case duchess dowager OF hamilton appellant robert incledon respondent saint  February Mews dig way a attorney have deliver up deed to a executor which he  be not oblige to do till his bill be pay and these deed be of great use to the  executor in several suit which be then carry on this be a sufficient  consideration to make the executor liable to the attorney whole demand whether  there be asset or not the case in the exchequer be state very full in vin c  where it be class under the head of baron and feme and seem to have turn on  the question what debt of the husband the widow be liable to pay on  survivorship in vin c the circumstance of the executor have change her  attorney be rely on both report in viner be from ms the latter be copy into Eq  can ab c and the former something abridge in p c of the same work order of the  exchequer refuse a injunction to stay the attorney proceed on a judgement at  law affirm viner vol p can vol p c Eq can ab can can the appellant and the  duke of Hamilton her late husband have bring a ejectment upon their own demise  for the recovery in right of the appellant of a brown er p considerable estate  in Staffordshire do in Michaelmas term employ the respondent as their attorney  to carry on the say action but in November and before the action be determine  the duke die whereupon the appellant request the respondent to proceed in the  cause and also to defend a ejectment bring against her and her tenant for  other land in Staffordshire and judgement be give in both these action brown  against the appellant title several writ of error be bring by the respondent  by her direction to reverse those judgement in December some difference a rise  between the appellant and respondent so that from that time he cease to be  concern as her attorney and therefore he soon afterward deliver to Mr Salkeld  her grace new attorney his bill of cost which amount to pound S d towards  which he have receive in the duke lifetime pound S and after his death pound S  d which be deduct leave a balance due to the respondent of pound S d the  appellant neglect to pay the respondent this balance he in Michaelmas term  bring a action against her in the court of common plea for the same whereupon  in Hilary term follow the appellant exhibit her bill against the respondent in  the court of exchequer for a injunction to stay his proceed at law suggest  that so much of the business charge in the respondent bill as amount to pound  S d be do in the duke lifetime and that she though his administatrix be not  liable to pay the same because she have no asset but that the duke mother have  provide a fund for the payment of his debt and therefore she insist that she  be liable only to satisfy so much of the respondent bill as be for business do  after the duke death be pound S d and have pay pound S d towards the same she  be Willing to pay the residue the respondent have answer this bill bring his  action to trial before the Lord chief justice king on the that of February  when the appellant counsel insist to have the money pay by her apply to  discharge that part of the business which be do after the duke death but it  appear that such money have be receive and apply indefinite towards the  respondent whole demand the jury give a verdict to the satisfaction of the  judge for pound S d which be the total for the business do after the duke  death but be pound S d short of the respondent demand after this verdict the  appellant move for a new trial which be refuse she bring a writ of error and  the judgement have be affirm thereon and the damage and cost settle at the sum  of pound the appellant on the that of October move the court of exchequer for  a injunction to stay the respondent proceed at law upon his judgement and  obtain a order ex part that the respondent on the that of November follow  shall show cause why a injunction shall not be grant but after hear counsel on  that day for both party the court discharge the order and refuse to grant a  injunction from this order of the that of November the duchess appeal and on  her behalf it be insist c Phipps W Hamilton that no widow be liable in her own  right to make satisfaction for the debt of brown her husband his asset be the  proper fund for that purpose and yet the demand in question be undoubted a  debt of the late duke and the appellant have none of his asset that it may be  of very dangerous consequence to oblige a widow to be answerable for the cost  of such suit as the husband in his lifetime shall bring in the name of the  wife even though in her right since the wife be entire under the control of  the husband for thereby a liberty may be take very much to the prejudice of  widow that as this be a debt of the late duke and to which the appellant be  not liable in her own right so she never undertake to pay it or make any  promise to that purpose this the respondent have by his answer admit to be  true nor do he so much as pretend that he ever ask the appellant to make  satisfaction for the arrear in the duke time or ever make any such demand till  two year after the appellant have discharge he from any far concern in her  business that as great part of the money claim by the respondent be the debt  of the late duke and he have obtain a verdict for his whole demand as well  what be due from the duke as the appellant it seem unreasonable and  inconsistent with the rule of equity that the respondent shall be at liberty  to take out execution against brown er p the appellant for more than be due to  he from her in her own right and therefore a injunction ought to have be grant  to prevent any proceed till the cause shall be hear that though the respondent  by his answer insist upon the appellant be liable for his whole demand yet he  thereby submit that to the judgement of the court and therefore it be conceive  he ought not to proceed any far at law till the determination of the court can  he have upon the hear of the cause on the other side it be contend S Cowper t  Bootle that the appellant have have the benefit of a discovery from the  respondent answer before the trial and the damage be afterward ascertain by a  verdict there be no room for a court of equity to control or proportion such  damage and the whole matter of the appellant bill in equity beyond the  discovery be proper only for her defence at law that the appellant by her  appeal endeavour to impeach the verdict but it be conceive that can not  regular be do without bring the same in judgement before their lordship by  writ of error and especial as the same be not mention in the plead of the  cause that the appellant have after the duke death continue the respondent in  the management of those suit of which she will have have the whole benefit in  case she have prevail together with all the cost and have have the use and  benefit of all the deed and write then in the respondent custody which by the  practice of the court below the appellant can not have have without first pay  all that be due to the respondent and by that mean the benefit of all the  former proceed in the duke lifetime she ought to answer the charge of those  proceed and brown therefore the respondent humble hope that the appeal will be  dismiss with cost accord after hear counsel on this appeal it be order and  adjudge that the same shall be dismiss and the order therein complain of  affirm and it be further order that the appellant shall pay to the respondent  the sum of pound for his cost in respect of the say appeal jour vol p mason v  Hawkins brown PC er report date case Samuel mason appellant moses Hawkins and  other respondent that march Mews dig way xv where a legacy be leave to one of  two executor neither of they be thereby exclude from the surplus of the  personal estate undisposed of and though there have be a variety of opinion  and some different determination touch the residue of personal estate not  express bequeathe by will yet it have never be carry so far as to exclude two  executor by reason of a legacy give only to one of they the same rule hold on  the reason in both instance that the testator may intend a preference to the  executor pro tanto where several executor have unequal pecuniary legacy Bowker  v hunter bro c r which see and Cox peer williams in the note for all the case  on this subject and post Lawson v Lawson case decree of the master of the roll  affirm a by will give pound south sea stock to b and another pound south sea  stock to c Payable in six month after his death before time expire a addition  be make by the company to every pound stock hold that the legatee be entitle  to the additional as well as the original stock mosely Rep John Hawkins of  London citizen and distiller have a only child name Sarah who marry the  appellant and with who her father on that occasion give a considerable fortune  on the d of June Mr Hawkins make his will whereby after take brown er p notice  that have full advance his say daughter by give her a plentiful fortune his  personal estate be whole at his own disposal he give to Moses Hawkins his  brother pound of his capital stock in the south sea company to be transfer to  he within six month after the testator death and to his sister the respondent  mary daw a like legacy and transferable at the same time and after her death  his will be that the say stock so give to her shall be divide to her child  then live he then give to trustee for his say daughter Sarah pound south sea  stock to be at her disposal and desire the appellant to comply with the  disposition which she shall make thereof and he give the appellant pound and  pound for mourning he also devise to the appellant and his heir for ever two  house in Wapping and after give several other legacy he give and bequeathe the  rest and residue of his estate real and personal to his say daughter Sarah  during her natural life and after her decease he give and bequeathe the same  to her child and child bear of her brown body for ever in case such child or  child shall attain the age of or be marry but in case they die before such age  or marriage then he give and bequeathe the say rest and residue of his estate  as follow videlicet to the say Moses Hawkins his brother and to his heir for  ever all his message or tenement in Houndsditch and Woolpackalley in the  parish of saint Botolph without Aldgate London and to his kinsman Moses  Hawkins and his heir the lease of his house in the Minori and appoint his  daughter the say Sarah mason executrix of his will during her natural life and  from and after her decease he make and appoint his brother the say Moses  Hawkins and his brotherinlaw George daw late husband of the respondent mary  daw executor and make his stock in the south sea company liable to the payment  if his debt and of such of his legacy as shall be due within six month after  his decease on the that of march the testator die after who death the say  Sarah mason his daughter prove his will and she and her husband the appellant  possess themselves of the whole of his personal estate on the that of April  the appellant wife die without issue and thereupon Moses Hawkins the testator  brother and the say George daw prove the will and the appellant obtain letter  of administration of the personal estate of his wife after the testator death  and before the two several legacy of pound south sea stock be transfer to the  say Moses Hawkins and mary daw pound S d and pound S d south sea stock be add  to each pound capital stock after the expiration of the six month neat ensue  the testator death the say Moses Hawkins in his own right and the say George  daw for the respondent mary his wife apply to the appellant and his late wife  for the say legacy but the appellant put off transfer or make they any  satisfaction for the same till after his wife death and on the that of may  fourteen month after the testator decease and not before he transfer to the  say Moses Hawkins decease and the respondent mary daw respective pound capital  south sea stock only and pay each of they one half year dividend only in  respect thereof and thereupon Hawkins and daw several execute to he a release  and discharge of all the legacy give the say Moses Hawkins and the respondent  mary daw by the testator will and off all dividend Payable for the same they  not be then apprise that the say additional stock of pound S d and pound S Od  have be make to every pound capital south sea stock or of the dividend that be  then due in respect of such capital and additional stock but as soon as they  discover the same they apply to the appellant to transfer to they the say  additional stock and to pay they respective the dividend due in respect  thereof but which he refuse to do insist that they be not entitle thereto or  if they be yet that the release so execute as aforesaid be a sufficient bar  against such claim brown whereupon the say Moses Hawkins and the respondent  mary daw Elizabeth Deek then Elizabeth daw and William daw together with the  say George daw sen and George daw jun his son since decease and the respondent  Cuthbert smith and Sarah his wife since also decease do in Trinity term  exhibit their bill in the high court of chancery against the appellant brown  er p set forth that the respondent Elizabeth Deek and William daw and the say  George daw jun and Sarah smith be the child of the say George daw sen and the  respondent mary his wife and be after the decease of the say mary entitle to  the pound south sea stock give to her as aforesaid and to the additional stock  add thereto and therefore the bill pray a transfer thereof accord and to have  a account of the testator personal estate and that the residue thereof not  dispose of by his will may be pay to the say Moses Hawkins and George daw sen  as executor of the testator will after the death of the appellant wife to this  bill the appellant put in a plea and answer and by his plea insist on the  release which have be give he by the say Moses Hawkins and George daw sen on  transfer the say two several legacy of pound south sea capital stock but this  plea upon argument on the that of march be overrule after this George daw sen  die have make his will and thereof appoint the respondent mary daw sole  executrix and George daw jun be also dead the respondent mary his mother take  out letter of administration to he and the suit be thereby and by the  intermarriage of the respondent Darius Deek and Elizabeth his wife abate the  same be afterward duly revive on the that of June the cause be hear before the  master of the roll in the absence of the lord chancellor when his honour  declare as to the pound south sea stock devise to the say Moses Hawkins  decease and the pound south sea stock devise to the respondent mary daw that  they be respective entitle thereto and to the additional stock thereon and the  proceed thereof from the end of six month after the death of the testator John  Hawkins and therefore order that the additional stock on the say pound and  pound south sea stock shall be transfer to the say Moses Hawkins decease and  the respondent mary daw and that the master shall take a account of the  dividend receive on the say pound and south sea stock and the additional stock  thereon and that the appellant shall answer and pay the same to the say Moses  Hawkins decease and the respondent mary daw respective and the respondent mary  daw be to enjoy the pound south sea stock and the additional stock thereon  during her life but she be to declare the trust thereof in the manner mention  in the decree and his honour brown further declare that by give a legacy to  one of the executor neither of the executor be exclude and therefore decree  that the appellant shall account before the master for the personal estate of  the testator John Hawkins which have come to the hand custody or power of the  appellant or the say Sarah his late wife or any other person in trust for they  or either of they and the usual direction be give for take of the say account  and the surplus of the testator estate after payment of his debt and legacy  and the appellant and respondent cost of the suit to that time which be to be  tax by the master be to be divide into moieties and that the say Moses Hawkins  decease be to have one moiety thereof and the respondent mary daw the  executrix of the say George daw senior the other executor of the say testator  John Hawkins be to have the other moiety and the consideration of cost from  the time of the decree be reserve till after the account thereby direct be  take and the master shall have make his report the appellant conceive himself  aggrieve by the latter part of this decree appeal from it insist p York c  Talbot that if the whole and entire right to the residue of the testator  personal estate be not well bequeathe to and vest in his late wife yet that  the testator have express give away no more of the residue after her decease  than some leasehold house to his kinsman Moses Hawkins the surplus be still  undisposed of by the will and ought accord to the statute for the distribution  of intestate estate to go to the appellant wife as the testator only next of  kin and consequent must now belong to the appellant as her administrator that  it do not appear to have be the testator intention to give the surplus to  Hawkins and daw bare by make they executor after his daughter Sarah death  especial as they have each of they legacy in the will videlicet pound SouthSea  stock and pound for mourning to Hawkins and daw share of the pound give to his  wife to buy mourning for he and herself and two child and therefore it be hope  that so much of the decree as direct the brown er p appellant to account for  the surplus of the testator personal estate will be reverse in support of the  decree it be contend t Lutwyche I will that Sarah mason die without issue the  appellant as her administrator can not be entitle to this residue because the  same be only give to Sarah for her life and that there be no devise of the  residue after the death of Sarah the same become vest in Hawkins and daw they  be make executor after her death and thereby entitle to the residue of the  personal estate not dispose of by the will the only objection which have be or  can be make be that there be a legacy give to Hawkins he and daw ought not to  take such residue as executor and it be compare to the case where a legacy be  give to a executor and nothing say about the residue brown of the testator  estate it be also insist to have be several time decree that the executor  shall be only deem a trustee for the testator next of kin but it be admit that  where no legacy be give to a executor and there be no devise of the residue  there the executor shall be entitle to such residue in his own proper right as  executor without be deem a trustee for the next of kin in the present case  there be two executor and be be no legacy give to one of they so that it can  not from the word of the will be infer to have be the testator intention to  make his executor trustee only of the residue of his personal estate and  though there have be a variety of opinion and some different determination  touch the point of the residue of personal estate not express bequeathe by  will yet it have never be carry so far as to exclude two executor by reason of  a legacy give only to one of they and therefore it be hope that the decree  will be affirm and the appeal dismiss with cost accord after hear counsel on  this appeal it be order and adjudge that the same shall be dismiss and the  decree therein complain of affirm jour vol p