case lady dowager Granville versus duchess dowager of beaufort vern a executor  have a particular legacy and yet hold entitle to the surplus the late duke of  Beaufort by his will give several specific legacy to all his child and  grandchild and devise the use of his silver plate for the service of his table  to the defendant his duchess for her life and afterward to his grandson the  now duke and appoint the defendant the duchess his executrix without make any  express disposition of the surplus the question be whether the duchess the  executrix shall have the surplus or whether it shall go accord to the statute  of distribution and after solemn argument Lord chancellor Cowper decree the  surplus to be distribute among the next of kin upon the authority of foster  and Munts case vide vern and ante p resolve in the house of lord the reason of  which resolution be that where the testator give part of his personal estate  to his executor peer William this exclude he from the rest for that the  executor can have all and some so that as to the surplus the testator die  intestate and it shall be distribute and though it be object this be only the  use of the plate devise and not the plate itself his lordship say still this  be a bequest of a interest out of the personal estate and the small it be the  more it show that the kindness of the testator towards the legatee be small  however the smallness of the bequest be not material for a express legacy of  pound to a executor exclude he from the surplus as strong as a legacy of pound  and pound as much as pound and so ad infinitum second with regard to the  objection of this be the case of a wife the court take notice that there be  not want instance of the surplus be distribute even in such case and that it  will occasion great incertainty if the nearness of the relation shall make a  difference for then where the brother sister son nephew c be make executor and  also express legatee each of these case must create new point and so it will  be impossible to know where to stop three to what have be urge that the  testator can not be say to die intestate as to the surplus when he have make a  executor post Farrington v Knightley and by express word have say this be my  will the case of foster and Munt be say to be liable to the same objection it  be allow that have there be plain proof of the testator declare or intend his  wife to have the surplus this will have entitle the wife thereto even though  such proof be but parole proof peer William for peer William er p the wife as  executrix bad the legal title to the surplus and this parole proof will be  only to rebut a equity arise to the next of kin by reason of the express  legacy give to the executrix but that the proof in the present case of the  duke intent be altogether doubtful and uncertain which be however allow to be  read the court also admit the case of the countess of Gainsborough versus the  earl of Gainsborough vern et vide ante p where the late Lord Gainsborough make  the countess his executrix and instruct the counsel that draw up the will to  insert therein a devise of the surplus of the personal estate to the countess  and the counsel declare that it be unnecessary for that she will have it of  course as executrix upon which it be decree that the countess shall have the  surplus it be unreasonable that the executrix shall suffer by the obstinacy of  the counsel and by his refusal to follow his instruction but afterward in the  principal case on a appeal bring by the duchess the executrix in house nobles  this decree be reverse Lord Guernsey and other lord declare that the reason  upon which the former decree of foster and Munt be ground be the fraud and the  will be be draw at a tavern say vide post Farrington v Knightley where by the  better opinion no fraud be prove in that case and upon the decree of reversal  in the house of lord Lord keeper Harcourt find his decree in the case of ball  and smith vern vide petit v smith ante Rachfield v careless Vol two may v  levuin Vol two Lord Bristol v Hungerford pre Charles and vol III note S c  davers v due Vol clarke v Andrew ves and particular Farrington v Knightley  post vide several instance of this kind cite in the case of Farrington v  Knightley post Randall v Bookey vern ware v Lant pre Charles Newstead v  Johnson atk Martin v rebow bro c c so Littlebury v Buckley vern bachelor v  Searle vern Rachfield v careless Vol two duke of Rutland v duchess of Rutland  Vol two Brasbridge v Woodroffe atk lake v lake will bro p c bro p c and ed the  case make to the house of lord by the appellant consider the devise of the use  of the plate to the executrix for life as a exception out of the general gift  of it to the son and therefore not such a legacy as shall exclude her from the  residue inasmuch as it do not involve the suppose absurdity of give express a  part where the whole be intend to be give upon the same principle several  other case have be decide Griffith v Roger pre Charles Hoskins v Hoskins pre  Charles Jones v Westcomb pre Charles Newstead v Johnston atk Southcote v  Watson atk Lawson v Lawson bro PC bro p c and ed