case cordell versus noden overrule smith v Fitzgerald Ves b July gilbert Chan  S c post Eq Abr pl S c vern S c vern vern wms wms wms vezey atk atk e contra  post vern I wms wms vezey atk brown Rep S c cite vide the case of baily v  Powell post and the note thereto subjoin those mark thus be case where  evidence be admit a by will give several legacy to his relation amount to near  the value of his estate and make b and c his executor and give they pound and  entreat they to take the trouble of get in his estate testator life ten year  after and acquire a additional estate decree the survive executor but a  executor in trust and that the new acquire estate shall go to the legatee in  proportion Mr Cordell be a merchant and have a estate of about pound and be  about to go beyond sea in December make his will and in the beginning thereof  desire precedent in chancery er p his mother and the defendant Mr noden to  take upon they the trouble of be his executor and make they executor and then  go on and set down all the particular of his estate and cast they up and then  say all my estate aforesaid and whatever else belong to I I dispose of as  follow and then devise a legacy of pound to noden his executor and several  other legacy to his other relation to the value of pound and after the make of  his will go beyond sea and life about ten year and improve his estate to about  pound his mother die and several of his relation to who he have devise legacy  and then the testator die the bill be bring by the relation who be legatee  against the defendant the executor to have a account of the personal estate  and to have the surplus distribute among they it be take notice of in the case  that Mr noden have usual be a trustee inthe family that the give he a  particular legacy and the word desire he to take the trouble of the  executorship and the computation make of his estate and the devise all but so  small a part leave for contingency and funeral be a plain evidence that he  intend no advantage of a overplus to the executor the commissioner be all of  opinion that the surplus shall be distribute but in this case not accord to  the statute of distribution but accord to the proportion of each one legacy  devise to he by the testator