case William SELWIN Appellant John BROWN Respondent that march Mews dig way xv  distinguish in in re Applebee Ch No parole evidence be admissible to control  or take away a plain and express devise and therefore where a man be indebt to  another by bind and the obligee make he one of his executor and residuary  legatee without pay anything about this bind debt it shall constitute part of  the residue of his estate and no parole evidence however clear and strong  shall be admit to show the testator intention to discharge the party from the  bind forester viner vol p can Eq ab note at Q John brown be seize in fee of a  real estate and possess of a leasehold house in bow street covent garden and  of other personal estate make his will date the d of June and thereby give  annuity to some person and brown pecuniary legacy to other and particular a  legacy of pound to the respondent and then the testator devise his manor of  hubbard hall and other land in Essex to the respon brown er p dent with  remainder to his first and other son in tail male and on failure of such issue  to the appellant and his heir and the testator give his say leasehold house in  bow street to the appellant for the remainder of the term to come therein and  give all his plate to the respondent and then the will go on in the word  follow and as for the rest residue and remainder of my estate whether real or  personal whereof I be seize or possess or which I be any way entitle to and  which I have not herein and hereby before devise give bequeathe or dispose of  I give devise and bequeathe the same and every part thereof and all my right  title claim and interest therein and thereto unto such my executor or executor  herein after name as shall duly take on he or they the execution of this my  will accord to the true intent and meaning thereof his or their heir executor  administrator and assign as tenant in common and not as jointtenants and I do  hereby constitute and appoint the hereinbeforenamed lieutenant colonel John  brown meaning the respondent and William Selwin meaning the appellant to be  executor on this my last will and testament upon condition that before their  intermiddling as executor either by prove this my last will and testament or  dispose of any part of my estate or effect of the value of pound or more  except what may relate to or be dispose of in or about my funeral or the  provision for my family for a convenient time after my decease they shall give  sufficient reasonable security to be approve by the honourable colonel Edward  Eaton for the true payment of the several money legacy herein and hereby  before give and bequeathe accord to this any will and in case they or either  of they shall refuse or neglect so to do for the space of thirty day next  after my decease or shall in the mean time before such security give as  aforesaid intermeddle as my executor or executor any further than as aforesaid  then and in such case I do hereby declare that such one or both of they so  refuse or neglect shall from such intermeddle neglect or refusal lose all  benefit of executorship hereby give or intend to they or such of they so  intermeddle neglect or refuse and that such his or their executorship or  executor shall thenceforward cease and be void but in case only one of my say  executor shall intermeddle neglect or refuse as aforesaid and that the other  shall comply as aforesaid then my will and meaning be and I do hereby direct  and appoint that the executorship of he who shall so intermeddle neglect or  refuse and all the benefit and advantage thereby give or intend to he shall go  over remain and be to the other and my will and meaning further be that if one  of my say executor shall die during brown my life and if the survive executor  shall give such security as aforesaid then and in such case such survivor  shall be my sole and only executor and shall have and take to his sole use  benefit and advantage and of his heir executor administrator and assign all  such residue and remainder of my estate and all right title interest and claim  therein and thereto which I have hereinbefore devise to he and my say other  executor as aforesaid and my will be and I do hereby give and bequeathe to my  say executor or such of they as shall duly qualify themselves or himself in  manner aforesaid all such residue and remainder of my estate whatsoever as  shall be leave after payment of my say debt and legacy and that they or he so  qualify themselves shall have and take the same to and for their or his own  use or use notwithstanding any particular legacy or legacy herein before give  or devise to they or either of they on the that of November the testator die  without revoke or alter his say will and the appellant and respondent have  both duly qualify themselves accord to the testator direction prove the will  and take upon they the executorship and pay the testator debt funeral charge  and money legacy and divide equal between they great part of the residue of  his personal estate but the appellant be indebt to the testator in the  principal sum of pound the appellant for secure the payment thereof with  interest become bind to the testator in a bind bear date the that of June in  the penalty of pound with condition for payment of pound and the interest  thereof on the that of December then next ensue which pound and the interest  remain due and unpay at the testator decease and the appellant refuse to  account for the money due on this bind as part of the testator residuary  estate but insist to retain the whole thereof to himself and refuse to pay or  allow to the respondent the half of the money due on this bind the respondent  on the that of march exhibit his bill in the court of chancery brown er p  against the appellant for a account of the residuary part of the testator  estate and that the respondent may have his share thereof and particular that  he may be pay half the money due for principal and interest on the say bind on  the that of July follow the appellant exhibit his cross bill against the  respondent pray that the say bind which then be in the respondent custody may  be deliver up to the appellant and by this bill and also by his answer to the  original bill the appellant allege that the testator have several time before  the make his will declare to Mr Charles viner who draw it that he design to  give the appellant for his own use and benefit the whole money due on that  bind and that it be the testator intention by make the appellant one of his  brown executor to discharge the say bind that the appellant may have the whole  benefit thereof to himself and in these cause the appellant examine the say  Charles viner as a witness who clear prove such intention of the testator and  what discourse have pass between they relate thereto before the testator make  his will he also prove that this pound be original secure by a joint bind from  the appellant and his partner and that to prevent the partner from take any  advantage of the benefit intend for the appellant the testator about three day  before he make his will deliver in the joint bind to the appellant and take  his single bind for the whole sum on the that of December both cause be hear  before the master of the roll who be please to allow the deposition of the say  Charles viner to be read though object to by the respondent and decree that  the respondent bill in the original cause shall be dismiss and upon the  appellant cross bill decree that the say bind shall be deliver up to the  appellant to be cancel from this decree the respondent appeal and these cause  be hear before the Lord chancellor Talbot on the that and that of October who  be please to declare that the money due on the pound bind enter into by the  appellant to the testator ought to be consider as part of the residue of the  testator estate which by his will be devise equal between the respondent and  the appellant his executor and that the respondent be entitle to a moiety of  the money due on the say bind and his lordship therefore decree that it shall  be refer to the master to take a account of what be due for principal and  interest on the say bind and what the moiety thereof amount to and that the  appellant shall pay to the respondent what the master shall certify to be due  for a moiety of the say principal money and interest and that thereupon the  respondent shall deliver up the say bind to the appellant and from this decree  the appellant appeal insist I will d rider that the parole evidence be very  proper to be read and be a sufficient ground to bar the equity of the  respondent bill for that by the rule of law if a obligee make the obligor one  of his executor this act of the testator extinguish the debt for the debt  consist only of a right to recover it by way of action which one executor can  maintain against the other the testator by make the debtor one of his executor  do thereby discharge the action and consequent discharge the debt that it be  prove beyond contradiction that the testator not only know the rule of law in  this respect but intend it shall operate for the appellant benefit and  therefore a court of equity ought to permit it to take place in support of the  testator intention which be principal to be regard in the construction of will  and where the testator intent to discharge the debt be brown clear and evident  it be not material whether he do it by express word or by a act in law amount  to the same thing that the respondent case be very different from the case of  a creditor in respect of who this debt will be consider as asset in the hand  of the executor because a testator can by his will extinguish a debt to the  prejudice of creditor but with respect to a residuary legatee the testator  have a absolute power over his estate and may extinguish a debt by act in law  as well as by express word that as the respondent equity arise only from a  presumption that the testator do not intend by act in law to extinguish the  debt by it be apprehend that the executor may encounter and rebut this equity  by give parole evidence that the testator intent be agreeable to the law and  unextinguishment in equity as well as law of the debt in favour of the  executor and there be many instance in the court of equity where parole  evidence have be allow to be read in order to support the construction of the  law and rebut a equity that may otherwise arise against the legal operation of  a deed or will brown er p but it may be object that by the will the residue of  the real and personal estate not therein before give bequeathe or dispose of  be give to such of the testator executor therein after name as shall prove his  will and from hence it be infer that this debt not be therein before dispose  of pass by this clause of the will as part of the residuum thereby bequeathe  and that the subsequent clause which constitute the executor come too late to  affect any part of the residuum in regard it be complete dispose by the  antecedent clause to this it be answer that the testator have give particular  legacy to each of his executor there be a necessity for a special bequest of  the residuum to prevent a result trust for the next of kin but the testator  even in this part of the will consider they as executor and bequeathe the  residue to they by that name and description and therefore as they must first  be executor before they can take the residue the debt must in the first place  be thereby extinguish and consequent dispose of before the residuary bequest  can take effect and as the whole will take plaice at the same time it be  immaterial whether the executor be appoint in a clause previous or subsequent  to the residuary bequest beside the word residue must mean the residue of the  personal estate exist at the time when the will shall take effect at which  time the debt by operation of law become extinct and cease to be any part of  the residue and consequent do not pass and as this be the natural meaning and  import of the word so it be plain from the evidence in the cause that the  testator understand the word residue in this sense because he intend that by  make the appellant executor the debt shall be extinguish and cease to be part  of his personal estate so that this construction be apprehend brown to be  consistent with the word of the will and agreeable to the intent of the  testator it may however be object that if the testator have intend the debt to  be discharge he will have so direct in clear and explicit term but to this it  be answer that Mr viner prove the testator intent not only to discharge the  debt but to discharge it by the particular method of make the appellant a  coexecutor of the will and his testimony stand confirm by the circumstance of  exchange the joint bind of the partner for the appellant single bind which can  not be account for unless it be do to serve this particular purpose and the  testator omission to discharge the debt by express word be occasion mere by  viner assurance that the make of the appellant a coexecutor be the proper and  effectual method to extinguish the debt in his favour as therefore the  testator rely upon this advice have neglect to discharge the debt by express  word and depend on the rule of law as equivalent to a express discharge it be  apprehend that a court of equity ought not to defeat the testator design by  control the operation of law which be so manifest agreeable to his intent and  imply as much as word can express and consequent that the last decree ought to  be reverse and the first affirm on the other side it be contend I Verney n  fazakerley W Murray that the money secure by the bind in question be  indisputable part of the testator personal estate at the time of make his will  and remain so at his death and that the respondent title to a moiety of it do  not arise from any construction or rule of equity nor be it give he by  implication only or by doubtful or uncertain expression in the will but by a  plain and express devise of a moiety of every part of his personal estate not  before devise that no construction can be put upon the word of the will in  favour of the appellant but his case rest whole upon a endeavour to destroy  the force of the write will and overturn the plain word of it by parole  evidence only there be however no precedent to support such a attempt this not  be the case of evidence offer to obviate or take off a implication which may  or may not take place and yet the word of the will have their force and  operation not to answer any rule or construction of equity arise upon or  consistent with the word of the will but to contronl and take away a plain  devise and express gift to the respondent that the give way to parole proof in  a case thus circumstance will shake the rule of evidence and tend to introduce  those inconvenience which be guard against by the statute of fraud and perjury  whereby it be enact that no will in write shall be repeal nor shall any clause  devise or bequest therein be alter or change by any word or will by word of  mouth only and therefore the respondent hope there be no reason to make a  precedent in this case where the attempt to alter a plain bequest in brown er  p the brown will be support by one witness only and who deposition if permit  to be read contain fact and circumstance high improbable 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 the memorandum of this  judgement write on the back of the case be in these word the deposition of  Charles viner Esq as to the verbal direction give he by the testator for make  the will and of what he declare be his intention on that occasion in favour of  the appellant be refuse by the house of lord to be read and the deposition to  give a account of the affair of the deliver up the bind enter into by the  appellant to Mr brown the testator in order to raise a construction of the  intent of the say brown independent of the word of his will be also refuse by  the lord to be read the decree of the Lord chancellor reverse a decree of the  master of the roll be affirm