case southcot versus watson June stand for judgement general Pulteney by his  will give in the first part of it to mrs and Watson the yearly sum of pound  Payable quarterly and in the last clause give her all his household good and  furniture three picture except and all his plate linen watch jewel and clothes  whatsoever and declare her sole executrix the bill be bring for a account of  such part of t personal estate as be undisposed of and for a distribution the  bequest of the specific thing to mrs Watson exclude her from the residue so  Randall v Bookey vern Martin v rebow bro Charles Rep nurse v finch Ves junior  the bill be bring for a account of the personal estate of general Pulteney  undisposed of by his will date the that of January whereby he give several  annuity out of his stock in the fund among the rest to mrs and Watson the  yearly sum of pound Payable quarterly and six other annuity then follow these  word item my will be that what dividend or sum of money be now due upon any of  the stock or fund in the bank Southsea India or other public fund or security  and not receive by I the same shall be receive by my executrix and lie out in  the purchase of some other stock with the advice of William Pulteney Esq for  the provide a fund for the better payment of the say annuity in case my  present estate in the stock be not sufficient for that purpose but if it shall  be find so to be by my say executrix not doubt but she will give a faithful  account of what be belong to I in the say several stock then the say dividend  to be receive by atkins her as aforesaid shall be lie out in such manner as my  say executrix and William Pulteney shall agree to be most proper for the  purpose follow item after the deceases of the several annuitant aforesaid I  give and bequeathe to my nephew William Pulteney Esq his executor  administrator and assign all my principal stock in the bank south sea India  bank and other public fund and security or in other security whatsoever and  security whatsoever in trust for his son William now a infant and for such  young son and son as he the say William the infant shall leave at his death  share and share alike and in case there be but one young son then I give the  whole to he item I give to mrs and Watson all my household good and furniture  except what be herein after except and all my plate linen watch jewel and  clothes whatsoever and I declare the say and Watson sole executrix N B the  exception be of two picture to the duchess of Montague and another to somebody  else Lord chancellor this cause come before the court on a bill bring by the  plaintiff to have a account of some part of the personal estate of general  Pulteney undisposed of by his will and to have it distribute accord to the  statute make for that purpose of integrates estate the principal annuity be  give to mrs Watson of four hundred pound per annum the first payment to be  make on the first quarterday after general pulteney death then follow the  clause upon which the question principal arise item after the decease of the  several annuitant aforesaid I give and bequeathe to my nephew William Pulteney  Esq his executor and administrator all my principal stock and security  whatsoever c the most essential part to the present cause be what follow item  I give to mrs and Watson all my household good and furniture except what be  herein after except c and all my plate c the testator die about three day  after make his will on the that of June the question will fall material under  the follow division atkins er p first whether in a court of equity any part of  the personal estate may be say to be undisposed of by his will atkins this be  mere a consideration of equity for at commonlaw make a will and a executor be  hold to be a disposition of the whole personal estate ever since the case of  foster versus Munt vern before Lord chancellor jefferies which undergo various  fate the doctrine establish in this court have be that where a man make a will  and a executor and give he a legacy he be to be consider as a trustee mere for  the next of kin upon a equity find on the statute of distribution see  Farrington v Knightley p W it be true this doctrine have prevail by different  step and degree in foster and Munt the legacy be give to executor for care and  pain and hold to be a bar of the residue afterward determine so where it be a  legacy give general for there be nothing more in one case than in the other  because it can not be imagine if a testator give his executor a particular  legacy that he can intend he the whole some case indeed since have not so  strict adhere to this rule but in the case of Farrington versus knightly p wms  Lord Macclesfield say he have consult with Mr Vernon upon this subject who say  there have be so many decree upon the point where a legacy be give to a  executor and no disposition of the surplus that the executor be but a trustee  for such surplus and this point have be thereby so full establish that he do  not think it worth while to take notice of any latter decree of this nature  apprehend it to be a principle as much fix as that feesimple land shall  descend to the heir the plaintiff and some of the defendant insist the  executrix be exclude from the surplus by several legacy be give to her and  that any one of they will have be sufficient to bar her first as to the four  hundred pound a year annuity if it rest upon that it will admit of great doubt  for the first payment be not to be in till the first quarterday after the  testator death so that if she have prove the will and yet die before that  quarterday she will not have be entitle atkins it be charge too upon a fund  which be liable to other legacy therefore the annuity arise by way of charge  upon a legacy or by way of exception out of it like the case of lady Granville  and the duchess of Beaufort vern if give out of the general residue indeed it  may have be a bar because otherwise it will have be give all and some which be  a absurdity next as to household good and furniture and all my plate linen  watch jewel and clothes this be a bequest of specific thing though under a  general description but yet I be of opinion that she be exclude of the residue  several objection have be make first that though a pecuniary legacy will  exclude executor yet a specific one will not and several case have be cite for  this purpose and it have be say that the testator may intend that in case  there shall be a deficiency of the surplus she shall be secure of the specific  legacy this reason will prove too much it will hold almost as strong in the  case of a pecuniary legacy for it may be say the testator intend his executor  shall take something at all event and not depend mere upon the sufficiency of  the surplus as for the precedent which have be cite for the executrix they  seem to I to fail entire the first case mention be Jones v Westcomb Prec in  Chanc the report of this case be very short as to the point for which it be  here apply and be beside the case of a wife the next case be Griffith v Roger  Prec in Chan a husband devise his library of book to a except ten book such as  his wife shall choose and make her executrix and hold she be not exclude from  the surplus in this case the determination arise from the particular pen of  the will but the strong reason which direct the court in their determination  be that there be no bequest of the atkins book at all to the wife but the  whole to another person and uncertain what she will take but leave to fall  into the surplus atkins er p the next case be ball v smith vern there the  whole reason rest in a manner upon its be the case of a wife and no stress be  lie at all on its be a specific legacy on the other hand that specific legacy  general speak will exclude executor equal with pecuniary be clear and strong  prove by the case cite for that purpose the case of lady Granville v duchess  of Beaufort in vern and p wms be extreme material the ground of the reversal  of the decree in the house of lord be that the legacy operate by way of  exception out of or be a charge upon a legacy give to another the bill here be  bring for a distribution of the surplus against the defendant as executrix to  the late duke of Beaufort who have devise the use of his table plate to the  duchess for life and afterward to his grandson and make no disposition of the  surplus Lord chancellor Cowper admit proof to be read that the testator intend  to give the surplus to his executrix but not think the evidence strong enough  decree a distribution this cause come afterward before the house of lord upon  appeal on the that of December the appellant counsel insist that it be prove  in the cause that it be the intent of the testator that the appellant shall  have the surplus of the personal estate to her own use which proof as it agree  with the rule of law to preserve the legal title to the executrix that of  common right she have to the surplus so it shall prevent and ought to rebut  the construction of equity which will create a result trust and make the  executrix to be a trustee in equity for the next of kin and for these reason  among other pray that the decree may be reverse and it be reverse accord  without division ms report duchess of Beaufort appellant lady Granville  respondent viner title devise p sect if it have be before settle that specific  legacy will not have bar a executor of the residue there will have be no  occasion to have resort to this distinction for accord to the common rule  exception let regulan the case of Shrimpton v Stanhope Mr Cox in his note to  Farrington v Knightley p W observe that the case of Shrimpton v Stanhope be  not a case of distinct specific legacy for it appear from Reg lib b fol that  the testator there give some specific legacy to a man and his wife joint who  he also make his executor before Lord Talbot a bill be bring for a  distribution among three child the next of kin the word of the will be I  likewise appoint they heir to my personal estate consist of c specify what  together with ray book Lord Talbot be of opinion the surplus be undisposed and  distributable this be a plain authority that specific legacy bar a executor  and though the outset mention general personal estate yet Lord Talbot restrain  it by the particular word that follow afterward atkins Lord Talbot reason as  to the personal estate be that this clause be not intend to give they the  personal estate by implication but to vest it in they as executor only and  that the last clause be explanatory only upon the whole he decree a  distribution the next cause be Newstead v Johnson before I July atk S c I have  not the least think in that case there be any difference between specific  legacy and pecuniary as to bar executor there be a plain reason there why the  testator separate the stock from the rest of his personal estate because  otherwise the husband of the legatee will have be entitle in the next place  some argument have be use from the word of the will first upon the  introductory clause that it be very strong to show he intend to dispose of the  whole nothing can be strong than the introduction in the case of Farringdon v  knightly and yet determine to be a bar and I look upon this as nothing more  than word of form throw in by drawer of will the next of kin take by a kind of  succession ab having made no will without the assistance of this court and it  be the law throw it upon they it have be say that mrs Watson shall be  Accountable for nothing except the stock but the word will not warrant this  construction so as to excuse her from account for so much of the personal  estate as be not dispose of by the will to consider it in one plain instance  she must account for the dividend another objection has be start from the  circumstance attend the devise of specific legacy themselves that where  another reason appear for give they she shall not be exclude and that this be  introduce only for the sake of except the three picture out of it the  exception of the three picture be not out of the whole personal estate but out  of a particular species only and therefore can be offer as a reason for his  particular express another thing beside it will have be much more natural to  have give the picture as distinct legacy and not as a exception out of a  legacy atkins all the except case will be find to be ground upon one of these  three reason first by way of particular interest or usufructuary estate out of  a legacy give to another person second by way of exception three where it be  give for the sake of some trust which the executor be to perform but the  present case can fall in with any of these distinction this be not a exception  for the benefit of the executrix out of a legacy give to atkins er p another  Newstead v Johnson ante atk but it be a exception for other person out of a  particular species of personal estate give to the executrix herself No weight  be to be lie on any passage in answer for no defendant by his answer can  affect the right of other party or person the consequence of the whole upon  this point be that the undisposed part of the personal estate must go among  the next of kin but must bear the burden of the debt and funeral expense in  the first place the second question be what be the undisposed part of the  personal estate in the first place the ready cash in his house in the next the  rend unreceived second the bank note for pound it have be say that these ought  to be consider only as a security for money but I be of opinion they must be  take accord to the common usage and notion of bank note which be always  consider as cash Popham v lady Aylesbury Amb and make Payable to bearer if  security be to be extend in this manner arrear of rend may be call so for the  reddendum and covenant for payment of rend may be plausible call a security  for money the next particular which be insist to be undisposed of be the  dividend upon testator bank stock lie in the bank endeavour to be bring within  the description of the will in the first place the dividend so lie in the bank  do not answer the description for they be not dividend to become due upon the  stock for the company have pay they before now the testator have keep his cash  with the bank the receipt of the bank be his receipt and you may as well say  that atkins cash in the hand of a steward receive by rend be not the cash of  the principal I be of opinion the balance of testator account in the bank must  be consider as undisposed of thus far I be of opinion for the plaintiff but as  to the dividend unreceived I be of opinion for the defendant in case his  personal estate in the stock be not sufficient c vide the will these be word  of reference the next sentence be plain connect with the former then the say  dividend shall be lie out in such manner as c there be no doubt as to this  part of the will the only remain consideration be as to certain thing which be  mention to be give in the will and yet not entire give and this be find on the  word of the will where stock be devise to Lord bath the question result to  this when the bequest to Lord Pulteney be to commence in point of interest it  be very inaccurate pen but the court must put such construction as will best  answer the intention be Lord Pulteney to be keep out of the possession of  enjoy the surplus of the dividend of these stock till even the annuitant of  ten pound a year be dead that will be very hard the commencement of the trust  be put upon some event of dry and though I have no doubt of the intention in  my own private opinion yet I must consider it with judicial eye though the  court can construe and expound the word of a testator will yet they can strike  they out of it entire it be plain the testator do not think of any surplus of  the dividend for he have provide a auxiliary fund if dividend shall fail but  when any of the annuitant die he see there will be a surplus and have provide  for it and this atkins must be construe like the case of hylet versus Chip in  cro James and aylet versus Choppin in Yelv it be true a objection have be make  that crossremainders by implication can be between more than three and the  case of Barnard versus Bowden before I the that of November have be cite a  precedent by no mean applicable for the word there be peremptory after the  decease of a particular person I be very apprehensive the construction I put  upon it be not accord to the intention but can not so construe it without  strike word out of the will but here the court may construe it accord to the  atkins er p intention of the testator which they be bind to do if they can  consistent with the rule of law it have be say that the death of any one of  the annuitant do not influence the surplus of dividend and I agree it do not  as to the dividend themselves but after the gift commence it attach upon the  stock and will carry all the dividend this be my opinion upon the several part  of the will his lordship declare that so much of the testator personal estate  as be not dispose of by his will belong to and ought to be distribute among  his next of kin subject to his debt and funeral expense he also declare that  the testator cash ready money bank note arrear of rend the money due to the  testator on his account keep with the bank and all debt due to the testator at  the time of his decease and also the surplus of the dividend accrue upon the  say stock between the say testator death and the death of such of the  annuitant as die first over and above what be sufficient to satisfy all the  annuity give during that time ought to be consider as undisposed by the say  will but all such dividend and sum of money as be due and in arrear upon any  of the say testator stock at the time of his death and also the whole surplus  of the say dividend accrue or to accrue upon the say stock since the decease  of such of the annuitant as die first ought to be consider as dispose of by  the say will for the benefit of Lord Pulteney subject to the contingency in  the say will and also the surplus of the dividend accrue upon the say stock  between the testator death and the death of mrs and Watson one of the  annuitant over and above what be sufficient to satisfy the grow payment of the  annuity give during that time ought to be consider as undisposed of by the say  will but that all such dividend and sum of money as were due and in arrear  upon any of the say testator stock and accrue at the time of his death and  also the surplus of the say dividend accrue or to accrue upon the say stock  between the testator death and the decease of such of the annuitant as die  first ought to be consider as dispose of by the say will for the benefit of  Lord Pulteney and his young son subject to the contingency thereon therefore I  decree that it be refer to a master to take a account of all such part of the  say testator personal estate as be not dispose of by the will as have be  receive by and Watson in her lifetime and by defendant Nathaniel Watson since  her death Reg lib b fol atkins er p