brown case thomas hall appellant richard digby and other respondent that  February Mews dig way a by his will give several legacy to his child and  appoint his two old son joint executor but make no express disposition of the  residue of his personal estate Held that this residue belong to the executor  as jointtenants and that one of they have die without make any severance the  whole survive to the other Where two executor be jointtenants of the residue  of the testator personal estate their employ part of it in trade for their  mutual benefit do not amount to a severance as to the whole decree of the  court of exchequer in Ireland reverse this be by no mean the early case in  which the first part of the question as above state be determine for it have  be previous hold that residuary legatee as well as executor be Jointtenants  unless the testator use some expression which convert their interest into a  tenancy in common and if one die before a division or severance of the surplus  the whole that be undivided will pass to the survivor or survivor p wms and  see bro c r in Perkins v Bainton it be determine that a moneylegacy to two not  executor joint and between they be not a jointtenancy and in that case it be  say that there be no case of a residue give to person not executor where they  have be consider as jointtenants bro c r brown er p in the case of Jollife v  east a legacy to two sister to be equal divide between they when they shall  arrive at the age of be hold to be a tenancy in common bro c r the say James  clarke decease have issue six son Luke Augustine Toby James John and Richard  and two daughter mary and Ann who he several provide for in his lifetime  particular Luke although he have disoblige his father by marry against his  consent clarke have carry on a considerable trade as a merchant by which he  acquire a competent fortune and be also seize of a small real estate on the  that of September make his will and thereby after direct payment of his debt  and give pecuniary and other legacy to each of his child and without make any  express disposition of the residue of his personal estate he constitute and  appoint his two old son Luke and Augustine executor on the d of October follow  the testator make a codicil whereby he give several other legacy and on the  that day of the same October he die without otherwise alter his say will among  other of the testator effect Luke and Augustine upon his death possess  themselves of a small vessel call the MaryAnn galley then in the harbour of  Dublin but no immediate opportunity present itself for the sale thereof they  think proper in the mean time for the improvement of the testator asset and  for the benefit of all party interest therein to let her out to fraught and  accord accept of a offer make to they for that purpose by Mr Lynch a merchant  who brown hire her on a voyage to Bourdeaux in France with direction that the  money to arise out of such fraught may be there invest in the purchase of some  cask of brandy which be to be bring to Dublin by the say ship on her return  homeward in order to be sell and carry to the credit of the testator estate  soon afterward the executor in order to settle the account of the testator in  his trade write circular letter to his several correspondent both at home and  abroad to call in their respective account but decline prove the will till  they shall first know the exact state of his affair and thereby determine with  some certainty how far his estate will exceed or fall short of the whole  amount of his debt and legacy but before that can be ascertain and before the  return of the say vessel to Dublin Luke clarke die in June possess of a  considerable personal estate leave Barbara his wife and Adam his only son and  heir and the respondent Ann his daughter have first make his will and thereby  without take notice of any claim to the residue of the testator James clarke  personal estate he bequeathe to the respondent Ann pound for her portion  Payable at her day of marriage with interest until payment and of his will  appoint the say Barbara his wife sole executrix who afterward prove the same  and possess herself not only of all the say Luke clarke own personal estate  but also of such part of the asset of the say James clarke as come to the hand  of Luke and have not be apply by he towards the discharge of the testator  James debt and legacy after the decease of Luke clarke the appellant Augustine  sole prove the will of the testator James his father and proceed to get into  his hand the testator asset and to apply the same in discharge of his debt and  legacy the respondent Ann have in intermarry with the respondent Richard Digby  they in exhibit their bill in the court of exchequer in Ireland against the  say Augustine clarke and other pray that a moiety of the residue of the  testator James clarke personal estate after payment of his debt and legacy may  be consider as the right and property of the say Luke clarke and be decree to  be a fund in the hand of the say Augustine for payment and satisfaction of the  pound legacy bequeathe to the respondent Ann by the say Luke her father and  for this purpose the respondent suggest a agreement enter into between Luke  and Augustine for a equal division of the residue of James clarke estate and  insist that though there have not be any such agreement yet that a moiety of  such residue ought by the custom of merchant to have survive to the  representative of Luke clarke in regard he and Augustine have trade together  brown er p with part of the asset by let out the say sloop to fraught in the  manner already mention and in that respect shall be consider as merchant trade  in partnership brown to this bill Augustine put in a full answer and thereby  deny the pretend agreement between he and Luke or that there ever be any sort  of partnership between they or that they ever trade with any part of the asset  otherwise than as aforesaid and therefore as to that part of the bill which  seek a discovery of the testator asset Augustine instead of enter into a  particular account thereof admit sufficient in his hand to answer any just  demand which the respondent have on the testator estate the cause be at issue  several witness be examine on both side and publication have be duly pass the  same come on to be hear before the baron of the say court of exchequer on the  that of November and be further hear on the d and that of December follow and  on the d of February when the court be please to decree that the respondent  Richard Digby and Ann his wife shall have and recover the pound legacy with  interest for the same from the death of the say Luke clarke to be pay out of  the asset of the say James clarke the grandfather but without cost from this  decree Augustine appeal and soon afterward die intestate the appellant as his  administrator revive the appeal in support of which it be argue n fazakerley W  Hamilton that Luke and Augustine clarke be joint executor be joint interest  and that Luke die in the lifetime of Augustine the whole survive to he and the  rather as Luke never prove the testator will that nothing appear to have be do  which can amount to a separation of their interest for though it have be  attempt to make they in the nature of partner in trade yet there be no  evidence to support it the only colour of proof be the instance of let the Ann  galley to fraught but this it be apprehend can not amount to a severance of  the joint interest and if by possibility it can be deem such a severance as  will prevent a survivorship yet it extend to no other part of the testator  personal estate and therefore it be hope that the decree will be reverse on  the other side it be contend d rider I strange that Luke and Augustine become  entitle not by virtue of any express gift of the residue but from the apparent  intention of the testator in make they joint executor and therefore there be  nothing to make they jointtenants of the residue so as to entitle the survivor  to the whole that among merchant and joint trader the law of survivorship do  not prevail and their carry on a trade together with the testator estate be  put it upon the foot of a partnership and be in effect a actual receipt of  each of their share the decree therefore be right and ought to be affirm but  after hear counsel on this appeal it be order and adjudge that the decree  therein complain of shall be reverse and that the bill exhibit in the court of  exchequer by the respondent Digby and his wife shall be dismiss jour vol p