Chap. XXVI. time of her death" (c); or, " next legal or personal representatives" (d). Philps v. Evans, 4 De & S. 188 (a); Gryll's Trust, 6 Eq. 589 (b); Robinson v. Erans, 22 W. R. 199; 43 L. J. Ch. 82; Long v. Blackall, 3 Ves. 486 (c); Booth v. Vicars, 1 Coll. 6; Stockdale v. Nicholson, 4 Eq. 359 (d).

Effect of the word assigns.

Whether, in this latter case, the next of kin proper or the statutory next of kin take, see Booth v. Vicars, supra; Stockdale v. Nicholson, supra.

A gift to personal representatives per stirpes, and not per capita, has been held to mean descendants. Atherton v. Crowther, 19 B. 448; Re Knowles; Rainford v. Knowles, 59 L. T. 359.

For a direction to pay to "legal representatives according to the course of administration," see Jennings v. Gallimore, 3 Ves. 146; Briggs v. Upton, 7 Ch. 376.

It would seem, that the addition of the word assigns in a substitutional gift to heirs or representatives would make it impossible to construe these words as equivalent to next of kin. Grafftey v. Humpage, 1 B. 46; Waite v. Templer, 2 Sim. 524.

Gift to A. and in case of his death to his executors.

Executors taking substitutionally

take in trust

EXECUTORS.

A gift to A., and in case of his death to his executors or administrators, will go to A.'s executors in the event of his death before the testator. Long v. Watkinson, 17 B. 471; Re Seymour's Trusts, Johns. 472; Marwell v. Maxwell, I. R. 2 Eq. 478; In re Clay; Clay v. Clay, 32 W. R. 516; affd. 54 L. J. Ch. 648; overruling Palin v. Hills, 1 M. & K. 470. See, too, Aspinall v. Duckworth, 35 B. 307; Re Morgan's Trusts, 2 W. R. 439.

Of course, where there is a future gift to A. or his executors, the word executors will be treated as inserted to provide for the death of the donee before the time of vesting in possession. See Stocks v. Dodsley, 1 Kee. 325.

It appears to be now settled, notwithstanding Erans v. Charles, 1 Anstr. 128, that executors taking substitutionally take the property to be administered as part of the assets of

the original legatee. Stocks v. Dodsley, 1 Kee. 325; Leak v. Chap. XXVI. Macdowall, 33 B. 238; In re Valdez's Trusts, 40 Ch. D. 159.

Similarly, a gift to the executors of a dead person is a gift

to his legal personal representatives as part of his estate. Trethewy v. Helyar, 4 Ch. D. 53.

for the next/

of kin.

testator's

they accept

the office.

A general or specific legacy given by a testator to his Gifts to the executors, whether under the title of executors or not, is prima executors only facie given to them in that character, and therefore they are go to them if not entitled to the legacies if they decline or are incapable of undertaking the office. Reed v. Deraynes, 2 Cox, 285; 3 B. C. C. 95; Calvert v. Sibbon, 4 B. 222; Hanbury v. Spooner, 5 B. 630; Hawkins' Trust, 33 B. 570; Piggott v. Green, 6 Sim. 72; Slaney v. Watney, L. R. 2 Eq. 418; In re Appleton; Barber v. Tebbit, 29 Ch. D. 893.

sufficient

acceptance of

the office.

To entitle an executor to receive his legacy, it is sufficient if What is a he either proves the will, which he may do at any time before the estate is fully administered, or if he acts as executor. Hollingsworth v. Grassett, 15 Sim. 52; Angermann v. Ford, 29 B. 349; Harrison v. Rowley, 4 Ves. 212; Lewis v. Mathews, 8 Eq. 277.

And it seems, that if the legacy is directed to be paid within twelve months, and there is nothing to show that the executor refuses to act, he is entitled to his legacy if he survives the twelve months. Brydges v. Wotton, 1 V. & B. 134.

But if the executor acts fraudulently, the mere taking out probate will not entitle him to his legacy. Harford v. Browning, 1 Cox, 302.

Where an annuity was given to trustees as a recompense for their care and trouble in the execution of the trusts, it was held that the trustees were entitled to the annuity though they employed an agent to collect the rents. Wilkinson v. Wilkinson, 2 S. & St. 237.

But the case is different, if an annuity is given expressly for their services in collecting the rents. In such a case if they employ an agent they cannot take the annuity. Re Muffett; Jones v. Mason, 55 L. T. 671; 56 L. T. 685.

The presumption that a legacy to an executor is given to him in that character for his trouble, is not rebutted by the

In what cases

the executor

is entitled,

Chap. XXVI. though he does not act.

Whether a gift of residue to executors

fact that the legacy precedes the appointment of executors, or by the fact that legacies of unequal amount are given to the executors. In re Appleton; Barber v. Tebbit, 29 Ch. D. 893 ; see Wildes v. Davies, 1 Sm. & G. 475; 22 L. J. Ch. 497.

The presumption would probably not now be held to be rebutted by difference in the subject-matter of two bequests to executors. In re Appleton, supra, where Jewis v. Lawrence, 8 Eq. 345, is discussed.

The presumption may be rebutted :—

1. If some other motive is expressed, as if the gift is to "my friend and executor." Re Denby, 3 D. F. & J. 350; Dix v. Reed, 1 S. & St. 237; Cockerell v. Barber, 2 Russ. 585; Burgess v. Burgess, 1 Coll. 367; Bubb v. Yelverton, 13 Eq. 131.

2. If the gift is after a life interest. In re Reece's Trusts, 4 Ch. D. 841.

3. If there is a direction that in the event of the executor's death before the testator, his legacy is to go to his next of kin. In re Bunbury's Trusts, I. R. 10 Eq. 408.

4. The presumption does not arise if the gift is of residue. Parsons v. Saffery, 9 Pr. 578; Griffith v. Pruen, 11 Sim. 202; Christian v. Devereux, 12 Sim. 264.

Whether a gift of residue to executors is a gift to them for their own benefit, or whether they take in trust for the next of is beneficial or kin, depends on the general scheme of the will, and is not affected by the statute 1 Will. IV. c. 40. Williams v. Arkle, L. R. 7 H. L. 606.

in trust.

Thus the following circumstances are in favour of the executors taking beneficially :

If the gift is not to the executors as such, but by name. Williams v. Arkle, L. R. 7 H. L. 606; Re Henshaw, 12 W. R. 1139; 34 L. J. Ch. 98; Hillersden v. Grove, 21 B. 518.

If the gift is subject to certain payments. Parsons v. Saffery, 9 Pr. 578.

On the other hand, the fact that prior legacies have been given to them, or that the bequest is to them as joint tenants, is against their right to the beneficial interest, though not alone conclusive. Gibbs v. Rumsey, 2 V. & B. 294; Re

Henshaw, supra; Saltmarsh v. Barrett, 3 D. F. & J. 279; Chap. XXVI. see Buckle v. Bristow, 13 W. R. 68.

And a direction that the executors are to retain their costs would, it seems, show that they were not to take beneficially. Saltmarsh v. Barrett, supra.

But a reimbursement clause, where there are continuing trusts, will not have this effect. Romans v. Mitchell, 15

W. R. 552.

So where there is no gift to the executors, a direction that they, their heirs, successors, representatives, or descendants may apply and distribute the same as to them may appear just, makes them trustees for the next of kin. Yeap Cheah Neo v. Ong Cheng Neo, L. R. 6 P. C. 381; see Barrs v. Fewkes, 12 W. R. 666; 13 ib. 987; Caruth v. Parker, 11 L. R. Ir. 19.

Chap. XXVII. General rules applicable to charitable gifts.

Legal meaning of charity.

Private charityBenevolence, liberality, philanthropy.

CHAPTER XXVII.

GIFTS TO CHARITABLE USES.

I. WHAT ARE CHARITABLE GIFTS.

CHARITABLE gifts are subject to peculiar rules. The rule against perpetuity does not apply to them, nor if a charitable intent is once established can a charitable gift fail for uncertainty or want of a trustee.

On the other hand, the Court does not in cases where the Mortmain Act applies, marshal assets in favour of a charity, and charitable gifts are also subject to certain restrictions imposed by statute.

Charity in the legal sense has a far wider meaning than the word conveys in its popular use. It is usual to refer to the preamble to the statute 43 Eliz. c. 4, as defining its meaning, but the word is by no means limited to the exact charities there referred to. Commissioners for Special Purposes of Income Tar v. Pemsel, (1891) A. C. 531.

The statute 43 Eliz. c. 4, has been repealed by the Mortmain and Charitable Uses Act, 1888 (51 & 52 Vict. c. 42, s. 13), but the preamble to the earlier Act is recited in and recognised by sect. 13 (2) of the later Act.

It would be difficult, if not impossible, to give a satisfactory definition of charity, but it may be noted that while on the one hand a gift for private charity (a) is too confined to be a charity in the legal sense, and is therefore void; on the other hand, gifts for purposes of benevolence (b), or liberality (c), or general utility (d), or philanthropy (e), or for public purposes (f), are too wide to be charitable. Ommaney v. Butcher, T. & R. 260; see, however, In re Sinclair's Trust, 13 L. R.