case ANDROVIN and other versus POILBLANC and other march S p be dead in the  testator lifetime what be give to her be a lapse legacy and the executor be a  trustee only it must be divide accord to the statute of distribution two three  to the testator two sister and the remain three of this three to S p the only  child of the testator brother Mr Henry Poilblanc by a French will after give  particular legacy say as to all the rest of other good movable and immovable  action credit and other affect which he shall leave behind he whether in this  country or in England nothing except or reserve the say testator have name  institute and establish for his only and universal heiress mrs Susan Poilblanc  his sister for one three and mrs mary Poilblanc widow of the late John Elin  his sister also for one three and in case of her decease before he her child  or descendant by representation in her room or place for they to dispose of  free at their good pleasure and as effect belong to they and as to the last  remain three of all his say effect the testator will and intend that the  amount of that shall remain entire in the hand it power and direction of his  say elder sister mrs Susan Poilblanc for her to enjoy the atkins er p profit  and interest thereof during her life and after her death the capital of the  last three of his effect shall be inherit by the child or child of Mr John  Poilblanc his brother that shall be out of the kingdom of France at the time  of the death of his sister mrs Susan Poilblanc which say child or child of his  say brother which shall be out of the kingdom at the time of the death of the  say sister he institute for his heir or heir in the property of the say remain  three and the capital wheresoever it be to take and dispose of in that case at  their good pleasure as their own proper good and last that his present  testament may be well execute the testator have name and appoint for his  executor thereof Mr Lewis la con of London merchant his friend give he in that  quality all and as full power and authority as can be give to a testamentary  executor atkins mrs Susan Poilblanc die in the testator lifetime the plaintiff  who be the sister of the testator and his next of kin have bring their bill to  have so much as be devise to her under the will distribute it be a lapse  legacy the defendant the executor insist that he be entitle to it both in I  wonder d equity quasi executor Mr attorney general counsel for the plaintiff  to show that where a legacy be lapse the next of kin shall have it and not the  executor cite page versus page before Lord chancellor king p wms and Powell  versus Owen before Lord Hardwicke Mr Sambourne of the same side cite Bagwell  versus dry p wms Lord chancellor what we call executor and residuary legatee  be in the civil law universal heir and these word by that law will have  entitle the sister as be make universal heir of all his good and chattel to  have prove the will if no executor have be appoint which be the strength of  the case and make a very plain one for the plaintiff it be certain where a  executor be name in a will and nothing more be say he be at law entitle and in  this court to the residue but if a legacy be give he which show he shall not  take the whole as he have a part of the estate the next of kin of the testator  shall be entitle to have it distribute upon the foot of the statute of  distribution Graydon v Hicks atk it be the ground too of all the case of  exclude the executor that he be only name for the sake of execute the will and  to have the trouble and not any benefit if a executor be consider as a trustee  by construction and inference where a special or general legacy be give much  more where the testator declare he to be a trustee see Mr Cox note to  Farrington v Knightley p W atkins the case of Bagwell versus dry in p wms be  express in point and therefore bring it to that question whether the nominate  he executor be not nominate he in trust note one devise the surplus of his  personal estate to four equal and leaves I S executor in trust one of the four  die in the life of the testator his share as to so much of the testator estate  undisposed of by his will shall go accord to the statute of distribution and  not to the executor he be a bare trustee for the next of kin Bagwell versus  dry p wms it be true the sister take it in three but if he have do no more as  he have name they universal heir they will have be entitle to the probate of  the will for the proper term in the civil law as to good be hres testamentar  and executor be a barbarous term unknown to that law therefore a person name  as universal heir in a will in my opinion will have a right to go to the  ecclesiastical court for the probate therefore by name other person universal  heir he have divide the authority from the interest quoad the executor what be  the meaning of this why name he be nothing but as a instrument and to give he  bare the authority of a executor without any interest and the fact explain it  for as the sister live abroad the testator find it necessary to vest the  authority in somebody in England for what why mere for the purpose of execute  his will here Mr brown objection be that though he have name they universal  heir yet he have name they so in three only and be tenant in common it can not  survive to the other two and therefore the executor by general right be  entitle to be sure the law of England be so but as the executor by the word of  this will atkins er p be clear only a instrument he can take nothing  beneficial and therefore it go to the next of kin his lordship decree that  Susan Poilblanc be dead in the testator lifetime it be a lapse legacy as to  her and must be divide accord to the statute of distribution the executor be  only a trustee per capita two three thereof to the plaintiff who be the two  child of the testator sister mary Poilblanc testator two sister and the remain  three of this three to the defendant Susan Poilblanc one of the child of John  Poilblanc the testator brother Reg lib a fol