HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0006 and id is 1 raw text is: ELLCOCK V. MAPP [1851]
[492] MARGARET ELLCOCK,-Appellant; ELIZA M.PP,--Respondent
[Feb. 25, 28, August 5, 1851].
[Mews' Dig. vi. 1389. S.C. in Ch., 2 Ph. 793; 18 L.J. Ch. 217; 13 Jur. 290. Dis-
cussed and followed in Read v. Stedman, 1859, 26 Beav. 501, 502; and cf.
In re West, George v. Grose (1900), 1 Ch. 84.]
Executor-Residue-Trust.
A testator devised all my estate, both real and personal, to E. E., his executors,
administrators, and assigns, to and for the several uses, intents, and pur-
poses following; that is to say ;-and then, after specifying various objects
of his bounty, appointed the said E. E. executor of this my last will and
testament. The trusts of the will did not exhaust the estate:
Held, affirming a decree of Lord Chancellor Cottenham, that E. E. did not
become entitled, for his own benefit, to the personal estate undisposed of,
but was a trustee thereof for the widow and next of kin of the testator, accord-
ing to the Statute of Distributions. (Dawson v. Clark, 18 Ves. 247, com-
mented on, and Lbrd Eldon's opinions adopted.)
The rule in such a case is, that where there appears a plain implication or
strong presumption that the testator, by naming an executor, meant only
to give the office of executor, and not the beneficial interest, the person named
shall be considered a trustee for the next of kin of the undisposed surplus.
This was an appeal against an order of Lord Chancellor. Cottenham, which had
reversed an order of the Vice-Chancellor of England in a suit instituted for the ad-
ministration of the estate of a testator, and a declaration of the true construction
to be put upon his will.
Samuel Henry Pare, Esq., of Barbadoes, made his will in that island, dated 2nd
July, 1785, in the following terms :- I give all my estate, both real and personal,
in this island or elsewhere, to Edward Ellcock, Esq., of, etc., his executors, ad-
ministrators, and assigns, to and for the several uses, intents, and purposes follow-
ing; that is to say, out of the rents, issues, and profits, and interest of all debts due
to me, to pay unto my dear wife, Anna Maria, £300 yearly and every year, in addi-
tion to her own fortune, which survives to her; and in trust, likewise, to permit and
suffer her to have the full enjoyment of the uses and ser-[493]-vices of all my negro
slaves, except Jackey, whom I direct to be freed at the expense of my estate; and in
trust, also, to permit and suffer her to use all my household furniture and plate
during her natural life; and in trust, also, to receive the interest only of the debt
due to me from John Prettejohn, Esq., during the lives of the said John Prettejohn,
and of his son and daughter, Charlotte and John; and in trust, likewise, to discharge
the said John Prettejohn from the sum of £2500, which sum I bequeath unto his
said two children, and in case of their deaths, to the aforesaid John Prettejohn him-
self ; and in trust, also, to divide the remainder of the interest of debts due to me in
the following manner, in equal proportions between H. E. H. Parris, Margaret
Ellcock, and Anna Maria Ellcock, daughters of the aforesaid Edward Ellcock; and
in case my wife, Anna Maria, should intermarry and have children, in trust to
divide the principal sums among such of her children as shall be living at the death
of the aforesaid John Prettejohn, senior, Charlotte Prettejohn, and John Prette-
john, junior, and in the mean time to divide one principal sum of £1500, part of
the debt due to me from the estate of the Honourable Samuel Rous, deceased, among
and between the aforesaid H. E. H. Parris, Margaret Ellcock, and Anna Maria Ellcock,
on the death of the aforesaid Anna Maria, my said wife. If there should be any doubt
of the legality of the above trust for the use of the children of my present wife by a
future marriage, I then give such sum or sums as would have been their share or shares
unto herself, upon such events as are before mentioned. Lastly, I nominate, con-
stitute, and appoint the aforesaid Edward Ellcock executor of this my. last will and
testament.
The testator died in England, on the 22nd October, 1789, leaving all the persons
named in his will him surviving. [494] The will was duly proved by Edward
Ellcock in Barbadoes, and the executor took possession of all the testator's property
III H.L.C., 492](ViewImageLocal?handle=hein.slavery/ssactsengr0006&div=1&collection=&method=preview&ext=.png&size=3)