Ray v. The Annual Conference of New Brunswick

WITH THE METHODIST CHUReH OF

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK.

Will- Construction of-Surplus- Whether residuary personal estate of the testator passed.

Among other bequests the testator declared as follows: - " I bequeath to the Worn-out Preachers' and Widows' Fund in connection with the Wesleyan Conference here, the sum of £1,250, to be paid out of the moneys due me by Robert Chestnut, of Fredericton. I bequeath to the Bible Society 4150. I be. queath to the Wesleyan Missionary Society in connection with the Conference the sum of £1,500."

Then follow other and numerous bequests.

The last clause of the will is;- " Should there be any surplus or deficiency, a pro rata addition or deduction, as may be, to be made to the following bequests, namely, the Worn-out Preachers' and Widows' Fund ; Wesleyan Missionary Society ; Bible Society."

When the estate came to be wound up, it was found that there was a very large surplus of personal estate, after paying all annuities and bequests. This surplus was claimed, on the one hand, under the will, by these charitable institutions, and on the other hand by the heirs-at-law and next of kin of the testator, as being residuary estate, undisposed of under his will.

He~d, affitming'the judgment of the Supreme Court of New Brunswick, that the "surplus" had reference to the testator's personal estate out of whi6h the annuities and legacies were payable; and therefore a pro rata addition should be made to the three above-named bequests, Statutes of Mortmain not being in force in New Brunswick.

[Fourner and Henry, J. J., dissenting.]

PasaN.-Sir Win.

THIS was an appeal from a judgment of the Supreme Court of New Brunswick, by which it was declared that by the proper construction of the will of Gilbert T. Ray, the respondents, " The Annual Conference of New Brwaswick and Prince Edward Lland, in connection or with the Methodist Church of Canada," and the " New Brunswick Auxiliary Bible Society," were entitled to the whole residuary personal estate of the said Ray. This was a bill filed in the Supreme Court in Equity of the province of New Brunswick, by the plaintiff, as surviving -executor of the last will and testament of Gilbert T. Ray, for a decree deolaring the persons entitled to a fund of some $40,000 in the executors' hands. The question arose in reference to the last clause in the will. Under it the Methodist Conference of New Brunswick and Prince Edward Island, and the New Brunswick Bible Society (respondents), claim all the residuary, real and personal estate, while the remaining defendants (appellants), who are the testator's heirs, claim that, as to this residuary estate, there is an intestacy, and that they are entitled.

Gilbert T. Ray died on the 23rd October, 1858, without leaving any issue. By his will he appointed the plaintiff and Aaron Eaton and John Fraser, executors; and after giving to his wife an annuity of £800 per annum and the use of his house and furnituro on Carmarthen street for life; and an annuity of £200 per annum to his sister, Rachael Hallett, for life; and from and after her death an annuity of £100 per annum for eight years to her daughters, he bequeathed- " To the worn-out Preachers and Widows' Fund in connection with the Wesleyan Conference here the sum of £1,250, to be paid out of the monies due me by Robert Chestnut, of Fredericton; to the Bible Society £150; to the Wesleyan Missionary Society in connection with the Conference here, £1,500."

He then gave a number of other legacies, of unequal amounts, to some of his next of kin and others, amounting in the aggregate to $31,860.

In addition to a pecuniary legacy of £1,000 to one of his next of kin, he gave him "All his marsh lands in the County of Annapolis."

&0.

To another, Mrs. Fraser, -he gave his house and land on Carmarthen street; and the will then concluded as follows:

" I hold by deed 540 acres of land in Sussex, which I leave to be disposed of, by my executors, at a time when they shall deem it most advantageous."

" Should there be any surplus or deficiency a pro rata addition or deduction, as may be, to be made to the following bequests, viz.:- "Worn-out Preachers and Widows' Fund. Wesleyan Missionary Society.

Bible Society."

The defendants, " The Annual Conference of New Brunswick and Prince Edward Island, in connection with the Methodist Church of Canada," represent the bequests to the Worn-out Preachers and Widows' Fund, and to the Wesleyan Missionary Society; the defendants, " The New Brunswick Auxiliary Bible Society" represent that to the Bible Society; and amongst the other defendants are all the next of kin of the testator.

All the legacies mentioned in the will were paid except one of £400 to Charles Prichard, which, with an annuity of £100 per annum for eight years to Elizabeth C Hallett, Fanny .allett and fargaretta Ray Hallett, unm*arried daughters of Rachael Hallett, are now the only charges on the estate.

In addition to the lands at Annapolis, the lands devised to Mrs. Fraser and the lands at Sussex mentioned in the will, the testator died seized of a lot of land and house (No. 643) fronting on Princess street, in the city VI.]

of St. John; two lots fronting on Orange street (No. 691 and 692); and another lot fronting on Orange street (No. 730) which were appraised as of the value of £01,300.

Exclusive of these .lands, the plaintiff, as surviving executor, has in his hands personal property and assets belonging to the estate amounting to $39,462.12. &s. The matter was heard before Mr. Justice Duff, who made a decree declaring that the two defendants first named were entitled to the fund in question representing the realand personal estate under the last clause in the will. On appeal to the Court in Term this decree was varied, and a majority of the Court held that, as to the real estate (except the land in Sussex), there was an intestacy, and it went to the heirs; but they sustained the decree as to the personal estate, agreeing with Mr. Justice Duff that it passed to the first two named defendants under the will in the proportions of the legacies given them. From this judgment of the Supreme Court of New Brunswick, affirming Mr. Justice Duf's judgment, except as to the four lots of land in the city: of Saint John, the present appeal was taken.

It is a well understood rule that merely -negative words are not sufficient to exclude the title of the next of kin; there must be an actual gift to some other definite object.

Johnson v. Johnson

Fitch v. Weber (2).

It is an equally well understood rule of construction as to wills that the heir is not to be excluded without an express devise or necessary implication.

Wilkinson v. Adam Dashwood v. Peyton

It is submitted that a clause so ambiguous and general as that in this will amounts neither expressly nor by &c. necessary implication to such a gift as would exclude the heir.

Admitting, however, for argument's sake, that the words amount to a sufficient devise to defeat the claim of the heir, what passes under the clause?

S It seems obvious that the real estate would not pass under it. There is no devise of the real estate to any one. The word bequeath used in the will is inapplicable to real estate. In whom did the title vest ? Certainly not in the executors, for it is not given to them. The title could not be in afund; neither could it be in two unincorporated voluntary societies; much less could it be in the three as tenants in common. Besides this, they were only to take in case of a surplus. It therefore follows that the title to the real estate, except that which the executors were empowered to sell, must have vested in the heirs, subject to the payment of the legacies, if they were a charge upon it.

It cannot be argued that by the use of the same words in the same sentence, you are to gather a different intention in the testator as to one subject matter from what he has as.to another. The object to be sought in construing a will is the testator's intention. When we find in reference to this clause that the testator could not have intended to pass real estate, we must infer that he did not intend to pass any property to which the word surplus would be applicable.

It has been put forward that the word surplus refers only to the personal estate in the hands of the executor. -Supposing this to be so, there would still be a large fund undisposed of to go to the heirs. It would seem to have been the testator's intention that the charitable '. legacies should be paid on his death; payment of them is not postponed as in the case of some others. This being so, the legacies were then due, and if due, the amount due could be ascertained.

If, therefore, the &o. latter clause has any reference to these legacies, it must be applied then,for there is no means of recovering a portion of these legacies back in case of a deficiency, to be determined years afterwards, and the will does not contemplate more than one payment. The executors, however, must retain sufficient in their hands to pay the other legatees and to produce the annuities payable to the widow and Mrs. Hallett. Whatever remains of the fund which produced the annuities, at the death of the annuitants, was undisposed of, and must go to the heirs. It is submitted that when these charitable legacies were paid by the executors, the executors waived all claims against the charities in case of a deficiency and the charities all claims in case of a surplus.

There was then neither surplus nor deficiency, as there remained, after payment of legacies, sufficient to pay the annuities. The testator made his will but twelve days before his death, and when " weak in body," and at a time when he knew substantially the amount of his property as it would be at his death.

If you deduct the amount of legacies from the total estate, the balance represents a capital just sufficient at six per cent. to yield the annuities, and he inadvertently did not dispose specifically of this capital, and the proper construction would be to say the respondents are entitled to whatever " surplus " or sums of money would be left after laying aside sufficient capital to pay these annuities. In the absence of any clause in the will declaring an intention to dispose of his whqle estate, as is found in the wills under discussion in Enohin v. Wylie and Hughes v. Pritchard and in view of the fact that the testator knew that there would be a surplus of some £8,000, or nearly half of his whole estate, it seems impossible to suppose that if he intended TV to dispose of it he would not have used different lang- &0. uage from the ambiguous clause at the end of his will. v. Holderness

The fact that the testator declares it to be his last will and testament shows conclusively that he was making, in his own opinion at least, a will disposing of his entire estate.

Mr. Tarman has, in his Rule 16 of Construction, well laid down the law. Words in general are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another can be collected, and that other can be ascertained; and they are in all cases to receive a construction which will give to every expressaion some effect, rather than one that will render any of the expressions inoperative; and of two modes of construction that is to be preferred which will prevent a total intestacy (4).

The residuary clause as to personalty certainly gives any surplus to these charities. The annuitants were dead, and the capital set aside to pay the annuities now is a surplus covered by the residuary clause. The case of Smyth v Smyth (5) is perhaps the latest case, and we submit on the authority of that case that by surplus he meant any surplus of the property out of which these legacies were to be paid, viz: The general personal Mr. Kaye, Q. C., followed on behalf of the resopndents : The testator had two things at heart, his family and his religion. He distributes certain legacies to his family and the balance to his religion. He orders his executors to provide for his family for an uncertain number of years and then he says, if there is not enough " the charities will suffer, if there is surplus then the &0. charities will benefit.

Where a will deals with both real and personal estate, as in this case, it is a rule of construction that a residuary clause will be construed to cover both real and personal estate, as was decided in the case of Smyth v. Smyth and cases there cited.

The will directs £300 per annum to be paid to the testator's 'wife, and £200 to his sister Rachel, during their natural lives. These sums are not charged on or payable out of a specific fund. There is no difference between an annuity and a legacy. They both stand on the same footing. In the event of any deficiency both would abate pro rata. Wright v. Callendar (2). To assume, therefore, that a certain amount must be set apart for the annuities, is assuming what is contrary to fact and law. When the testator speaks of surplus or deficiency, he clearly means of what he has been speak ing in the former part of his will, viz.: his estate. He is not speaking of what his property was at the time of making his will, but what it would be at the time of his death. In this will the words are general, not special-there is nothing to control or limit them. As the will speaks from the testator's death, the argument that the estate about equals what would be required to pay legacies and produce sufficient on interest to pay the annuities, cannot apply. The death of the testator occurring shortly after making the will, can have no bearing on the case: he might have lived years; and (1) 8

(2) 2 & the court cannot look at the amount of the personal estate to aid in construing a will (1).

T.

If the argument that it is necessary to set aside a suffivNUAL cient amount of the estate to produce interest to pay the annuities were to prevail, it might happen that such a large sum would be needed for that purpose as &0. to leave nothing to pay the charitable bequests. Who, in such case, is to judge of the necessary amount, and the rate of interest on which to base the calculation ? There would also, on the death of the annuitants, be an intestacy as to the sum so set aside; an intestacy as to a large amount of the estate, with the possibility of these general legacies being left unpaid.

If the doctrine propounded by Mr. Justice Wetmore were to prevail, viz., that the surplus or deficiency refers to the money coming from Chestnut-the effect would be to make a new will for the testator, instead of construing the one he has made, which is contrary to the principle that " the words must be read in their ordinary sense, as written." See Grey v. Pearson (2). From the clauses of this will, it is evident the time to ascertain the surplus or deficiency spoken of would not be upon the death of the testator, as some of the legacies are not to be paid until a future day.

Dr. Barker, Q. C., in reply.

C. J.:- The case states that:

V.]

Asiliary In addition to this the testator owned real estate in the city of St. John, with reference to which no mention whatever is inade in his will.

When the case came before Mr. Justice Duf in the Supreme Court in Equity of New Brunswick, he decreed against the heirs at law and representatives of the testator, and held that these several parties: The Worn-out Preachers and Widows' .und, the Wesleyan Missionary Society, and the Bible Society were entitled to the whole surplus of the estate. This went on appeal to the Supreme Court of New Brunswick, and there Mr. Justice Palmer was also of opinion that the whole residuary real and personal estate of the testator should go to these beneficiaries. The majority of the court, however, held that only the surplus of the personal property mentioned in the Will passed and that the heirs-at-law, having no interest in that, this surplus should be divided among the beneficiaries, but as regards the land in the city of St. John not disposed of, that went to the heirs-at-law. With this conclusion I entirely agree. At .the time of this suit, those persons who had a life-interest were dead, and ill the annuities and bequests had been paid,: and there being a very large surplus of the estate remaining in the hands of the surviving executor, the heirs-at-law and next of kin of Ray claim it as being residuary legatees of his estate undisposed of under his will.

I think that 0 although, when the estate came to be wound up, it was found that there was a very large surplus of personal &C. estate, including certain lands in Sussex, which were cj.made personal estate, that is to say over which the executors were given control, and which- they had power to realize, the proper construction of the will is that the testator clearly intended to dispose of all his personal property.

The words used are " should there be any surplus or deficiency."

What surplus do they refer to if not to the surplus of the general personal estate and the amount realized by the sale of the Sussex lands ? I am entirely unable to see what other surplus could meet the exigencies of the case and the words of the will. The appeal should be dismissed

J.:- I see no difficulty in construing this will in the same way as the Supreme Court of New Brunswick.

The testator gives a number of pecuniary legacies, including an anniity of £300 to his wife and one of £200 to his sister, and also £1,250 to the respondents, "The Worn-out Preachers' and Widows' Fund"; £150 to the respondents, the Bible Society, and £1,500 to the Wesleyan Missionary Society; he also devises two parcels of real property to devisees named in the will, and leaves 540 acres of land, situate in the county of Sussex, to be disposed of by his executors " at a time when they shall deem it most advantageous."

The will concludes with the following provision, which alone has given rise to any question :

a19 There being a considerable surplus of personal estate and some real estate undisposed of, after paying the pecuniary legacies and setting apart a fund sufficient to produce an income equal to the annuities to the testator's widow and sister, this surplus both of realty and personalty was claimed by the three charities mentioned in augmentation of the pecuniary legacies which had already been paid them.

The majority of the court below held that the charities are entitled to the surplus of the fund in the hands of the executors, composed of the residue of personalty and the proceeds of the Sussex lands, and that the real estate undisposed of, other than the Sussex lands, descended as on an intestacy to the heirs at law. One learned Judge, Mr. Justice Palmer, was of opinion that the word " surplus" in the concluding provision of the will already stated carried not only the residue of the personal estate, but also all the realty not specifically devised.

It has been contended on the appeal before'this court that nothing passed under this general bequest of the surplus, but that the next of kin are entitled as upon an intestacy to the wholk residue of the personalty, including the capital of the funds invested to answer the annuities to the testator's wife and sister.

Whilst I am clearly of opinion that the realty other than the Sussex Lands does not pass under the gift of the surplus, but descends to the heirs at law, I am equally in accord with the court below in their determination that the gift of the surplus does carry the whole residue of personalty, including the reversionary interest in the corpus of the fund invested for the annuitants. The direction that the Sussex lands are " to be disposed of by the executors" being imperative and not discretionary, except as to the time of conversion, includes a power of sale and a trust of the proceeds to be applied for the purposes of &, the will, namely, in the payment of the legacies bequeathed by the testator in the same manner as the general personal estate, the sums to be produced by the sale thus forming with the personalty a blended fund for .aaw the payment of legacies Then the word "surplus" has &o. reference to the fund out of which the legacies are stq payable.

The words " surplus " and "deficiency " apply to the same. antecedent subject, and "deficiency " can only refer to the fund for the payment of legacies, which, as I have already said, is the general personal estate, and the money produced by the sale of the Sussex lands. And as it was in the case of a deficiency of this fund that the three charitable legacies were to abate, so it was in the event of there being a surplus of the same fund, that they were to be augmented. Had the legacies, by any provision to be found in the will, independently of this gift of the surplus, been charged on the realty, I should have been of opinion that the real estate not specifically devised, passed under the word "surplus;"

but I cannot agree that the legacies were charged on the real estate generally. The will contains nothing to warrant such a proposition. There is no doubt that many authorities, such as Greville v. Browne (2), shew that where pecuniary legacies are bequeathed, and then the testator has given the "residue of his real and personal estate," the legacies are charged on the real estate; but it is a petitio principii to apply such an argument here, for the very question in the present case is whether the word " surplus " is used by the testator as an equivalent for " residue of real and personal estate, " or whether it means only " residue " of the fund out of which pecuniary legacies are payable. For these reasons it follows that the surplus VI.]

given to the charitable corporations includes only the residue of personalty and the proceeds of the Sussex lands, and does not carry the realty not specifically * mentioned.

Then it was argued on behalf of the appellants that or the capital sums set apart and invested for the benefit of N the annuitants were not to be included in the surplus, &c. but were, in the event, which has happened, of the Stong, j. personal estate being ample for the payment of all the legatees, to be considered as undisposed of personalty, and as such to go to the next of kin. This proposition is wholly untenable. The residuary clause with which the will concludes is to be construed as a gift of the residue of the testator's personal estate, and it surely cannot be seriously questioned that the capital invested to secure the life annuities sinks into the residue upon the death of the annuitants. The circumstance that pecuniary legacies are also given to the residuary legatee, which can be paid in presenti, whilst the payment of so much of the residue as is made up of the capital of the annuities must be deferred until after the death of the annuitant can make no difference in the right of the residuary legatee to that capital when the annuities fall in. Take the case of a testator directing his whole estate to be invested in an annuity given to. A for his life, with a general residuary gift to B; could it be doubted that B, the residuary legatee, would eventually be entitled to the amount invested to secure the annuities? And in what respect does the present case differ from that supposed. A gift of the residue of personalty wholly excludes the next of kin, for under it everything which would be distributable in the event of an intestacy, including all reversionary interests, passes to the legatee. If, therefore, we were to give effect to this argument, we should be altering the atator's will by interpolating an exception in favour of the next of kin nr of the reversionary interest in the capital of the Ts annuities.

^IUAL No question was made as to the capacity of the respondents, the three charitable societies, to take these legacies. It was conceded that they were all incor- &o. porated and authorized by statute to hold lands, and as strong j. to so much of the bequest as consists of impure personalty derived from the sale of the Sussex lands, no question can arise under .9 Geo. 2, c. 86, since that statute is not in force in the Province of New Brunswick The appeal must be dismissed with costs. J.:- Le testament de Gilbert T. Ray, dont l'interpr6tation fait le sujet de la difficult6 en cette cause, ayant d6ji 6 cit6 textuellement par ceux des honorables juges qui viennent d'exprimer leur opinion, je me dispenserai de le transcrire de nouveau ici, me bornant A donner un r6sum6 de ses principales dispositions.

En tAte de ce document se trouve la d6claration suivante:

Elle est suivie de la nomination des ex6cuteurs testamentaires parmi lesquels se trouve l'intim6 Lockhart. Viennent ensuite deux legs annuels, l'an A dame Amelia Ray, son 6pouse, de la somme de £300, avec l'usage d'une maison meubl6e, sa vie durante; l'autre, de £200, A sa scur Rachel, veuve de W. B. Hallett, aussi sa vie durante, et A son d6chs une somme de £100 par ann6e, pendant huit ans A ses files non mari6es, etc.; aux ministres retires (Worn-out Preachers) et au fonds des veuves, en rapport avec la " Conf6rence Wesl6yenne ", la somme de £1,250 ' atre payee A meme lea argents qui lui sont dus par Robert Chesnut, de Fredericton; A la Soci6t6 Biblique, £150; A la Wesleyan Missionary Society, £1,500; A Alfred Ray, ses terres de marais dans . le comt6 d'Annapolis, plus une somme de £1,000, pour le b6n6fice de ses enfants, la dite somme A 6tre pay6e dans quatre ans; A William Ray, £2,000; Charles Ray, £2,000; A Amelia Fraser, 6pouse de John Fraser, la mai- &c. son et le lot sur la rue Carmarthen; A Charles Pritchard, Fournier, J. la somme de £400 A lui Atre payee A son Age de majorit6.

II y a en outre douze autres legs particuliers A diverses personnes, de sommes d argent, variant de £10 a £600. Ces legs sont suivis d'une d6claration que le testateur posshde 540 acres de terre dans le comt6 de Sussex, dont il autorise l'ali6nation par ses ex&outeurs A 1'6poque qu'ils croiront la plus avantageuse, mais sans leur donner aucune direction quant A 1'emploi des deniers'en provenant.

Vient enfin la disposition qui a. donn6 naissance au present litige; elle est ainsi conque:

there pro rafa the

De 'aveu de toutes les parties en cette cause les nombreux legs particuliers faits par ce testament ont 6t6 acquitt6s.

Les rentes viag~res, ou legs annuels, en faveur de la veuve du testateur et de sa seeur Rachel, veuve Hallett, sont 6teintes par le d~cAs de ces deux dames. Il est admis aussi que les seules charges dont la succession reste grev6e sont 10 le paiement annuel, pendant 8 ans aux filles non mari6es de madame Hallett, savoir: Elizabeth C. Hallett, Fanny Hallett, and Margaretta Ray Hallett, puis le legs de £400 A Otre pay6 A Charles Pritchard, fils de Joseph Pritchard, A son A de majorit6, devenu majeur depuis.

La valeur actuelle de la succession d'apris 1'6tat fourni par Lockhart, le seul ex6cuteur survivant, serait de E.

$38,000, sur laquelle il n'y aurait i faire que la diminution des deux sommes ci-dessus mentionn6es.

reste. rait done un surplus consid6rable.

Les choses 6tant en cet 6tat, Lockhart, le seul ex6cuteur &r' testamentaire survivant, assigna comme seules parties Forer ~int6ress6es, ceux des l6gataires qui sont d6fendeurs devant la cour de premibre instance i 1'effet d'obtenir une sentence ou d6cret de cette cour declarant auxquels d'entre eux devait appartenir le surplus des biens du testateur non absorb6 par ses di verses dispositions particulibres.

La Cour Supreme du Nouveau-Brunswick, si6geant en 6quit6 sous la pr6sidence de 1'honorable juge Duff, a d6clar6 que le r6sidu des biens, tant mobiliers qu'immobiliers, du dit Gilbert T. Ray devait appartenir, sujet au diverses charges ci-dessus mentionn6es, aux socist6s religieuses intim6es " The Annual Conference of New- Brunswick and Prince-Edward Island, in connection with the Methodist Church of Canada, et " The New- Brunswick Auxiliary Bible Society."

Ce jugement ayant 6t port6 en appel & la Cour Supr6me du Nouveau- Brunswick, il fat confirm6, except6 quant aux quatre lots de terre situ6s dans la cit6 do Saint-John, qui furent d6clar6s ne pas faire partie du surplus a 6tre ajout6 aux legs des intim6es.

C'est ce dernier jugement qui est maintenant soumis i la r&vision de cette cour par les appelants, qui sont tons h~ritiers on maris de quelques-unes des h6ritieres du testateur Gilbert T. Ray.

Leur pr6tention est qu'aprbs le paiement de tous les legs et 1'extinction des annuit6s cr66es par le susdit testament, le surplus de tons les biens, soit mobiliers, soit immobiliers, doit leur revenir a titre d'h6ritiers pour 4tre partag6 entre eux. Le testateur, suivant eux, n'en ayant point fait de disposition. Sa succession se trouve ab intestat quant i ce surplus. Les diverses soci6t6s religieuses intim6es pr6tendent, au contraire, qu'il en a T. 6t6 dispos6 en leur faveur par la clause du testament d6clarant que, dans le cas de surplus on dyicit, il faudra, suivant le cas, ajouter on retrancher i leurs legs. De 1'interpr6tation de cette clause d6pend la solution &a. de la question soulev6e.

Fourier, n'est pas douteux qu'un des premiers devoirs du juge dans l'interpr6tation d'un testament est de s'efforcer de d6couvrir la v6ritable intention du testateur et de lui donner effet; mais, dans le cas actuel comme dans toutes les causes de ce genre, la difficult6 est de constater cette intention. Les termes 'employ6s par les testateurs et la nature des dispositions testamentaires variant pour ainsi dire dans chaque cas, les pr6c6dents sont ici de peu de secours. O'est, en cons6quence, aux principes g6n6raux qu'il faut recourir pour trouver la solution de la pr6sente difficult6.

On a vu, par les dispositions du testament rapport6es ci-dessus, que le testateur a fait preuve d'une grande lib6ralit6 envers sa femme et ses proches parents. N'ayant point d'enfant, il a laiss6 ' sa femme une rente annuelle de £300 et a sa scour une autre rente de £200; a ses nieces, filles de cette scour, une somme de £100 pendant huit ans, aprbs la mort de leur mare; A ses neveux des sommes consid6rables et des propri6t6s immobilibres A Pun d'eux. II semble n'en avoir oubli6 aucun. Rien n'indique done dans ce testament que le testateur ait voulu priver ses h6ritiers de sa succession. Aucune disposition neles exclut, et il est de principe que meme de simples expressions n6gatives ne suffliraient pas pour exclure l'h6ritier 16gitime, mais qu'il est n6cessaire pour cela qu'il y ait une disposition formelle qui donne les biens de la succession A d'autres personnes. Le prbsent testament n'en contient aucune, & moins que ' l'on ne consid6re comme telle les expressions au suj et lR du surplus on du d6ficit.

Quelle a pu Atre l'intention du testateur en employant les termes surplus on d6ficit ? Se rapportaient-ils dans son esprit a toute sa succession, on ne les appliqu comme l'a pens6

'honorable juge Wetmore, &0. qu'au surplus des argents qui lui 6taient dus par Robert r

Chesnut, sur lesquels devaient se prendre les £1250 donn6s aux Worn-out Preachers et au fond des veuves. On bien encore, le testateur voulait-il par ces termes faire allusion au surplus on d6ficit qui pouvait avoir lieu aprbs le placement des fonds n6cessaires pour assurer le paiement des annuit6s, on encore, le surplus de tous les capitaux, argents, biens personnels de toute espbce enfin qui devait in6vitablement rester aprbs le paiement des legs et I'extinction des annuit6s. Yoild bien des possibilit6s; nous n'avons que 1'embarras du choix et il n'est pas peu consid6rable.

L'id6e que les termes surplus on d6ficit pouvaient se rapporter A toute la succession eat n6cessairement exclue par la nature des dispositions du testament fait pen de jours avant la mort du testateur, i une 6poque il 6tait malade et ne pouvait plus songer i faire des affaires qui auraient pu mat6riellement alt6rer sa fortune. S'il 6tait en 6tat de faire un testament valable, on doit consid6rer qu'il connaissait parfaitement 1'6tat de sea affaires, et qu'il ne pouvait pas ignorer que sa succession valait A pen pros ce que 1'inventaire, fait peu de temps aprbs, a constat6, X18,592.2.7.

Avec l'id6e de la valeur r6elle do ce qu'iI poss~dait, il ne pouvait certainement lui entrer dans l'esprit qu'aprbs avoir fait des dispositions qui n'absorbaient qu'a peine une moiti6 de sa fortune, il avait A pr6voir le cas d'un d6ficit, lorsqu'il devait au contraire savoir que, tous les legs payes, il devait encore rester une moitiC de sa fortune, compos6e des capitaux qui devaient 6tre employ6s A servir lea annuit6s. Il ne pouvait pas avoir de doute A ce sujet. Le caractbre des lib6ralit6s faites j,' A sa femme, A sa scour et A sea ni~ces devait n6cessairement, dans son esprit, exiger l'application de capitaux suffisants pour produire le montant des annuit6s consaNO titu6es. II a d-h penser que ses ex6cuteurs testamentaires en agiraient ainsi, apr~s avoir pay6 tous lea legs &a. exigibles au moment de son d6c6s.

Fou er .T La nature des dispositions indique clairement qu'un tel r6glement devait avoir lieu pen do temps aprbs l'ouverture de la succession, car la plupart des legs, A l'exception des annuit6s et de deux autres sommes, sont payables sans d6lai dbtermin6, et cons6quemment imm6dia-tement exigibles. Telle a 6t6 1'interpr6tation adopt~e par lea parties int6resas6es.

Elles n'ont pas cru que le testateur avait ajourn6 le paiement de leurs legs A une 6poque 6loign6e, d6pendant entibrement d'6v6nements incertains, comme la mort de son 6pouse, arriv6e en 1875, et celle de sa scour en 1876 et devant se prolonger encore aprbs le d6c6s de cette dernibre, pendant huit ans en faveur de sea filles. Il est certain que non. Le testament est an contraire fait dans la vue d'un r2gle. ment imm6diat, except6 comme il a dbjd 6t6 dit des deux autres legs. Dans le cas d'un tel r6glement, pr6vu sans doute par le testateur, lea legs une fois pay6s, et lea capitaux n6cessaires pour assurer lea annuit6a plac6s, il 6tait assez naturel pour lui de penser qu'il pourrait y avoir un certain montant au-dessus on au-dessous du capital qu'il fallait investir pour assurer lea annuitbs. Dans le premier cas, le surplus devait Atre partag6 de ]a manibre indiqu6e par la clause en question; de m~me que dans le second cas, le d6ficit devait 6tre combl6 aux d~pens des m~mes legs. Tout cela suppose une op6ration qui devait se faire presqu'aussit6t apr~s la mort du testateur et non pas 26 ans aprbs, c'est-A-dire a l'expiration de toutes lea annuit6s. Le r6sultat 46finitif de 1'ex6cution du testament ne peut servir A Pinterpr6tation d'une clause qui devait imm6diatement recevoir son ex6cution. Pour saisir le sens de cette clause obscure, il faut se reporter A 1'6poque du testament, alors on comprend mieux que le surplus ou d6ficit dont le testateur a fait mention devait tre le r6sultat &c. qu'il entrevoyait comme la cons6quence du r~glement imm6diat de sa succession.

En interpr6tant la disposition de cette manibre, ii se serait encore trouv6 un surplus d'environ $8,000; mais <'un autre c6t6 le testateur pouvait penser que quelquesunes de ses crbances ou des capitaux pourraient dimi- -nuer de valeur et amener peut-6tre un d6ficit. C'est sans doute pour cette raison qu'il a fait usage des deux mots surplus ou d6ficit.

A ce point de vue les deux mots s'expliquent d'une manibre naturelle et tous deux regoivent leur interpr6tation; tandis qu'en les appliquant i la totalit6 de la succession il faut pour les interpr6ter omettre la possibilit6 entrevue par le testateur d'un d6ficit, et, dans ce cas la clause n'est pas interpr6t6e dans son entier, puisqu'on 1'applique A une certitude absolue au lieu de l'alternative possible pr6vue par le testateur.

Ce n'est plus son intention que 'on constate, mais c'est une disposition que l'on fait pour lui en supprimant la possibilit6 d'un d6ficit.

Do cette manibre on arrive A un r6sultat qui n'a jamais di entrer dans 1'esprit du testateur, celui de lui faire donner, au moyen de ces expressions vagues et obscures, plus de la moiti6 de sa succession.

A part de cette interpr6tation qui consiste A dire que le testateur avait en Tue un surplus ou d6ficit aprbs le paiement de tous les legs et le placement de tous.les capitaux n~cessaires pour produire les annuit6s, il y a encore cello sugg~r6e par 1'honorable juge Wetmore, tendaut A faire l'application de ces termes au surplus ou d6ficit des argents dus par Robert Chesnut. Ainsi que 1'honorable juge en a fait mention, l'6tat de la succession produit par 1'ex6cuteur testamentaire Lockhart, les legs en question pay6s, il reste encore un surplus de (1,200 . sur la cr6ance Chesnut qui pouvait 6tre r6parti suivant le d6sir da testateur.

II aurait pu se faire qu'il y est un deficit dans la rentr6e de cette cr6ance, et c'est peut-6tre a une probabilit6 de ce genre que pensait le &0. testateur lorsqu'il a fait la disposition dont *il s'agit. l'une on l'autre de ces deux explications me parait plus conforme aux intentions du testateur que celle qui lui fait 16guer plus de la moiti6 de sa succession, en donnant au mot surplus une signification i laquelle il ne pensait pas, puisqu'il ne s6parait pas l'id6e du surplus. de la possibilit6 d'un d6ficit. Il y a en faveur de l'une ou 1'autre de ces deux interpr6tations la possibilit6 de faire 1'application des deux termes employ6s par le testateur, car dans l'un et 1'autre cas, il ne pouvait dire avec certitude s'il y aurait ou non un surplus, tandis que le doute 6tait impossible s'il avait en vue la totalit6 de la succession.

QuantA l'interpr6tation du mot " surplus " comme n'6tant pas suffisant dans le cas actuel pour transmettre les propri6t6s immobili6res, j'adopte le raisonnement de l'honorable juge en chef Allen, 6tablissant bien clairement, suivant moi, que la disposition est tout A fait insuffisante pour produire cet effet.

Des diff~rentes applications possibles du mot " surplus " mentionn6es plus haut, il reste encore celle qui consisterait A l'appliquer aux biens mobiliers seulement, restant entre les mains des ex6cuteurs testamentaires apres le paiement des legs et Pextinction des annuit6s.

A cette interpr6tation j'oppose le raisonnement fait plus haut pour r6futer l'application que Pon veut faire du mot " surplus " & la totalit6 de la succession : ce n'est pas le cas pr6vu par le testateur. II ne pouvait pas avoir un soul instant I'id6e qu'il y aurkit un d6ficit; il devait, au contraire, Atre bie ncertain iuy qu'aprbs deduction faite des sommes 16gu6es, sa succes- ** sion mobilibre laisserait un surplus cousid6rable. Ce devait 6tre pour lui une certitude absolue A laquelle il n'est pas possible de faire 1'application d'une phrase comportant un doute. Si son intention efit 6t6 de &a. 16guer le r6sidu de ses biens, il n'aurait certainement Fournr,) j. pas fait usage des deux mots surplus on d6ficit. Il se serait 6videmment born6 A parler du r6sidu.

Quoi qu'il en soit, le moins que l'on puisse dire, c'est que, dans les circonstances de la cause, cette clause du testament fait naitre tant de doute qu'il n'est gubre possible de lui donner effet sans s'exposer A faire un testament pour le testateur. Il n'y a aucune raison de donner une interpr6tation forc6e A ces termes, dans le but d'assurer 1'ex6cution compl~te du testament. Toutes ses dispositions positives ont 6t6 ex6cut6es; chacun des 16gataires a requ ce qu'il devait recevoir. Dans un cas semblable, le doute qui rend 1'ex6cution d'une telle disposition aussi incertaine doit tourner au b6n6fice de 1'h6ritier 16gitime. Dans le cas d'une telle interpr6tation, il est vrai qu'il reste une partie de la succession dont le testateur n'a point dispos6.

O'est vrai, mais ce n'est pas un 6v6nement trbs rare, et lorsqu'il se pr6sente, la loi suppl6e A l'omission du testateur. Rien n'oblige un testateur A faire une disposition de tous ses biens par testament.

'il est vrai que 1'on pr6sume ordinairement qu'il a voulu disposer de la totalit6, faut-il au moins pour cela qu'il y ait dans le testament des expressions g6n6rales qui puisse 6tablir que telle a t6 son intention. Nous n'en trouvons aucune dans le testament en question. Les expressions en tate du testament : "This is my last will and testament," font bien voir que c'est le testament auquel il s'arrate et le seul auquel il entend donner effet, si toutefois il en a fais d'autres; mais cette d6claration ne fait aucunement voir l'intention de disposer de la totalit6 de succession. Pour r6aliser cette intention, si elle efit exist6, il faut des dispositions formelles pouvant avoir cet effet. ,.E Si les expressions g6n6rales qui, dans bien des cas, ont jug6es suffisantes pour op6rer une disposition de toute la succession, comme celles-ci par exemple : All that I am worth," " all that I shall die possessed of, "real and personal, of what nature and kind soever," " such "wordly property wherewith it has pleased God to bless me in this world, I give," etc., se rencontraient dans le pr&sent testament, on pourrait avec raison en tirer la conclusion que les mots surplus on ddficit doivent se rapporter A une disposition universelle et qu'ils doivent en avoir les effets, au moins quant aux biens mobiliers. En 1'absence de semblables expressions, je ne puis pas donner aux mots surplus et d6ficit une autre signification que celle que j'ai essay6e de leur trouver et que j'ai expos6e plus haut. O'est sur cette signification que je m'appuie pour conclure que le testateur n'a pas dispos6 de toute sa succession et que le surplus qui devait tre adjug6 aux intim6es devait stre seulement l'exc6dant des capitaux n~cessaires au service des annuit6s,-les capitaux eux- m~mes devant retourner aux h6ritiers du testateur, faute de disposition suffisante pour les transmettre A d'autres personnes. HENRY, J :- The will in this case was made on the 11th October, 1858, and the testator died on the 23rd of the same month; and, probate having been granted to his executors, they, on the 25th July, 1859, filed an inventory of his estate amounting to £18,592 2s 7d., or (74,890.11.

The legacies to be paid under the will amounted to Ri

£10,350 or $41,400.

The testator left to his widow an annuity of £300, or $1,200, a year during her life, and the use of a house, valued at £1,500, or $6,000, and the furniture therein. He also left to his sister Rachel an annuity of £200, or &0. $800, a year for her life, and at her death one-half that 1er- . sum to her daughters for years.

It appears and it is admitted, that after the paying the legacies and annuities,,there remained of the estate at the time of the commencement of the suit, undisposed of in the hands of the surviving executor in the shape of land in the county of Sussex, valued at $608, mortgage securities $17,005, stocks $14,900, debentures $6,600 and cash $349.12, making in all $39,462.12.

The widow of the testator died in 1875, and his sister Rachel in 1876.

The only remaining charges on the estate under the will are a legacy of £400 to Charles Pritchard, and the annuity of t00 to the daughters of Rachel the sister of the testator.

The appellants claim to be entitled to the balance as next of kin and heirs at law of the testator. The respondents claim it under the last clause of the will. The testator, by his will, after giving an annuity of £300 and the use of a house and furniture to his widow during her life, and an annuity of £200 to his sister Rachel during her life, made bequests to the respondents amounting in the aggregate to £2,900, and several bequests to some of the appellants and others amounting to $7,840, and concludes his will by these words " should there be any surplus or deficiency a pro rata addition or deduction, as may be, to be made to the following bequests, viz:

Worn out preachers and widows fund. Wesleyan Missionary Society. Bible Society."

Our judgment therefore depends solely on the construction to be put upon this clause of the Will. The testator was a permanent resident of St. John, New Brunswick, but his will shows it was made at Granville, nR in Nova Scotia, where, it states, he was " at present Tu residing."

Being absent from his place of business when the will was executed it is not unreasonable to conclude that he had not all the means of reference for information as to the value of his estate which he &c. otherwise would have had, and that may account for the large part of it left specifically undisposed of. We cannot speculate as to the result of a more specific disposition under other circumstances. It is, however, reasonable to conclude that had he known or thought, at the time of making his will, of the value of his estate, he would have disposed of it more specifically.

If indeed he had reason to believe his estate was as valuable as it really was, would he, if he intended so large a bequest to the respondents, have given them the specific sums bequeathed to them respectively, or is it not the reasonable presumption that he intended to make a distribution of his estate in something like the proportions stated in his will, but that he wished to have the annuities and legacies to his relatives and other friends, securely provided for, and that any unimportant deficiency or excess should affect only the legacies to the respondents. We must gather the intentions of the testator from his will, and from that alone where it is unambiguous.

Where it is otherwise, we are not only permitted, but bound, to call to our aid, in considering the matter, the surrounding circumstances, including the quality, extent and value of his whole estate, and, looking at the whole will, come to a conclusion as to the intentions of the testator. It is an elementary principle of the law that it requires an express devise or bequest to oust the heir-at-law, or, what may be as effectual, a clearly manifested intention shown in the will to oitat him. The party seeking to do so has the burden on him of showing it, and if there is any reasonable ambiguity as to the right or claim of a residuary or other legatee, the heir is entitled. That principle is clearly applicable in this case, if the residuary clause admits of two constructions-one favorable, the other adverse to the claim of the respondents &C.

In resolving the difficulty it becomes necessary to J. enquire, in the first place, at what time under the will was the distribution to be made? If the inventory showed sufficient to pay and provide for the specific legacies other than those to the respondents, independent of the security necessary to provide for the payment of the annuities, the other legacies vested and the legatees could, in a short time after the inventory was filed, being the time provided by law for distribution, have enforced their claims to them. The inventory having been filed in July, 1859, we find nothing in the case to show when the specific legacies were paid except those to the respondents, which was in November and December, 1860. The receipts for the same are, in one case, for " one thousand two hundred and fifty pounds bequeathed to the worn-out Preachers and Widows Fund in connection with the Wesleyan Conference here." Another for " One thousand five hundred pounds bequeathed to the Wesleyan Missionary Society in connection with the Conference here;" and the third for " One hundred and fifty pounds bequeathed to the Bible Society."

Those entitled to the legacies just mentioned, at the dates of the payments to them, received from the executors the several sums as and for the bequests made to them respectively by the testator. They received, and the executors paid, those several legacies, with, as we must assume, a full knowledge of all the circumstances of the estate and of the terms of the will. It is very questionable in my mind, whether the parties who received payment of those legacies on the terms stated in the several receipts would not be estopped from claiming further of the estate. The words used make no reference to any specific legacy, but refer to and include all Anext. bequeathed by the testator. The parties entitled to the legacies had then the alternative of accepting or refusing EW the several amounts, and in doing the latter might have &a. waited until some future time to have ascertained .whether they would be entitled to claim more under the residuary clause, or run the risk of getting less. The residuary clause (so called), in the shape we find it, is an unusual one. In the usual residuary clauses the terms are plain and simple; they, in most cases, provide for giving unqualifiedly the residue of the estate. Here the residuary clause operates both ways; either to add to or diminish the amounts of certain preceding specific legacies.

A different construction must therefore be be given to it. It gives nothing absolutely; and not only so, but provides for even a deduction from previous bequests. We must, therefore, ascertain from the whole will what the testator intended when he made provision for the result of " any surplus or deficiency."

As I have already shown, parties interested as legatees, the payment ofwhose legacies was not postponed, might, under the law, have enforced the payment of all the legacies at or about the date of the payment of the legacies to the respondents. We are not informed whether they did so or not; but it may be presumed from what we do know, that they pressed for payment at the usual time, and the respondents may also have done so. There was no provision in the will for ascertaining the amount of the several legacies to be paid to the respondents more than once; and, when once done, I think it must be considered as final. It was a question of deduction from or addition to the amount of the specific legacies to them; and the case is, therefore, very different from what it would have been had no question of deduction required to be settled. That question had to be con- T.

sidered in connection with the provision for addition, if the value of the estate entitled the respondents to it. When, therefore, they received the respective amounts, wx they saved themselves from the chances of a reduction, &0. and that, it appears to me, taken in connection with the j. receipts signed, is evidence of a waiver of any further claim. At the time (in 1860) when the respondents. received the amount of the specific legacies, in what position was the estate, and what course had the executors to adopt to secure to all parties the rights they obtained under the will, and, at the same time, to secure themselves?

After the lapse of over twenty years we are apt to look at the present position of the estate and be thereby influenced. It is, however, wrong to do so. That a comparatively large balance remains undisposed of is fortunate; but it was not necessarily so, and although the assets in 1860 warranted the belief that the estate would eventually be sufficient to meet the provision for the annuities and unconditional legacies, it might have resulted very differently. The assets were largely composed of property liable to loss and deterioration, such as vessels liable to be lost, damaged, or decreased in value, and unsecured debts due to the estate. This information I have got from the inventory. We have none as to the position or value of the assets when the legacies were paid to the respondents; but we have this fact, that several of the debts are marked doubtful " in the inventory. No general account of the executors showing receipts and payments was in evidence, and all we have is a statement of what, at the time the present suit was commenced, was then alleged to be in the hands of the surviving executor. This gives us no information as to the position of the estate in December, 1860. We cannot therefore judge as to it when the payments of the .legacies in question were made, and cannot decide whether or not it was, at that time, for the interests of the respondents to have T accepted the sums paid them as in full for what was bequeathed to them. Their acceptance of the amount of the specific legacies is, however, affirmative evidence that it was so. In taking this position, however, I do &a. not, in the absence. of more positive evidence, insist upon Henry J. their receipt of the specific legacies as a full and complete bar to the claim they now make; but. as evidence to aid us in the construction of the ambiguous clause in question, so far as their acts are evidence of the construction put upon it by themselves at the time. Independently, however, of every other consideration let us see, as far as we can from the evidence before us, what were the duties and responsibilities of the executors in December, 1860, before the payments in question were made. They had then, as shown by the inventory, an estate amounting in gross to $74,368.50.

They had, then, that sum available to provide for the annuities and legacies.

I have made a calculation of the amount the executors. should retain for the annuities, which constituted the first charge, and for the unconditional legacies, and find that for that purpose nearly the whole sum would be required, leaving little or nothing for the conditional legacies to the respondents. Did then the testator intend that should be the mode of dealing with his estate, or did he mean that the matter- of his estate should remain open and undistributed, and the matter of the adjustment, under the residuary clause, postponed until the. lapse of the annuities by the death of his widow and his sister Rachel ? We find the former lived seventeen and the latter eighteen years after his death; and, for all we know, they might in the course of nature have lived many years longer. I cannot bring myself to the conclusion that the latter is the proper constructj~ ion of the clause. We must read the will, as I before said, not by any speculation as to how he would have -disposed of the balanee now claimed had he known positively how the administration of his estate would have resulted, but by the words he uses in respect to &a. his bequests. And if we can find a reasonable interprej. tation we should at once adopt it in preference to one of an opposite character. We must assume, in the absence of postponing provisions, that he meant his estate to be administered in the usual legal way and within the prescribed time. Did he desire the estate not to be governed by the law as to estates generally? We would look for some manifestation of such in the will; but such is not to be found in it; we cannot therefore attribute to him any such desire. He, in my opinion, therefore, virtually instructed his executors within the prescribed period to ascertain how much of his estate, specially undevised, would be necessary to secure the annuities and pay or secure the unconditional legacies, and to apply the balance to the payment of the conditional legacies to the respondents. If not sufficient to pay the whole, then to pay in the proportion he prescribed. If more than sufficient, to distribute the surplus in the same proportion. Taking the clauses giving the specific sums to the respondents, with the residuary clause, they arejust the same as, and no more, in my opinion, than a provision in the will, stating that if any balance remained after providing for the annuities and unconditional legacies, it was to be distributed to the respondents in the proportion of £1,250 to one i £1,500 to another; and £150 to the third. Each of those specific bequests is just as effectually made to depend on a contingency in the one case as in the other ; and the question is, what that contingency is, and when it was to arise and govern the distribution ? I have called the clause in.question a residuary clause, but it is not so in the usual acceptation of RA the term.- It amounts to nothing more than conditional bequests to the bodies named. The usual residuary clause is evidence of an anticipated surplus from the whole or certain prescribed parts of an estate. The clause in this will is evidence that the testator was alto- &o. gether uncertain whether there would be sufficient to He . pay even the whole or any part of the specific bequests to the respondents.

I have fully considered the bearing of the cases cited at the argument, and others, from which I am justified in saying that it requires, in order to divest the heir-atlaw, that it should conclusively appear on the face of the will to have been the testator's intention to do so; in fact, that the testator should clearly manifest his intention of disposing of the whole of his estate.

I will refer to two cases in proof of the positions I have taken.

In Hughes v. Pritchard in 1877, the words used by James, L. J., as showing the purport of the will in that case, are :

The question at issue was whether such a devise would include a farm to the residuary legatees which was not specifically devised, and it was held that it did, to the exclusion of the heir-at-law.

Bramwell, L. J., in his judgment, uses these words: The learned judge thought, from the tenor of the will generally and the words " the estate which God has been pleased in his good providence to bestow on me," which are very comprehensive, and upon which much H

J stress was laid, that the testator did not intend to die intestate as to the farm then in question. In that case the residuary clause is altogether unambiguous and very comprehensive.

In this the provision is of very uncertain meaning and reference. There are no words showing, as in the case cited, the intention of the testator to dispose of his whole estate. In that the testator expressly stated his intention to devise and bequeath all the estate, real and personal, which it pleased God to bestow on him. Here no such intention is manifested or declared. In this case we have not only the absence' of any expression of such intention, but a disposition which can be understood, as the intention of the testator to make his bequests to the repondents wholly to rest on the contingency which I have explained.

As I before stated, the onus of sustaining the bequests is on the respondents; and in order to divest the heirat-law the devise must be certain and unambiguous. The prevailing rule is laid down by Lord Mansfield, C. J., in Roe ex dem. Willing v. Tend thus :- The same doctrine is applicable to this case and must uide us.

After the best consideration I have been able to give to the matter, I have arrived at the conclusion that the respondents have failed to show, as they were bound to do, a devise to them sufficient to oust the heirs. At the very least, there are grounds for serious doubts which should not exist in a case in which 'it is sought to oust the right of the heirs-at-law and which alone are sufficient, in my opinion, to prevent the recovery of &a. the respondents; such doubts should not be resolved y, J. in favor of- the latter upon mere speculation. If they have failed to remove all such doubts, the heirs are entitled to our judgment. I think there are such doubts at all events in this case, and therefore our judgment should find that the balance now in contest was undisposed of by the will-that no provision was therein made for the disposition of it, and that to that extent the testator died intestate.

I think the appellants are entitled to our judgment in their favor, and that the appeal should be allowed with costs

G-wYNNE, J.

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