sows shall reap,” since that right to reap, like all other property may be transferred.

The crop severed indeed would not pass by such a grant, and can only pass by this will, on a supposition that the testator intended to make no difference, and from the difficulty of distinguishing which was severed.

The date of his will and his death happened in the same month tho’ 14 years distant. It was in September, when corn is not severed; perhaps the fodder was, and probably all or most of the tobacco.

The case is doubtful, and tho’ I am rather of opinion myself that he intended to devise the crops, I can without any reluctance yield to the opinion of my brethren, that they do not pass, but must go into the surplus, and it only remains to consider,—

*What is to become of that surplus, whether it belongs to the executors, or is to be distributed to the next of kin?

This is a question of difficulty, requiring laborious researches, and in which we might find in the Chancery books, like Crokes law reports, precedents for almost any opinion we should incline to give on the subject. Yet when we have labored thro’ the various and contradictory decisions, the principles which are to govern them, do not seem to be so very difficult to ascertain.

As a precedent, our judgment may not perhaps be so important as I at first thought it, if I am not mistaken in my conjecture, that our new statute of distributions, has put an end to the dispute as to all cases subsequent to its passage, by directing distribution “ where the person dies intestate as to his personal estate, or any part thereof: this however is just hinted at, without giving any opinion on it.

To state the principles — there are two, which seem the ground work and are fixed.

1st. A legal'one. “ That the naming of an executor is a disposition to him of all the personal estate, and after payment of debts and legacies, the surplus belongs to him as a recompence for his labor and trouble.” 2 Bac. 423, Wentw. off. of executors 4. and if the spiritual court at this day are about to compel the executors to distribute the surplus to the next of kin, the Kings Bench will grant a prohibition. 5. Mod. 247.

2d. A contending principle of equity, “ that where there is fraud in obtaining the executorship, or it manifestly appears to have been the testator’s intention the executor should not have the surplus, a Court of Equity will consider the executor as a trustee only as to the surplus, for the next of kin.” 2 Bac. 423.

This we are told was first introduced about a century ago in Foster v. Munt, 1 Vern. 473, where an express pecuniary legacy was given to the two executors of yjlO each for their care and pains ; which it was said, was apparent evidence of his intention to exclude them from the surplus, since the legacy being to come out of the surplus, the testator could not intend to give them part and the whole. And to this apparent proof of the testator’s intention in cases of pecuniary devises, in consideration of care and pains, and in a few other instances, was the rule confined at first, but soon branched into a variety of other considerations, which produced determinations not to be Reconciled in principle to each other, and which must be resolved into the different inclinations of the Chancellors to favor, some the legal, others the equitable rule, and endeavouring to make the favored rule apply to the case before them.

Thus some attack the rule of law and oppose to it the statute of distributions, which they alledge gives the next of kin, a title to such of the personal estate as is not disposed of; similar to that which the heir has to the real estate — 1 P. Wms. 554. — 2 P. Wms. 210. — -3 Atk. 203: and that the office toeing in its nature fiduciary, and not beneficial ; therefore the executor ought to take no more than is given him, and be a trustee for the residue: — Whilst others lament that ever the rule of equity was introduced, and will not interfere with the executor’s itle, but upon the most irresistible proof appearing in the will of an intention to exclude him. 2 Bac. 423, to 426. Brown 330.

Sometimes a distinction is made between a specific and a pecuniary devise to the executor, Ch. Prec. 231, 316. This again is exploded in others Cas. Temp. Talb. 3 Atk. 226.

Sometimes the circumstance of the executor’s being a near relation, or a stranger is thought important. In other instances that is denied, 1 P. Wms. 544.

And finally parol proof of the testator’s intention is admitted in many cases and denied in others.

Prom hence it maybe concluded; that an enquirer after principles can derive very little satisfaction from those cases: those who are curious, and have leisure, may recur to them. I shall pass them over, and confine myself to a few modern cases, where most of the others are brought into review.

Farrington v. Knightly 1 P. Wms. 544 was this, “the testator declared, as to his personal estate (if he should leave any) he gave ;£50 to his brother A, and ;£S0 to his nephew B, whom he made executors; gave 201. each to others of his relations, several of whom were his brothers, nephews and nieces, (and as such amongst his next of kin entitled to distribution under the statute,) and then abruptly broke off without the usual conclusion, In witness &c. or making any disposition of the surplus which was ;£1200. ”

On a question betweeh the executors and next of kin, who should have the surplus, lord Parker takes notice of the cases on both sides, which he endeavors to reconcile with the principle he affirms, viz. that where there is an express legacy to the executor, or to the executors equally (if as in that case there be *more than one) it shall exclude them from the surplus, even tho’ there were legacies also to the next of kin.

As to the reason of the case he says : “It is most plain that making a person executor, ought not to amount to a gift of the personal estate; it is no more than making him a trustee; the very word executor importing ex vi termini, that he was only-appointed to execute the will, and to have nothing but the management of the personal estate. That he is a trustee as well of the specific legacies, as of the surplus, since the former passes to the legatee by his assent only.”

He concludes for the equitable principle pari rationi, and decrees a distribution in-dependant of the circumstance (which no doubt was weighty) of the will being unfinished, and a devise of the surplus, probably prevented. Except the labour of the case, it was plainly within the rule of equity, being a pecuniary legacy of equal sums to each of two executors, which in everj' instance since Poster and Munt, deprived the executor of the surplus, except when in the will itself, or from parol proof, it appears the testator intended to give it him, the contrary of which appeared in this case.

A distinction between equal and unequal bequests to a plurality of executors, was taken in Bachellor v. Searle 2 Vern. 736; affirmed in Brasbridge v. Woodroffe 2 Atk. 68. and seems established in Bowker and al. v. Hunter and Eaton Browns Chan. Rep. 328, first decreed by lord Thurlow, and on rehearing, that decree affirmed by lord Loughborough. The case was this, viz:

The testatrix devised ,£200 to Mr. Hunter, and after many intervening legacies to other persons, amongst whom were some (but not all) of her next of kin, she gave ;£50 to Mr. Eaton, added some charitable legacies, and made Hunter and Eaton executors, but made no disposition of the surplus.

Here was a case divested of all influence from parol proof, or the relation which subsisted between the testatrix and the executors on the one side, and the next of kin on the other: in short, no favorite wife to claim the assistance of the court: but it depended simply on the will, and whether the testator’s intention to deprive the executors of the surplus, was to be presumed from his having devised them pecuniary legacies.

It is obvious that lord Thurlow’s general reasoning is opposed to lord Parker’s in making the legal the general rule, and the equitable principle, only an exception from it. The consequence *each draws from thence, is materially different. Eord Thurlow’s is “that the rule ‘that the executor shall take the residue,’ must prevail, unless there be an irresistible inference to the contrary.” Lord Parker’s is “that the next of kin have the apparent right, and there must be a devise of the surplus to the executors either expressly or unavoidably implied, to exclude the next of kin.”

Lord Loughborough reasons with less appearance of bias than either; confesses there is great difficulty in the cases, but as neither the legal rule “that the appointment of an executor is a gift to him of the whole,” nor the equitable one “that a legacy given to him excludes him from the surplus,” can be shaken;, he thinks a more certain principle cannot be laid down in the application of the equitable rule to particular wills, than was mentioned by lord Mansfield in Lawson v. Lawson in the house of lords. 7 Brown’s par. cases 511. “That where the legacies to executors are consistent with their taking the residue, there is no implication to exclude them,” “tho’ he confessed there was great latitude in it.” On that ground was the decree in the case then before the court made, because the devise to one of the executors being of £200, and to the other of £50, it was not inconsistent with their taking the surplus, since the latter was to be equally divided, and the former taken out in unequal portions. This being a very late case, and agreeable to those in 2 Vern. and 2 Atk. seems to give some rule by which to conduct ourselves in examining what was the testator’s intention in the present will, and whether the bequests to the executors, be consistent with their taking the surplus?

The devise of lands to them separately, if equal would be unimportant, because with that species of property, executors have nothing to do, as executors.

The devise of the slaves I take to be on the same ground of reasoning as to the present question, since if undisposed of, they descend to the heir, and do not go into the surplus either for the executors or next of kin.

The excluding legacy must be of a personal thing, which if not devised would belong to the surplus, to bring it within the ground of objection that the testator did not intend to give all and some.

The bequests of personal things to the three brothers therefore are only to be viewed, laying aside the devises to them of the lands and slaves.

*To his brother David he gives “all his horses, cows, hogs and utensils, on his Goochland plantation.”

To Samuel “all his horses, cows, hogs and utensils, at Ticking Hole. ”

To William “all his horses, cows, hogs and utensils, at the home plantation, and half his household furniture, to be divided between him and his nephew William.”

And having created cross remainders between his nephews William and John, directs “that if both die unmarried, or without issue, the legacy to them should be equally divided between the three brothers.

I think the testator so far from intending to exclude his executors by these legacies from the surplus, plainly intended it for them.

Having disposed of his visible property which he contemplated and described, he proceeds to give pecuniary legacies to the amount of ¿£330, without making any provision for raising or directing who should pay either those or his debts which he had said should be paid, or the expences of his funeral' and administration. These he knew must be defrayed by his executors out of his money, certificates, and other things which constitute the surplus; and mot having made an exact estimate of the fund or the charges, he intended the brothers ’ should take the one to answer the other .without account to any person.

His having given all his slaves to his three brothers, and giving them all that was devised to his only other relations of his name, his nephews William and John, upon their dying without issue, creates a strong presumption that if he had made a residuary clause, it would have been in their favor.

Then to take it upon the rule laid down by lord Mansfield, affirmed by lord Thur-low, and which lord Eoughborough considers as the best general one which can be adopted: X do not consider these devises as at all inconsistent with their taking the surplus as executors.

1st. It is not a devise to them jointly by the description of executors, but a separate devise to each as brothers, without mentioning the office or making any allusion to it.

2d. But the principle point, is, that the-legacies are unequal; and if any point on this loose question can be said to be uniformly decided, this is, viz. that unequal legacies do not exclude the executors jointly from the surplus; we are therefore of opinion that the surplus goes to the executors.

*The decree must be reversed.

The plaintiff is entitled to thé ,£200 devised to William with interest from a year after the testator’s death, and to 1& slaves, undisposed of, and their profits. The crops made the year the testator died, did not pass to the devisees of the plantations by the word “appurtenances,” but after paying the several charges directed by the act of Assembly, the balance is to gfo into the surplus of the personal estate r and that surplus, after payment of debts, legacies, funeral and charges of administration, and the costs of this suit on both sides, belongs to the. executors.

As to all other matters; the bill is to be dismissed, and the costs of both courts, must be paid by the executors out of the surplus. _  