case against Mortimer Powell if a testator be indebt to his executor for good  in the way of trade a devise to the executor of a much large sum than the debt  amount to shall not extinguish the debt S c Eq Abr this be a case arise from  the will of John Rawlins the question now reserve for the consideration of the  court upon a special report of the master direct by the court be whether a  debt of three hundred pound due to Powell the executrix shall be sink in a  legacy of five hundred pound give her by the same will the bill be bring by  next of kin against the executrix to have the surplus of the estate undisposed  of by the will divide accord to the statute of distribution and the defendant  have by her answer submit modern report that the surplus shall be divide  accord to that statute but insist upon a debt of three hundred pound as what  she ought to have satisfaction for over and above her modern report er p  legacy the bill do beside seek a discovery of the asset of the estate in the  hand of the defendant upon this it be decree that the defendant shall account  for the surplus which shall be divide accord to the statute of distribution  and as to the debt it be direct that the master shall look into it and state  both the quantum and nature of it and now upon the master report who find the  testator debt to the defendant near that sum and that the debt have spring  from deal in trade between they it be urge as a know rule and course of the  court of chancery that where a debtor by his will give to his creditor a  legacy superior in value to the debt due the debt be always sink in the legacy  unless it evident appear from strong circumstance in the will that it be  intend otherwise as a beneficial legacy and this be say to be find upon that  maxim in the civil law debtor non prsumitur To give as a present this be  further enforce from chancy case a Peer wms a where it have be so rule by the  master of the roll a term or two ago this be oppose by the defendant counsel  who distinguish this from the case of Chauncy thus a servantmaid have live  long in a place without receive any wage her wage be at last by the master  compute to amount to a hundred pound and a bind give for the same the master  soon after die give her a legacy of five hundred pound which he thus express  for her faithful service now it be say that this bind be for the money due for  her service and this legacy be give her for her faithful service it be plain  that the testator intend modern report this legacy in satisfaction of all that  be due to her on the other side the case of Cuthbert v peacock a salk a be  insist upon where the contrary be rule by Lord Cowper say it be good equity to  make the testator both just and generous if he intend to be both this  interpretation be most agreeable to the word of the will where it be express  as a gift now a man be never say to give but to pay a debt it be say further  that since it may be the executrix will not have be decree to account for the  surplus without her consent it will be the hard upon her to sink her debt  Parker Lord chancellor let her have her legacy over and above her debt I have  the more compassion for this executrix because of her submission to account  for the surplus I be not satisfy with that notion that a legacy to a executor  exclude he from the surplus and therefore without her submission I know not  whether I shall have decree her to account for it Mr Cowper upon this tell the  court that the first time this doctrine prevail be in the case of foster v  mount b vern S c Eq Abr see also vern b since which time there have be several  decree in pursuance of it but that the contrary doctrine have prevail in the  case of Littlebury v Buckley c vern c where it be resolve that notwithstanding  the legacy the executor shall have the surplus indeed there it appear by  parole evidence that it be the intention of the testator that the executor  shall have the surplus Lord Guernsey for it go up into the house of lord d bro  p c d be of opinion that parole evidence not repugnant to the will and in  affirmance of the rule of commonlaw shall be allow of since that case it have  modern report be so decree by Lord Cowper without the help of such evidence e  mrs fisher be indebt to Cranmer in fifty pound make he her executor with a  legacy of five hundred pound and afterward borrow a hundred and fifty pound  more and Harcourt Lord chancellor reverse the decree for payment of the legacy  and both the debt for that there be no pretence that the legacy shall go in  satisfaction of the afterdebt and a court of equity ought not to say when a  man give a legacy that he pay a debt Cranmer be case salk see Thomas v burnet  Peer wms Peer wms e modern report er p