took time to consider of the same after argument, and said, as to the lapsed legacy, that could not go to the executors, because the disposition to the legatee showed that he did not intend it for the executors; and he relied upon Fonblanque, 131, where the disposition of the residue to a legatee who dies in the lifetime of the testator has that operation. He overruled the demurrer as to that. As to the undisposed residuum, the defendants' counsel argued that the idea of the alteration of the old law in this point arose from the words used in the act of 1715: "No executor or administrator shall take or hold himself (according to the value of the appraisement) more of the deceased's estate than amounts to his necessary charges and disbursements, etc.; but that all such estate so remaining shall immediately after the expiration of twelve months be equally and indifferently divided and paid to such persons to whom the same is due by this act or the will of the deceased," etc. The object of this act was a special one, to exclude the executor from holding the property for himself, as had been the practice, and charging himself by the appraisement to the legatees and next of kin of the intestate. This act directs that he shall not for the future so hold it, but shall divide it. The goods, by the procurement of the executor, were frequently estimated at an undervalue, and the executor was held liable for that value, as the law stood before this act. Indeed, the abuse of appraisements became so intolerable that not long afterwards, in 1723, the Legislature, ch. 10, openly complained of and abolished them. And they say in the preamble of this latter act that suchappraisements have been generally much short of the true value of theproperty. If the object of 1715 was to prevent executors holding for themselves property thus undervalued, it would be going beyond the act to extend its meaning to any other alteration of the existing law, especially an alteration of so much consequence as that contended for. The makers of this act had not in contemplation the surplus which under the existing law belonged to executors. They have said, "No executor or administrator shall take or hold." They meant to abolish a mischief common to both. Now theadministrator could never retain to himself the residue undisposed of by the will; he was bound to distribute all. The law, then, does not comprehend the case of a residue undisposed of by will. Again, the executor or administrator is to deliver over the property to the party entitled to it by the will of the deceased, *Page 270 or by this act. By this act the next of kin were entitled to the estate of an intestate; but no one is intestate who makes a will, and (300) where there was a will the executor was entitled, by the existing law, to all that was not disposed of otherwise by the will. Then the direction of the act is to pay all to the legatees where there is a will, or to the next of kin where there is no will. Where there is a will, and not all disposed thereby, the executor cannot deliver over to legateesthat part, for there is no legatee of that part. Nor are the next of kin entitled by this act, for this act gives to them only the estate of an intestate. This clause relates only to an executor or administrator on one side and to legatees and next of kin on the other. These latter are entitled to the full value of the property, or rather the property itself, notwithstanding the appraisement. But where there are no legatees nor any intestacy, the clause is silent.
What we contend for is very greatly confirmed by the ninth and last clause of the act of 1715, ch. 49, the act in question. It directs that "If any sum or sums of money shall hereafter remain in the hands of anadministrator, after the term of seven years shall be expired, and not recovered by any next of kin to the deceased, or by any creditor in that time, the same shall be paid to the church wardens," etc. Why did not this clause direct executors to pay over in like manner when a surplus remains in their hands after payment of legacies? Clearly because executors were, by the law in being, entitled to such surplus.
The Court overruled the demurrer as to the undisposed residue, also.
Quere de hoc.
NOTE. — Notwithstanding the doubt thrown out by the Reporter as to the correctness of the decision in relation to a residue undisposed of not belonging to the executor, it has long been the settled law of this State that whatever personal estate is undisposed of by a will is held by the executor in trust for the next of kin.