m. EXEC 
When the debts are all difchargecl, the legacies claim 
the next regard ; which are to be paid by the executor 
fo far as his affets will extend: but he may not give 
himfelf the preference herein, as in the cafe of debts. 
2 P. IVms. 25. The aflent of an executor to legacies is 
held neceffary to entitle the legatee; but as this alfent 
may be compelled, it does not feern neceftary to ftate the 
effeift of a diffent where there are affets fufficient to anfwer 
both debts and legacies. Where there are not affets, the 
aflent of the executor to a legacy would fubjedt him to a 
devaftavit. Co. Lilt, in. 
When all the debts and particular legacies are dif- 
charged, the Turpins or refiduum muff be paid to the reff- 
flduary legatee, if any be appointed by the will ; and if 
there be none, it was long a fettled notion that it devolved 
to the executor’s own ufe, by virtue of his executorfnip. 
Per/tins, 525. But whatever ground there might have 
been formerly for it, this opinion feems now to be under- 
ffood with the following reffridtion; that although where 
the executor has no legacy at all, the refiduum Thai 1 in 
general be his own, yet wherever there is fufficient on 
the face of a will, (by means of a competent legacy or 
otherwife,) to imply that the teffator intended his exe¬ 
cutor fhould not have the refidue, the urid'evifed furplus 
of the eftate (hall go to the next of kin, the executor then 
ffanding upon exadtly the fame footing as an adminiftra- 
tor. Prec. Chan. 323. 2 P. IVms. 338. Lawfon v. Latvfon, 
Dom. Proc. 28 Aprit, 1777. 
The refult of the many cafes on this fubjedt appears to 
be this : By Law the appointment of an executor vefts in 
him, beneficially, all the pcrfonal efiate of the teffator not 
otherwife difpofed of but wherever courts of equity have 
feen, on the face of the will, fufficient to convince them 
that the teffator did not intend the executor to take the 
furplus, they have turned the executors into truffees for 
thofe on whom the law would caff the furplus, in cafe of 
a complete inteftacy, i. e. the next of kin; as where the 
executors are exprefsly called executors in truft, or where 
any other expreffions occur, (hewing the office only to be 
intended them, and not the beneficial intereft. So alfo 
where there is a refiduary claufe, but the name of the 
refiduary legatee is not inferted ; or where the refiduary 
legatee dies in the life-time of the teffator. Bennett v. 
Bachelor, 3 Bro. C. R. 28. So a pecuniary legacy to a 
lole executor affords a fufficient argument to exclude him 
from the refidue ; as it is abfurd to fuppofe a teffator to 
give exprefsly a part of the fund to the perfon he intended 
ihould take the whole. And it is fettled that the wife 
being the executrix, (hall make no difference. So equal 
pecuniary legacies to two or more executors, (hall exclude 
them from the furplus: neither will legacies to the next 
of kin vary the rule. But wherever the legacy is confid¬ 
ent with the intent that the executor ihould take the 
wtyole, a court of equity will not difturb his legal right : 
and therefore where the gift to the executor is only an 
exception out of another legacy, it filial 1 not exclude him 
from the refidue, becaufe it is neceffary to make ftich 
exception exprefsly. 
The wife of the teffator may acquire a legal property in 
certain effects of the hufband at his death, which ffiall fur- 
vive to her over and above her jointure or dower, and be 
tranfmiffible to her perfonal reprefentatives. Such effects 
are (filed paraphernalia ; a term which, in law', imports her 
bed, and neceffary apparel, and alfo fuch ornaments of her 
perfon as are agreeable to the rank and quality of the huf¬ 
band. Pearls and jewels, whether ufually worn by the 
w ife, or worn only on birth-days, or other public occa- 
(ions, are alfo paraphernalia. To what amount fuch claims 
(hall prevail, is a point which cannot admit of fpecific re¬ 
gulations. It muff be left, on the particular circumftances 
of the cafe, to the difcretion of the court. In the reign 
of queen Elizabeth, jewels, to the value of five hundred 
marks, were allowed, in the cale of the wife of a' vifcount. 
A diamond chain, of the value of three hundred and fe- 
venty pounds, where the lady was the daughter of an earl, 
UTOR. 
and wife of the king’s ferje.int at law, in the reign of 
Charles the Firft, was confidered as reafonable. Jewels 
and plate, bought with the wife’s pin-money, to the 
amount of five hundred pounds, which bore a final! pro¬ 
portion to the hu(band’s eftate, were regarded in tiie fame 
light: and lord-chief-juftice Hardwieke held the widow 
of a private gentleman to be entitled to jewels worth 
three thoufand pounds, as her paraphernalia, and that 
the'value made no difference in the court of chancery. 
If the hufband deliver cloth to the wife for her appa¬ 
rel, and die before it be made, (he (hall have the cloth, 
as of this fpecies of property. If the hufband prefent his 
wife with jewels, for the exprefs purpofe of wearing 
them, they ffiall be efteemed merely as paraphernalia ; 
for, if they were confidered as a gift to her fe pa rate ufe, 
fine might difpofe of them abfolutely, and fo defeat his 
intention. The hufband, if inclined to fo unhandfome an 
exercife of his power, may fell or give away, in his life¬ 
time, fuch ornaments and jewels of the wife, but he can¬ 
not difpofe of them by will. In cafe of a deficiency of 
affets for payment of debts, the widow ffiall not be en¬ 
titled to fuch paraphernalia, not even if they were pre- 
fents made to her by the hufband before marriage ; nor 
(hall (lie be fo entitled where there are not affets at the 
time of the hufband’s death, although contingent affets 
fhould afterwards fall in. But fuch ornaments, though 
fubjedt to the debts, (hall be preferred to the legacies of 
the hufband, and the general rules of marfhslling affets 
are applicable in giving effect to fuch priority. If the 
hufband pawn his wife’s paraphernalia, and die, leaving 
a fund fufficient to pay all his debts, and to redeem the 
pledges, fne is entitled to have them redeemed out of the 
perfonal eftate. So, viffiere a hufband pledged a diamond 
necklace of the wife, as a collateral (ecurity for money 
borrowed on a bond, and authorifed the pawnee to fell it, 
during his abfence, at a fum fpecified, it was held, that 
this amounted not to an alienation, if it were not fold in 
his life-time, and that it w'as redeemable for his widow. 
If a woman, by marriage articles, agree to claim fuch part 
only of the effedts of the hufband as he (hall give her by 
his will, (lie is excluded from her paraphernalia. But 
her neceffary apparel (hall, in all cafes, be protected, as 
decency and humanity require, even againft the claims of 
creditors If the hufband bequeath to the widow her 
jewels, for her life, and then over, and (he make no elec¬ 
tion to have them as her paraphernalia, her executor (hall 
have no title to demand them. 
Another fpecies of intereft in the perfonal property of 
the deceafed remains to be confidered. Such as vefts 
neither in his executor, nor his heir, nor his widow, in 
thofe refpedtive characters. It is created by a gift, under 
the following circumftances. When in his laft illnefs, and 
apprehenfive of the approach of death, he delivers, or 
caufes to be delivered, to a party, the pofleffion of any of 
his perfonal effeCts to keep in the event of his deceafe. 
Such gift is therefore called a donatio canfa mortis. It is 
accompanied with the implied truft, that, if the donor 
live, the property ffiall revert to him, fince it is given 
only in contemplation of death. To fubftantiate the gift, 
there muff be an adtual tradition or delivery of the thing. 
The pofleffion of it muff be transferred in point of fact. 
The purfe, the ring, the jewel, or the watch, muff be 
given into the hands of the donee, either by the donor 
himfelf, or by his order. But there are cafes in which 
the nature of the fubjedt will not admit of a corporeal de¬ 
livery ; and then if the party goes as far as he can towards 
transferring the pofleffion, his bounty (hall prevail. Thus, 
a ffiip has been held to be delivered, by the delivery of a 
bill of fale defeafible on the donor’s recovery. And In a 
recent cafe, the lord chancellor feemed to be of opinion, 
that fuch donation might be effected by deed or writing. 
The delivery alfo of the key of a warehoufe, in which 
goods of bulk were depolited, has been determined to be 
a valid delivery of the goods for fuch a purpofe. So the 
delivery of the key of a trunk, has been decided to amount 
w 
