Saltmarsh v Barrett: HL 13 Jul 1861

A testator after directing payment of his debts, funeral and testamentary expenses and legacies, bequeathed some legacies to charities, and gave to three persons legacies of nineteen guineas each, and appointed them executors. He then bequeathed ‘the whole of his estate and effects whatsoever and wheresoever absolutely’ to the same three persons by name, their executors and administrators ‘charged nevertheless, and he thereby charged ‘certain parts thereof with certain payments, which did not nearly exhaust the estate; and he declared that all costs, charges and expenses which his executors or any of them should incur might be retained by them out of any monies which might come to their hands from any part of his estate. The testator died in 1837.
Held, by the Lord Justice Turner, affirming the decision of the Master of the Rolls, dissentiente the Lord Justice Knight Bruce, that the executors took the residue, not beneficially but as trustees, arid that it belonged to the next of kin.
Per the Lord Justice Turner, whether the statute 11 Geo. 4 and 1 WiIl. 4, c. 40, did not prevent the exacutors from taking beneficially, quaere.
Knight Bruce LJ dissenting held that ‘The executors . . seem to me to have been made residuary legatees for their own benefit absolutely’ although being ‘far from confident as to the accuracy of this conclusion, which indeed . . is probably erroneous’.
Turner LJ said: ‘The question therefore is, whether, upon the true construction of this will, the testator intended to give the residue to these three persons, not only absolutely but beneficially also. That the words of gift which the testator has used would be sufficient to pass the residue to these three persons, both absolutely, as the testator has expressed it, and beneficially, cannot be doubted; and, no doubt, we are bound to collect the testator’s intention from the words which he has used; but then it is from the words of the whole will, and not of the particular clauses only, that the intention must be collected. This has been the view which has been taken in all the cases.
Now it is to be observed that the gift to these three persons is of the whole of the testator’s estate and effects; but the testator had before directed his debts, legacies and funeral and testamentary expenses to be paid, and had before given several legacies to charities, and equal legacies of small amount to the executors. He must have intended, therefore, that these payments should be made out of what was given to these three persons, and that to this extent at least they should take as executors or trustees; and if it be clear that they were, as to part of the gift, to take in either of those characters, I cannot see my way to hold that, as to the rest of the gift, they could be intended to take beneficially. The gift to these persons, too, is in joint-tenancy, which is indicative of trust; and the long annuities, so far at least as they are charged, are treated as remaining vested in them as executors. It may be observed, too, that the power to vary securities is not in terms expressed to be, and I doubt whether it was meant to be, confined to the period of the subsistence of the charges. Again, there are here equal legacies to these three persons who are appointed to be the executors, and these legacies must be payable out of the estate which is said to be given to these three persons beneficially, so that the testator, according to the Appellant’s contention, was at the same time giving to these three persons part and the whole of the same estate. It was said that these legacies may well have been given for the purpose of putting the executors to that extent upon the same footing as the other legatees; but that argument has been urged in many cases in which the question has been whether executors to whom there was no express gift were trustees of the residue for the next of kin, and it has not succeeded. I do not see my way to hold that much if any greater weight is due to the argument in cases in which there is a gift to the persons who are the executors, when the question is what is the nature and character of that gift. There is, besides all this, the indemnity clause, which extends to the whole estate; and it is surely difficult to suppose that the testator could intend to provide for the indemnity of the executors out of funds which he intended them to take beneficially. Looking to all these considerations, I have come, though certainly not without doubt, to the same conclusion as the Master of the Rolls, that this testator did not intend that these executors should take the residue beneficially, and the appeal, therefore, must be dismissed . . ‘
[1861] EngR 816, (1861) 3 De G F and J 279, (1861) 45 ER 885
England and Wales
Appeal fromSaltmarsh v Barrett CA 27-Apr-1861
A testator gave legacies of nineteen guineas to each of his executors, and he bequesthed his residue to the m ‘absolutely’, charged with certain legacies. He also charged them to deduct their costs, charges and expenses out of any part of his . .

Cited by:
CitedRawstron and Another (Executrices of The Estate of Lucian Freud) v Freud ChD 30-Jul-2014
The court considered the construction of a point in the deceased’s will. The clause said: ‘I GIVE all the residue of my estate (out of which shall be paid my funeral and testamentary expenses and my debts) and any property over which I have a . .

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Updated: 23 October 2021; Ref: scu.284577