The legacies in this case were payable out of a mixed fund, consisting of personal property and of the proceeds of real estate. It is settled that a general residuary bequest of personal property, or of chat*98tels real, carries to the residuary legatees not only such estate and such interests therein as the testator did not attempt to dispose of by other provisions of his will, but every part of his property which, by lapse or otherwise, is not effectually bequeathed and disposed of to- others. And it is equally well settled that the personal estate of the testator, unless it is exempted by the will, is the primary fund for the payment of legacies, although such legacies are charged also upon the real estate. Upon the argument of this appeal I understood it to be admitted that the personal estate of the testatrix, not specifically bequeathed, was sufficient to pay all the debts and legacies. In that case, if the unexpended'balance of the legacy mentioned in the first clause of the will is lapsed or void, because there is no such society in existence as that described by the testatrix as the object of her bounty, it necessarily follows that such balance goes to the residuary legatees, as an interest in the personal estate not effectually disposed of to others-Had the personal estate been deficient, so that a part of the failing bequest was the proceeds of real estate, the idiot as heir at law, would probably have been entitled to a part thereof, as an interest in real estate not effectually disposed of by the will. (See Eyre v. Marsden, 2 Keen’s Rep. 564. Gibbs v. Rumsey, 2 Ves. & Bea. 294. Van Kleeck v. The Reformed Dutch Church, 6 Paige’s Rep. 600. 20 Wend. 458, S. C. Gott v. Cook, 7 Paige’s Rep. 542.) The only real question upon this part of the will now is, whether the testatrix intended to charge the general support of her idiot son upon this legacy I
Considering the circumstances in which her son was placed at the time of making the will, it is difficult for the mind to arrive at any satisfactory conclusion as to what was the real object of the testatrix in making this bequest. Her son had then an estate worth upwards of forty thousand dollars, producing an annual income of treble what was necessary for his support. She could not therefore have contemplated the application of this legacy of $1000 as a fund for his general support for life, and have anticipated, *99as she did, that there would be a surplus left for the Foreign Mission School to which that surplus was bequeathed. And I think there can be no doubt that she intended this bequest of the surplus to be effectual; although she did not define the object of her intended bounty in such a manner as to enable the court to carry her benevolent and pious intentions into effect, as she has done in relation to the other benevolent object mentioned in her will. She probably intended this bequest for the benefit of some of the foreign mission schools under the care of our American missionaries in heathen lands ; and had gotten the impression that one of those schools had been established for the particular object specified in the will. I am therefore of the opinion that the aid to this supposed mission school was the principal object of giving this legacy. And that the vice chancellor is right in supposing that a mother’s feelings, which would not allow her entirely to overlook her unfortunate and only child in her will although she knew he had already more than sufficient to supply all his wants, induced her to connect this nominal bequest of an interest in the legacy with the ultimate gift over of what was not wanted for his use to the charitable object of her intended bounty. The case is somewhat different from that of Ashley, (1 Russ.& Myl. Rep. 371.) That was a case of lunacy, in which there was a possibility of recovery ; so that the application of the bequest for the support of one daughter would, in the event of such recovery, be most beneficial for her. But in the case of an idiot, where there is no possibility of his being benefitted by the increase of his property beyond what is sufficient to ensure him an ample support for life, the principle upon which Sir John Leach acted in the case of Foljambe v. Willoughby, (2 Sim & Stu. Rep. 165,) does not apply. It is evident, in the present case, that the testatrix could not have intended to give this legacy for general support, merely to increase the estate of her unfortunate child for the benefit of his heirs and next of kin, who were strangers to her blood. For she had entirely passed them over in the distribution of her *100ample estate ; which she had given to even remote collateral relatives of her own, because he did not need it and could not enjoy it. This bequest is a beneficial legacy to the idiot to a certain extent; as he is entitled to a support, out of the fund if by the loss of his other property by any unforseen occurence such an application of the capital of the legacy should at any future time become necessary. And so far the power to the executors to apply the legacy, or a portion of it, for his use and benefit, is a trust power, which is imperative and may be enforced by this court.
I think, however, the vice chancellor erred in refusing the committee of the lunatic the costs to which his estate had been subjected by this suit. It was the misfortune of the complainants, and not the fault of the idiot or his committee, that the testatrix had made her will in such a form that the executors could not safely proceed and settle the estate without taking the opinion of the court. The idiot and his committee not being authorized to relinquish his right to this legacy, if he had any, they were compelled to put in their answer, and submit the rights of the lunatic, under the will, to the decision of the court. And as they were necessary parties, and did not come into this court as volunteers, it seems to be a case falling within the general rule, that where the will of the testator is so ambiguously expressed as to render it proper for the executor to take the direction of the court, the necessary costs of the litigation to settle the construction of the will should be paid out of the fund. (Rogers v. Ross, 4 John. Ch. Rep. 608.) In such cases the court generally charges the costs of all necessary parties upon the residuary estate. It seems, however, that the rule is not inflexible ; as the court sometimes apportions the costs among the owners of the different interests in litigation, according to equity. (See Eyre v. Marsden, 4 Myl. & Craig’s Rep. 231, and cases there referred to; Mitchell v. Blain, 5 Paige’s Rep. 588.) But I have not been able to find any case in which the costs of an infant, or of a lunatic, or an idiot, who had been made a party defendant in such a suit, have been left *101to be borne by Ms own estate, not derived under the will, nor from the testator.
It was not necessary to charge the costs upon that part of the residuary fund which the testatrix unquestionably intended should go to the complainants. The fund in question between the complainants and the committee was one which, in all human probability, will never be wanted for the use of the idiot, and must eventually fall into the general residue because it cannot go to the charity which the testatrix had in her contemplation. That fund seems therefore to be the most appropriate to bear the costs of the committee of the idiot. And if the question was properly before me on this appeal, I might also direct the costs of the complainants to be paid out of the same fund.
That part of the decree which directs the estate of the idiot to bear the costs of his committee in this suit must be reversed. And the decree must direct the taxable costs of the committee, in the court below, to be paid out of the interest or income of the $1000 legacy mentioned in the first clause of the will; and the residue of the decree appealed from must be affirmed.
Each party having succeeded in part, in this court, it seems to be a proper case to leave the respective parties to bear their own costs upon the appeal. The proceedings are to be remitted to the vice chancellor.