case Farrington versus knightly see William v Arkle l r h l January Eq Abr c c  c S c ante Peer wms S c this case be very full report by Peer William atk  brown Rep S c cite a devise pound apiece to his two sister and pound to his  niece and make they three executor without dispose of the residue of his  personal estate the surplus shall be divide among the next of kin and shall  not go to the executor this be a cause wherein my Lord chancellor have take  time to consider and see precedent and be this one Upton of GraysInn a  bachelor begin his will in write with his own hand and thereby give several  legacy and give the defendant who be two of they his sister and one of they  his niece pound apiece and make they executor but before he have finish or  sign his will he die possess of a considerable personal estate and this be  prove as a testamentary schedule the plaintiff as next of kin bring this bill  against the defendant the executor for a distribution of the surplus and the  only question be whether the plaintiff be entitle to such distribution or  whether the defendant the executor shall go away with it and it be decree for  the plaintiff on view and consideration of all the precedent my Lord  chancellor be clear of opinion that executor in these case be but trustee that  if the testator intend they the surplus can he not easy have say so that to  give they the say thing precedent in chancery twice over will be absurd for  the legacy must come out of the surplus that since the statute of distribution  the succession to a personal estate be as much establish as the succession to  the real estate be before that because they be make executor they therefore  must have the surplus to their own use will be to construe the will by a rule  which probable the testator do not understand for he may be ignorant of the  import of the word executor or never intend by make they such to give they his  personal estate that here it will be the more unreasonable because they have  legacy give they that he have look into the case of Forster and Munt Vernon  and there be no fraud at all in that case in the executor though it have be  great hold there be that if a and b several make their will and make c  executor and a give he the surplus of his personal estate but b do not and  then c die intestate in precedent in chancery er p this case the personal  estate of a and b shall go several way for the administrator of c be admit to  the administration of the personal estate of a but the next of kin to b be to  have administration to he and will be entitle to his personal estate which  prove c as to that be but a trustee and a case be cite of Bagwell and dry wms  much more accurate state and accord to the register book where a man devise  his real and personal estate to his four daughter and their heir executor and  administrator one of the daughter die and the question be who shall have her  share and it be decree to go in the same manner as a real estate to the  survive daughter and in this case be likewise cite the earl of Bristol content  Hungerford ante vern S c cite vern wms note where sir William Basset devise  his personal estate to pay his debt and legacy and give pound apiece to his  executor and it be agree that the surplus shall go to the representative of  the next of precedent in chancery kin also baily content Powel ante Randal and  rookey ware content Lant ante Westmore content Jones bachelor and Searle vern  duchess of beauforts case vern wms S c brown parliament case S c Edward and  eyles and Paul content smith and my Lord chancellor be of opinion that none of  these case be inconsistent with the general rule he lie down so that the  executor be but trustee and be to have nothing more to their own use than what  the testator plain intend they as legatee or devisees and not the whole  residuum by virtue of the executorship this case as state in wms be to this  purport I S inter all bequeathe the surplus of his personal estate unto four  person equal to be divide between they share and share alike appoint a b his  executor in trust one of the four residuary legatee die in the life of the  testator after which the testator die and the question be to who the four part  devise to the residuary legatee who die in the life of the testator shall  belong Lord Macclesfield hold that the devise of such four part of the  residuum become void the residuary legatee die in the life of the testator and  be as so much of the testator estate undisposed of by the will that the  residuum be devise in common it can not pass to survive legatee and the  executor be but a mere trustee it must belong to the next of kin accord to the  statute of distribution as in case of a intestacy wms