274 
preliminary question upon whom 
‘the burthen of proof rested. The 
administration to the husband 
being the point in issue, his next 
of kin had prima facie the first 
right to it; but there being a re- 
siduary legatee, this right became 
superseded. The parties claim- 
ing under this latter character 
were not residuary legatees them- 
selves specifically, but merely de- 
rivatively from one who was. 
They were, therefore, one step 
further removed from the pro- 
perty. The presumption of law 
was certainly always in favour of 
the heir at law with regard to 
freehold, and equally so of the 
next of kin with regard to per- 
sonal property; the statute of 
distribution disposing of an intes- 
tate’s property amongst his next 
relatives, solely upon the pre- 
sumption that such was his inten- 
tion, unless the contrary should 
be expressed. It was therefore 
incumbent upon the represen- 
tatives of the wife, in this case, 
to prove her survivorship, as 
the party in whom the proper- 
ty vested, and from whom in 
consequence, they derived their 
claim toit. Hethen entered into 
an examination of the facts in 
evidence, and was of opinion, that 
they were insufficient to repel the 
presumption of the husband’s 
having survived the wife, which 
the court was bound to assume 
from the circumstance of their 
having been overwhelmed by one 
‘common calamity, and perished 
together; observing in particu- 
‘lar, that though the wife might 
be very active and laborious in 
her domestic duties, yet the na- 
tural timidity of her sex might 
prevent exertion in the moment 
of danger, whilst the husband, 
ANNUAL REGISTER, 
1815. 
en the other hand, though Ia- 
bouring under the bodily afflic- 
tion of an asthma, might still re- 
tain his manly firmness in resist- 
ing impending destruction, par- 
ticularly as, from his situation in 
life, he must have often faced 
death in various shapes. He was 
therefore in no degree Satisfied 
by the proofs in the cause that 
the wife survived the husband, 
and should therefore decree the 
administration to his next of kin. 
In thus deciding the law, how- 
ever, he did not mean to affirm 
positively which of the two was 
the survivor, but merely that there 
was not sufficient proof that it 
was the wife, to repel the pre- 
sunption of law that it was the 
husband. The administration was 
accordingly granted to the huss 
band’s next of kin. 
The Attorney-General v.Millsand 
Freeman.—This was the second ar- 
gument before the Lord Chancel- 
lor in this case, which came before 
his Lordship in appeal from his 
honour the Master of the Rolls. 
The point in argument was this ; 
a testator devised the residue of 
all his effects for the purposes of 
promoting the propagation of the 
Gospel in foreign parts, and in 
England, for bringing up clergy- 
men as missionaries, and such 
other charitable purposes as he 
should thereafter by any codicil 
appoint. No such appointment, 
however, was made; and, there. 
fore, the question was, whether, 
‘by the ancient rules of law, the 
-Crown could supply the appoint- 
ment, by nominating some other 
charity to participate with the 
two which the testator had speci- 
fied, so as to exclude his next 
of kin. His honour ‘prononneed 
