case sir John tyrwhitt et ux appellant Samuel Trotman and other respondent  that may a devise his personal estate for the payment of his debt and legacy  and the overplus to be dispose of as he shall by codicil direct part of his  real estate also be devise for the payment of particular debt and the residue  to go as he shall by codicil direct a by codicil direct that the over plus of  such real estate shall go to his executor for performance of his will and then  add I hope I have make a sufficiency for performance of my will and if there  be any overplus of my personal estate after full performance I give it to I S  hold that I S be entitle to the surplus of the real estate and that there be  no result trust for the benefit of the heir viner vol p c Eq can ab can can  cite in both book by the name of Tyrwith and Trottman the late Lord chief  baron Montague be in his lifetime seize of a considerable real estate of the  value of pound per and and upward which consist of Sudborough park in the  county of Northampton several house in little Britain London the manor of  cross and Wilson marsh in the county of Lincoln several other land brown er p  in the same county adjoin to and intermix with the manor of cross and the  manor of little Oakley in the county of Northampton the two last mention  estate be by deed date the that of may make upon the marriage of William  Montague Esq the chief baron only son with mrs Ann Evelyn settle on the son  and his wife for their life remainder to their first and other son in tail  male successive with remainder to the chief baron in fee but mrs Montague the  wife be dead without issue William the son in June be great indebt prevail  upon his father to join with he in mortgage the settle estate for raise pound  and accord pound be borrow of Isaac brown Foxcroft Esq on a mortgage of the  manor of little Oakley and the other pound of James Lloyd and his partner on a  mortgage of the land in Lincolnshire though the chief baron join with his son  in levy fine and execute these mortgage and though the provisos for redemption  be make to each of they separate yet the son alone covenant for the payment of  the money and enter into bind for the performance of those covenant but in  January the son make a surrender of all his estate and interest in the  mortgage premise to his father who thereupon undertake the payment of the  mortgage and to indemnify his son against the same in William the son die  without issue on the that of march mary the wife of the chief baron die and on  the that of the same month his lordship first make his will by this will the  date whereof be afterward alter as appear by the attestation to the that of  July the testator devise as follow I do by this my last will and testament  devise give and bequeathe all that my manor of cross in the county of Lincoln  except the parcel in lloyd mortgage unto my servant John Lloyd gentleman for  the term of ten year to commence immediate after my decease upon trust that he  shall raise and levy the sum of pound by and out of the rend issue and profit  of the say premise so lease which I think it will afford be above pound per  and and pay and discharge therewith the sum of pound seeNOTE brown the  testator after the make of his will have pay off pound of this mortgage and  therefore strike out the word five thousand pound by draw a line through they  and insert pound in figure be the sum then real due note p which I owe to mrs  Elizabeth Foxcroft upon a mortgage of little Oakley and the other three pound  see note p as I shall direct either herein by my will or by any codicil to be  annex to it and after the say sum of pound be raise the term to cease and as  to the message and land except out of this last devise which be in mortgage to  John Lloyd for the sum of pound see note p which he lend my son I do hereby  give and devise the same unto my nephew Charles bertie and Ralph freeman and  their heir upon trust that they do and shall sell the same as soon as they can  get a chapman and shall with the money arise by the sale thereof in the first  place pay the sum of pound unto the say John Lloyd and his sharer and the  interest then due which I hope by God blessing I shall keep from increase in  my lifetime and so I hope will they by the rend and profit till sale and if  the sale produce a overplus as I hope it will and a considerable one above the  pound and interest brown I shall hereafter in my will or by a codicil direct  the dispose of it I will have my nephew make the first proffer thereof to sale  to my greatgrandson Montague Gerard drake and his guardian who if his estate  be in a condition to purchase will have great reason to lie out his money upon  it to preserve the lordship of cross from be mangle which be like to be his if  it be not his own fault let he and his trustee have a pennyworth but not a  great one and the better to guide my nephew herein I must let they know that  the present rend of these land in John lloyd mortgage be pound per and and if  it be not buy by they let my nephew sell it to the best bidder the testator  then make John Lloyd his executor and bequeathe he several specific legacy to  his own use he also give he all his debt good chattel and personal estate  whatsoever not before dispose of upon trust to pay all his debt and legacy as  a faithful executor and if there shall be any surplus remain to dispose  thereof as the testator shall direct this will be all write with the testator  own hand and duly execute by he on the that of July and on the same day he add  a codicil thereto in these word if that ten year lease make in my will of part  of cross produce pound I do appoint pound see note p to clear Oakley and the  other pound I appoint brown er p to my executor to employ it in performance of  my will and if there be any overplus in the sale of the except parcel of cross  I give that also to my executor towards performance of my will I hope I have  make a sufficiency for performance of my will and if there be any overplus of  my personal estate see note p after the full performance I give pound of it to  my executor for his own use and the residue I give to my daughter the lady  drake and my grandchild mary drake equal to be divide between they the  testator then devise the manor of little Oakley the estate of Sudborough park  and the house in little Britain to his say nephew Charles bertie and Ralph  freeman and their heir during the life of lady drake upon trust to dispose of  the rend and profit thereof unto such person and in such proportion as lady  drake shall by write appoint exclusive of her husband and so as he shall not  intermeddle therewith or have any control power thereof and from and after the  decease of lady drake to her first and other son in tail male and for want of  such issue to the testator nephew John afterward duke of Montague and the heir  of his body with remainder to the say Montague Gerard drake in fee and as to  the say manor of cross after the end or other determination of the say ten  year lease the testator devise the same to his say nephew Charles bertie and  Ralph freeman and their heir during the life of his daughter the say lady  drake for her separate use exclusive of her husband and from and after her  decease in case she be brown not disturb in the enjoyment of the jointure  settle upon her by sir William drake her former husband to the say Montague  Gerard drake for life with remainder to his first and every other son in tail  male remainder to the first and every other son of the say lady drake and for  want of such issue to the say John afterward duke of Montague in fee the  testator then take notice of a lease which he have from the crown of a three  part of certain profit arise out of lead i in Derbyshire devise the same to  his say daughter lady drake for so many year of the term then to come therein  as she shall live and direct the remainder to go along with his personal  estate to his executor to enable the performance of his will the testator at  the time of make his will have only one child live namely the respondent lady  drake who by sir William drake her first husband have two child videlicet the  appellant dame mary and Montague drake who die in the testator lifetime leave  issue the say Montague Gerard drake on the that of August the testator die  leave lady drake his only survive child and heir at law but between the time  of make his will and the time of his death he have considerable reduce his  debt and improve his personal estate so that at the time of his death it  amount exclusive of the specific legacy to pound S d and which after satisfy  what be due on both the mortgage and all other the testator debt and legacy  leave a clear balance of pound S d in Trinity term the appellant bring their  bill in chancery in order to have the pound raise out of the ten year term and  to compel a sale of the except land insist that this pound and the money to  arise by such sale be to be take as personal estate and that the same together  with the surplus of the other personal estate ought to be equal divide between  lady tyrwhitt and lady drake Mr Trotman and lady drake thereupon file their  cross bill for a account of the personal estate and of the rend and profit of  the real estate and to have the personal estate first apply in payment of the  testator debt and legacy insist that the personal estate exclusive of what  shall be raise out of the real estate be to be apply in discharge of all the  debt and legacy and that even the mortgage ought not to be satisfy out of the  real estate unless there be a deficiency of personal asset and in that case  only so much ought to be raise out of the real estate as shall be requisite  for the payment of debt and particular legacy leave by the testator that the  rend and profit of the cross estate ought to be account for to lady drake as  the testator heir at law and that no sale shall be make of the except parcel  but for payment of such debt and legacy as the personal asset in the hand of  the executor will not extend to satisfy on the that of February both these  cause be hear before the Lord chancellor Cowper when his lordship decline give  judgement upon any of the matter insist on but order brown that facsimile copy  of the testator will and codicil shall be leave with he and that in the mean  time the master shall take brown er p a account of the personal estate not  specifical bequeathe and ascertain the debt of the testator and what pecuniary  legacy be to be pay either out of the testator real or personal estate and  state what the surplus will be after debt and legacy be pay the master accord  by his report of the that of November state the value of the personal estate  and the except land and certify that there will be a surplus of pound S d  include the pound over and above all debt and legacy and the two mortgage on  the that of January follow the cause come on upon this report before the  master of the roll in the absence of the Lord keeper Harcourt who be a party  and his honour have take time to consider till the that of December do on that  day give judgement and declare that by the several clause in the first codicil  the testator have distinguish between the two surplusages create and arise out  of his real estate videlicet of the ten year term and the except land and the  other of his personal estate by his remarkable interlineation of the word of  personal estate and that the two surplusages so create and arise out of the  testator real estate ought not to be take or construe as any part of his  personal estate be create by themselves and to a particular purpose videlicet  to supply the deficiency of the personal estate if it prove short to discharge  his debt and legacy and that the testator have in no part of his will or  codicil declare the two surplusages arise out of his real estate to be or to  be take as part of his personal estate but use the word personal estate  throughout his whole will and codicil as distinguish it from the two  surplusages arise out of his real estate and without this construction the  word interline in the last clause of personal estate will have no  signification that it be not reconcileable with the word and general frame of  the will and codicil that the personal estate shall be make up and compound of  the three surplusages and by the word personal estate to comprehend and pass  the two other surplusages arise out of the real estate there be a sufficient  estate as appear by the master report to satisfy the word personal estate and  create all three one fund to make up a surplus for the sake of a residuary  legatee who have considerable legacy devise to her out of the personal estate  will be a force construction and by the general devise to Lloyd as executor  all be devise to he the better to enable he to pay the testator debt and  perform the will it be therefore decree that the surplus of the ten year term  in the manor of cross after Foxcrofts mortgage be pay shall go to the lady  drake the testator heir at law as a result trust after the personal estate be  first apply in the payment of debt and legacy and that the surplus of the  money arise by sale of the except land devise to be sell after lloyd mortgage  thereon be satisfy shall likewise go and descend to lady brown drake the  testator heir at law as a result trust and that his personal estate shall in  the first place be apply in the payment of his debt and legacy in case of his  real estate and that no more shall be raise out of the ten year term than will  make good the deficiency if any of the personal estate and on consideration  have of the master report the court declare that there be no occasion for any  sale of the testator real estate direct by the will to be sell and therefore  decree the executor Lloyd to account with lady drake for the profit of the say  real estate since the testator death and if there shall be any surplus of the  personal estate after the mortgage debt and legacy be pay the court decree the  same in moieties between Mr Trotman and sir John tyrwhitt in right of their  lady and forasmuch as the except land in cross be not by the decree to be sell  no occasion appear for the same there be sufficient without such sale to pay  the testator debt and legacy and therefore Mr drake can not become a purchaser  thereof but the same in consequence of the decree will descend to the lady  drake yet it appear to be the testator desire and intention that the lordship  of cross shall be preserve entire Mr drake be his greatgrandson the court  earnest recommend it to lady drake to make a settlement of the except land so  as that the same after her death may come to Mr drake and the duke of Montague  respective after lloyd mortgage be pay with the like limitation and estate as  the lordship of cross be devise to they respective by the will from this  decree sir John and lady tyrwhitt appeal and on their behalf it be insist I  Jekyll I Montague that there be a plain and express direction brown er p give  by the will that the sum of pound shall be raise by Lloyd the executor out of  the term devise to he and part of that sum so to be raise be as express order  to be lie out in discharge the mortgage on little Oakley no construction  therefore in favour of the heir at law ought to suppress or supersede such  positive direction that the except land ought in all event to be expose to  sale by the trustee in order to give the greatgrandson a opportunity of  purchase they for it be plain by the word of the will that the testator intend  he shall enjoy those land as well as the manor of cross and the reason of this  intention be express assign namely to preserve the lordship of cross from be  mangle that it appear by the will to be the testator intention that the  respondent Mr Trotman shall have no interest in any part of his freehold  estate or any control power over it yet if the except land be not sell but  suffer as the decree seem to direct to descend to the heir at law who be marry  to air Trotman he will have during the coverture between they a control power  over those land and notwithstanding the recommendation give to lady drake in  the decree to settle the except land upon her grandson Mr drake she may sell  or otherwise dispose of the same to whosoever she please though brown he or  his guardian shall be ever so desirous to become the purchaser thereof that  although the testator in one part of his will mention the overplus to be raise  out of the real estate and in another place mention the overplus of his  personal estate yet these two expression create no real difference for as the  personal estate be always deem asset in the hand of a executor for the  performance of the will so in this case the overplus arise from the land be  bequeathe to the executor for that very purpose which plain make it asset in  his hand and part of the testator personal estate that by the computation  which the master have make a pretty large overplus may remain after debt and  legacy pay in case the surplus arise out of the real estate shall be add  towards increase the personal estate and that it shall be so add be perfect  agreeable to the express word of the testator will where he say and if the  sale produce a overplus as I hope it will and a considerable one above the  pound and interest I shall hereafter in my will or by a codicil direct the  dispose of it but if the heir at law shall take great part of this overplus by  way of a result trust as to so much the court of chancery must be say to be  the disposer and not the testator that there can be no result trust for a heir  but where there be some failure in the disposition of the surplus but in the  present case the surplus be full dispose of by be plain give to the executor  and be make personal estate to be equal divide between the testator daughter  and granddaughter as to the expression in the will I give the overplus towards  performance of my will it import nothing more than that the bequest be not  make to the executor for his own benefit but to be employ in satisfy all the  testator debt and legacy that the devise of the residuum to the testator  daughter and granddaughter be as much a legacy as any particular sum give by  the will and the testator will can not be say to be full perform if by any  construction in favour of the heir at law the residuum be make less than the  will itself have make it on the part of the respondent it be contend e Northey  I Pratt that the appellant be not entitle to any part of the surplus profit of  the ten year term or to any money to be raise by sale of the except land for  lady drake be the testator heir at law ought not to be disinherit by doubtful  word but in that capacity be entitle to whatever real estate be not express  devise away from her that by the constant rule of equity a personal estate be  to be apply in case of a real estate and in favour of the heir for the payment  of debt and legacy unless there be express word in the will to the contrary  but the word of this will be so far from prevent such a application of the  personal estate that it be positive direct to be so apply and though the two  mortgage mention in the will be debt original contract by the testator son yet  they be now to be take as the testator own debt he have not only so declare in  his will but actual receive the profit of the brown mortgage premise till his  death and pay the interest of both the mortgage and a considerable part of the  principal money that throughout the whole will and codicil there be not any  express devise of the surplus profit of the ten year term or of the surplus  money arise by sale of the except land or any declaration that the same shall  be take as part of the testator personal estate but brown er p these two fund  be create and raise by the testator for a particular purpose only videlicet  the payment of his debt and legacy which purpose when answer or if as the fact  be the personal estate shall prove sufficient to pay the same the two fund  which be only provisionary and raise out of the real estate ought by way of  result trust to belong to the heir at law that the testator have clear  distinguish between the two surplusages arise by the ten year term and the  except land and the surplus of his personal estate not only by the word of his  will and codicil but by interlining with his own hand the three word of  personal estate which must be intend of such personal estate only as be so in  its own nature and not by construction and the very make of this  interlineation by the testator seem to be intend to prevent the present  question and last that the respondent in compliance with the recommendation of  the decree have settle the except land accord but after hear counsel on this  appeal it be order and adjudge that so much of the decree complain of as  direct that the debt own by the testator on the mortgage to Foxcroft and Lloyd  as well as his other debt shall in the first place be pay out of his personal  estate and that nothing ought to be raise by or out of the profit of the manor  of cross devise to Lloyd for ten year on trust to raise thereout pound for the  purpose mention in the say testator will or by sale of the except parcel in  cross which be comprise in lloyd mortgage for satisfy the several mortgage by  the will direct to be satisfy thereout or increase the dividend between the  lady drake and the lady tyrwhitt shall be reverse and it be further order and  adjudge that the profit of the trustterm of ten year not exceed pound shall be  apply in the first place to satisfy what remain due on the mortgage of little  Oakley to Elizabeth Foxcroft and that the surplus of such profit as also the  profit of the say except land in cross comprise in the mortgage to Lloyd until  sale thereof and the surplus of the money arise by sale of the say except land  after satisfaction thereout in the first place of what remain due on lloyd  mortgage shall be consider as part of the personal estate of the testator and  go in augmentation thereof and for increase the dividend to be make between  lady drake and lady tyrwhitt and the court of chancery be accord order to  direct a sale of the say except land preserve nevertheless the right of  preemption thereof to the respondent Montague Gerard drake accord to the  testator will and to give such other direction in pursuance of this order as  shall be just jour vol p note brown the testator after the make of his will  have pay off pound of this mortgage and therefore strike out the word five  thousand pound by draw a line through they and insert pound in figure be the  sum then real due note the figure be interline over the word thousand and  compare this with the precede alteration it seem clear that the testator must  have intend three fifteen hundred pound because this exact correspond with the  sum of pound to be raise note the testator have likewise after make his will  pay off pound of this mortgage and therefore alter the figure as above note  brown this sum stand original pound but be afterward alter to pound note these  word be interline by the testator in a different ink brown er p