bachelor versus Searle Monday Jan I g in court Abr Eq c vern S c Q if the  surplus of a personal estate shall go to the executor or next of kin the  plaintiff have marry one mrs Allen sister to sir William Allen who be possess  of a personal estate to the value of pound and be ill make his will in write  the very day before his death and thereby devise several legacy to his  relation and among the rest give the plaintiff his sister about pound and give  pound to Mr Searle and his wife and their four child to buy they mourning and  give to his dear and most esteem friend Sarah Searle one of the daughter of Mr  Searle to who he make his address by way of marriage pound and give his horse  and furniture to one of the defendant by his Christian and surname and his  clothes to be dispose of by his executor and the n conclude thus as to the  pound I be entitle to in the SouthSea Gilbert company and the rest of my  personal estate will that the same shall be sell for the payment of my debt  and legacy and I make Mr John and Thomas Searle my executor and die the  executor be two of the child of Mr Searle and entitle to their proportion of  the pound devise for mourning and one of they to the horse and furniture but  be no way relate to the testator the surplus of the personal estate come to  about pound and this bill be bring against the defendant the executor to have  a account thereof and that it may be pay to the plaintiff who wife be the only  sister and the next of kin to the testator and for the plaintiff it insist  that the defendant the executor be mere stranger no way relate to the testator  that they have particular legacy leave they for mourning out of the pound and  one of they have a horse and furniture express devise to he and so it not  reasonable they shall go away with the surplus but that it ought to be account  for and belong to the plaintiff and cite the case of foster and Munt to that  purpose on the other side it insist that the defendant be executor represent  the testator that they stand in his place and be entitle to whatever he leave  undisposed of that this be the ancient law for many age and so the legal Title  be with they they ought not to be defeat of it without a manifest intention of  the testator to the contrary that here appear no such intention in the will  for they be not name either by their Christian or surname or so much as by the  name of their office till the very close of the will nay it in proof that the  testator do not so much as consider who he shall make his executor till he  have dispose of all the legacy that the give one of they his horse and  furniture be only to exclude the other who be executor with he will have be  equal entitle to it and can not be construe as a legacy to shut they out of  the surplus since it rather regard the other executor than the plaintiff the  next of kin that they have it full in proof that the testator be ask whether  he will give his sister more answer he will not and be ask who shall have the  surplus or what shall become of the surplus he say his will shall stand as it  be that he have a very great regard for the defendant family and be to have  marry their sister and move that these proof be in affirmation of the  disposition which the law make to the executor may be read and that so it have  be allow in my Lord and lady gainsborough case and also in the case of  Littlebury and Buckley upon a appeal from the mayor court before the late  recorder of London that as to the case of foster versus Munt several  resolution since that time have pare away the authority of that case and  reestablish the ancient law that soft have be settle in the duchess of  beauforts case in the house of lord and the case of Littlebury versus Buckley  and also in a case between ball and smith and other and so it pray the bill  may be dismiss and Gilbert the chancellor be clear of this opinion and that  the proof be in affirmance of this disposition which the law make ought to be  read and accord they be and say they be so clear as to make a end of this case  and without a strong and violent implication the executor ought not to be  defeat of this residuum that here be no such implication in this will but  rather the contrary as Gilbert report er p have be observe at the bar that to  make sense of that clause it must be construe as a devise of the SouthSea  stock and the rest of his personal estate to his executor for it immediate  follow I make John and Thomas my executor which can have no relation to the  direction for sale unless by give they the surplus which shall arise by sale  that in the duchess of beauforts case the devise of the plate except the use  thereof which he give to his executrix lady be a express devise of the plate  to the executrix lady and here it be only invert the order of the word but in  effect the same as a express devise thereof so where one give all his book  except such and such which he give to his executor it the same in effect as a  express devise thereof to his executor only invert the order of the word and  yet in these case the executrix go away with the surplus and say that in no  case unless the implication be violent and such as can not be resist the  executor ought not to be shut out of the residuum which by their  representation of the testator belong to they and so the legal Title be with  the executor in this case and no such strong and violent implication to endure  any other construction he can not give into so great a change of the law but  must decree for the executor and do so accord