Page:The English Reports v1 1900.pdf/1182

was a very strict and uninterrupted friendship between him and the appellant; that [44] the appellant had been very serviceable to the testator; and that he constantly declared to his friends and acquaintance, that, at his death, he designed to give the appellant his personal estate, as some recompence to him, and as a mark of the affection and esteem he had for him. That the making the appellant executor of his will, according to the legal notion of an executor, fully answered the testator's intention; and as there was not, in this case, the least pretence or colour of any fraud or imposition, so there was no ground to raise a trust for the respondent's benefit, contrary to the testator's design in making the appellant his executor, and to his own explanation of what he intended by doing so.

On the other side it was contended (G. Pauncefort), that the residue of the testator's estate was not disposed of by his will to any person; that the appellant having a considerable legacy given to him, was not entitled to the residue; but that according to many precedents in the Courts of Equity below, the respondent, who was the testator's next of kin, was well entitled to the benefit of it; and therefore it was hoped, that the decree would be affirmed.

But, after hearing counsel on this appeal, it was ordered and adjudged, that the decree complained of, should be reversed. (Jour. vol. 19. p. 311.) (Vide the case of the Duchess of Beaufort v. Lady Granville and others, ante p. 37, where the same point received a similar determination, upon the same kind of evidence.)

Sir Herbert Perrott, by deed, dated the 4th of October 1668, in consideration of his marriage with Dame Susan, his wife, and of £1200 her portion, settled the manor of Wellington, and several lands in the county of Hereford, of a considerable yearly value, for her jointure.

Sir Herbert having no issue living, but the respondent Dame Hester, and being desirous of making a full and effectual provision for the payment of his own debts and legacies, and of the unsatisfied legacies of his uncle Francis Perrott, of whose will he was executor; and also to do certain acts of charity, and to erect several monuments to the memory of himself, and some of his ancestors; made his will, dated the 21st of June 1682; and after constituting Dame Susan, his wife, sole executrix thereof, and strictly charging her to see the same duly performed, he devised in the words following, viz.

Item, I give, grant, and be-[45]-queath to my said dear wife, my executrix, an annuity or rent-charge of £200 per ann. to be received and taken by her, her executors, administrators, and assigns, out of all my lordships, lands, and hereditaments in the county of Pembroke, or town or county of Haverford-West, with power to distrain; nevertheless, with this special trust and confidence, that she my said executrix, her executors, administrators, and assigns, may be supplied with monies out of the said rents, profits, and revenues, for the paying and discharging all my debts, legacies, and payments, any wise due or payable by me, in law, conscience, equity, or trust; to which end, I do hereby give, grant, and bequeath unto my said executrix, her