Page:The English Reports v1 1900.pdf/1181

That this intention was still preserved, and even rendered more apparent by the will in question, where the testator devised Snelston Park to the appellant and his heirs, paying the respondent £1000 within four years after the testator's death; for had he meant the surplus for the appellant, there certainly could have been no occasion for this particular devise to him, since the estate so devised would have constituted part of such surplus. That for the same reason, the exchange directed by the will was vain and unnecessary, as the capital house and lands would, upon such supposed intention, have come to the appellant without any exchange. But the contrary intention was clearly evident, from the testator's mentioning in his will the value, place, and conveniency of such exchange, from the appellant's acquiescing under the will, by making it as thereby directed, from the testator's conversation with Mr. Pole, concerning his will, and from Mr. Hayne's construction of the will, in his two letters above mentioned. And therefore, it was insisted that the decree appealed from was well grounded upon the proofs and circumstances of the ease, and agreeable to the rules of equity.

Accordingly, after bearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree therein complained of, affirmed. (Jour. vol. 19. p. 224.)

Isaac Littlebury, by his will, dated the 6th of December 1709, gave to the respondent, who was his brother of the half blood, and to his wife, a legacy of £10 each; to their four children £50 each, to be paid them at their ages of twenty years; to Sarah Lynch, his housekeeper, 2000, with the furniture of his house, and as full possession of every thing therein, as he had at that time, books excepted; and to the appellant, all sums of money which were or should be due from him to the testator, upon bond or note, together with whatsoever might be due to the testator from Paris, Rome, or Lisbon, for goods formerly sent thither: and of his said will, which the testator therein declared to have made and written with his own hand, he constituted and appointed the appellant sole executor.

Soon afterwards the testator died; and the appellant having proved the will, the respondent, in October 1710, exhibited his bill against him, in the Lord Mayor's Court of the city of London, for an account of the surplus of the testator's personal estate, not disposed of by his said will.

To this bill the defendant put in an answer; and thereby insisted, that the testator did not design the plaintiff should have any more or other part of his personal estate, than what he had given him by the will; but that he intended the benefit of the rest of his estate, after debts and legacies paid, for the defendant; and that the making him executor, was a gift in law to him of all the personal estate.

On the 17th of April 1711, this cause was heard before Sir Peter King, the Recorder of London, who decreed, that the defendant should account with the plaintiff for the residue of the testator's estate, after all debts and legacies were paid, and which was not particularly devised by the will; and referred it to the two attornies of the court, who were neuter in the cause, to take and settle the account, and make the defendant all just allowances.

From this decree the defendant appealed; insisting (R. Raymond, S. Mead), that it manifestly appeared, from the proofs taken in the cause, that the testator not only intended to exclude the respondent from any other share of his personal estate, than what he had expressly given to him and his family by will, but also, that by making the appellant his executor, he should have all the residue of his personal estate. That it likewise appeared by the proofs, that for many years before the testator's death, there