In my respectful view the phrases "precluding no one" and "to whomever they wanted" cannot be interpreted without reference to the use of the term executors. I conclude that the testator left the residue to the executors in their capacity as executors and not in their capacity as individuals. This conclusion is enforced by the fact that there are two executors. The testator made no provision for a division of the residue between the two executors in the event that they decided to "distribute" it to themselves. This difficulty is pointed out by Fitzgibbon L.J. in Fenton v. Nevin (1893) 31 L.R. Ir. 478. In that case a testatrix used the following words in the residual clause: "I will my executors shall apply the overplus, if any, as they think fit." Faced with this clause Fitzgibbon L.J. said at page 486: "The residue is to be applied by the executors jointly. If they differed as to its application -- for example, if one thought fit to keep it for himself, and the other wished it to go in charity, what was to happen? Their joint position is more in keeping with trusteeship than with ownership."
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