case wheeler versus sheer all at the chancellor house Lord chancellor see S c  with note mrs Lord chancellor this be the strong case that can be against the  executor for the residue be give they express in trust and no trust be appoint  and they be to deduct pound apiece out of the residue Ant Cas mosely report Mr  Verney the next question be since the executor be not entitle to mosely report  er p the surplus whether the trust of it belong to the next of kin by the  statute of distribution or whether sir George Wheeler be a inhabitant of the  province of York it be not subject to the custom of that province as if sir  George have die intestate and so one moiety will go accord to the custom and  the heir be exclude from his share and the other accord to statute of  distribution by the that that of W and m ch the inhabitant of the province of  York may dispose of their personal estate to their executor or other as they  shall please and the widow and child shall not claim by the custom the  legislature in make this statute have it not in their view to distinguish  whether a person die intestate in equity though not in law but whether he make  a will or die intestate at law and the custom be only to take place where  there be a administration but sir George Wheeler make a good will in law of  his whole estate so the custom be out of the case dr strahan the that that of  W and m only empower a inhabitant to make a will notwithstanding the custom  but sir George Wheeler as to this residue die intestate or the statute of  distribution can not operate on it and therefore so much be out of the statute  of W and m and the custom must operate on the moiety of it and the residue be  in trust for such use as the testator shall appoint and he have make no  appointment the executor must be trustee for those person who be entitle by  law and the custom in this place be the law Mr fazakerly sir George Wheeler  have not make a complete devise but as to the trust of the residue have die  intestate and therefore since your lordship have declare the executor be not  entitle to it why shall not the trust of it go to the person who be entitle by  the custom as if no devise have be make of it as a result trust will go to a  special heir in borough English or gavelkind Lord chancellor this be a new  case by law the executor be entitle to the whole personal estate which be as  old as the custom which be the law of that part of the kingdom and which the  statute take away only where there be a will if one then make mosely report a  partial will and no executor the residue will be subject to the custom but  here be executor and the residue of the personal estate be devise to they so  this case be within the express word of the statute then the question be for  who the executor be to be trustee not for those who be to take by the custom  by the very letter of the statute but for those who be entitle by the general  law and the testator devise the residue to put it out of the custom so the  distribution must be make to the next of kin of sir George Wheeler Mr  solicitor general your lordship have declare the surplus must be distribute  among the next of kin the next question be whether the young child advance in  the lifetime of their father must bring their portion into hotchpot as require  by the statute of distribution and whether the daughter must bring in her  legacy of pound but we think nothing ought to be bring into hotchpot because  the portion and the legacy be give the daughter in lieu of their customary  share for at that time the estate be liable to custom though sir George have a  power to control it by make a will and if he have die intestate these portion  will have bar the daughter from claim by the custom and then equity will not  construe they a double satisfaction of their customary share and of what they  be entitle to under the statute of distribution vern gudgeon versus Ramsden a  intestate be a inhabitant within the province of York have a son and a  daughter and no wife and in his lifetime give his daughter pound portion in  bar of what she may claim by the custom this shall be no bar of her  distributary part nor shall she bring it into hotchpotch and the intent of the  statute by bring thing into hotchpot be to reduce the portion to a equality if  the daughter be to bring in what they receive in the lifetime of their father  Francisca must also bring in her legacy or this equality will be destroy and  these constructive intestacies be not within statute of distribution Mr Verney  this point principal concern the heir at law and since your lordship be of  opinion that the residue must ne distribute the direction of the statute of  distribution be to be observe and the heir must have a share notwithstanding  any land come to he by descent or otherwise and the daughter advance with  portion must bring they into hotchpot and there be no reason why one part of  the statute shall govern more than another it be uncertain whether those  portion will go in satisfaction of what the daughter be to take by the custom  or by the statute mosely report of distribution till it be know whether sir  George will make a will mosely report er p or die intestate and it now appear  he do not give these portion to the daughter in lieu of their customary share  because he have it in his power to bar the custom by make a will which he have  do in the case of gudgeon and Ramsden the father do nothing to prevent the  operation of the custom so the daughter have two right in her and it be  unreasonable to construe the pound a satisfaction for both of they but here  the daughter have but one right dr strahan the pound give to Francisca by the  will of sir George be not to be bring into hotchpotch for where there be a  intestacy or a surplus undevised nothing be to be bring into hotchpotch but  what be give by the father in his lifetime as a advancement but this pound be  a legacy or gift and the statute can only operate on the surplus undevised  which be to be distribute but can destroy the will Lord chancellor though the  custom do not attach till the death of sir George Wheeler and he have it in  his power to control it yet till he do so I shall consider his personal estate  as subject to it this be not a case within the statute of distribution though  I have declare the surplus to be distribute among the next of kin accord to  that statute but I only consider it as to the person who be to take but not so  far as to disturb the provision make by sir George Wheeler either in his  lifetime or by his will Swinb part sect n Perk n Friday march the that motion