BLINKHORN v feast October residue undisposed of hold vest in executor  beneficial and no result trust for the next of kin although the executor have  legacy give they in this case the executor be infant and the legacy specific  distinct and unequal a man by his will give to two person particular specific  legacy several to each by name and in the last clause make they joint and sole  executor say nothing of the residue the executor be infant see the  circumstance from it r l and reference to the law on these subject supplement  p the next of kin bring this bill claim the surplus as a result trust within  vesey senior er p the rule where executor have something give and that the  next of kin will be assist here as well as a heir at law the court in these  case have go upon general rule not distinguish between one joint legacy to the  executor or give different legacy but from give these distinct and several  testator can not intend they shall take the residue joint and though these be  specific legacy it be settle that if give absolute it be the same as if  pecuniary for defendant the executor have a legal right by the rule of law the  make a executor be put he in testator place so that he can be witness for the  will not even in a court of equity because he be interest the ground on which  the court go in the above rule be that the testator intend he this and no more  and therefore the residue shall be look on as undisposed foster v Munt for for  be determine on very particular circumstance and a very strong implication  that the residue be not give there be a legacy to executor for care and pain  from that case a general rule be set up in this court and several year before  it be bring back to common sense and reason for it be at first contend for  wherever a legacy be give any how and whatever other difficulty arise at last  the rule be establish that wherever a particular legacy be give by express  word so as to show that particular gift be unnecessary if testator intend the  legatee shall take the residue by make he executor he shall consequent be  trustee for next of kin but that equity may be rebut by parole evidence that  testator mean it it be now settle that the bare be a wife executrix take away  the presumption so that she be not exclude so where the vesey senior  particular legacy to the executor be subject to a contingency or limitation  over that do not exclude from the residue because it be necessary to give he  the particular legacy express in order to ingraft thereon so where the legacy  be with a exception that will not afford a presumption also where one executor  have a legacy the other none where there be any thing show that it be proper  for testator to do this and yet to intend they the residue the implication  fail and there be a strong reason here videlicet testator intend to prefer one  executor to the other and to make a difference between they but no presumption  arise thence that he intend they nothing else in Buffart v Bradford atk Nov  testator give one executor a considerable legacy and to the other his wife and  child a legacy for mourning your lordship dead it clear that a legacy to one  of two executor exclude neither from the residue and that you shall think it  hard to exclude a executor by a legacy for mourning it be the act of  parliament which give this to the next of kin not that they be favour in this  court and the above rule have go far enough already beside these executor be  infant and must be intend to be make executor for their own benefit and  testator have give his whole estate between both of they but the residue be  not particular give but if it be necessary there be parole evidence sufficient  that testator intend to leave the whole to they and that be admit in case of  fraud to ascertain identity and rebut a equity Lord chancellor there be but  one question whether on the construction of the will here be a result trust of  the residue of the personal estate over and above debt and legacy for the next  of kin there may have be another incidental question upon the read the parole  evidence ante Vol atk for Eq ab and it be certain that it have be read to  rebut a equity arise from a result trust as in Littlebury v Buckle Talb but  since brown v Selwyn I have be extreme tender of admit it in question of this  kind such evidence admit by Lord Thurlow where the word in the description of  a legacy upon the whole of the context be uncertain brown though I never doubt  it where it be to ascertain identity or in case of collateral satisfaction  where there be a legacy by a father and afterward a portion give not that what  be do there be final for Lord Talbot change lie opinion in the course of the  cause at first he read the evidence and take time to consider of the point on  the will and next morning declare he have change his opinion as to the  admission of the parole evidence and have it strike out of the minute which  may possible be from his go on the word in the will as have be say this be  only to explain and introduce this declaration that I do not give a opinion to  reject this evidence in all event but to lie it out of the case as there be no  necessity to enter into it at present this bring it to the question of result  trust for there be no pretence of a vesey senior er p intestacy for he have  die testate as to his whole vesey senior estate from his have make executor as  to which I remember a motion in b r when I be a student for a prohibition to a  suit in the ecclesiastical court to compel a distribution of such a surplus  which be grant for certain he be dead testate by make a will and executor as  to his whole estate and can not be dead intestate at the same time I have not  a good while have a case before I on the head of result trust and be glad of  it in hope that people be grow so wise as to dispose of their whole residue in  favour of their executor see roper on legacy the question be whether each of  these executor have distinct particular legacy not to both joint exclude they  from the surplus of the personal estate though unequal legacy be give to  executor by their own name they shall take the residue brown atk I be of  opinion it do not create a result trust for the next of kin the case on this  head have be various Lord Harcourt in general lean in opinion to the executor  but these case have go by step the first be foster v mount vern say vide Mr  Raithbys note ad that which divides and it be a good while before the ground  thereof be settle for the vehemence with which Lord jefferies unfortunate use  to deliver himself make it think a case of fraud but be afterward inquire into  in another case it appear there be no colour of fraud so decree in wms though  there be real proof of the intention and direction of the testator that the  executor shall have the surplus from that time it be take that where a legacy  be give to a executor for his care and trouble and no residuary bequest there  be a result trust for the next of kin and a plain reason for it for there be  something more than the implication arise from give he the legacy only  afterward it come to be a maxim that it be absurd to give all and some and  thence a implication that by give part express he do not mean to give the  whole impliedly and therefore it have be determine that any legacy general to  the executor exclude he from the benefit of the surplus Prec Chan atk and make  he trustee for the next of kin but aft these case have be to prevent the  testator be surprise into give away a great surplus of the personal estate  unadvised mere by name a executor but several limitation have be introduce on  this rule as where the legacy whether specific or pecuniary be give to the  executor for life that do not exclude he from the residue because he mean to  take that particular legacy out of the residue for the sake of give he a limit  interest further if testator have give a legacy for life or year and the  residuary interest over to another which be the duchess of beauforts case the  court have say that be not sufficient to exclude executor from the surplus  because that may be for the sake of take out the interest give over so where a  legacy with a exception out of it as in a gift of a personal thing with some  exception of which there be a case before I and Lord Talbot and we both hold  that will not exclude the executor as that legacy be insert not for the sake  of the executor but to introduce the exception afterward come Buffart v  Bradford where I hold that it exclude neither because there be a plain reason  for which the testator may give that legacy to one executor for the sake of  give he a preference in value to the vesey senior other as from the  implication of law in make they executor they must take joint and equal which  be within the ground of the other case so far have be settle in this court now  come a case in which two infant be make executor who it be unlikely shall be  make executor for the sake of administration of his estate only which be a  circumstance strengthen it though I do not rely on that and each have  particular legacy out of his personal estate I be of opinion that will not  exclude they from the benefit of the surplus for two reason first he may give  these legacy for the sake of the inequality of division of his personal estate  among these executor which be plain for if it rest on the force of make they  executor it will be equal divide among they to prevent which he take out so  much by way of particular legacy give such a mortgage to one and such a  mortgage to the other the value of which be unequal but second another reason  may be give for the sake of their have this by way of distinct interest to  themselves in severalty not liable to survivorship by death of one consequent  no implication can arise from hence that by give these particular legacy he  mean to make they trustee and this be strengthen by both be infant who can be  intend to be executor in trust for stranger the bill therefore must be dismiss  so far as it seek relief concern the testator personal estate without cost  vesey senior er p Lord chancellor afterward say he have look into brown v  Selwyn and that there be no express bequest there of the testator debt as be  apprehend but a general bequest of the rest and residue c which he mention  that the state of that case Reg lib a fol