case ball versus smith Eq can ab pl S c ante can the wife of the testator be  make executor and no devise of the surplus nor any express legacy to wife  except what she have as executor of her former husband and some thing she have  before her marriage decree the surplus to the wife and that it shall not be  distribute among the next of kin the defendant mrs smith be executrix of Mr  Atkins her former husband and after marry Mr smith who by his will in devise  to his wife the defendant the plate and good she bring he in marriage and two  silver salver in lieu of the plate that have be change away and make the  defendant his wife executrix and die leave a daughter by a former wife who  marry Mr ball the plaintiff and the defendant his wife enseint of a daughter  and there be no devise of the surplus of the personal estate to the wife the  question be whether she shall take it as executrix to her own use or liable to  a distribution for the plaintiff it be insist that the surplus ought to be  distribute accord to the rule give in the case of foster and mount ante vol p  quod vide and case cite in not there and many other subsequent case Vernon  chancery case the Lord keeper incline to decree the surplus to the wife as  well for that this will be make before the case of foster and mount as also  for that in this case nothing be devise to the wife but what be her own before  and as she be executrix to Mr Atkins her former husband but principal because  where a wife be make executrix it be to be presume she be not make so to have  bare a office of trouble but of benefit to take the surplus his lordship  direct to be attend with precedent and be accord attend with precedent as to  the case of foster and mount he have a peruse the will plead and decree  observe that although there be a charge in the bill that the will be undue  obtain yet the proof fail no such thing be make out by proof but the executor  have apiece for their care and trouble and be stranger and the surplus of the  estate be considerable the Lord chancellor jefferies send it to a master to  certify the value and it appear to be pound when it come back upon the report  he decree it to be distribute first because the devise of pound apiece to the  executor for care and pain seem to imply a trust as to the residue ad second  the executor be stranger to the testator he can not intend they a surplus of  pound when he have give they legacy of pound apiece but withal Vernon chancery  case er p observe that the next of kin be his two daughter both before that  time marry and to which he give legacy of pound apiece and therefore the  precedent come not up to this case where the wife and not stranger be  executrix other precedent produce be cook and walker where Penelope lane by  will that may make the defendant walker her executor to who she give pound for  mourning he not of kin but a stranger Ann distribution decree Darwell and  Bennet Mr Darwell by will d Dec give pound legacy and the interest of pound to  his wife for her life and make her and the defendant Bennet and Burroughs  executor to William he give pound for mourning that July Ann Regin surplus  decree to be distribute ware and lane where Andrew lane have make his wife  executor he live twenty year after the will and acquire a estate Jan will  surplus decree to be distribute Hungerford and Reppington ante can nom Bristol  v Hungerford land devise to be sell surplus if any to be deem part of his  personal estate and the testator have devise pound apiece to his executor  surplus Vernon chancery case decree a trust Q whether for the next of kin or  for the heir at law on the other hand be cite the case of lady Granville and  duchess of Beaufort the use of the tableplate to the duchess for life and  after to his grandson the duchess make executrix Lord chancellor Cowper decree  a distribution the distribution reverse in the house of peer bro p c p and the  surplus decree to the duchess as executrix Littlebury and Buckley vin ab bro p  c S c where one not of kin but a stranger make executor and have considerable  legacy give to he his two brother plaintiff in the mayor court decree by sir  Peter king the recorder that the surplus shall be distribute but upon a appeal  to the house of peer that decree be reverse not bare as it stand upon the will  but that parole proof ought to be receive in favour of the executor title  consistent with the will and the proof be in full as to the testator frequent  declaration that his Vernon chancery case executor though a stranger shall  have the surplus and that his brother shall not have it it be decree accord  for the executor Lord keeper there be but that one single instance of ware and  lane where the wife be executrix that she have be exclude from take the  surplus the case of Darwell and Bennet where two stranger be make executor  with the wife not come up to the case decree the surplus to the wife with this  declaration that he hope the case will not rest here but for settle of this  point receive the judgement of the house of peer and withal he be content it  shall be admit in this case that the defendant mrs smith be not entitle to the  good and plate as executrix to Mr Atkins her former husband but as a legacy  give to her by Mr smith the testator vide precede case and note there by entry  Reg lib a fol a fol a fol it appear that a decree and rehear be have in a  cause of this name but the abovestated point do not appear