case Farrington versus knightly refer to William v Arkle l r h l Lord  chancellor Parker pre Charles Mod Eq can ab pl executor have a express legacy  and so have the next of kin and no disposition of the surplus the surplus  decree to be distribute Anthony Upton late of Lincoln inn Esq make his will by  which in it all he declare as to his personal estate if he shall leave any  that he give pound thereof to his brother a pound to his nephew b and make the  say a and b executor and give S apiece to other of his relation several of who  be his brother nephew and niece and as such his next of kin in equal degree  within the statute of distribution after which testator abrupt break off  without say in witness whereof c or make peer William any disposition of the  surplus which amount to about pound all the will be write with the testator  own hand though not sign by he and be prove in the spiritual court as his will  they who be in equal degree of kindred with the executor bring this bill to  have their share of the surplus accord to the statute Mr Vernon for the  plaintiff the case which stand foremost in the court upon his head be that of  foster and Munt vern where express legacy be give to the executor and likewise  to the next of kin and it be decree such executor be but trustee of the  surplus for the next of kin for where a legacy be give to a executor if he be  to have the surplus likewise undisposed of by the will it will be give he all  and some nay it have be hold in this court that where there be two executor  and a express legacy be give to one of they only this shall exclude they both  from the surplus which be strong than the principal case where legacy be give  to both the executor and even in the case of the duchess of Beaufort ante h  ball v smith vern Littlebury v Bulkley proof be admit to show it to have be  the intention of the testator that though the executor have express legacy yet  they shall likewise have the undisposed surplus but it will have be altogether  unnecessary to prove such intention if the executor be of course to have have  the surplus peer William er p but far this case be strong in as much as the  will be leave imperfect wit out sign and break off abrupt whereas peer William  if the testator have I live to finish it it be not to be suppose but he will  have provide for those who be as pear of kin to he as the executor themselves  on the other hand sir Robert Raymond for the defendant admit it to have be  former the current opinion that where a express legacy be give to a executor  and no disposition make of the surplus the executor be but a trustee of such  surplus for the next of kin but say of late the resolution have be otherwise  that accord it be so resolve in the case of ball v smith by Lord Harcourt on  great consideration and view of all the precedent though it be true in that  case the wife be executrix that to the same effect be the resolution of the  house of lord in the case of the duchess of Beaufort and that of Littlebury v  Bulkley and as to what have be object that unless the executor shall be hold a  trustee of the surplus it will be give he all and some he say where a will  give the executor a express legacy it may well be intend by the testator that  in all event the executor shall have his legacy although there shall come out  to be no surplus but that if any surplus shall remain the executor shall have  that surplus also that the testator by make one his executor do thereby give  he all his legal interest in the personal estate that the statute of  distribution can not take place or have any effect where there be a will or a  executor forasmuch as that statute operate only upon intestates estate and the  party can be say to die intestate where he have make a executor and declare  that this be his will and as the present case be not within the statute of  distribution so independent peer William thereof there can be no distribution  and as often as the spiritual court attempt to make any the court at  Westminster prohibit they vide ante petit v smith and Vol ill Edward v freeman  again in make distribution upon the statute it can not be doubt but the  spiritual court have a concurrent jurisdiction with the court of equity now in  this case there be a executor no distribution can be make in the spiritual  court on the contrary this will prove in the spiritual court and appear under  the seal of the proper court which have the jurisdiction thereof it be now to  be intend and look upon as a complete will and he cite a case where upon a  will which give the executor a express legacy a inferior court of equity I  think that of Chester be compel the executor to make a distribution but the  court of c b grant a prohibition also the case of Colesworth v Brangwin where  a man make two executor give only one of they a legacy and make no disposition  of the surplus after great consideration have of the point Lord Cowper decree  the surplus equal to both executor and to the same purpose be cite the case of  Rawlins v Powel ante beside that if a express legacy be to bar the executor  from have the surplus in this case there be express legacy give also to the  next of kin it be but just they shall be bar in like manner peer William in  the last place as to the case of foster v Munt he observe that the resolution  there be ground upon the fraud make use of by the executor in prevail with  their testator to make his will at a tavern ante Mr Vernon in reply in foster  and Munts case there be not the least proof of fraud neither ought any will to  be set aside in equity for fraud as be say by the Lord Cowper in the case of  goss v Tracy for if the testator be impose upon in the make of his will then  it be not his will he also cite Vatchells case pre Charles where one make two  person executor and give they legacy without dispose of the surplus but as two  of his child be look upon to be bastard he give they S apiece in full bar of  all their claim and pretention to any part of his estate and the late master  of the roll let both they and the rest of the testator child in for the  surplus of the personal estate say this be finger God but in the house of lord  upon a appeal though the other child be allow their share of the surplus yet  the two son to who S apiece be give in lieu of their claim be not admit to  have any share thereof Lord chancellor I do not take it to be a rule that a  will be not in any case to be set aside in equity for fraud for I late set  aside such a will for fraud myself in the case of peer William er p one  Bransby mean I decree the executor who gain the will to be but a trustee a  executor from his name be but a peer William trustee he be to execute his  testator will and therefore call a executor in the present case the testator  be not to be look upon as die intestate but to have make the executor a  trustee of the surplus and this be the reason why the spiritual court can  compel a distribution because they can enforce the execution of a trust indeed  in the case of a wife it have be hold that where she be executrix and have a  legacy and there be no disposition of the surplus she shall have it but I do  not hear any precedent cite that go further this differ from other case by  reason that the will seem to be leave incomplete it have be natural for any  testator especial for a lawyer as this be to have say in witness whereof I  have set my hand and this will though it have a date yet it be not sign nor  have it the usual conclusion so that probable if the testator have not be  interrupt he will have go on and dispose of the surplus but as he have not do  so it seem to be leave undisposed of for which reason it ought to go accord to  the statute of distribution as I think it will if the clause of a will dispose  of the surplus be raze and become not legible it be high proper the law shall  be settle one way or other in this case though no great matter which way so it  be but know for I to say in this case that the executor shall have the surplus  will be to make way for reverse multitude of decree which have order a  distribution of the surplus in like case and occasion great confusion I will  consider of the case and be attend with precedent and will endeavour as far as  I can to settle this point accord some time afterward June each party have  attend the Lord chancellor with precedent and his lordship have take time to  consider of they deliver his opinion peer William that the executor have a  express legacy of pound each shall be trustee of the surplus of the personal  estate for the next of kill accord to the statute of distribution his lordship  take notice of the precedent with which he have be attend and first as to the  case of foster and Munt the decree in that be not find upon the fraud but the  court declaredthat the will exclude the executor from the surplus of the  personal estate by have give they pound apiece for their care and pain and the  testator by say that the executor shall have pound apiece for their care c  plain imply they shall have no more second earl of Bristol v Hungerford Gul by  sir John Trevor master of the roll where there be a express legacy of pound to  the executor without dispose of the surplus and his honour decree that this  legacy to the executor create a result trust of the residue of the personal  estate for the next of kin three Bayley v Powell vern in by Lord summer legacy  to all the next of kin of the testator and a small legacy to the executor in  that case decree the executor to be trustee fourthly Randall v Bookey vern  January W by Lord keeper wright the testator make his wife executrix and give  her a express legacy the wife decree a trustee of the surplus accord to the  statute of distribution five ware v Lant pre Charles hill W by Lord keeper  wright the testator make his wife executrix to who he give peer William some  legacy and here upon she be decree to distribute the surplus so that as to  what have be say heretofore by Lord Harcourt in ball v smith vide vern that  there be but a single precedent of the wife be leave executrix and have a  express legacy give her wherein she be declare to be but a trustee for the  surplus Lord chancellor say he have now see several of those decree and that  they make no difference where the wife and where a more remote relation have  the executorship for that still in all these case if there be no express  disposition of the surplus the executor whoever it be have be look upon but as  a trustee with respect to such surplus for the next of in vide the same say by  Lord Cowper the case of lady Granville v duchess of Beaufort ante and his  lordship say that he have speak with Mr Vernon in his lifetime upon this  subject who say that there have be so many decree upon the point where a  legacy be give to a executor and no disposition of the surplus that the  executor be but a trustee of such surplus and this point have be thereby so  full establish that he do not think it worth while to take notice of any  latter decree of this nature peer William er p apprehend it to be a principle  as much fix as that feesimple land shall descend to the heir his lordship  likewise take notice of the precedent which have be leave with he by the other  side as first the duchess of beauforts case February where the first duke of  Beaufort give the use of his plate to his duchess for life who he make  executrix and afterward give the plate to his grandson the late duke without  dispose peer William of the surplus and decree by Lord Cowper that the duchess  be but a trustee as to the surplus for the next of kin but reverse by the  house of lord the reason of which may be because this be not proper a devise  to the duchess of the use of the plate but rather a exception or reservation  to the duchess a devise of the plate to the grandson reserve the use thereof  to the duchess the executrix for her life second Jones v Westcomb pre Charles  mich annae by Lord keeper Harcourt where a lease for year be bequeathe to the  executrix for life with remainder over to I S and decree that the executrix be  not bar of the undisposed surplus and this his lordship hold may be so within  the reason of the duchess of beauforts case for it be a exception or  reservation of the term to the executrix for her life it be not proper a  devise to the executrix and consequent no bar three ball v smith vern hill  annae by Lord keeper Harcourt one devise some plate to his wife which she have  as executrix to her former husband and two other piece of plate in lieu of and  recompense for some other plate which likewise have belong to his say wife as  executrix to her former husband but which the testator have himself dispose of  and make no devise of the surplus decree this shall not bar the wife of the  surplus of the testator personal estate or this reason the devise to her of  the plate which she before be entitle to as executrix of her former husband be  void the second husband have no power to dispose of that by his will though he  may do it by act execute in his lifetime also as to the devise to her of the  other plate in lieu of and recompense for what he have dispose of in his  lifetime out peer William of that which belong to her as executrix it must be  reasonable to construe this as a restitution rather than a gift his lordship  say there be several other precedent on each side but these he think to be the  most material that as to the reason of the case it be most plain the make a  person executor ought not to amount to a gift of the testator personal estate  it be no more than make he a trustee the very word executor import ex way  termini that he be only appoint to execute the will and to have nothing but  the management of the personal estate that this be demonstrable by a very  common case as if I make a my executor and say no more and a die intestate  without dispose in his lifetime of this personal estate my next of kin and not  the next of kin of my executor shall have administration de good non together  with all my personal estate vide post duke of Rutland v duchess of Rutland Vol  two whereas be I to make a my executor and also give he my personal estate and  die and afterward my executor shall die intestate without dispose of my  personal estate the next of kin and administrator of my executor shall have  this personal estate and not my next of kin which be a demonstration that the  make a man executor be not give himthe personal estate for in the one case  only where the personal estate be give to the executor on the death of such  executor shall his next of kin have the personal estate but not in the other  that the executor be but a trustee and such as well with peer William regard  to the legacy give by the will to a three person post wind v Albone as to the  rest of the personal estate be plain in that if the testator by will give a  legacy suppose the legacy of a horse to I S and die still the legal property  of this horse be in the executor as much as the legal title to the rest of the  testator personal estate and such legal property of the horse continue in the  executor until be assent to the legacy by the statute of distribution the  succession to the personal estate be as much settle and ask in the next of kin  where it be not dispute of by the will as by the commonlaw the title to the  real estate be fix in the heir at law if not give away by the will and  therefore it may in reason be a question even if there be no express legacy  give to the executor nor any disposition of the surplus by the will for it  seem within the reason of the case where a man by his will devise his real  estate to I S for the payment of his debt after payment thereof the devisee be  clear but a trustee for the heir peer William er p Even so by make a executor  I make he a trustee of my personal estate for the payment of my debt and if I  do not give he the surplus why shall not such a executor acquire ration be a  trustee for my next of kin but this may be carry it too far however where the  testator by express word have say that his executor shall have pound apiece  out of mrs personal estate it be offer violence to the will for a court of  equity to say such executor shall not only have pound apiece but in the rest  of the personal estate this will be indeed say that such executor shall have  all and some peer William a executor have nothing in his own right but what be  express give he by the will and so differ from a heir who be seize in his own  right and it be most reasonable that where a testator give his personal estate  from his near relation he shall say so else why shall it be presume beside  this case be the strong in regard the will be plain a imperfect and unfinished  will and it be not to be imagine but that if the testator have complete it he  will have give a competency to his next of kin which he have here not do upon  the whole here be a express legacy of pound to each of the executor and no  disposition of the surplus of the personal estate the executor be but trustee  with respect to such surplus which must go to the next of kin accord to the  statute of distribution vide Rachfield v careless Rutland v Rutland post Vol  two accord send vide attorneygeneral v Hooker ib where Lord king be of a  contrary opinion conceive that where the executor and next of kin have each of  they a legacy the undisposed surplus will by law belong to the executor and he  shall retain it pre Charles say to be decree by Lord Harcourt but there no  demand appear to have be make by the next of kin the bill be bring by one  executor against the other so say also by Lord Harcourt in the case of ball v  smith vern vide pre Charles ante send qure for the contrary seem to have be  affirm in that very case by Lord Cowper Bransby v Kerridge decree November  that but this decree be in march reverse by the house of lord and the bill on  which it be find dismiss bro p c and Edward bro p g et vide Marriot v Marriot  stram Barnsley v Powell I ves Bennet v vade atk meadow v duchess of Kingston  Amb Griffiths v Hamilton Ves Walton v Walton Ves Lynn v beaver Tur Baillie v  Butterfield Cox and see Jones v Jones mere foy v foy Cox Gawler v standerwick  Cox the result of the many case on this subject appear to be this by law the  appointment of a executor vest in he all the personal estate of the testator  and if any part after payment of the funeral expense and debt remain  undisposed of by the will it rest with the executor beneficiallybut wherever  court of equity have see on the face of the will sufficient to convince they  that the testator do not intend the executor to take the surplus they have  turn the executor into trustee for those on who the law will cast the surplus  in case of a complete intestacy I e the next of kin as where the executor be  express call executor in trust or where any other expression occur show the  office only to be intend they and not the beneficial interest bring v bring  vern Rachfield v careless post Vol two Graydon v Hicks atk dean v Dalton bro c  c Bennet v bachelor bro c c so where there be a residuary clause but the name  of the residuary legatee be not insert Wheeler v shears mos bishop of cloyne v  young ves Lord north v purdon ib or where the residuary legatee die in the  lifetime of the testator Nicholls v crisp Amb Bennet v bachelor ub sup so a  pecuniary legacy to a sole executor afford a sufficient argument to exclude he  from the residue as it be absurd to suppose a testator to give express a part  of the fund to the person he intend to take the whole cook v walker cite vern  Joslin v Brewett bunb davers v due post Vol III and it be settle  notwithstanding the case of ball v smith vern that the wife be executrix shall  make no difference as appear as well by the case mention above in Farrington v  knightly as by Gobsall v sound Eq can ab pl Martin v rebow peer William er p  bro c c so equal pecuniary legacy to two or more executor shall exclude they  from the surplus petit v smith ante and the several case there mention Carey v  Goodinge bro c c the argument that have be use in oh position p to these  decision and to show that the give equal pecuniary legacy to two or more  executor be not absolute inconsistent with a intention that they shall take  the surplus be saint that suchgift will secure to they a proportion of their  legacy in the event of a deficiency of asset which apply equal to the case of  a sole executor and dly that they will take the legacy several whereasthe  residue will belong to they joint however the rule have long prevail as above  neither will legacy to next of kin vary the rule Wheeler v sheer mos Andrew v  clark ves but wherever the legacy be consistent with the intent that the  executor shall take the whole a court of equity will not disturb his legal  right and therefore where the gift to the executor be only a exception out of  another legacy it shall not exclude he from the residue because it be  necessary to make such exception express Griffith v Roger pre Charles Hoskins  v Hoskins ib lady Granville v duchess of Beaufort ante Jones v Westcomb pre  Charles Gobsall v sound ub sup Newstead v Johnston atk so in Lawson v Lawson  bro p c and Edward bro p c the same principle seem to have prevail so a legacy  to one only of two or more executor shall exclude neither from the surplus  because the testator may intend to such one a preference pro tanto Colesworth  v Brangwin pre Charles mason v Hawkins bro p c and Edward bro p g Johnston v  twist cite ves bishop of cloyne v young ib Wilson v Ivatt ib the same rule and  reason hold where several executor have unequal pecuniary legacy Brasbridge v  Woodroffe atk Bowker v hunter bro C C although in the last case Darwell v  Bennet vern Bailey v mead Powell pre Charles vern and Vashell v Jeffrey pre  Charles and bro p c and Edward bro p p be object as authority against the  determination then as to specific legacy it be determine that a specific  legacy will exclude a sole executor Randall v Bookey vern Southcot v Watson  atk Martin v rebow ub sup and also that distinct specific legacy of unequal  value to several executor shall not exclude they Blinkhorne v Feast ves and  the language of Lord Hardwicke in Southcot v Watson treat specific and  pecuniary legacy as stand precise upon the same ground in question of this  naturehowever no case occur in the book in which distinct specific legacy of  equal value to several executor have exclude they from the surplus and the  argument which support this rule as to pecuniary certain do not apply with  equal force to specific legatee since it be very probable that a testator may  wish to distribute specific quantity of stock or particular debt c among his  executor in some particular manner although equal in point of value and  consistent with a intention that they shall take the surplus Shrimpton v  Stanhope cite atk be not a case of distinct specific legacy for it appear from  Reg lib b fol that the testator there give some specific legacy to a man and  his wife joint who he also make his executor and so in Willis v Brady Barnard  and these case therefore seem like legacy to a sole executor with regard to  the admission of parole evidence in case of this kind vide Rachfield v  careless post Vol two and Rutland v Rutland ib Mr Vernon die the February  before this decree be pronounce but by the report of this case vern Lord  Harcourt say he be content to have it consider as a legacy give by her husband  the rule lie down in Mr Cox note have be confirm by the subsequent numerous  decision see Thornton v Tracy Ves jun clennell v Lewthwaite ib and S c on  Appius ib de Mazar v Pybus Ves dick v Lambert ib bro c c in the last of which  case a bequest for life be hold to exclude the executor from the residue  Nisbett v Murray Ves Abbott v Abbott Ves Urquhart v king Ves Griffiths v  Hamilton Ves Southouse v bear v b Langham v Sanford Ves S c on Appius Ves  pound mere Giraud v Hanbury mere vezey v Jamson S the circumstance of executor  be appoint trustee of part of the personal estate be not alone sufficient to  exclude they from the residue Pratt v Sladden Ves and see Dawson v clark Ves S  c on Appius Ves where there are several executor if the testator denote a  intention that one shall be a trustee and be silent as to the other the latter  shall nevertheless be exclude white v Evans Ves peer William er p Milnes v  slater Ves sadler v turner ib but they may give evidence of the testator  intention in their favour William v Jones Ves in Sealey v wood Ves it be hold  that the bequest of a reversionary interest will exclude the executor but see  lyn v beaver Tur Qure if a legatee under the will appoint executor by codicil  or vice line shall be exclude see mordant v Hussey Ves and see Holford v wood  ib Muckleston v bro Ves Langham v Sanford Ves nurse v finch Ves jun and  Hornsby v Plinch S c on Appius Ves jun and bro c c white v William v b coop  mence v mence Ves