case mallabar versus mallabar Reg lib a fol see Maugham v mason V b tailor v  tailor de g m g approve Spencer v Wilson lr Eq may where a man devise his real  estate to be sell to pay debt and certain pecuniary legacy and subject to his  debt and legacy devise his personal estate to his sister this court will not  supply the defect of a surrender of the copyhold to the use of the will if the  other estate suffice to pay the debt the testator Thomas mallabar by his last  will devise as follow imprimis I devise give and bequeathe all and singular my  message land and hereditament whatsoever and wheresoever in the county of  Norfolk Suffolk and Cambridge unto my sister Esther mallabar and to her heir  and assign for ever upon trust that the same shall be sell by her or they for  the best price that can be get for the same as soon as convenient can be after  m decease and that out of the money arise therefrom all my just debt of what  kind soever be pay and after payment of my debt I devise out of the remainder  of the money the sum of pound to my sister mary Bainbrigg and also pound to my  sister girt child that shall be live at the time of my decease to be divide  equal between they and also pound to my nephew Nicholas mallabar and also  pound to be divide among the child of my late brother James mallabar which  shall be live at the time of my decease item after my debt and legacy pay as  aforesaid and subject to the same I give and bequeathe all the rest and  residue of my personal estate unto my say sister Esther mallabar who I do  hereby constitute and appoint sole executrix of this my last will and  testament case tempt Talbot the executrix bring her bill against Nicholas  mallabar the heir at law of the testator to prove the will and to have the  estate sell and the debt and legacy pay accord to the will and charge that the  testator have not surrender all his copyhold estate to the use of the will but  some part of it only and suggest that the testator whole estate real and  personal include such part of the copyhold as be not surrender and therefore  insist that the defect of the surrender shall be supply the defendant in his  cross bill insist that there be more than sufficient exclude the copyhold  which be not surrender to pay all the debt and therefore insist that the  surrender shall not be supply drake v Robinson p will Eq Cas Abr pl S c  haslewood v pope p will Loombes v Gibson bro Charles Rep the result of which  case seem to be videlicet that where the real estate general be devise for or  charge by will with the payment of debt copyhold land which be not surrender  to the use of the will do not pass thereby if there be freehold sufficient to  answer the purpose otherwise it shall and the court will supply the surrender  but this be to be understand of the legal estate only for a devise of a  copyhold estate without a surrender be sufficient to pass the copyhold where  the devisor have only the equitable interest the surrender must be by the  person who have the legal estate and when there be no legal estate in the  party who have the beneficial interest that may pass by a will without a  surrender car v ellison atk Tufnall v page atk vide also challis v Casborn  Prec in Chanc in which case the Lord chancellor will not supply the defect of  a surrender where there be a freehold estate though the same be not sufficient  for the payment of debt Eq Cas Abr S c but in Harris v Ingledew p will where  one by will charge all his worldly estate with his debt and die seize of  freehold and copyhold estate which he particular dispose of by will the  copyhold though not surrender to the use of the will we re direct to be apply  to the payment of the debt acquire step with the freehold see Cas t Talb p  both cause come to a hear together and the plaintiff in the original bill have  in her second answer to the cross bill confess that the testator estate  exclusive of the copyhold not surrender be more than sufficient the Lord  chancellor refuse to supply that defect against the heir and dismiss the  original bill with cost as to that point the reason whereof be because she  confess the matter in her second answer to the cross bill though she have  charge the contrary in her original bill and not disclose the truth in her  first answer to the cross bill and therefore shall be punish with cost another  point arise at the hear though not insist on in the plead which be whether  upon the will there be not a result trust for the heir the plaintiff counsel  insist that here can be no result trust for the heir first because the  testator have give a legacy of pound to the heir second because the testator  have direct his real estate to be sell for payment of his debt and legacy and  have therefore case tempt Talbot er p consider it as a personal estate cook v  Duckenfield atk and after payment of his debt and legacy and subject to the  same have give all the rest and residue of his personal estate to his  executrix the plaintiff but if it shall be construe to be a result trust case  tempt Talbot for the heir the testator intent will be utter defeat for then  the personal estate must be first apply in ease of the real and so the  executrix will have but a troublesome affair without any benefit or  consideration which can never be the testator intent and in order to show  clear that be the testator intent they insist upon give parole evidence Lord  chancellor if this be res integral and I be at liberty to follow my own  opinion I shall be very unwilling to admit such evidence but as it have be do  and particular in the case of doxy versus doxy Rachfield v careless p will  duke of Rutland v duchess of Rutland ibidem petit v smith p will lady  Granville v duchess of Beaufort ibidem bachelor v Searle vern Hodgson and  caldecot v Hodgson ibidem Cuthbert v Bencock ibidem lake v lake will  Brasbridge v Woodroffe atk Ulrich v Litchfield atk Blinkhorn v Feast Ves  Goodinge v Goodinge Ves Hampshire v pierce Ves Hodgson v Hitch Prec in Chanc  brown v Selwyn post Bacon tract fonnereau v Poyntz bro Charles Rep and  Littlebury versus Buckley vern I now admit it to be do then be read a  deposition of a witness who give full evidence of the testator declaration  that the plaintiff after payment of his debt and legacy shall have all the  test of his estate but the Lord chancellor decree upon the will itself  independent upon the parole evidence that here be no result trust for the heir  and that the executrix shall have the whole residue after the sale of the  estate both of the money arise by such sale and of the personal estate  Coningham v Mellish Prec in Chanc Roger v Roger post and reference