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of Sir William Lowther. To this end the £30,000 was deposited in the hands of trustees, where the same was to remain, subject to a future contingent vesting of the whole, to one or both, as the exchange should afterwards be accomplished, or defeated. And as this was the only purpose declared, and these the only events on which the legacy was to vest, the gift was inseparably connected with the actual exchange, or the actual refusal; and no court of justice could take a liberty of conjecturing how the testator would have given this sum, in the event which has happened, when it was manifest he never supposed that the event would happen.

But to this it is objected, I. That the devise of the $30,000 South Sea annuities was to the respondent, until the exchange was made or refused, or neglected to be made; that until that event happened, the respondent had as great an interest in the £30,000 as if no condition had been annexed to it; and that event never happening, the limited legacy became absolute. II. That this legacy was a bounty on the side of the respondent, whereas it was given to Sir William coercendi causá; and therefore he must shew something meritorious to deserve the gift. III. That if the legacy was at an end and must fall, it should fall into the fund of the South Sea annuities, out of which it was taken; and which for this purpose, must be considered as a specific residue.

As to the first objection, if was said to arise, from not considering the clause in question in its full extent; and confounded the general intention of the whole devise, by expounding it according to the letter only of one part of it. If indeed the dividends and produce of this sum had been given singly to the respondent, till Sir William had made the conveyance, and the devise had stopped there, the inference would have been clear; but when the clause proceeds to make the future vesting as conditional upon the respondent as upon Sir William, it seemed a contradiction to say, that the whole was given immediately to the respondent, defeasible only by the performance of the condition on the part of Sir William, at the same time that the re-[192]-spondent himself could not take it without performing the like condition on his part. But to make this more clear, it was apprehended, that if at the time of performance the respondent had been willing, and Sir William had refused to perform the condition, the respondent would then have acquired his first title to the £30,000, and must have claimed it as well by virtue of his own compliance with the terms of the devise, as of Sir William's refusal, which shewed that the respondent must have done something to entitle himself, as well as Sir William. To go one step further:—If both had neglected during the six months, neither could have claimed the legacy, as being equally culpable; and yet, if the respondent's first interest could be no otherwise defeated than by an actual exchange or tender from Sir William, the respondent would in this case be entitled to the whole, notwithstanding he had forfeited his share by his own wilful neglect. All this tended to shew, that the gift of the profits until, etc. could not be considered as a gift of the capital, but was only a temporary disposition of the produce, to wait upon the devise of the capital, and to subsist no longer than while that remained in suspense. And indeed the testator considered both parties, during that interval, as entitled to a share of the capital; for he says, that if either shall neglect or refuse, he shall not, after that time, have any share of the £30,000; which was in effect saying, that before that time each was equally entitled to his respective share.

To the second objection it was answered, that the legacy throughout, was a legacy both of bounty and coercion. It was a legacy of coercion, so far as it compelled the exchange; it was a legacy of bounty, so far as it gave each of them a valuable consideration for making the exchange; and indeed ought to be considered rather as a price offered, than a mere gift; and the only difference between the two legatees lay in this; that as Sir William's estate in Yorkshire was considerably larger than the respondent's in Cumberland, the latter had a better interest given him as a consideration for his estate than the former; but still the legacy was equally coercive on both, and equally bountiful to both.

And as to the last objection, it was said, that this notion of a specific residue ought to be clearly made out by plain words where the general residue was given; because, as it is the property of a residue to draw into itself all the personal estate undisposed of, it was unnatural to imagine that a testator should appoint two funds of this kind to interfere with each other. If therefore a testator had any such intention, he would not only describe the particular residue by that name, and declare such to be his intention, but would likewise except this residue out of the devise of the general residue; neither of