case hunt all plaintiff Berkeley all defendant at the roll one devise several  piece of plate to a and b and the residue of her plate to c and the residue of  her personal estate to d a and b die in the lifetime of the testator their  legacy shall lapse into the general residue and not into c s for c s be a  particular legacy so express to save the trouble of enumerate particular the  testatrix devise her silver teakettle and lamp with its appurtenance to the  defendant Berkley and to whether Stafford and Francis wolmer several piece of  plate and the residue of her plate to the plaintiff brace and the residue of  her personal estate to Francis wolmer the defendant Berkley and to another of  the defendant equal to be divide between they and also make they her executor  whether Stafford and Francis wolmer die in the lifetime of the testatrix and  the plaintiff brace the daughter mosely report of Francis wolmer who be  brother to the testatrix and her next of kin at the time she make her will be  next of kin to the testatrix at the time of her death and in this case there  be three question first what pass to the defendant Berkley by the devise of  the silver teakettle and lamp with its appurtenance he claim the silver  canister teapot and lamp milkpot spoon strainer and tongue but the master of  the roll adjudge that by this word appurtenance nothing pass but the stand or  frame that support the teakettle second to who the specific legacy of plate  devise to whether Stafford and Francis wolmer who die in the lifetime of the  testatrix shall go whether to the plaintiff brace as residuary legatee of the  plate or to the executor as legatee of the general residue and it be argue  that they shall fall into the specific residue of the plate give to the  plaintiff brace for that the residue of the whole personal estate be plain  divide by the will into two part the residue of the plate which be devise to  the plaintiff brace and the residue of the other personal estate which be  devise to the executor and by the same rule that if a pecuniary legacy have  lapse it will have fall into the general residue and not into the particular  residue of the plate the specific legacy shall lapse into her specific residue  and not into the general residue but the master of the roll adjudge that they  shall fall into the general residue and that the devise of the residue of the  plate to the plaintiff brace be not to be consider as a residuary devise but  the testator make use of those word only to save herself the trouble of  enumerate the several particular three to who shall Wolmers share of the  residue go who die before the testatrix whether to the two other executor and  residuary legatee or to the plaintiff brace as next of kin and it be argue for  the plaintiff that the three devisees be plain tenant in common of the residue  and therefore this share can survive to the other two and that they can not  take it as executor because it be plain that the will design they nothing as  executor but dispose of the whole residue to they as legatee and therefore  since it appear what the testator intend the executor shall have they can have  more and they have also particular legacy devise to they and the case of page  and page ant Cas be a authority in point and the plaintiff brace who have also  a particular legacy be not the next of kin at the time the will be make and if  her father Francis wolmer have be dead at that time it be high probable she  shall have be make one of the residuary legatee in his room but if mosely  report the have be next of kin when the will be make the give her a particular  legacy will not have conclude her from claim this lapse legacy as be adjudge  by Lord summer in the case of Baily and burgess or Powel vern see c ant Cas  post Cas master of the roll there be great variety of opinion on this head I  think the testatrix can be say to have die intestate as to this part no one to  be able known on good evidence and having made no will to go apart be a maxim  in the civil law if a man make a executor be can die intestate but he may if  he make only a testamentary schedule without a executor mosely report er p by  the civil law the executor be heir and that law male no distinction between  real and personal estate but only between movable and immovable executor be  first call upon by ordinary to distribute for the good of the soul of the  decease and so be administrator likewise but executor by the commonlaw be  entitle to the surplus of the personal estate the case of foster and mount  vern be the first case where the surplus be decree to be distribute it have be  say that that case be decree upon a fraud in the executor but Lord  Macclesfield and I have the decretal order copy out and the decree be ground  upon the imply trust for the next of kin as be right take notice of in vern  this decree be afterward reverse by the lord commissioner but their decree of  reversal be reverse in the house of lord after the court of equity have come  to this resolution the next of kin sue the executor in the spiritual court for  a account and distribution of the residue in the case of Caverly and Caverly  and a prohibition be move for in b b by the executor and grant by Lord  Macclesfield who say if the court of chancery will consider the executor as  trustee a bill may be proper in that court but that they can not be call to a  account on the foot of a trust in the spiritual court but nothing further be  do in that case I do not think the executor in this case can be consider as  trustee because the testatrix have make a disposition of her whole estate but  I shall give no opinion but desire that each side may attend I with precedent  and afterward in Trinity term follow on Monday June the d his honour decree  for the executor see ant case case the testatrix have likewise devise to the  plaintiff brace the use of a cabinet of several valuable curiosity for life  and if she have no child then she devise it to I S but if she have child she  give it her absolute and the executor mosely report insist that she shall give  security but do not suggest that she be poor or insufficient but the master of  the roll irdered that she shall only give a note or schedule of the particular  subscribe by herself and declare that this be the usual course of the court  see ant case Nels vo Rep in canc the use of the personal estate be devise to  lady Copley for life it be direct that a schedule and appraisement shall be  make of all the good and furniture c and that lady Copley shall enter into a  covenant to restore they without any other damage than by the reasonable use  thereof wear and tear and inevitable accident only except and that the  schedule shall be annex to the covenant and that in case the executor refuse  to make such a inventory it shall be do by two to be name by my lady and as  many by the person in remainder