case COLESWORTH versus BRANGWIN all executor of henry derby ante and a make b  and c executor and devise several legacy to b but make no disposition of the  surplus of his personal estate the executor shall come in equal for their  share of the surplus notwithstanding the legacy devise to one of they but if a  bill have be exhibit by the next of kin Q whether they shall not both be  consider as trustee as to the surplus I S have a debt of pound owe to he from  the defendant do by his will forgive he that debt and give he pound more and  some household good to the value of pound so that in all he give he about  pound and make he and the plaintiff executor and die without make any  disposition of the surplus of his personal estate which be considerable  precedent in chancery and now the plaintiff bring this bill against the other  executor for a account of the personal estate and that he may have the surplus  to himself upon pretence that the testator have give the other executor these  specific legacy intend he no more and therefore that the whole surplus will  belong to he for the defendant it be insist that the plaintiff be a mere  stranger and the defendant a near relation of the testator that he give he  these legacy only that be may in all event be sure of something that he take  these legacy in another capacity than executor and therefore they can not  exclude he of his share of the surplus which the law cast upon he as executor  my Lord keeper be clear of this opinion and say it be a much great question  with he whether this devise of particular legacy to one executor shall not  exclude both from any share of the surplus because both come in but in  representation of the testator and make but as one person and therefore  suppose the defendant have be make sole executor he make it a great question  whether this legacy shall not have exclude he from the surplus indeed the  reason urge against it be that if no such legacy have be give he will have  come in for the whole and therefore his give he a part only ought not to  exclude he from the residue which without any such devise of part the law will  have throw upon he but the case of foster and Munt vern have settle this long  since and though that case have of late be shake in the case of the duchess of  Beaufort vern and in Littleburys case both in the house of peer yet they be  because the legacy give to the executor be no beneficial legacy and so a case  of one Atkinson at the roll that pound give to a executor for mourning be no  beneficial legacy so as to exclude he from the surplus because mourning be a  decency require upon precedent in chancery such a occasional but this legacy  here be a beneficial one but this not be the point in question he make no  decree concern it but decree the executor shall come in equal for their share  of the surplus of the personal estate notwithstanding these specific legacy to  one executor note if the law be as have be late hold this seem no  contradiction to foster and Munts case Vernon Eq Abr pl S c which be decree  only on the fraud in the executor as the Lord Guernsey declare this appear to  be misrepresent Vid post