Page:The English Reports v1 1900.pdf/1546

But it may be objected, that by the will the residue of the real and personal estate not therein before given, bequeathed, or disposed of, is given to such of the testator's executors therein after named, as should prove his will; and from hence it is inferred, that this debt not being therein before disposed of, passed by this clause of the will as part of the residuum thereby bequeathed; and that the subsequent clause which constitutes the executors, comes too late to affect any part of the residuum, in regard it is completely disposed by the antecedent clause. To this it is answered, that the testator having given particular legacies to each of his executors, there was a necessity for a special bequest of the residuum, to prevent a resulting trust for the next of kin ; but the testator even in this part of the will considered them as executors, and bequeathed the residue to them by that name and description; and therefore, as they must first be executors before they could take the residue, the debt must, in the first place, be thereby extinguished, and consequently disposed of, before the residuary bequest could take effect; and as the whole will took place at the same time, it was immaterial whether the executors were appointed in a clause previous or subsequent to the residuary bequest. Besides, the word residue must mean the residue of the personal estate existing at the time when the will should take effect, at which time the debt, by operation of law, became extinct, and ceased to be any part of the residue, and consequently did not pass. And as this was the natural meaning and import of the word, so it was plain from the evidence in the cause, that the testator understood the word residue in this sense, because he intended that, by making the appellant executor, the debt should be extinguished, and cease to be part of his personal estate; so that this construction was apprehended [612] to be consistent with the words of the will, and agreeable to the intent of the testator.

It may however be objected, that if the testator had intended the debt to be discharged, he would have so directed in clear and explicit terms. But to this it is answered, that Mr. Viner proved the testator's intent not only to discharge the debt, but to discharge it by the particular method of making the appellant a co-executor of the will; and his testimony stood confirmed by the circumstance of exchanging the joint bond of the partners for the appellant's single bond, which could not be accounted for, unless it was done to serve this particular purpose; and the testator's omission to discharge the debt by express words, was occasioned merely by Viner's assurances, that the making of the appellant a co-executor was the proper and effectual method to extinguish the debt in his favour. As therefore the testator, relying upon this advice, had neglected to discharge the debt by express words, and depended on the rule of law as equivalent to an express discharge, it was apprehended that a court of equity ought not to defeat the testator's design, by controuling the operation of law, which was so manifestly agreeable to his intent, and implied as much as words could express; and consequently that the last decree ought to be reversed, and the first affirmed.

On the other side it was contended (J. Verney, N. Fazakerley, W. Murray), that the money secured by the bond in question was indisputably part of the testator's personal estate at the time of making his will, and remained so at his death; and that the respondent's title to a moiety of it did not arise from any construction or rule of equity, nor was it given him by implication only, or by doubtful or uncertain expressions in the will, but by a plain and express devise of a moiety of every part of his personal estate not before devised. That no construction could be put upon the words of the will in favour of the appellant, but his case rested wholly upon an endeavour to destroy the force of the written will, and overturn the plain words of it by parol evidence only: there was however no precedent to support such an attempt, this not being the case of evidence offered to obviate or take off an implication, which might or might not take place, and yet the words of the will have their force and operation; not to answer any rule or construction of equity arising upon, or consistent with the words of the will, but to controul and take away a plain devise and express gift to the respondent. That the giving way to parol proof in a case thus circumstanced, would shake the rule of evidence, and tend to introduce those inconveniencies which are guarded against by the statutes of frauds and perjuries, whereby it is enacted, "that no will in writing shall be repealed, nor shall any clause, devise, or bequest therein be altered or changed by any words, or will by word of mouth only;" and therefore the respondent hoped there was no reason to make a precedent in this case, where the attempt to alter a plain bequest in