brown case duchess dowager OF beaufort appellant lady dowager Granville and  other respondent that December Mews dig way b make his wife executrix and  devise to her the use of his tableplate for life and after to c his grandson  but make no disposition of the surplus of his personal estate parole evidence  be admit that the testator intend his wife shall have the surplus to her own  use it be only to rebut the construction of a court of equity which will  create a result trust and make the executrix a mere trustee for the next of  kin wms vern viner vol p can vol p can Eq can ab can Henry duke of Beaufort in  intermarry with the appellant who bring he a very large fortune and with who  he live in the great harmony and affection above forty year during this period  they have several child only five of who attain the year of maturity and be  then very plentiful provide for by the duke in his lifetime namely the Lord  marquis of Worcester the old son on who the duke settle a estate of pound per  and and a rentcharge of pound per and beside the family estate in reversion  Lord Arthur Somerset the young son on who the duke settle a estate of pound  per and the duchess of Ormond with who he give a portion of pound and the  countess of Suffolk and Coventry with each of who he give a portion of pound  on the that of January the duke make his will and after several devise come  the follow bequest videlicet I bequeathe the use of my silverplate for the  service of my table that be to say of all my silver dish trencherplates with  my great silver cistern with the silver sconce to my dear wife during the term  of her natural life and after her decease I do hereby bequeathe all the say  silver plate to my grandson Henry Somerset common call marquis of Worcester I  do likewise give unto my say grandson one diamond jewel which I usual wear in  my hat upon saint George feast with all my George parliament robe and my robe  of the order to be lie up and preserve and deliver to he at such time as my  wife shall judge convenient and he appoint his wife sole executrix on the same  day the duke make a codicil to his will and thereby give his wife a rentcharge  of pound per and issue out of his house call Beaufort building be but he make  no disposition of the residue of his personal estate either by his will or  codicil soon afterward the duke die possess of a personal estate of about  pound value which the duchess consider as her own property expend large sum of  money in the endowment of several charity and in other act of piety and  munificence which she know be agreeable to the duke be intention and what he  will have do himself if he have live long No interruption be give to the  duchess in the enjoyment of this personal estate by any of the family for  about nine year brown after the duke be death but at length in Trinity term  the respondent think proper to file a bill in chancery against her for a  account and distribution of the surplus of the duke be personal estate as in  the case of a intestacy on the that of February the cause be hear before the  Lord chancellor Cowper when his lordship be please to declare that the late  duke of Beaufort ought to be take and deem to have die intestate as to the  surplus of his personal estate not devise by his will and that such surplus  ought to be distribute accord to the act make for the better settle of  intestate estate and he decree a account and distribution thereof accord from  this decree the defendant the duchess appeal and on her behalf it be argue t  powys W peer William that by the know rule of law the right to all the  testator personal estate not otherwise dispose of belong to the executor so  that the appellant have most undoubted the law in her favour that the devise  of the use of the plate to the appellant for life which be the only legacy  give her brown er p by the will with a devise over at the same time to the  respondent the duke who have thereby the absolute property be not such a  legacy to the appellant as can be construe to exclude her from the benefit of  the surplus of the testator personal estate it be only in the nature of a  exception or save of the use of the plate to the appellant for her life out of  the bequest of the plate itself to the now duke and which be perfect  consistent with her have the surplus of the estate as executrix that by this  bequest the general property of the plate be in the present duke the appellant  have no more than the bare liberty of use it as long as she live and court of  equity have never yet go so far as to deprive a executor of the surplus of the  personal estate where only the use of a particular thing and for a particular  time be give to the executor and where the property of that very thing be give  over to another that it can not be imagine that the late duke who have entire  trust the duchess with the management of all his affair for many year before  his death and who often acknowledge as be prove in the cause that by her great  care and conduct his real and personal estate be very much increase will have  leave her nothing out of his personal estate by way of legacy either as a mark  of his esteem or for her own convenience beside the use of his tableplate if  he have not intend that she shall have the benefit of all his personal estate  after payment of his debt and legacy it be admit at the hear of the cause that  if the testator have devise the plate to the present duke after the appellant  death without any express devise of the use of it to her in the mean time or  if he have devise the plate to the duke reserve the use of it to the appellant  for life in either of these case the appellant will not have be bar of the  surplus of the estate by any implication and yet the word of the will plain  mean the same thing and vary only from the case so put in the position of the  word but not in the brown mind or intent of the testator that the intent of a  will upon the whole frame of it and not any particular word by themselves much  less the mere position of those word ought chief to be regard and the name the  appellant first in the bequest before any other may be out of respect to the  dignity of her person that it be prove in the cause that the testator full  intend that the appellant shall have the surplus of the personal estate to her  own use and this proof as it agree with the rule of law to preserve the legal  title to the executrix and which of common right she have so it shall prevent  and ought to rebut the construction of a court of equity which will create a  result trust and make the executrix a mere trustee for the next of kin and  that the case of foster and Munt hear in chancery Nov vern affirm in  parliament Apr jour vol p on which the present decree be find be manifest  different from this case in many particular for in that case the executor be  stranger and have no relation to the testator the legacy give to they be a  beneficial bequest in money for their care and pain in the execution of the  will it do not appear that the testator have any previous obligation to they  in his lifetime nor be there any proof that he intend the surplus for they on  the other side it be insist I Pratt that the appellant by have a specific  legacy give to her by the testator will be exclude from claim the residue of  his personal estate as executrix and that therefore the decree be just and  well warrant by the rule of equity and by judicial determination of the house  in similar case but after hear counsel on this appeal it be order and adjudge  that the decree therein complain of shall be reverse jour vol p brown er p