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which was done in the present will. On the contrary, the legacy of the South Sea annuities to the respondent was specific throughout; and where the testator gave all his South Sea annuities, except such of them [193] as he had before given away, it was the same as if he had excepted by name the two sums of £10,000 and £30,000 before bequeathed. These two sums being therefore once totally separated from that fund, could never return back to it; but if they happened to drop by any subsequent event, must fall into the general residue, which was constituted to receive all omissions of every kind and nature; and this appeared from the extensive words of the residuary clause itself.

On the other side it was contended (C. Yorke, G. Perrott), that the £30,000 annuities were devised in trust for the respondent, until Sir William Lowther should convey his estate in Yorkshire to the respondent and his heirs, in exchange for his estate in Cumberland, or should have refused or neglected it within six months after the respondent attained his age of 21, at which time the exchange was intended to take effect; and as that exchange had not been made, and was now become impossible, without any default of the respondent, his right in the annuities was absolute.

But to this it is said by the appellant, that the annuities in question were given to trustees, to be divided for the mutual benefit of Sir William Lowther and the respondent, as soon as the exchange should he made. If the devisees complied, the trustees were directed to divide the legacy. If either of them had refused, or failed to perform what the testator had recommended, after the time elapsed when his will required it to be done, the devisee who disobeyed was to forfeit his share, and the devisee who was willing would have been entitled to the whole. But the present case was the event of one of them dying before that period arrived, at which the exchange was intended by the testator. Sir William Lowther, the deceased devisee, could not incur the penalty, because he could not be supposed guilty of any neglect or refusal. Neither could Sir James claim any superior merit, because the time of election not being come, the opportunity never offered of shewing his obedience to the testator's will. And therefore the case which had happened not having been in view of the testator, must be considered as a case omitted; and by consequence the legacy was undisposed of, and ought to fall into the residue of the personal estate.

To this it was answered, that there would be great weight in this reasoning, if neither of the legatees had been entitled to take any benefit whatsoever from the devise till after the exchange was completed; or if it had not been directed to be severed from the residue of the testator's estate till that event. But the testator devised the South Sea annuities in question as an immediate legacy to trustees for the respondent; and all dividends growing due were given to him in the mean time. This manner of devising a personal legacy, placed out upon personal security, amounted as much to a devise of the principal money, or fund itself, as the devise of the rents and profits of a real estate is a devise of the land itself. The devise had therefore two different aspects in respect to the two devisees. As to the respondent, it [194] was in every light a legacy of bounty, given immediately for his benefit, defeazible as to the whole of it, by his own neglect or refusal; and as to one moiety, by Sir William's conveyance of his Yorkshire estate, which tended, in the view of the testator, more to the respondent's benefit. And it was immaterial by the rule of law, whether the condition was not performed by the refusal of Sir William Lowther, or became impossible by event; because, in either case, the legacy to the respondent was absolute. As to Sir William, it was not, properly speaking, a legacy of bounty, but of recompence, to induce him to make the exchange, and given, as the Roman law expresses it, hæredis coercendi causá, quo magis aliquid faciat. Just. Inst. Lib. II. Tit. 20. de legatis. So that as to him, the exchange was a condition precedent to vest an interest, and till such time as the condition was performed, he was entitled to nothing; and from that time only he would have been entitled to a moiety of the South Sea annuities, which the testator in that event devised to him. Bui supposing the event which had happened to be a case omitted, in which neither the appellant or respondent could be entitled to the principal of the annuities in question, by virtue of the clause relative to the exchange; yet it could not be collected from the will, that they ought to fall into the residuum of the personal estate devised to Sir William Lowther. The testator plainly severed all his South Sea stock and South Sea annuities from the gross fund of that residuum, and devised them to the respondent, with an exception only of such as he had therein before given away. But in the event