1835. ARNOLD บ. ARNOLD. over. claim of the surviving legatees. It can make no difference, in construing this bequest, that the testator's estate has proved to be insufficient for the full payment of the legacies. The testator meant, no doubt, that his legacies should be fully paid, but it was no less his intention that his residuary legatees should get something; and it might well be to provide against the possible failure of the residue that he gave the petitioners, under the description of residuary legatees, but in their individual characters, the benefit of this bequest The authorities support this construction of the will. In Farmer v. Mills (a), a testator's estate was insufficient to pay annuities given by his will; and it was held, that the sums set apart to answer the reduced annuities were not applicable, upon the dropping of the lives of any of the annuitants, towards making good the deficiency of the other annuities, but belonged to the residuary legatees. Scott v. Salmond is an authority to the same effect. (b) There the legatee over of annuities, which had been rateably reduced in consequence of the deficiency of the testator's estate, was held by the late Master of the Rolls to be entitled to the fund released by the death of one of the annuitants, and that decision was affirmed upon appeal. Mr. Bickersteth and Mr. Piggott, for the two surviving legatees. The legacy is not given other to the petitioners nominatim, but it is given to them in their character of residuary legatees; and it was evidently the intention of the testator that the capital should form part of the residue. In the residuary clause, the testator gives the whole of his remaining property, of whatever description, to the petitioners. His remaining property (a) 4 Russ. 86. (b) 1 Mylne & Keen, 363. must must clearly be that which remains after satisfaction of Mr. Bagshawe, for the executors. Mr. Bethell, in reply. There is this difference between the present case and other cases of a similar nature which have come under the consideration of the Court. This is not a charge of several annuities upon a common fund, and a gift over of the corpus, but a certain sum is taken out of the testator's general estate, and directed to be applied for (a) 4 Russ. 86. the 1835. ARNOLD v. ARNOLD 1835. ARNOLD v. ARNOLD. the benefit of certain individuals named, for life, and at their deaths for the benefit of other individuals, not named indeed, but designated by a particular description. The petitioners claim the fund, not as a portion of the residue, but as a specific gift wholly independent of the residue. In Farmer v. Mills, the testator foresaw, and alluded to the probability, that his estate would not be sufficient to answer all the annuities given by his will; and he directed, in favour of his residuary legatees, that the annuities should abate. Here the testator has accomplished the same end by different means; namely, by making a specific gift to his residuary legatees, independently of the gift of the residue; so that, in the event of deficiency, which he might equally have contemplated, the residuary legatees, who were his nearest relations, might not be wholly disappointed of his bounty. The MASTER of the ROLLS. The question is, whether the testator meant to give the principal sums of 800l., which were to provide for the life-interest of the annuitants, to the petitioners in their individual character, by a particular description, or whether he intended that the capital sums, after the decease of the annuitants, should fall into the residue of his estate. The words used by the testator in the disposition of the capital sums, namely, "the principal to devolve eventually to my residuary legatees,”—are not expressions likely to be used by any one who meant to give a legacy to any particular persons. The word "devolve" especially is an apt expression, if he meant that the capital should fall into the residue; but it is a term not properly applicable to a gift to particular legatees. To judge of the probability of his intending, by these expressions, to give the legacy to particular persons, * Sir C. Pepys. persons, let us see what the residuary gift is. He directs the whole of his remaining property to be divided into three equal parts; one part to each of his brothers, James and William, and his sister Sophia; and in case any of his said brothers and sister should not survive him, or have legal issue living at his death, then his, her, or their shares to devolve in equal portions to the survivors. There is, therefore, a very special provision as to the persons who are to take under the residuary gift. If the testator did not mean that the capital, which was to provide for the annuities, should go in the same way as the residue, he must have intended some particular persons to take it; but no particular persons are pointed out. The inference is, therefore, that he intended this sum of 800l. to become part of his residuary estate, and that the same persons, whoever they might be, who took the residue, should take this sum as part of his general estate. The cases which have been cited do not appear to me to furnish any argument against this construction. In Farmer v. Mills, the testator's codicil expressly provided that the annuities should be rateably reduced; and the Master of the Rolls observed that, but for that codicil, the residuary legatees could have taken no benefit until the annuities were fully paid. That case, therefore, is an authority against the petitioners; and Scott v. Salmond was decided upon special circumstances, which render it inapplicable to the present case. 1835. ARNOLD v. ARNOLD. The effect of his Honor's decision would have been, strictly, the dismissal of the petition; but it was agreed to take a declaration in conformity with the opinion of the Court, that the surviving annuitants were entitled to have the deficiencies in their annuities satisfied out of the released fund, and that, subject thereto, that [fund fell into the residue. 1835. ROLLS. Feb. 16. Motion for the production of correspond. ence, referred to in the answer, between the solicitor of the Defendants and a person not a party to the suit, refused. CURLING v. PERRING. THIS was a bill for the specific performance of an agreement to purchase certain annuities for the life of Hungerford Luttrell, and also a policy of insurance effected on his life; and the defence made by the Defendants in their answer was, that for some months previous to the execution of the agreement, Luttrell had been in communication with the African committee for the purpose of obtaining an appointment to Sierra Leone; that he was, in fact, about to proceed to that part of the African coast; that he was in such a state of health as would render it impracticable for him to obtain a licence from the insurance office to go abroad, and especially to such a climate; and that those facts were known to the Plaintiff, and fraudulently concealed from the Defendants. Mr. Wood moved, on the part of the Plaintiff, for the production of certain letters addressed by the solicitor of the Defendants to Hungerford Luttrell, and the answers of Mr. Luttrell thereto, which letters were in part set out in the Defendants' answer, and admitted to be in their possession. Mr. Goodeve opposed the motion, on the ground that the letters in question were privileged communications between the solicitor of the Defendants and Mr. Luttrell, made after the dispute had arisen between the parties. Mr. Wood, in reply, insisted that the correspondence question was not a correspondence between solicitor and |