Star.
London, England, 1806-03-21 00:00:00

LAW INTELLIGENCE.

11 COURT OP CHANCERY, MARCH ts.
GRIFFITHS O. itaaamrom.
This was an application to the Court, on the con •
ftruflion of a will by the Executors, who claimed to
be refiduary Legatee', to the exclufinn of the next of
kin, under the Statute of Diftributions. The Teila.
for was a long time employed in the fervice of the
Eaft India Company on the Weftern coali of &GM- •
tra. He left to his fon, probably a natural child,
10001. and to his hnufekeeper, the fuppofed mother,
500 dollars. In addition to this, he ordered i Soo
' dollars to be invefted for her life during her life, and
he gave her fix naves. Further, to Mr. George Ha-
lifax, his father, he left 5001. and the fame fum to his
uncle, Sir Thomas Halifax. Richard Mardonan, and
Jlfeph Jefferfon, Efqrs. were appointed Trotlees and
Gum dians to his fon, and he made a bequeft to each
of them of moo dollars, nominating thefe Gentlemen,
and four others, without any legacy, Executors.
Mr. Jomasost, and the SOLICITOR Ggrittaa, were
heard this day ; the former on the part of the next of
kin, the latter on behalf cf the Executors ; and both
of them contended, that not only from the law, as
fettled under eftablillsed authorities, but from the
recognised principles of natural reafon and juftlee,
their refpeilive Clients were entitled to the refiduary

property. . .
The LORD CHANCILtnit, after commenting on the
various cafes of Williams and Jones, Poker and
Monk, Partridge and Pauletl White and Everett,
arc. proceeded to Rate the cafe and the maxims of
equity as applicable to ir.—., This bill is filed by
John Griffiths and George Halifax., Robert Hamil-
ton, the executor of Spokes Hoare, is one of the De-
r:mums ; the others are the father of the executor,
, and the next of kin. The bill is oppofed by execu-
tors of the co-executors, and one ground iszthat there
-was.a reverence of the tenantcy en common. The
father contends, that the Plaintiff is not entitled to
. the refiduutn, and that it Ihould go to the next of kin.
There was a quantity of Gum Benjamin, which eon-
[ ltituted part of the effeas of the deccafe. This was'
remitted to Mr. Sparkes Hoare, who died before its
arrival. There cannot be a more painful office than
' to tit in judgment upon the confiruaion of wills" be-
eaufe it is often extremely difficult to difcover mate-
rials en which that judgment Ihould be formed. To
preclude irregular and arbitrary decifions under fueh
circumstances, the Court of Equity has laid down
• certain general rules, deduced from chafes of cafes
.by which it is governed. We are then, not only to
- book at the will Will, but to attend to the ettablifited
• modes of judgment as applicable to it. In the firft '
place, the executor has a right veiled in him by the
law, and thole who would deprive him of this right,
mutt proceed in due legal rout fe, and they mull thew,
by competent evidence, that the Whim did not in-
tend to pave him the refiduurn.
as In Equity, this mull be effeaed by expounding
the terms of the will, coupling the confiruftion with
the rules of expolttion in the cafes; or, they mull
call upon the Executor to rebut the prefumption,
that he Ibould be only confidered in the charade, of
a Truftee. It is Paid by Mr. johnfon, that the Court
' 'mutt feel anxiety to protea the interefis of the next
of kin. No doubt a Court mull be ender impreffions
of anxiety to do fubßantial jutiice, but it should in.
dul2,e no other folicitude ; for if it were to give way
to Lich anxieties and jealoullei with regard to the
claimants, there would be knowing to what an extent
this exceffive fenfibility might be carried. I have
looked into all the cafes, and into a refpeitable work
lately publithed by Mr. Toiler ; but the principles
111
and the authorities have been Co fully explained by
the Bar, that my labour was unneceffary. I read in
Peere Williams, that Lord Hordwicke, on a fimilar
quetlion, &fired to be attended by all the precedents
on the fubjeet, and a numerous train of attendants,
very oddly and differently attired, appeared on the
*coition ; for, from the time of Lord Chief Italica
Jeffries, to that of his own occupation of the fame
chair, there Mad been appeals upon appeals, and a
multifarious tribe of decifions. But the law he laid
down i, this : that where an Executor has a legacy
• given to him for his care and trouble, it amounts to
declaration on the part of the Tenator, that. he ts not
• to take the refidnum, and the reafun is, becaufe the
Escrow has thus affigned to him what the Tellatur
• eonfidered as a fufficient compenfation for the duties
• be invoke% and the reprefentativc is always at li-
berry, if he pleafe, to refute to execute; fo that in
Inch a cafe, the law ought always to have a leaning
to the next of kin under the Statute of Diaributions.
But where there are Co-Executors, and where the
legacies are unequal, the Executors wiU not be held
to futlain the mere charatter of Trufiees. The pre-
fent falls within the range of Inch cafes, for here
are fix Executors, and only two have legacies.
—The intention of the teftator is the material thing
to he colleited, and this was properly regarded by
the Mailer of the Rolls, in a cafe where Mr. Rufus
King, holding the high office of Ambaffador from the
Stares of America, was declared executor. The will
referred to appointed this Gentleman, or any other
who Mould he Ambaffador from the United Pro-
vinces, to bc executor umler it. This executor claim-
ed to be retiduary legatee, and the next of kin fue-
cefsfully repelled the tactenfinn, becaufe Mr. Rufus
King was not exclufively appointed executor, but
either he, of any perfon who Ihould be Knitter for
tarterica. And the decifion of the Matter of the
Rolls was guided by the confidetation, no doubt,
that the teflator looked more to the fitvation of the
executor as American Ambaffador, than to any per-
lona' regard and affeelicn for Mr. Rufus King, or
any office Gen•leman who might occupy that refpon-
fible and dignified Ration.
• " Another circumflance deferves attention in this
Will. The legacies to Mardonan and jefferfon are
given to them before he names themas Executors, and
where lie appoints them Trultees and Guardians to
his fan ; fo that it would hem, that thefe Gentlemen,
as well as their Co-executors, had no fpecific legacy
in their eharafter of Executors. We cannot he let-
ter at, becanle there is no cafe that hits the bird in the
eye; there mutt he frequently fonie one or more parti•
culars upon which the Court will es ercife its difcre-
trui. It appears to me, then, that the onus bring
impofed upon the Petitioners to take this refidtitim
out of the Executers, they have not fucceedcd either
to the conartielion of the Will, on the authority of
- ~-.., .'r on •he analogies to which they have ref, recd,