33

6. In Roberts v. Cooke, a general residuary disposition of real and personal estate," not hereinbefore specifically disposed of," was held to comprehend specific legacies lapsed, the word 'specifically" being construed "particularly." And where the testator provided for the investment of all his estate in three per cent consols, £3700 already being so invested, and out of the dividends directed his executors to pay one annuity of £20 and one of £30, and in a subsequent part of his will gave all his household furniture and all his property of every kind, not specified above, to his wife, it was held that the capital producing the annuity passed to his wife, subject to the payment of the annuities.34

pressed in the will, it was held to fall to the share of the residuary legatee. Bernard v. Minshull, Johns. (Eng. Ch.) 276. Vice-Chancellor Wood here said: "All you have to consider is, whether the property is excepted in order to take it away, under all circumstances and for all purposes, from the persons to whom the rest of the property is given, or whether it is excepted merely for the purpose of giving it to somebody else. If the latter, and the gift to somebody else fails, the donees of all except this property are entitled to take the whole." The cases are here very extensively examined, and, among others already referred to, the following not before referred to under this point. Easum v. Appleford, 5 My. & Cr. 56, 61, 62; Doe v. Pearson, 6 East, 173, 181; Upjohn v. Upjohn, 7 Beav. 59; Circuitt v. Perry, 23 Beav. 275; Pomfret v. Perring, 5 DeG., M. & G. 775; Oke v. Heath, 1 Ves. Sen. 135; Page v. Leapingwell, 18 Vesey, 463.

But in the case of Wainman v. Field, Kay, 507, the testator made a general bequest to trustees, from which he excepted certain leasehold estates which he declared his intention to exonerate from all charge for the payment of his debts, which he specially charged upon the general fund, the remainder of which constituted the residuary bequest. The leaseholds were given in a manner void for remoteness, and the question was whether they passed to the residuary legatee; and the same learned judge held, that the intention of the testator must be expressly disregarded in reference to exonerating the leaseholds from the trusts of the residuum, if they were allowed to fall into that fund, and therefore held this did not.

33 16 Vesey, 451. See also Brown v. Higgs, 4 Vesey, 708; Maberly v. Strode, 3 Vesey, 450.

Clowes v. Clowes, 9 Sim. 403. There is an important distinction

7. There is an important distinction in principle, and which is adverted to in many of the cases, between an enumeration of particulars, either preceded or followed by general words, whether the enumeration is by way of limitation, as by a videlicet, or other similar form of expression, showing to what the general words were intended to apply, and an enumeration of particulars which is regarded as imperfect, and a mere approximation or specimen of the whole, the general words being intended to embrace everything coming within the range of their ordinary import. This distinction will be found important to be borne in mind, and it is one very much regarded in the later English cases. As where a British subject, domiciled in Russia, in making his will, first declared that he thereby disposed of all his property, and, after directing his property in Russia converted into money, proceeded to dispose of "the money proceeds of all the above, as also the whole of my capital which shall remain with me, after my death, in ready money, and in bank billets, belonging to me." It was proved that "bank billets were a species of Russian negotiable securities. It was held that the terms," in ready money and bank billets," restricted the former general words within the limits of the latter terms, and that a considerable portion of the testator's estate in the English funds did not pass under the will.35

8. But where a portion of the residuary bequest fails to

already stated, between a void or lapsed bequest of personal estate, and a void or lapsed devise of real estate, which obtains both in England and America. The former falls into the residuum, and the latter goes to the heir. Cox v. Harris, 17 Md. R. 23, 31, citing Brown v. Higgs, 4 Vesey, 708, n. 6, and cases cited (Sumner's ed.). Helms v. Franciscus, 2 Bland, (Md. Dec.) 546, 560. See also Tongue v. Nutwell, 13 Md. R. 415. And the heir having taken other lands by devise under the will, does not prevent his taking such land as fails to be devised effectually by the testator. This does not present a case where the heir is bound to make an election. Tongue v. Nutwell, 17 Md. R. 212. Courts favor such a construction as to give the real estate to the heir. Ridgeley v. Bond, 18 Md. R. 433.

$5 Wylie v. Wylie, 1 DeG., F. & J. 410; s. c. 6 Jur. N. s. 259.

become operative at the death of the testator, in the manner provided, the portion thus failing will not go to increase the other portions of the residuum, as a residue of residue.36 The case just referred to 36 was where the testator gave his residuary estate equally between his two daughters; but in the event of either dying without children, which happened, of the moiety of the one so dying he gave £500 to H., and the remainder to the other sister. The testator revoked the bequest of £500 without making any fresh disposition of it, and it was held that it went to the next of kin, as estate undisposed of. "Residue," said the learned judge, "means all of which no effectual disposition is made by the will other than the residuary clause. In the instance of a residue given in moieties, to hold that one moiety lapsing shall accrue to the other, would be to hold that a gift of a moiety shall eventually carry the whole." And still it is not very apparent how the above reasoning may not apply with equal force to a gift of a residue, after particular legacies, which is really rendered as definite, by deducting the prior legacies, as if it had been expressed, as one half, or one eighth, or any other definite proportion of the estate. And to adopt the principle that if all the particular legacies lapse, the residuary clause shall carry

Skrymsher v. Northcote, 1 Swanst. 566. It seems to us that this case is clearly in violation of the principle that a particular legacy which fails, goes to the residuary legatee. But the ground upon which it professes to go, that the failure of a portion of the residuary bequest will not go to increase the balance of the residuum, however difficult it may be to comprehend the distinction in principle between that rule and the general rule, that all particular legacies which fail go to swell the share of the residuary legatee, is nevertheless firmly established by a considerable number of cases. Simmons v. Rudall, 1 Sim. N. s. 115; Mitford v. Reynolds, 1 Phill. 185. But the last case is similar to Skrymsher v. Northcote, supra. And in s. c. 16 Sim. 105, it is decided, that the bequest for a monument having failed, the amount intended for that purpose will go to the residuary legatee. See also Lloyd v. Lloyd, 4 Beav. 231; Green v. Pertwee, 5 Hare, 249; Humble v. Shore, 7 Hare, 247; Gibson v. Hale, 17 Sim. 129. The same rule obtains in the American courts. 4 Bradf. Sur. Rep. 161; McLoskey v. Reid, id. 334.

Hart v. Marks,

the whole estate, involves the same departure from the expressed intention of the testator, as where the residuary clause is divided into moieties, and one of them fails, to let it go to the other. But this distinction is based upon a presumed intention of the testator to give his whole estate to the residuary legatee, except as it shall be cut down by the deductions necessary to meet the particular legacies. But in regard to the residuary bequest, where it is divided into distinct portions, no such presumption, as to increasing the several portions by the failure of the others, can so directly arise. And it has been upon this presumed difference of probable intention, that the distinction has been made. And having been once established, upon grounds however uncertain, it should not now be disregarded, unless upon some satisfactory grounds arising out of the context of the will, or the extrinsic proof of circumstances proper to be received in aid of the construction.

9. There is a class of cases, where the residuary bequest, by reason of the special circumstances of the case,37 has been construed as a particular legacy, not liable to fail, except ratably with the other legacies, on account of any unexpected deficiency of the estate, or to be augmented by the unforeseen failure of the other legacies. But the early cases upon this point seem to have gone a good deal upon the ground of making an escape from what would otherwise become a severe hardship, and have not therefore been well received by the courts or the profession.as

Dyose v. Dyose, 1 P. Wms. 305.

* The case last cited was where the testator gave £3000 to each of his younger sons, and the residue to his oldest son. The widow married again, and the stepfather squandered the estate, so that if the younger sons were paid their full legacies, there would remain but a pittance for the oldest son. Lord Cowper, Chancellor, said, “The testator must, at the making of his will, know what his surplus would amount unto; and that he meant this surplus as a legacy to his eldest son. Whereupon the court declared it ought to be looked upon as such"; which has been regarded as making such a will for the testator as he probably would desire to have made, if he could have been consulted at the time of the decision. The

But the cases upon this point, which seem to be maintainable, rest upon the fact, that the testator has in his will, either in express terms or by reasonable implication, limited the extent of the residuary bequest.3 39

10. Questions sometimes arise in regard to the extent of the word "residue," as used in a will, whether it was intended to apply to the residue of the whole estate, or only of a particular fund. The courts have manifested a disposition to extend it to the whole estate, when there was no other residuary clause.40

11. We have already adverted to some cases where the courts have, by construction, corrected obvious miscalculations of the

case has not, therefore, been approved. Fonnereau v. Poyntz, 1 Br. C. C. 472; Ex parte Chadwin, 3 Swanst. 380; Humphreys v. Humphreys, 2 Cox, 184; Page v. Leapingwell, 18 Vesey, 463.

» Page v. Leapingwell, supra; Easum v. Appleford, 5 Mỳ. & Cr. 56; Wright v. Weston, 26 Beav. 429. And a particular residue will take lapsed legacies belonging to that particular fund, the same as a general residue in ordinary cases. De Trafford v. Tempest, 21 Beav. 564. See also Vivian v. Mortlock, 21 Beav 252; Booth v. Alington, 6 DeG., M. & G. 613. See Re Harries' Trust, Johns. (Eng. Ch.) 199, (1859,) where the cases are carefully examined by Vice-Chancellor Page Wood, and the general proposition above stated maintained.

40 Boys v. Morgan, 3 My. & Cr. 661. In Crooke v. DeVandes, 9 Vesey, 197, a doubtful bequest of the residue was held to extend to the residue of the whole estate. The testator directed his executors to invest the surplus of his estate, after the payment of some particular legacies, and out of the income to pay certain annuities; and "all the remaining interest to be equally divided and paid yearly to my two grandsons or their children," &c., and it was held to extend to the fund as well as the income. The Lord Chancellor, Eldon, here said: "The safest course is to abide by the words, unless upon the whole will there is something, amounting almost to demonstration, that the plain meaning of the words is not the meaning of the testator." This is undoubtedly a good definition of the full ground of departure from the primary meaning of the words of the will. See s. c. 11 Vesey, 330. But see Wilson v. Wilson, 11 Jur. 793, 794; Holford v. Wood, 4 Vesey, 76; Wilde v. Holtzmeyer, 5 Vesey, 811; AttorneyGeneral v. Goulding, 2 Br. C. C. 428, where general terms receive a more limited construction.