case ralph DOCKSEY appellant Elizabeth DOCKSEY widow respondent that February  Mews dig way xv explain in bar v Fewkes n r a devise the residue of his real  and personal estate to his executor in trust to sell the same or so much  thereof as shall be needful for the payment of his debt and legacy hold that  this be intend as a beneficial devise to the executor and parole evidence be  admit to prove such intention viner vol p can vol p can vol p can Eq can ab p  can can can Robert Docksey the appellant father be seize in fee of the manor  of Snelston and other land in the county of Derby and Stafford of about pound  per and and have six child and upon the marriage of the appellant his old son  in he settle part of his estate of the value of pound per and on the appellant  and Elizabeth his wife and their issue in Robert Docksey make a will whereby  he give to the respondent Elizabeth his wife all his plate jewel and household  good for her life and afterward to dispose of the same to such brown of his  child and grandchild as she shall think fit he also give her pound to be pay  her within a month after his decease he then devise all his real and personal  estate to his son Robert Docksey and his soninlaw Francis Evans who he appoint  executor upon trust to pay his debt and the several legacy give to his  daughter and grandchild the testator also devise to his wife several close in  Snelston for her life for her jointure together with a rentcharge of pound per  and for life issue out of all his estate for her better support and  maintenance and the surplus of his estate after payment of his debt and legacy  he devise to his son Robert and his heir in April the testator be ill of the  sickness whereof be afterward die and the appellant not know that his father  have make a will prevail upon one Mr pole a clergyman and a particular  acquaintance of the testator to visit he and endeavour to persuade he to make  a will in favour of the appellant this Mr pole accord do and urge several  argument to effect his purpose and particular that he may charge the estate  with whatever sum of money he shall think proper for the benefit of his son  Robert but the testator seem utter averse to leave his estate to the appellant  so that Mr pole go away in a few day afterward however he make another visit  to the testator for the same purpose when the testator tell he that he intend  to make his will and to give his whole estate to his wife to pay his debt and  legacy and to dispose of the remainder as she see good as he have do by two  former will one date the that of march and the other the d of November but  though he leave it in his wife power yet he will have her leave the estate to  his son Robert and not give his son Ralph any part of it after this  conversation with Mr pole the testator send for one Mr Hayne a attorney and  give he instruction to prepare his will which be accord do and read over to  the testator be execute by he on the that of the same month of April by this  last will the testator devise to the appellant and his heir all the land call  Snelston park and all the wood thereon with the appurtenance except one corner  thereof particular describe in the will he and his heir pay the respondent  pound within four year next after the testator decease who be thereout to give  pound to the appellant old daughter if then live but if dead among the rest of  his child as she shall think fit and the testator after recite that he have  some time before agree with the appellant for the exchange of some land  between they for the conveniency of both their estate videlicet that the  testator shall convey the capital message wherein he then live and land next  and most convenient to it of pound per and value and upward in exchange for  land of the same yearly value which the testator have former settle upon the  appellant on his marriage the testator for the performance of that agreement  devise the say capital message and land of pound per and value and upward to  be set out as to the quantity and con brown er p veniency by two person in the  will name unto the brown respondent and her heir in trust to convey the same  to the like use as the land which the appellant shall convey to the respondent  and her heir in lieu thereof be settle but the respondent be to have the  capital message for her life if she desire the same and as to the residue of  his real estate except one close devise to a charity and the land which the  respondent be to have in exchange from the appellant the testator devise the  same to the respondent and her heir in trust to sell the same or so much  thereof as shall be needful for payment of his debt and legacy and he give all  his personal estate to the respondent towards payment of his debt and legacy  and make her executrix on the that of may the testator die and soon afterward  Mr Hayne who draw the will write two letter to the testator son Robert  acquaint he with the content of it in one of which letter he say that the  respondent have all the estate the testator die seize or possess of at her own  disposal pay his debt and legacy and in the other that the testator have give  the respondent all his land and estate both real and personal pay his debt and  legacy and leave her executrix in August follow the exchange of land between  the appellant and respondent take place and mutual conveyance thereof be then  execute pursuant to the testator will but in Hilary term the appellant exhibit  his bill in chancery against the respondent for a account of the testator real  and personal estate and for a conveyance of the surplus thereof after payment  of his debt and legacy suggest that the respondent be only a trustee for he as  to such surplus whereupon the respondent file a crossbill against the  appellant to establish the testator will and for quiet enjoyment of the devise  estate both these cause be hear together before the Lord chancellor Cowper on  the that of February when upon read the several will and the parole evidence  his lordship declare that there be no imply or result trust in the executrix  for the benefit of the heir but that on the contrary it appear by the write  word of the will as also by the proof that such a implication be strong  contradict and that it be the testator intention that this shall be a  beneficial devise to the wife and executrix and therefore order that the  original bill shall stand dismiss without cost and decree that the plaintiff  in the cross cause shall hold and enjoy the land devise subject to the trust  of the testator will against the defendant in that cause and all claim under  he but from this decree the plaintiff in the original cause appeal insist c  Phipps a Kettleby W Fitzherbert that the testator will be silent as to the  disposition of his real estate after the trust be perform and the debt and  legacy pay that whatever be not give away from a heir at law of course descend  to he and that a son and heir be favour by the law ought not to be disinherit  by implication that by the will there be a express legacy of pound give to  brown the executrix which may be intend as a reward for her trouble in the  execution of the trust and may be reasonable suppose to exclude her from take  any far benefit under the will that the devise of the testator real estate to  the respondent be mention to be upon trust not make to her by the denomination  of a wife but mere as executrix which be a office of trust and as the case  will have be the same if the devise have be to a mere stranger and not to the  wife so it can not be intend as a beneficial devise to her but a trust only  that the respondent herself be so conscious of her husband intent to make her  a trustee only as to the devise of his real estate that on be ask after his  death why she permit her son the appellant to have a advantage which it be  suppose he have in the exchange of the land she answer that she submit to that  to prevent his search into his father will whereby he may discover himself to  be entitle to the benefit of the surplus of his father estate and therefore it  be pray that the decree of dismission may be reverse and that the respondent  may be decree to be but a trustee of the surplus of the testator real and  personal estate after payment of his debt and legacy and may account with the  appellant for the same accord on the other side it be contend r Raymond I  Pratt that from the testator former will his intention uniform appear to be  that the appellant shall not have the surplus of his estate because he have  thereby otherwise dispose of that surplus brown er p that this intention be  still preserve and even render more apparent by the will in question where the  testator devise Snelston park to the appellant and his heir pay the respondent  pound within four year after the testator death for have he mean the surplus  for the appellant there certain can have be no occasion for this particular  devise to he since the estate so devise will have constitute part of such  surplus that for the same reason the exchange direct by the will be vain and  unnecessary as the capital house and land will upon such suppose intention  have come to the appellant without any exchange but the contrary intention be  clear evident from the testator mention in his will the value place and  convenience of such exchange from the appellant acquiesce under the will by  make it as thereby direct from the testator conversation with Mr pole concern  his will and from Mr Haynes construction of the will in his two letter above  mention and therefore it be insist that the decree appeal from be well ground  upon the proof and circumstance of the case and agreeable to the rule of  equity accord after hear counsel on this appeal it be order and adjudge that  the same shall be dismiss and the decree therein complain of affirm jour vol p