case gainsborough Countess versus gainsborough come Feb Eq can ab pl S c Freem  S c one by will subject his real estate to pay his debt and make his wife  executrix parole proof admit to prove testator declaration that his executrix  shall have his personal estate exempt from his debt the late earl of  Gainsborough have by his will subject his land and real estate for payment of  his debt make the now plaintiff the countess his executrix intend thereby as  be allege by the plaintiff that she shall have all his personal estate to her  own use free and discharge from the payment of his debt but that Mr Bilbourne  who draw the will either through some ill design or ignorance omit to insert a  devise in the will of the personal estate to the plaintiff pretend the make  her executrix amount to as much and be the same thing in effect and complain  that the creditor threaten to follow the personal estate whereas a sufficient  provision be make for they out of the real estate and if the personal estate  be exhaust or apply in the Vernon chancery case payment of debt she ought to  be reimburse as much out of the real estate and pray she may examine her  witness as to the declaration of the testator that the plaintiff his relict  and executrix shall have his personal estate to her own use as to so much of  the bill as seek to examine witness touch the testator intention or  declaration that the complainant his executrix shall have his personal estate  to her own use or to examine matter dehors and foreign to the will in write e  the defendant demurrer for that it appear by the bill that there be a will in  write and that will prove by the plaintiff the countess and that it be of  dangerous consequence to admit proof by parole to control vary or alter a will  in write and the rather in this case for that the countess have not so much as  attempt to prove such parole declaration as a codicil in the spiritual court  Vernon chancery case er p on the argue of this demurrer it be say by sergeant  Hutchins then one of the lord commissioner that he think the bill ought to be  answer and the plaintiff admit to the proof of her allegation as to the  objection that the plaintiff have not prove the declaration of the testator  that she shall have the personal estate to her own use as a codicil in the  spiritual court he think it not necessary as this case be in regard the  averment be not to make a title to the plaintiff but to rebut the defendant  equity who will have the personal estate apply to debt in exoneration of the  real estate and insist much on the case of Crompton and north Ch can where the  testatrix devise her land to Mr north to sell and dispose of for payment of  her debt the heir bring his bill insist that as to the surplus after debt pay  it belong to he by a result trust be not dispose Vernon chancery case of by  the will the defendant insist there be no result trust and that the testatrix  have declare she intend the surplus for the defendant upon the hear there be  two question first whether a fee pass by the will or not and adjudge there do  second whether any result trust when debt pay and adjudge there be not without  read the deposition by which it be prove she declare her trustee shall have  all but the court there declare that the estate in law be vest in the devisee  that he shall have be admit to his proof of the testatrixs parole declaration  if it have be want and necessary and this be in the case of land and much  rather may parole proof be admit as to a personal estate vide fane v fane ante  Vol and cite the case of foster and Munt and of bring versus bring ante p  where the executor who confess the trust be examine and read against the other  executor who deny it and sergeant Rawlinson cite a case of Kingsmill and Ogle  where the surplus by will be devise to the wife averment take that she be  intend only as a trustee for her son and that the testator so declare at the  make of the will and a decree ground on the proof make thereof per cur answer  the bill there be mere a entry of demurrer overrule Reg lib a fol vide lady  Granville v duchess of Beaufort post where Cowper Lord chancellor consider the  principal case and that of foster v Munt as a innovation of the law Rachfield  v careless p wms