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![handle is hein.slavery/ssactsengr0854 and id is 1 raw text is: and to 2 Phill. 516, that His Honor's decision in Mason v. Wakeman was reversed by
the Lord Chancellor.
Mr. Bethell, Mr. Cooper, Mr. Lewin and Mr. Miller were the counsel in the
principal case.
[568] MAPP v. ELLCOCK. April 26, 1847.
[S. C. on appeal, 2 Ph. 793; 41 E. R. 1150; 3 H. L. C. 492; 10 E. R. 194.]
Executor and Next of Kin. Residue undisTosed of.
A testator bequeathed all his property to A. upon certain trusts (but which were hot
co-extensive with his interest in the property), and, by a clause at the end of his
will, appointed A. executor of it.
Held, that A. was not a trustee of the interest undisposed of for the testator's next of
kin ; but was entitled to it beneficially.
Samuel Henry Pare, a barrister in Barbadoes, died in October 1789,(1) having
made his will in the following words:-
Imprimis, I give all my estate, both real and personal, in this island, to Edward
Ellcock, Esq., his executors, administrators or assigns, to and for the several uses,
intents and purposes following (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 addition 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 services
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 Prette-
john and the lives of his son-and daughter Charlotte Prettejohn and John Prettejohn,
jun. ; and in trust, likewise, to discharge the said John Prettejohn from the sum of
£2500, which sum I bequeath unto his two children, the aforesaid Charlotte Prettejohn
and John Prettejohn, and, in case of their death, unto the aforesaid John Prettejohn
himself ; and in trust, also, to divide the remainder of the [569] interest of debts due
to me in the following manner, in equal proportions between H. E. Holder Parris,
Margaret Ellcock and Anna Maria Elleock, daughters of the aforesaid Edward Ellcock ;
and in case my said wife, Anna Maria, should intermarry and have children, in trust
to divide the principal sums amongst such of her children as shall be living at tha
deaths of the aforesaid John Prettejohn, seh., Charlotte Prettejohn and John Prette-
john, jun., and, in the meantime, to divide one principal sum of £1500, part of the
debt due to me from the estate of the Honorable Samuel Rous, deceased, among and
between the aforesaid H. E. Holder Parris and 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 tbe'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, constitute and appoint the aforesaid Edward Elleock executor of this my
last will and testament.
The Master having found that the Plaintiff was the testator's sole next of kin, the.
cause came on to be heard for further directions. The question was whether the
executor was entitled, for his own benefit, to so much of the testator's personal property
as was not disposed of or fully disposed of by the will, or was a trustee of it for the
testator's next of kin.
Mr. Stuart and Mr. G. L. Russell, for the Plaintiff, said that it appeared through-
out the will that the testator intended to give his property to the Defendant as a
trustee, and not beneficially; and that, whenever pro-[570]-perty was given upon
(1) The 11th Geo. 4 and 1 Will. 4, c. 40, for making better provision for the disposal
of the undisposed-of residues of the effects of testators, applies only to testators dying
after the 1st of September 1830.
740
MAPP V. ELLCOCK
15 SIM. 568.](ViewImageLocal?handle=hein.slavery/ssactsengr0854&div=1&collection=&method=preview&ext=.png&size=3)