case Rawlins versus powell Eq can ab pl pl executor have a legacy and no  express disposition of the surplus on a bill bring by the next of kin for a  distribution the executor answer and waive the benefit if the surplus by  mistake of the law in that point deny to amend his answer though he prove the  testator intend he shall have the surplus a and b have be fellow apprentice  and a have a great friendship for b to who he owe upon a open account money  compute to be upward of pound and be a bachelor but have brother and sister  make his will give a legacy of pound to b and also legacy to his brother peer  William and sister and appoint b executor without express dispose by his will  of the surplus of his personal estate soon after which he die the brother and  sister as next of kin to the testator bring a bill against b the executor  allege that he be but a trustee as to the surplus of the personal estate there  be no disposition of it and he have a express legacy also insist that the  legacy of pound shall be deem a satisfaction of the debt which a owe to b the  executor put in a answer by which he admit himself Accountable for the surplus  but insist that he ought to have the legacy beyond his debt but afterward  understanding that some resolution subsequent to the case of foster and Munt  way in the duchess of beauforts case vide ante and that of ball and smith have  allow that though there be a express legacy give to the executor and no devise  of the surplus to he yet the executor shall on the particular circumstance of  the case have such surplus he pray that he may amend his answer but be deny by  the master of the roll sir John Trevor and on hear the cause his honour decree  Reg lib b foe the legacy to the executor over and beyond the debt but order  that have waive the surplus by his answer he shall account for it to the next  of kin though there be strong proof that the testator intend the surplus to  the executor and have direct the scrivener to insert in his will a bequest  thereof to he but that the scrivener say this be unnecessary for that the  executor will take this surplus of course as to the effect of parole evidence  in these case vide lady gainsborough case cite ante Rachfield v careless post  Vol two peer William er p peer William from this decree the plaintiff appeal  to the Lord chancellor Cowper where it be urge for the appellant that this  legacy must go in satisfaction of the debt that every one must be just before  he be bountiful and that it have be decree where a father be bind to give a  portion with his child and afterward by his will give a legacy to such child  of as great or great value than the portion this shall be even in the case of  a child a satisfaction of the portion vide Copley that Copley ante and they  cite the maxim in the civil late debtor non prsumitur To give as a present  Lord chancellor the nature and circumstance of this debt be material for if it  be upon a open and run account betwixt the testator and his executor as be  insist by some of the counsel so that it may not be know to the testator  whether he do owe any money to the executor or not then the testator can not  intend the legacy to be in satisfaction of a debt which he do not know that he  owe any more than a legacy can be a satisfaction of a debt contract salk and  post chancy case after the make of the will and this case differ much from  that of a bequest from a p rend to a child of a legacy which be as great or  great than the portion which the fatherwas bind to give such child for in that  case the intent of secure the portion be only that the child may be provide  for by the parent which end be answer by the parent give a adequate or great  legacy to the child by his will and then such legacy may be take to be in  exoneration of the land which probable be before charge with it but let it go  to the master to state how this debt do arise with all the circumstance of it  peer William with regard to the other point of the surplus his lordship say  upon the plaintiff petition to rehear the cause be open as to the whole and  every part of it with respect to the defendant while in relation to the  plaintiff it be only open as to those part of it complain of in the petition  that it will do very well if this point concern the surplus be once settle and  certain either way yet in this case where the defendant himself have by his  answer waive any title to the surplus he will not against his own concession  decree it for he but in easter term this cause come on upon the master special  report Lord chancellor Parker say he can not but incline to help the defendant  who by mistake or misadvice only of his counsel be in a way of lose his right  therefore if the plaintiff will bind the defendant by his answer from take the  surplus as executor they ought to take it upon the term in the answer  videlicet the executor waive the surplus but insist on his debt and legacy and  consequent decree that the defendant in this case shall have both his debt and  legacy even though the legacy appear by the master report to be much great  than the debt Reg lib b foe et vide matthews v matthews ves field v Mostyn  dick Wallace v pomfret Ves see Livesy v Wilson I v b strange v Collins v d  Edward v MLeay ib white v Godbold mad French v mile mad Maggridge v Hodgson  Anst Harris v Daubeny Anst Dagley v crump dick as to the effect of a  concession by a answer vide pierce v grove atk Amb spurrier v Fitzgerald Ves  young v Walter Ves east India company v Keighle mad