I concur in the decrees about to be made in these two cases, Nos. 2418 and 2699, for the following reasons. I am of opinion, that the bequest of the interest of a fund in perpetuity, when the naked property in it is given to no one in express terms, is evidence of the intention of the testator to bequeath the fund itself, and that the meaning of the words used, should be ascertained with reference to that intention. 1 Prudhom, p. 4, No. 8. Dalloz, Verio Usu-fruit. Rolland de Vilargues verbo Usufruit.
If the bequest of the interest in property, is to be considered in law as a bequest of the fund itself, there is no perpetuity created in any sense, and the only questions remaining, are those depending on the place of domicil of the testator, and the capacity of the Hesket school to take under the will, which is not proved to my satisfaction.
Taking into consideration the facts, that the money of the succession was not much more than sufficient to pay the expenses of administration, I am of opinion, that until the will is set aside, at least in part, the executor cannot be removed from office, at the suit of the plaintiffs, because they have no interest in the succession. The judgment dismissing the executor, must therefore be reversed, and the case remanded to abide by the decision on the main issue.