Mabry v. . Stafford

Smith, C. J., after stating the facts. Without adverting to the irregularity of making such a motion in the absence of any evidence of the fact on which it is predicated, except in the *604 unverified allegation contained in the defendant’s answer, and accepting the statement as true that the entire fund has been accounted for and paid over to the residuary legatee, we approve of the ruling of His Honor in refusing the motion. The residuary legatee having received the money bequeathed, and the executor having voluntarily paid over the same in recognition of his legal right thereto, the trustee has no interest in the controversy between the parties to this suit, which is to decide whether it belongs to the next of kin or to the residuary legatee. If the fund passes into and constitutes a part of the residuum, or, in the testator’s own language, the “balance” of his estate, the plaintiffs, not being entitled thereto, must fail in their action. If it is to be considered as intestate property and goes to the next of kin, the authorized payment by the executor to the trustee, will be no defence to him against the rightful demand of the plaintiffs. Whether in such case the executor can retain the money from the trustee, or has an equity for re-imbursement, is a matter between them only, and should not be allowed to interfere with or delay the plaintiffs in prosecuting their remedy against the former. While the appeal is thus disposed of, and with a view of facilitating the settlement of the action without further needless expense, we feel at liberty to announce the conclusions to which our examination has led in respect to the ownership of the legacy. The authorities, we think, show that this, like legacies lapsing by the death of the legatee after the making of the will and during the testator’s life-time, passes into the residuary fund, there being apt words to embrace it, and belongs to the.residuary legatee. This rule of construction is fully supported by the adjudications in this court. Taylor v. Lucas, 4 Hawks, 215; Sorrey v. Bright, 1 Dev. & Bat. Eq., 113; Jones v. Perry, 3 Ired. Eq., 200; Lea v. Brown, 3 Jones’ Eq., 141; Graves v. Howard, Ibid, 302; Coley v. Ballance, 1 Winst. Eq., 89. The exception is when, from other provisions of the will, it is appa *605 rent the testator did not so intend. There is nothing in this to modify the general rule. There is no error, and this will be certified. No error. Affirmed.