c baily et all v Powell S c vern Prec in Charles Eq can ab and cite from the  register book and much comment upon by Lord Loughborough in Bowker v hunter dr  Lord chancellor executor trustee the case be Elizabeth burgess widow have a  brother the plaintiff and two sister and other relation make her will and give  legacy of pound apiece to her say brother and sister and make the defendant  and one Mr mead her executor and give mead pound and the defendant pound the  legacy to the executor be unequal do not exclude they from take the residue  beneficial Langham v Sandford Meriv and leave a estate of above pound value  more than will pay her debt and legacy and the question be whether the  executor or the next of kin shall have the surplus she have make no disposal  of it by her will it be full in proof in the cause that the executor have be  always very ready to serve her and that upon all occasion she make use of they  and repose all her trust in they and call they father and often express the  great kindness she have for they freeman and on the other side that her  brother and sister have be very burdensome to her she have often relieve they  and that they be very ungrateful and that she be very much displease with they  but upon the whole matter there be no direct proof that she intend the surplus  for the executor No such proof be necessary if there be no intention apparent  on the face of the will to exclude they they will take the residue see case  last cite p the ground of the decree be explain in Bowker v hunter where above  it be decree that the executor shall account for the surplus estate to the  plaintiff the brother and sister the next of kin and that they shall have a  distribution pursuant to the act about intestates estate and here it be admit  that there have be no resolution of this kind but since the act for  distribution of intestates estate stat pound car c which now vest a interest  in the party entitle to a distribution and the first case resolve in this kind  be the case of foster and Munt vern that where the executor have particular  legacy provide they be equal in amount see note give and the will be silent as  to the overplus that then the party be hold to die intestate as to the  overplus and therefore that shall go accord to the statute of distribution and  the case of Hicks and Canning Charles can wherein I be counsel be since that  adjudge upon the same reason and a case be cite by the Lord chancellor of  Dashwood where there be two executor and one have a legacy and the other  nothing and yet hold to be trustee only but no case have ever yet be adjudge  where no legacy be give to the executor note it be admit in this case that if  a proof can have be make of a parole declaration of the testator intent that  the executor shall have have the overplus it will have be sufficient as in  lady gainsborough case vern see trim v bayne Ves but evidence in favour of the  executor be admit not for the purpose of raise a claim but mere to rebut a  presumption tend to repudiate their legal title Gainsborough v Gainsborough  vern dick v Lambert Ves pole v Lord summer Ves Reg lib a fol it appear in  evidence that the defendant mead have acknowledge himself to be a trustee and  have assign his moiety of the residue to the plaintiff and that Powell have be  guilty of great misrepresentation on the subject and have be in treaty with  the plaintiff to extort a sum of money for release his powell claim the decree  direct the executor to account for and pay to the plaintiff the whole residue  of the personal property of the testatrix and also that Powell shall pay the  plaintiff their cost of this suit as well as of a cross suit institute I v the  say Powell freeman er p freeman de term S hill in curian porter