Barnardiston Willis and brady June where a executor shall be a trustee of the  residuum by reason of his have a legacy give he Martha hill make her testament  in write to the follow effect she begin with say as to my temporal estate I  dispose thereof as follow she give unto the plaintiff Martha mary Sarah and  Judith by the description of the four daughter of her half brother John Willis  to each of they pound and also her clothes linen and book and unto the  defendant Judith winter daughter of her half brother James Willis and all her  household good and chattel whatsoever whether in house ground rend stock bill  bind ready money jewel plate or otherwise she give to the defendant Francis  shall and Judith his wife for her life and after her decease she give one half  of such residue of her estate after her legacy and funeral expense pay unto  the plaintiff Martha Sarah and Judith Willis equal to be divide between they  and appoint Francis and Judith shall executor of her will the person describe  by the name of her sister shall be this Judith shall the wife of Francis James  Willis who be a nephew of the testatrix have no legacy give he Judith Willis  the daughter of James Willis and one of the legatee mention in the will  intermarry with Jacob winter and thereupon a bill be bring by James Willis  Martha Willis mary Willis Sarah Willis and Judith Willis against Francis shall  and Jacob winter and Judith his wife pray a account of the personal estate of  Martha hill and insist among other thing that Francis shall have a legacy give  he by the will of Le testatrix and thereby become only a trustee of tie  residuum for the benefit of the next of kin Francis shall die make Owen Brady  and mary his wife his executor and thereupon the Cause be revive against those  executor Barnardiston the attorneygeneral argue on the part of the defendant  and for authority cite the case of Johnson and Criss determine by Lord Talbot  in and Mr Chute on the same side cite the case of Jones and brook determine in  this court the that of November and likewise the cage of salt and chamber  determine the last term by the present chancellor this Cause come to be hear a  few day ago before the master of the bolls who sit for Lord chancellor and his  honour think that it be a case that be proper a little to be think of  whereupon he order it to stand for judgement as of today and now he be please  to deliver his opinion in it he say the single question for the consideration  of the court be whether there be a undisposed moiety of the estate of the  testatrix belong to the next of kin and that depend upon this question whether  Francis shall one of the executor be a trustee of this moiety or not the case  be no more than this Martha hill have no child and have several nephew and  niece make her testament in write she begin with say Barnardiston er p as to  my temporal estate I dispose thereof as follow she then give several legacy  and particular to all her nephew and niece except James but of he she say  nothing one way nor other then come the clause on which the present question  depend she thereby say she give to her sister shall who be her sister of the  whole blood all her household good and chattel whatsoever whether in house  ground rend stock bill bind ready money jewel plate or otherwise and say too  she give the same to the defendant Francis shall and Judith his wife for her  life and after her decease she give one half of such residue of her estate  after her legacy and funeral expense pay unto the plaintiff Martha Sarah and  Judith Willis equal to be divide between they Barnardiston and appoint Francis  and Judith shall joint executor of her will it be contend by the counsel for  the plaintiff that by this will Francis shall the executor have something give  he and consequent that he thereby become a trustee of the residuum on the  other hand it be insist that in reality Francis shall have no legacy give he  and that with regard to he it be just the same as if all have be give to his  wife and far it be insist on the part of the defendant that at least it be no  such legacy as will make he a trustee of the residuum the will begin with say  S to my temporal estate I dispose thereof as follow his honour say he do not  much rely upon this clause in the will clause of this kind be general speak  customary form there may be indeed case where the matter may be so doubtful  that clause of this sort will be of weight and a argument may be draw from  clause of this kind in order to increase the fund for the payment of creditor  and the strong case that he know of wherein the court have lie weight upon a  clause of this kind be that of cordle and noden in vern the next thing that he  shall lie out of the case be the legacy give to the next of kin it be not give  to all of they for James be omit and if it have it will have make no  difference the material question in the present case to be consider be first  whether by the present will there be not a legacy give to the husband and dly  suppose that there be whether such legacy do not make the husband to be a  trustee of the moiety which otherwise he will be entitle to with regard to the  first of these question be it have be indeed insist by the counsel for the  defendant that by this will there be no legacy give to the husband but his  honour opinion be that it be impossible to support that doctrine it be to  contradict the express word of the will and that for no other reason  Barnardiston but to make a man to take different from what the will say he  shall only because it be his interest to do so it be indeed true that the  clause of the will which this question depend upon do begin with say I give to  my sister shall all my household good c add in that part of the clause Francis  the husband be not take notice of but that very sentence say I give the same  to Francis shall and Judith his wife for her life and after her decease one  half thereof after her legacy and funeral expense pay unto the plaintiff it  have be indeed say that Francis the husband will have take as great a benefit  from this will if he have not be name in this clause as he do by be name in it  and a argument have be draw from thence that therefore the insert his name in  this clause of the will shall signify nothing but in reality he do take in a  different manner by be name in this clause of the will than otherwise he will  have he not be name in it he can only have take in the right of his wife  whereas by be name in it he take in his own right and this make a very  material difference in this court though at law it do not have he apply to  this court for the good without be name in the will this court may not have  assist he without put some term upon he but as he be name in the will it be  out of the power of the court to put any term upon he another difference of  weight in the present case be that by be name in the will together with his  wife there be a right of survivorship between they which otherwise there will  not be beside part of this estate may consist in choose in action and in that  case provide he have not be name in the will a voluntary assignment of they  will not in some case be good and that be agree in the case f Lord Carteret  and pasquil suppose too this estate consist of rend reserve upon any term for  year and those rend be in arrear on the death of the wife there will be a  great benefit as to those rend with regard to the husband Barnardiston by his  have be name in the will than there will if he have not be name in it and as  by these instance it appear that the husband do take as legatee by the will  his honour Barnardiston er p say he will now consider the second question  namely whether b his so take he do not become a trustee of the surplus for the  benefit of the next of kin he say it be very true that he can not recollect  any case that direct come up to the present one but there have be several that  come very near it this point must be take for a establish one that in this  court a executor may be a trustee of the surplus foe the benefit of the next  of kin at law indeed it be otherwise and the reason for this difference be not  that this court control the law and be inconsistent with it but because this  court determine upon a equitable point namely a trust which the court of law  have nothing to do with and as the court in this case determine about a trust  it will only consider whether it be the testator intention that there shall be  a trust or not and therefore in this case the proper question to be consider  be not whether the testator intend to give the surplus to his next of kin but  whether he intend to give it from they by law they be clear entitle to it  where no will be make and therefore whether he intend to take it away from  they or not in these case be the question the general rule upon this head be  that where a particular bequest be give to the executor the court presume that  the testator intend that he shall be a trustee of the surplus and if he  contend that he be not exclude from it it be incumbent upon he to show it  original perhaps this notion of a executor be in such case a trustee be find  upon slight round but afterward as personal estate begin to increase this  notion of his be a trustee have spread and enlarge the material case on the  other side cite by the defendant counsel be those in precedent in chancery and  vern together Barnardiston with the case of Johnson and Criss Jones and brook  and that of salt and chamber but his honour show that they be all  distinguishable from the present one and so he be please to decree accord