case RASHFEILD against careless a devise of five pound to a sole executor for  the care and pain he may sustain in fulfil the trust of the will exclude he  from take the residue of the testator personal estate note parole evidence be  admit in this case both on the part of the executor and next of kin to prove  the intention of the testator S c Eq Abr S c Peer wms S c stram the testatrix  Elizabeth Smallman among other legacy particular five pound to the plaintiff  by her last will and testament devise a legacy of five pound to the defendant  who she make sole executor without make he residuary devisee for the care and  pain be may sustain in fulfil the trust in her will there be a residuary part  of the personal estate after the debt and legacy be all satisfy and pay the  plaintiff who be of kin to the testatrix exhibit a bill in this court against  the executor for a account of the personal estate and to have a distributive  share thereof insist that a specific legacy be devise to the executor for his  care in see the will perform be shall be deem as a trustee for those among who  the residuary estate ought to be distribute William for the defendant the  executor be prima fancy entitle to the surplus and something must be show to  prove the testator intent that he shall not have it for otherwise the law give  it he there have be several case upon this question how far the devise of a  specific sum shall bar the executor of the residue in the case of earl  Gainsborough a vern pl a the earl by his will devise a particular sum to his  wife b that a wife be bar by a specific legacy from take the residue see  Martin v Rebowe brown c c b and make her executor but make no residuary  devisee because when the counsel be draw the bill he desire there may be a  devise of the surplus to his executrix but the counsel will not put in such a  devise tell he that the law of modern report er p course give the surplus to  the executor and upon a bill for a distribution the counsel give this evidence  the court decree the residuum to the executrix it appear to be the intent of  the testator in the case of Baal v smith c vern pl c a husband devise to his  wife some plate and make her executrix and no devise of the residue and it be  decree by Lord Harcourt that the devise of the plate will not prevent the  executrix from have the residue in the case of Littlebury v Buckle a vern a in  the equity court of the city London sir p king recorder of the city and judge  of that court decree a distribution there be a particular legacy devise to the  executor but that decree be afterward reverse in the house of lord on  collateral evidence which they admit to prove the testator intent for the  executor to have the surplus b see the duke and duchess of beauforts case in  the house of lord vern pl viner Abr pl in notorious facts b Talbot on same  side there be several case where a executor be look upon only as a trustee for  the next of kin but they be all find on the suppose intent of the testator  that the executor be only to have the specific sum devise but there may be  case where it be reasonable that the executor shall have the surplus as well  as the specific sum it may be presume one reason why the testator give a  particular sum though he intend he the surplus be lest there shall be no  surplus for personal estate be very uncertain be always fluctuate in which  case the executor have a equitable as well as a legal right on this foundation  the case which have be quote be adjudge the supposition of the testator  kindness to his next of kin be not so strong as a express declaration of a  testator for which reason the house of lord have admit collateral evidence as  legal proof as in the case of Harris v bishop of Lincoln c Eq Abr c where the  testator devise his estate to the right heir of his mother and proof be admit  to show that he intend it for the right heir of his grandmother the estate  come from her family and this be hold not to be contrary to the will and in  last easter term it be accord decree by the present Lord chancellor the  statute have no relation to this case because here be a will and that Act  extend only to a die intestate to which it be answer that the present case be  not like any of those before cite and first as to the countess of gainsborough  case d vern d the suit be between the heir at law and the executor to make the  personal estate in her hand to be asset in order to satisfy debt and so far to  discharge the real estate and proof be admit to show that the earl intend his  lady shall have all his personal estate in nature of a legacy though he have  give her a specific legacy in the same will in the case of Littlebury v  Buckley e vern see Mod e the devisee express no reason for give the sum of  money only a devise of so much the case of Harris v bishop of Lincoln f Peer  wms f be no more than a dispute concern the identity of a person and in such  case parole evidence have be admit ever since the statute of distribution Baal  v smith g vern pl g be a devise to a wife executrix of plate which she have  before marriage and it be hold that notwithstanding that legacy she shall have  the residue but a proof dehors a will be never yet admit it be true if a will  want a explanation evidence may be give to modern report explain it but never  where it explain itself as in the present case for what can be plain than a  specific legacy give to one for his care and pain in perform a will this be a  legacy which imply a negative so as to exclude the legatee from any far demand  out of the personal estate videlicet that he shall have so much for his pain  and no more and so it be hold by the present Lord chancellor in the case of  may v lewen a the case of may v lewen be thus Beatrice miller by her will of d  December after payment of her debt legacy and funeral devise all her land and  tenement and the rend and profit thereof and the produce of all her money and  other personal estate to the plaintiff and the defendant lewen and their heir  on trust to sell the say real and personal estate and pay the interest of the  money arise from such sale to her mother for life and the testatrix then give  some small legacy to be pay after the death of the mother and appoint the  plaintiff and defendant lewen executor of her will and give they fifty pound  apiece for their trouble therein but she make no disposition of the residue  and the court decree the executor to be trustee of the residue for the next of  kin Reg lib b foe Peer wms note a but it will be of dangerous modern report er  p consequence to admit any evidence dehors a will and repugnant to the will  itself because it be in effect lie aside the will of the testator and make a  new will upon such evidence which be condemned by the legislature when the  statute of fraud and perjury be make for to what purpose shall any man make a  will if it be in the power of any court to set it aside upon proof of any  matter dehors the will and make a decree accord b proof be admit in this case  both on the part of the executor and for the next of kin to show the intention  of the testatrix respect the residue of her estate S c Peer wms but it be say  to be the only case in which parole evidence have be admit in favour of the  next of kin Peer wms notorious facts but parole evidence be constant admit in  equity in favour of the executor in order to rebut the presumption which the  law raise against their title petit v smith Peer wms Granville v Beaufort Peer  wms bachelor v Searle vern lake v lake Amb Bracebridge v woodrooff atk brown v  Selwin case t t coote v Boyd bro c c Clinton v Hooper bro c c Hornsey v finch  bro c c Thornton v Tracey vezey jun b Parker Lord chancellor be indispose  powys justice of the king bench sit in court and make the decree this be a  question upon a will and it have be shake qustio the case of foster v Munt c  vern pl Eq case Abr pl Eq case Abr pl pl see also Martin v Rebowe brown c c c  be the first case where the Lord chancellor jefferies be of opinion that any  legacy to a executor occasion a distribution of the surplus for otherwise it  be give all and some the three lord commissioner Maynard Keck and Rawlinson  upon a rehear of the same cause reverse the decree but that last decree be  upon appeal to the house of lord reverse and the first confirm in the duke of  beauforts case d vern pl viner Abr pl in notorious facts d Cowper Lord  chancellor decree a distribution but that decree be reverse by the house of  lord in law as well as equity a executor be esteem but a trustee for a  executor of a executor be continue executor to the first testator in infinitum  but not a administrator of a executor for the executor have no property in the  personal estate to go to his administrator if a man marry a feme  administratrix who die he shall not have the good of her intestate for there  shall be a distribution this be hr harcourt case who marry sir James Acton  widow there be many precedent where a specific legacy bar the executor of the  surplus there be a distinction between give the executor a legacy general and  specify the cause for which it be give for that raise a trust in equity which  the executor must perform it be a trust superadd to the former trust it be  dangerous to admit evidence dehors the best construction be on the will or  deed itself for litter scribe to stay b that parole evidence shall not be  admit to contradict a will see brown v Selwin case t t chamberlain v  chamberlain Freem Lowfield v Stoneham stram Hampshire v pierce vezey Maybank v  brook I brown c c but that it may be admit to ascertain a person or thing see  Harris v bishop of Lincoln Peer wms Dorset v sweet Amb Bradwin v Harper Amb  parson v parson ves fonnereau v Pointz brown c c deal mare v insurgent brown c  c b I once hear it determine that give the executor mourning bar he of the  surplus in February before Lord Parker in the case of may v levuin c Peer wms  c it be decree that in case of a general legacy to a executor evidence may be  admit because every thing depend on implication but otherwise where the cause  of the legacy be express the executor in this case seem to be consider bare as  a legatee modern report er p let there be a decree for a total exclusion of  the executor let there be a distribution and to that end let the executor  account d see davers v davers Peer wms Josslin v Brewit bunb Southcote v  Watson atk Andrew v clerk vezey Martin v Rebowe brown c c Rushdale v careless  stram Farringdon v knightly Peer wms Rutland v Rutland Peer wms Wheeler v  sheer Mosley read v Snell atk Bowker v hunter brown c c Batteley v windle  brown c c Lawson v Copeland brown c c dean v Dalton brown c c Clennel v  Lewthwaite vezey jun d