Naylor,  by  her  Guardian  against  Stainsby,  formerly  Leah.  Prerogative  Court,
By-Day  after  Michaelmas  Term,  December  11th,  1754. — An  executrix  appointed
by  implication.
Edward  Catlin,  deceased,  left  Naylor,  a  minor,  his  niece  and  next  of  kin  :  he  made
his  will,  wrote  by  himself,  gave  a  legacy  therein  to  Eleanor  Taylor,  who  died  before
him,  gave  legacies  to  several  other  persons,  among  the  rest,  gave  several  legacies  to
his  daughter-in-law,  Mary  Leah,  now  Stainsby,  immediately  after  which  legacies  follow
these  words  :  "  But  should  the  within-named  Mary  Leah  be  not  living,  I  do  constitute
and  appoint  Eleanor  Taylor  my  whole  and  sole  executrix  of  this  my  last  will  and
testament,  and  give  her  the  residue."  The  counsel  for  Naylor,  the  niece,  insisted  that
Eleanor  Taylor  was  appointed  executrix  and  residuary  legatee,  and  that  she  having
died  before  the  testator,  he  was  intestate  as  to  the  residue,  and  that  administration
cum  testament©  must  be  granted  to  the  niece,  Naylor,  as  next  of  kin.  On  the  con-
trary, the  counsel  for  Mary  Leah  insisted  that  she  was  appointed  executrix  by  impli-
cation, and  that  Eleanor  Taylor  was  only  substituted  executrix,  &c.  in  case  Leah
should  die  in  the  testator's  lifetime,  and  consequently  that  probate  ought  to  be  granted
to  her ;  and  upon  consideration  of  the  will  I  was  of  that  opinion,  and  decreed  probate


262  BROTHERTON    V.  HELLIER  2  LEE,  55-

to  Mary  Leah  now  Stainsby,  as  executor  (a)  by  implication,  according  to  the  tenor  of
the  will.
