case page all versus page all S c p wms at the chancellor house Lord  chancellor the testator devise his real and personal estate to six in trust to  pay his debt and legacy and the residue to they equal to be divide share and  share alike one die before the testator his share of the real estate shall go  to the heir at law and of the personal to the next of kin to the testator as a  lapse legacy for though the legal estate be joint their interest in the  residue be several and the other can it claim it as executor see ant Cas Cas  Fost Cas Cas the council for the defendant speak to this effect mr Wilkins  devise all his real and personal estate to six relation in trust to pay his  debt and legacy and the residue to his say six relation equal to be divide  among they share and share alike and make they executor Peter Daly one of the  devisees die in the lifetime of the testator and after the testator die and  his heir at law and next of kin bring their bill against the executor for a  account of the real and personal estate and to have the six part of Peter Daly  decree to they as a lapse legacy and at the hear your lordship declare that as  to the real estate it be joint devise in fee to the devisees in trust for  payment of debt and legacy and your lordship be please to order that a account  shall be take of the personal estate and of the debt and legacy and if a  surplus remain the consideration of that be reserve till after the report the  master have make his report that there remain a surplus of pound in money  beside several security and the cause now come before the court on this report  for your lordship direction to who this surplus shall be pay and the only  question be as to the six part of Peter Daly whether it shall survive to the  defendant as joint devisees or whether it shall go in a course of distribution  as a lapse legacy and this seem to be determine already by the decree which  have declare it to be a joint devise as to the real estate and must therefore  be a joint devise of the personal estate also and his part will survive to the  rest though one devisee die in the lifetime of the testator and therefore this  six ought to be divide into give among the survive devisees but the defendant  be also executor and therefore it shall be construe as a lapse legacy they be  entitle to it where a particular legacy be give to a executor it look like  exclude he from the residue because if the testator have give he nothing in  particular he will have have all but here be no imply trust for the next of  kin nothing to show that he design they any thing but on the contrary his  intention plain appear that they shall have nothing because he give the  devisees every thing mosely report Mr solicitorgeneral for the plaintiff the  decree as far as it go have determine in our favour that the devise be joint  by the express word of the will as to the pay mosely report er p mean of debt  and legacy but that the residue be to be divide among the defendant share and  share alike so that though they be joint devisees in law as to payment of debt  and legacy they be devisees in common as to the equitable interest in the  residue which be to be divide share and share alike and therefore that Peter  Daly die in the lifetime of the testator his share of the devise of the  residue become lapse and descend to the heir at law Chargeable with the debt  and legacy as to the personal estate it do not then appear whether there will  be any surplus after the debt and legacy be pay so that point be reserve by  the decree till after the account be take and it be declare by the court that  the devise of the real estate be a joint devise for payment of debt and legacy  but a several devise as to the equitable interest in the r due it must be  construe in the same manner as to the personal estate but suppose it a lapse  legacy the defendant say they be entitle to it as executor and that it be the  testator intention to leave they every thing but the testator intention be not  the rule to go by for where the court decree the residue to the next of kin  they never suppose that the testator design it they but they construe the will  for so much to be a incomplete will and then in conformity to the statute of  distribution dispose of the residue to the next of kin but suppose we shall  take the intention for our guide in this case it will make against the  defendant for the testator devise to six share and share alike so that each be  to have a six part only why then shall he have a share of a six not design to  he and though the intention of the will be disappoint as to one of they there  be nothing to show that the testator design his share to the survivor but his  intention appear plain to the contrary where there be a residuum a lapse  legacy fall into it but here a part of the residuum itself lapse and this case  be strong than where a particular legacy be give to a executor for none of the  executor here can take any thing as executor but the whole surplus be dispose  of and each of they be to have a six part as legatee and it will be contrary  to the express word of the will to give they any thing as executor and  therefore this lapse legacy ought to be distribute accord to the statute Mr  lutwych the devise of the legal estate be joint as to the payment of debt and  legacy the whole estate be liable for they but mosely report after this trust  discharge the residue be to be divide among the devisees share and share alike  show that the devise be several in point of interest and therefore your  lordship decree the six of the real estate to the heir at law as a lapse  legacy but Chargeable with the payment of the debt and legacy beside one of  the defendant out of his share be to pay pound a year and the testator direct  the devisees to leave their share to their child which be all roof of a  tenancy in common of the equitable interest in the residue so that it be the  same thing now as if the testator have compute what the residue of his  personal estate will amount to and have leave they pound apiece the next  question then be whether as executor the defendant be entitle to this six part  if a particular legacy be leave to a executor this have be always take as a  evidence that the testator design they no more if a six then or any other part  be leave to a executor shall he claim another part as executor be not a six  part a particular legacy and it be resolve so in the case of collet and  Preston where a freeman of London devise one moiety of his personal estate to  his wife and make her executrix the other moiety be decree to be distribute by  this will every one be to have such a proportion as to the part that be lapse  the testator die without a will and therefore it must be distribute it be what  happen since the make the will and be not provide for Lord chancellor this be  a joint devise only as to the trust for payment of debt and legacy but several  as to their interest in the residue which be to be divide into six equal part  share and share alike the devisees be to take nothing as executor but each of  they be to have a six part and his intention be that they shall have no more  one die before the testator so this be within the common rule that a  particular legacy give to a executor shall exclude he from the surplus here  the residue be divide among they as legatee and each be to have a part and  therefore one of the legatee die in the lifetime of the testator his share  must be distribute among the next of kin a bill of revivor do it lie against a  devisee Chan Cas vern vern after a decree in a cause you may have it refer to  a master to see whether it be set down irregular for hear mosely report er p