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To this bill the appellant put in his answer, and thereby set forth, that he had paid, to or for the use of the respondent, all the interest of the said South Sea stock and South Sea annuities, (except the interest of the said £10,000 Old South Sea annuities, and the interest of the said £30,000 New South Sea annuities,) which had become due, down to old Lady-Day 1757; and he submitted to transfer all the South Sea stock and South Sea annuities, which the late Sir James Lowther was possessed of or entitled to, at the time of his death (except £10,000 part of the said Old South Sea annuities, and the said £30,000 part of the said New South Sea annuities) unto the respondent, and pay him the interest and dividends thereof, if any should remain unpaid, when he should attain his age of 21, or unto such other person as the Court should direct, before he should attain that age, being indemnified. But as to the said £30,000 part of the said New South Sea annuities, given in such manner, and for such pur-[190]-poses, as in the will of the late Sir James Lowther is mentioned, the appellant insisted, that as Sir William Lowther died before the respondent attained his age of 21, the whole of the said £30,000 New South Sea annuities, did, on the death of Sir William, by virtue of the wills of Sir James and Sir William Lowther, absolutely vest in the appellant, as part of the residuum of Sir James Lowther's personal estate, and to which he became entitled as executor of Sir William Lowther, And the appellant admitted, that Sir William did, by his will, devise his real estate at Maske, in the county of York, to the said Edward Wilson, George Wilson, Thomas Wilson, and Daniel Wilson, in manner before mentioned; and that they were living at his death, and were in possession of all the said estate; but the appellant said, that he was advised it could not be reasonably inferred from thence, that Sir William Lowther did not intend to have exchanged the estates directed by Sir James Lowther's will to be exchanged, for the estate of the respondent in the county of Cumberland.

The cause came on to be heard before the Right Honourable Sir Robert Henley, Lord Keeper of the Great Seal, on the 7th of April, and the 5th, 6th, and 27th of May 1758; on the last of which days, his Lordship was, inter alia, pleased to declare, that the respondent Sir James Lowther was entitled to the said £30,000 South Sea annuities; and did order and decree, that the appellant, as the representative of Sir William and Sir James Lowther deceased, should transfer the same to the respondent, or any other person authorised by him to accept thereof, for his sole benefit and advantage; and that the appellant should come to an account before the Master, for the interest of the said South Sea annuities received by him, or by any other person by his order, or for his use; and the appellant was directed to pay what should be coming on the balance of such account to the respondent.

From this decree, so far as it related to the £30,000 New South Sea annuities, and the interest thereof, Lord Charles Cavendish appealed; and on bis behalf it was argued, (C. Pratt, T. Sewell), that where a testator devises the residue of his personal estate, the residuary legatee takes everything under such bequest, which is not otherwise effectually disposed of by the will; and this, not only as to all parts of the personal estate, of which there is not any original express bequest; but also as to all such particular legacies, as are either void originally, or afterwards become so, or which lapse by the death of the legates, or by any other accident do not take place. The general rule being, that all legacies so failing, shall accrue to and become part of the residuum, for the benefit of the residuary legatee, by force merely of the residuary clause, without any farther declaration of the testator's intention that it shall be so; and this in many cases, where from circumstances it might be conjectured, that if the testator had foreseen or attended to the particular case which afterwards happens, he would have ordered it otherwise. That the pre-[191]-sent case was a case omitted and not provided for; and Sir William Lowther claimed as residuary legatee. The testator set apart this sum of £30,000 to invite and bring about an exchange of the two estates, and for no other purpose; and with that view he disposed of it in the cases of an exchange actually made, neglected, or refused, and in no other case. But an event having happened which the testator did not foresee, namely, the untimely death of one of the parties; the act of God, neither of the parties being in fault, had rendered the exchange impossible. As therefore, the testator bad not declared what should be done with this sum of £30,000 in the event which had happened, the residuary legatee, by the general rule, had a right to it as part of the residue. The only view and motive of this devise, as expressed in the preamble of it, was to draw all the Cumberland estate together into the hands