case cock versus burrish January Lord chancellor a devise the surplus of his  estate to his two nephew equal to be divide between they and appoint his  executor to lie it out for their benefit one of they die in the testator  lifetime the whole decree to the survivor and not to the executor the testator  not intend they any benefit a give pound to his executor on trust to pay  annuity to b and c for their life exceed the interest of the pound and give  the surplus of his estate to d and e the annuitant be dead the pound shall go  to the residuary legatee and not to the executor I S make his will and the  defendant burrish and another executor and devise to they legacy of pound  apiece and likewise devise to they pound intrust for the payment of several  annuity to a b and c for life the word of the devise be for these use  videlicet that the say defendant the executor shall pay to a b and c as in  print report r l far exceed the interest of the pound and devise the surplus  of his estate to his nephew Charles and John cock equal to be divide betwixt  they and appoint the same to be pay to his executor in trust to be lie out for  the benefit of the residuary legatee one of the residuary legatee die in the  lifetime of the testator and the other happen likewise to die within two year  after the testator death the first point be whether in regard by the devise of  the surplus Charles and John cock be tenant in common and not joint tenant the  survivor shall have the whole surplus and the court decree he the whole the  design of the will show the testator chief intend their benefit and not any  advantage to his executor who be in a manner stranger and but remote relate  and the rather for that though the devise be not whole joint but several by  the word equal to be divide yet in the Vernon chancery case er p latter clause  where he appoint the executor to lie out the money for their benefit there it  be joint again if one devise to two and their heir and one die in v it a  testator be the survivor shall have all edlestone v speak show Rep but in the  case of a clear tenancy in common the executor in trust can in such case have  no claim and share of legatee die in testator lifetime will be subject to the  statute of distribution Bagwell V dry p wms so page v page p wms et vide  Barker v Giles ibidem hunt v Berkeley mrs Eq can ab pl SC Skrymsher v  Northcote swan xs to the surplus undisposed of by the will where legacy give  to executor vide foster v Munt post and case cite in not there a second  question be whether the annuity be determine by the death of the annuitant  what remain Vernon chancery case of the pound shall go to the executor or to  the survive residuary legatee decree also with the plaintiff it not be a  conditional devise to they of pound pay such and such annuity but only deposit  in their hand in trust for the payment thereof and as they be no way oblige to  pay more than the pound so there be no reason that they shall have the benefit  of what remain unexhausted of the pound in payment of the annuity Reg lib a  fol