case foster versus munt see fruer v bouquet Bea v William v Arkle l r h of the  eighth month in court Lord chancellor a b by will give legacy to his child and  grandchild and pound apiece to his executor for their care and make no  disposition of the surplus decree the executor to be trustee for the child as  to the surplus John Markham by will devise particular legacy to his child and  grandchild and pound apiece to Munt and one Symonds who he make executor for  their care the surplus be pound and upward the question be whether the surplus  shall be a trust for the child or go to the executor decree a trust for the  child the statement of the will in the register book be not particular but  seem to agree with the above and the decree be as follow whereupon c his  lordship declare that the word in the will do amount to a declaration of a  trust by exclude the executor from any property which the law may cast upon  they it be plain the testator never design the surplus of his estate shall go  to his executor for he give they pound apiece for their care and do therefore  order and decree c and give the plaintiff their cost Reg lib a fol the case  that govern the doctrine in this case be to be find in lady Granville v duke  of Beaufort p wms Farrington v Knightley ibidem and case cite in note there  and also in Fonbl Tr equity book ch S in addition to which it appear on the  head of admit parole evidence to rebut result trust on this head that a legacy  to a executor be not conclusive to deprive he of the residue but that parole  evidence will be admit to entitle executor have a legacy to the residue  clennell v Lewthwaite and Thornton v Tracy Ves jun where this doctrine and the  case that govern it be investigate and full consider see also Langham v  Sanford Ves Ves mere and case there cite glad v yapp mad Lynn v beaver turner  one executor have a legacy for his care and trouble and Vernon chancery case  er p declare a trustee his coexecutor will be declare a trustee also who  however in this case appear to have have a legacy white v Evans Ves but it be  clear that where one executor of several be a trustee the other be trustee  also vide sadler V turner Ves Milnes v slater Ves Griffiths v Hamilton Ves  parole evidence not admit where a legacy be give to executor for his care and  trouble white v Evans ub sup and say the court lean much in this respect  against executor ibidem but where one only of two executor have a legacy for  his care and pain this as against the other executor only raise a presumption  which may be rebut by evidence William v Jones Ves where specific legacy give  to one of two executor without more there they shall take the residue  Colesworth v Brangwin pre Ch mason v Hawkins bro parliament can Johnson v  twist cite there and admit arg bishop of cloyne v young ves Wilson v Ivatt ves  and admit arg mordant v Hussey Ves but where one of two executor name in a  separate instrument from that which dispose of the residue the testatrix  direct the residue to be dispose of accord to private instruction but leave  none executor decree to be trustee mordant v Hussey ub sup but if a be appoint  executor and other word denote mere a office be add as attorney or trustee  that will not take away his legal right as executor Batteley v windle bro Ch  Rep de Mazar v Pybus Ves where widow of testator executrix and have a legacy  and bequest of various particular comprise all the testator personal estate  for life declare a trustee for next of kin Martin v rebow bro Ch Rep zouch v  Lambert bro Ch Rep dick v Lambert Ves although probable from the apparent  hardship of the case the contrary have be decree ball v smith post vol but  bequest to executor by way of exception hold not sufficient to bar he of the  residue undisposed of Newstead v Johnson atk so where unequal legacy give to a  and b and then a and b appoint executor hold entitle to residue Bowker v  hunter bro Ch Rep affirm on rehear ibidem executor have equal pecuniary and  equal specific legacy be upon the former hold trustee Nesbitt v Murray Ves so  executor have equal bequest of personal estate and unequal devise of real  estate will be declare trustee upon the former such dict per Eldon ld  chancellor Mucklestone v brown Ves see also Southouse v bear V b so where no  legacy executor upon evident intention declare trustee for next of kin  Urquhart v king Ves Giraud v Hanbury mere so where express legacy to next of  kin as well as executor the legacy to executor be for his trouble davers v due  p wms and no difference where the legacy to next of kin be but one shilling  Andrew v clarke ves Wheeler v sheer mose contra Harper v lee mose  attorneygeneral v Hooker p wms it be now settle that a legacy to the next of  kin do not exclude they seley v wood Ves Griffiths v Hamilton Ves executor  take the residue as executor be joint tenant Frewen v Relfe Br Ch Rep and it  seem settle that there be no distinction between specific and pecuniary legacy  Martin v rebow Br Ch Rep Holford v wood Ves the case above refer to appear to  contain the material learning on this subject but it shall seem after all that  little of general principle can be draw from they for the guidance of future  decision as they acknowledge throughout that it be not the bequest of a legacy  or the omission of such a bequest that will against all contravene  circumstance on the one hand exclude the executor from the residue or on the  other give he a indefeazible title to it with this exception perhaps that a  legacy express give for care and pain will universal exclude the admission of  parole evidence to show that the testator intend the executor shall have the  residue as to the state of the law on this subject I e of the legal right of  the executor to the undisposed residue where no bequest to he before the  principal case of foster v Munt it may not be whole unworthy of observation  that the impression either of what the law be or will have be have the  question be agitate on the mind of Lord Macclesfield be that he will in such  case be a trustee for in the duke of Rutland v duchess of Rutland p wms he be  report to say the difficulty will be to maintain that if one shall make a man  executor without either dispose of the surplus or give a express legacy to the  executor such executor shall have the surplus no case be however mention but  it be remarkable that there be two old case that seem to be express upon the  point the first be caryi Rep Elizabeth June where say notam that a executor  can be a trustee unless he have a special gift in the will and that may then  be in trust otherwise the general trust of a executor be to pay debt and  legacy and for the surplusage to account to the ordinary in blessed dead use  the second be the case of Brereton v Robert tothil and be thus enter the  survive executor sue the executor of a executor and likewise where there be a  great estate come to the executor which be not dispose of by the testator the  executor shall not have it but it shall be dispose of to the testator kinsfolk  and to charitable use a executor of a executor order to account upon oath and  to be examine upon interrogatory to discover the estate James lib a fol there  be also a case in dyer Rep b pl in this case there be two executor and one of  the two possess himself of the good of his testator and then lie out his own  proper money in claritable and pious use to a amount great or equal to the  value of his say testator good in repair of the church and religious house et  eleemosinis pro salute anim testator and then die possess of the good and make  executor against who the survive executor of the first testator bring a action  of detinue for the good the defendant plead the payment and conversion ut  above and justify the detainer as the proper good of their testator and the  plea a low No mention in either of these three case be make of a legacy to the  executor note the principal case be say to have be affirm in dom proc on  appeal that April bro p c in margin but on look into the jour Ho lord that vol  p it appear to be a case of foster v foster on a decree by Lord Nottingham for  performance of a marriage settlement which be there enter as affirm Vernon  chancery case er p