case lord Charles cavendish appellant sir james Lowther respondent that march  that march Mews dig three a devise pound south sea annuity to trustee in trust  to pay the dividend to I S until a exchange of certain land shall be make  between he and W and then the capital to be equal divide between they W die  before the time limit by the will for make the exchange expire hold that I S  be absolute entitle to the whole legacy sir James Lowther Bart decease be in  his lifetime seize in feesimple of a large real estate in the county of  Cumberland and also possess of large sum in the public fund and particular of  great quantity of south sea stock and south sea annuity both old and new and  the respondent be also seize in feesimple of a considerable real estate in  Cumberland and sir William Lowther Bart decease be seize of a considerable  real estate in the county of York sir James be desirous that the respondent  and sir William shall make a exchange of their estate and for this purpose  among other he make particular devise in his last will date the that of  September brown by which he give and devise all his manor message land  tenement and hereditament whatsoever in the say county of Cumberland except  some burgage house and land at Cockermouth which he give to sir William  Lowther and his heir to the use follow videlicet to the use of sir William  Lowther for his life with remainder to trustee and their heir in trust to  preserve the contingent remainder remainder to the use of the first and other  son of sir William several and successive in tail male remainder to the use of  the respondent for his life with remainder to trustee and their heir in trust  to preserve the contingent remainder and after his decease to the use of the  first and all other the son of the respondent several and successive in tail  male with diverse remainder over and the testator also give to sir William  Lowther all his ship and share of ship and all horse and mere make use of  about his colliery or in the management of his land estate in the say county  of Cumberland he also give to sir William in trust pound of his old south sea  annuity of the second subscription in order for he thereout or by sale thereof  to pay and discharge the several legacy of pound each or of any less sum give  by the testator in his say will or which shall be give by he by any subsequent  will or codicil to any person or person or for any use whatsoever and he give  to the respondent a annuity or rend charge of pound charge upon his land  colliery and hereditament in the manor of saint be in the county of Cumberland  during his life subject to be determine as therein after mention and immediate  after follow this clause and whereas I do not think it proper to divide my  estate in Cumberland but rather to dispose of it in the manner I have do as it  be a estate that require great application and care in those that be to have  the management of it I think it will be right for sir William Lowther  aforesaid to have all the estate which the say sir James Lowther meaning the  respondent have in Cumberland and that the say sir James Lowther shall have  all the estate which the say sir William Lowther have in Yorkshire it be my  will and I do hereby give and devise pound of my south sea annuity common call  new south sea annuity of the second subscription to the say sir James Lowther  sir William Lowther and Robert Harper of Lincoln inn in the county of  Middlesex Esq in trust for the say sir James Lowther to have and receive all  the dividend grow due thereon until such time as the say sir William Lowther  shall by absolute and effectual conveyance in the law make over and vest in  the say sir James Lowther and his heir all the land tenement and hereditament  which he the say sir William Lowther be owner of or have a right at present to  be possess of at mask or within twenty mile thereof in the county of York he  the say sir James Lowther convey also by good and effectual deed and assurance  in the law to the say sir William Lowther and his heir for ever all the rend  brown land tenement and hereditament which he be at present owner of or have a  right or title to have in the county of Cumberland he the say sir James brown  er p Lowther release also to the say sir William Lowther all his right and  title to the annuity or rend charge herein before give he of pound for his  life charge upon and make Payable to he out of my estate in the manor of saint  be and it be my will and I do hereby declare and direct that in case by the  neglect or refusal of either of they the say sir William Lowther or sir James  Lowther what I have here recommend and direct be not make good and complete  within six month after the say sir James Lowther come to be of the age of  twentyone year such one of they two by who neglect or refusal it shall appear  not to have be complete shall not after that time have any share of the say  pound of the new south sea annuity of the second subscription but the whole of  the say pound new south sea annuity shall belong to and be the sole property  of such one of they two who be Willing and ready to have complete and make  effectual what I have before recommend to be do by they and further it be my  will that in case what I have herein before recommend be make good and  complete by the say sir William Lowther and sir James Lowther the say pound  new south sea annuity shall be equal divide between they each of they shall  have pound of it and the testator give to the respondent all his capital stock  in the south sea company call south sea stock also all his south sea annuity  as well those call old south sea annuity as those call new south sea annuity  all both of the first and second subscription except such of they as he have  therein before give away and he give all his good chattel and personal estate  whatsoever which be not thereby otherwise dispose of or direct to be apply to  the say sir William Lowther who he make residuary legatee after payment of his  debt legacy and funeral expense and also make and appoint he sole executor of  his will on the d of January the testator die without revoke or alter his will  and soon afterward sir William Lowther duly prove the same and undertake the  execution thereof and by virtue of the will he enter upon and take possession  of all the late sir James lowther estate in the county of Cumberland thereby  devise to he and continue to enjoy the same until the that of April when he  die unmarried and without issue have before his death make and execute his  will date the that of April which be about three month after the death of sir  James Lowther whereby among other his real estate he devise the say manor of  mask in Cleveland in the county of York and all other his estate in the say  county be the same estate which he be direct or desire by the will of sir  James Lowther to convey to the respondent and his heir in brown exchange for  the respondent estate in the county of Cumberland to the use of his first and  other son if he shall leave any successive in tail male and in default of such  issue to the use of Edward Wilson George Wilson Thomas Wilson and Daniel  Wilson equal as tenant in common in tail male with cross remainder among they  with remainder to the right heir of sir William Lowther for ever and sir  William do by his will give all the rest and residue of his personal estate  and effect after payment of his debt legacy and funeral expense to the  appellant and appoint he sole executor thereof and the appellant after his  death prove the will and also procure letter of administration with the will  of the late sir James Lowther annex to be grant to he by the prerogative court  of Canterbury the exchange of estate recommend by sir James lowther will never  be complete and have by sir William death become impossible the respondent be  advice that upon sir William lowther death he be absolute entitle to the pound  new south sea annuity give to encourage such exchange together with all the  dividend or interest which have be receive for the same or have grow due  thereon since the death of sir James Lowther the testator in regard that the  not make of such exchange be not owe to the neglect or refusal of the  respondent and thereupon in Hilary term the respondent by his next friend be  then a infant exhibit his bill in the court of chancery against the appellant  and other pray that the appellant may transfer for the use of the respondent  all the south sea stock and south sea annuity both new and old except the sum  of pound in old south sea annuity bequeathe to sir William Lowther as  aforesaid which the late sir James Lowther be possess of or entitle to at the  time of his death and may pay all such interest and dividend thereof as shall  appear to be due to the respondent or for his use brown er p to this bill the  appellant put in his answer and thereby set forth that he have pay to or for  the use of the respondent all the interest of the say south sea stock and  south sea annuity except the interest of the say pound old south sea annuity  and the interest of the say pound new south sea annuity which have become due  down to old lady day and he submit to transfer all the south sea stock and  south sea annuity which the late sir James Lowther be possess of or entitle to  at the time of his death except pound part of the say old south sea annuity  and the say pound part of the say new south sea annuity unto the respondent  and pay he the interest and dividend thereof if any shall remain unpay when he  shall attain his age of or unto such other person as the court shall direct  before he shall attain that age be indemnified but as to the say pound part of  the say new south sea annuity give in such manner and for such purpose brown  as in the will of the late sir James Lowther be mention the appellant insist  that as sir William Lowther die before the respondent attain his age of the  whole of the say pound new south sea annuity do on the death of sir William by  virtue of the will of sir James and sir William Lowther absolute vest in the  appellant as part of the residuum of sir James lowther personal estate and to  which he become entitle as executor of sir William Lowther and the appellant  admit that sir William do by his will devise his real estate at mask in the  county of York to the say Edward Wilson George Wilson Thomas Wilson and Daniel  Wilson in manner before mention and that they be live at his death and be in  possession of all the say estate but the appellant say that he be advice it  can not be reasonable infer from thence that sir William Lowther do not intend  to have exchange the estate direct by sir James lowther will to be exchange  for the estate of the respondent in the county of Cumberland the cause come on  to be hear before the right honourable sir Robert Henley Lord keeper of the  great seal on the that of April and the that that and that of may on the last  of which day his lordship be inter alian please to declare that the respondent  sir James Lowther be entitle to the say pound Sou that sea annuity and do  order and decree that the appellant as the representative of sir William and  sir James Lowther decease shall transfer the same to the respondent or any  other person authorize by he to accept thereof for his sole benefit and  advantage and that the appellant shall come to a account before the master for  the interest of the say south sea annuity receive by he or by any other person  by his order or for his use and the appellant be direct to pay what shall be  come on the balance of such account to the respondent from this decree so far  as it relate to the pound new south sea annuity and the interest thereof Lord  Charles Cavendish appeal and on his behalf it be argue c Pratt t jewel that  where a testator devise the residue of his personal estate the residuary  legatee take everything under such bequest which be not otherwise effectual  dispose of by the will and this not only as to all part of the personal estate  of which there be not any original express bequest but also as to all such  particular legacy as be either void original or afterward become so or which  lapse by the death of the legatee or by any other accident do not take place  the general rule be that all legacy so fail shall accrue to and become part of  the residuum for the benefit of the residuary legatee by force mere of the  residuary clause without any far declaration of the testator intention that it  shall be so and this in many case where from circumstance it may be conjecture  that if the testator have foresee or attend to the particular case which  afterward happen he will have order it otherwise that the present brown case  be a case omit and not provide for and sir William Lowther claim as residuary  legatee the testator set apart this sum of pound to invite and bring about a  exchange of the two estate and for no other purpose and with that view he  dispose of it in the case of a exchange actual make neglect or refuse and in  no other case but a event have happen which the testator do not foresee namely  the untimely death of one of the party the act of God neither of the party be  in fault have render the exchange impossible as therefore the testator have  not declare what shall be do with this sum of pound in the event which have  happen the residuary legatee by the general rule have a right to it as part of  the residue the only view and motive of this devise as express in the preamble  of it be to draw all the Cumberland estate together into the hand brown er p  of sir William Lowther to this end the pound be deposit in the hand of trustee  where the same be to remain subject to a future contingent vest of the whole  to one or both as the exchange shall afterward be accomplish or defeat and as  this be the only purpose declare and these the only event on which the legacy  be to vest the gift be inseparable connect with the actual exchange or the  actual refusal and no court of justice can take a liberty of conjecture how  the testator will have give this sum in the event which have happen when it be  manifest he never suppose that the event will happen but to this it be object  I that the devise of the pound south sea annuity be to the respondent until  the exchange be make or refuse or neglect to be make that until that event  happen the respondent have as great a interest in the pound as if no condition  have be annex to it and that event never happen the limit legacy become  absolute two that this legacy be a bounty on the side of the respondent  whereas it be give to sir William to enclose on all sides causan and therefore  he must show something meritorious to deserve the gift III that if the legacy  be at a end and must fall it shall fall into the fund of the south sea annuity  out of which it be take and which for this purpose must be consider as a  specific residue as to the first objection it be say to arise from not  consider the clause in question in its full extent and confound the general  intention of the whole devise by expound it accord to the letter only of one  part of it if indeed the dividend and produce of this sum have be give single  to the respondent till sir William have make the conveyance and the devise  have stop there the inference will have be clear but when the clause proceed  to make the future vest as conditional upon the respondent as upon sir William  it seem a contradiction to say that the whole be give immediate to the  respondent defeazible only by the performance of the condition on the part of  sir William at the same time that the responent brown himself can not take it  without perform the like condition on his part but to make this more clear it  be apprehend that if at the time of performance the respondent have be Willing  and sir William have refuse to perform the condition the respondent will then  have acquire his first title to the pound and must have claim it as well by  virtue of his own compliance with the term of the devise as of sir William  refusal which show that the respondent must have do something to entitle  himself as well as sir William to go one step further If both have neglect  during the six month neither can have claim the legacy as be equal culpable  and yet if the respondent first interest can be no otherwise defeat than by a  actual exchange or tender from sir William the respondent will in this case be  entitle to the whole notwithstanding he have forfeit his share by his own  wilful neglect all this tend to show that the gift of the profit until  etcetera can not be consider as a gift of the capital but be only a temporary  disposition of the produce to wait upon the devise of the capital and to  subsist no long than while that remain in suspense and indeed the testator  consider both party during that interval as entitle to a share of the capital  for he say that if either shall neglect or refuse he shall not after that time  have any share of the pound which be in effect say that before that time each  be equal entitle to his respective share to the second objection it be answer  that the legacy throughout be a legacy both of bounty and coercion it be a  legacy of coercion so far as it compel the exchange it be a legacy of bounty  so far as it give each of they a valuable consideration for make the exchange  and indeed ought to be consider rather as a price offer than a mere gift and  the only difference between the two legatee lie in this that as sir William  estate in Yorkshire be considerable large than the respondent in Cumberland  the latter have a better interest give he as a consideration for his estate  than the former but still the legacy be equal coercive on both and equal  bountiful to both and as to the last objection it be say that this notion of a  specific residue ought to be clear make out by plain word where the general  residue be give because as it be the property of a residue to draw into itself  all the personal estate undisposed of it be unnatural to imagine that a  testator shall appoint two fund of this kind to interfere with each other if  therefore a testator have any such intention he will not only describe the  particular residue by that name and declare such to be his intention but will  likewise except this residue out of the devise of the general residue neither  of brown er p which be do in the present will on the contrary the legacy of  the south sea annuity to the respondent be specific throughout and where the  testator give all his south sea annuity except such of they brown as he have  before give away it be the same as if he have except by name the two sum of  pound and pound before bequeathe these two sum be therefore once total  separate from that fund can never return back to it but if they happen to drop  by any subsequent event must fall into the general residue which be constitute  to receive all omission of every kind and nature and this appear from the  extensive word of the residuary clause itself on the other side it be contend  c York g perrott that the pound annuity be devise in trust for the respondent  until sir William Lowther shall convey his estate in Yorkshire to the  respondent and his heir in exchange for his estate in Cumberland or shall  leave refuse or neglect it within six month after the respondent attain his  age of at which time the exchange be intend to take effect and as that  exchange have not be make and be now become impossible without any default of  the respondent his right in the annuity be absolute but to this it be say by  the appellant that the annuity in question be give to trustee to be divide for  the mutual benefit of sir William Lowther and the respondent as soon as the  exchange shall be make if the devisees comply the trustee be direct to divide  the legacy if either of they have refuse or fail to perform what the testator  have recommend after the time elapse when his will require it to be do the  devisee who disobey be to forfeit his share and the devisee who be Willing  will have be entitle to the whole but the present case be the event of one of  they die before that period arrive at which the exchange be intend by the  testator sir William Lowther the decease devisee can not incur the penalty  because he can not be suppose guilty of any neglect or refusal neither can sir  James claim any superior merit because the time of election not be come the  opportunity never offer of show his obedience to the testator will and  therefore the case which have happen not have be in view of the testator must  be consider as a case omit and by consequence the legacy be undisposed of and  ought to fall into the residue of the personal estate to this it be answer  that there will be great weight in this reason if neither of the legatee have  be entitle to take any benefit whatsoever from the devise till after the  exchange be complete or if it have not be direct to be sever from the residue  of the testator estate till that event but the testator devise the south sea  annuity in question as a immediate legacy to trustee for the respondent and  all dividend grow due be give to he in the mean time this manner of devise a  personal legacy place out upon personal security amount as much to a devise of  the principal money or fund itself as the devise of the rend and profit of a  real estate be a devise of the land itself the devise have therefore two  different aspect in respect to the two devisees as to the respondent it brown  be in every light a legacy of bounty give immediate for his benefit defeazible  as to the whole of it by his own neglect or refusal and as to one moiety by  sir William conveyance of his Yorkshire estate which tend in the view of the  testator more to the respondent benefit and it be immaterial by the rule of  law whether the condition be not perform by the refusal of sir William Lowther  or become impossible by event because in either case the legacy to the  respondent be absolute as to sir William it be not proper speak a legacy of  bounty but of recompense to induce he to make the exchange and give as the  Roman law express it hredis to enclose on all sides causan quo to greater  extent to some degree to make just Inst lib two title de bequest so that as to  he the exchange be a condition precedent to vest a interest and till such time  as the condition be perform he be entitle to nothing and from that time only  he will have be entitle to a moiety of the south sea annuity which the  testator in that event devise to he but suppose the event which have happen to  be a case omit in which neither the appellant or respondent can be entitle to  the principal of the annuity in question by virtue of the clause relative to  the exchange yet it can not be collect from the will that they ought to fall  into the residuum of the personal estate devise to sir William Lowther the  testator plain sever all his south sea stock and south sea annuity from the  gross fund of that residuum and devise they to the respondent with a exception  only of such as he have therein before give away but in the event brown er p  which have happen if it be to be consider as a case omit in which the devise  by way of trust to compel a exchange of land between the two devisees can not  take effect in any manner or if the respondent right to the dividend be to be  consider by force of the clause relative to the exchange only as a interim  right while that exchange be possible and in suspense and which cease from the  moment it become impossible still it be submit that the respondent will be  entitle to these annuity by virtue of the general devise of all the testator  south sea annuity because on this supposition they can not be consider as give  away or dispose of and consequent accord to the testator meaning not except  out of that general devise after hear counsel on this appeal it be order and  adjudge that the same shall be dismiss and the decree therein complain of  confirm jour vol p