case petit versus smith Comberb Com Rep Mod Lord raym where a executor have a  express legacy the court of chancery look upon he as a trustee with regard to  the surplus and will make he account although the spiritual court have no such  power I a man have a daughter and two brother make his will and thereby give  pound apiece to his brother appoint they executor but make no disposition of  the surplus on the death of the testator the daughter as next of kin libel in  the spiritual court against the executor to have the residue of the personal  estate it appear as be suggest by the express legacy give to the executor that  they be to have nothing far and in the spiritual court the daughter recover a  sentence for the residue of the personal estate from which the executor appeal  to the delegate and now move in b r for a prohibition to the same delegate sir  Bartholomew shower urge that here be a will and executor make the spiritual  court can not dispose of any thing from the executor nay that even where the  party die intestate the spiritual court can not before the late act of car cap  compel a distribution and if it can not take any of the personal estate from  the administrator who be the creature of the ordinary post Blackborough v  Davis much less have it any such power in a case where there be executor that  it peer William be true in foster and Munts case vern in chancery it have be  decree the executor shall not have the surplus but there five witness express  swear that the testator have declare his executor shall not have more than the  particular sum bequeathe to they holt c I the daughter not be residuary  legatee can have no pretence f sue for this surplus in the spiritual court on  the contrary the testator have appoint his brother executor be a gift to they  of the residue after debt and legacy pay at commonlaw before the statute order  administration to be grant the ordinary appoint committee of the personal  estate and in those time it be the practice to compel such committee to  distribute but afterward when the ordinary by virtue of the act of parliament  Edward c grant administration this administrator have all the power of a  executor and be in nature of a executor it be adjudge that he be not  compellable to make distribution which be think hard as to those of kin to the  intestate in equal degree the statute of distribution be make lev cro car hob  post Blackborough v Davis but more particular see thecase of Edward v freeman  Vol so that what be say in Inst that a executor or administrator have pay all  debt legacy and funeral expense be compellable to divide among the next of kin  seem not to have be through consider but that the point may be the more  solemnly settle the peer William executor be order to declare upon a  prohibition and afterward on debate a prohibition be grant upon this the  daughter as next of kin bring a bill in chancery may against the executor for  a account of the surplus and though there be proof that the testator intend  his executor shall have the surplus in regard that the peer William er p  daughter have incur her father displeasure by have marry against his consent  yet these be somewhat doubtful it be decree first by sir John Trevor master of  the roll and afterward by Lord summer upon a appeal that the executor shall be  but trustee as to the surplus after their legacy pay and that such surplus  shall go accord to the statute of distribution and it be say by Lord summer  that equity do delight in equality and that the distribution accord to the  statute be most agreeable to natural justice that it be dangerous to admit of  parole proof where there be a will in write however in relation to a personal  estate vide vern fane v fane et post lady dowager Granville v duchess dowager  of Beaufort where such proof be admit to rebut a equity the court will allow  of proof and averment but then such proof ought to be plain and indisputable  to entitle a executor to the benefit of the surplus and for this purpose the  court cite lady gainsborough case vern et post Vol duke of Rutland et all v  duchess of Rutland et all where the late Lord Gainsborough owe debt by  mortgage and make the countess executrix against who the heir bring his bill  to subject the personal estate in the first place to pay off the mortgage and  it be prove to have be the intention of the testator that his executrix shall  have his personal estate exempt peer William from debt and that the lawyer who  draw the will have be instruct to insert in the will a bequest of the personal  estate to the wife have reply there will be no occasion for that she be to  have the personal estate of course post Rawlins v Powel as executrix it be  decree that the wife shall retain the personal estate and that the heir shall  not in that case have aid thereof towards pay off the mortgage notwithstanding  that by the rule of the court the same be liable to be so apply this point  have be so determine in Rachfield v careless post Vol two and the same case  stram by the name Rusdell v Carnesse davers v due post Vol III cook v walker  vern where a pecuniary legacy have be give to a sole executor so where equal  pecuniary legacy to two or more executor foster v Munt vern and vern Lord  Bristol v Hungerford pre Charles and post Vol III note Farrington v Knightley  post may v levuin post Vol two Andrew v clark ves so where specific legacy be  give to one or more executor Randall v Bookey vern Shrimpton v Stanhope atk  Southcot v Watson atk Martin v rebow bro C C say vide the several distinction  which have from time to time be take in case on this subject more full in  Farrington v Knightley post the fact here mention do not appear and though it  have be frequent say that this decree be find on the fraud make use of by the  executor in insinuate themselves into their testator favour and prevail with  he to execute his will at a tavern vide post which indeed appear by the  register book to have be charge in the bill and insist on by the counsel for  the plaintiff at the bar yet it seem as if no fraud be prove since the reason  of the Lord jeffery decree be express to be because the word of the will  amount to a declaration of trust it be plain the testator never design the  surplus of his estate upward of pound shall go to mrs executor for that he  give they pound apiece which exclude they from any property the law may cast  upon they the prohibition be grant right for as much as the spiritual court by  compel a distribution will in effect compel the execution of a trust which  they can do see this reason give per Lord chancellor Macclesfield in the case  of Farrington v Knightley post et vide Littlebury v Buckley vern bachelor v  Searle vern heron v Newton cite post vol Rachfield v careless post vol  Brassbridge v Woodroffe atk lake v lake will Amb Lord hardwicke judgement in  Ulrich v Litchfield atk notwithstanding the authority of these several case  Lord Hardwicke in Blinkhorne v Feast ves express himself to have be very  tender in admit parolevidence in case of this kind and lake v lake be the only  case in print which have be decide since that time on parolevidence in  clennell v Lewthwaite Ves Jun William v Jones Ves Walton v Walton Ves and Lynn  v beaver Tur the executor substantiate his claim to the residue by evidence  peer William er p michaelmas vacation