brown case Dorothy VACHELL and another appellant lucy breton widow and other  respondent that march I S by his will give to a and b who he call his wife  child not own they to be his S a piece and no more to the child which he do  own he give considerable legacy and appoint n his executor but make no  disposition of the surplus of his personal estate on a bill bring for a  distribution of this surplus it be decree to be divide among all the child  equal but on a appeal it be hold that a and b be exclude and therefore the  decree as to they be reverse the case be thus more accurate state under the  name of Vachell v Jeffries in pre Ch and Eq ab c I S devise to a and b his  wife child as he call they not own they to be his S a piece and no more and  give the child which he own considerable legacy then he devise legacy to his  executor but do not mention they to be for their care and pain or any thing to  that purpose decree that the executor shall not have the surplus but that it  must be distribute and that the child which the testator do not own shall come  in for a share for the word of exclusion be not plain express and shall be  take strict in this case the decree be reverse only in the latter particular  the report in vin and Eq ab p be take from the ms table and be manifest  incorrect for the principle on which the distribution of the residue be decree  see bro p c pp and prece in Chan viner vol p can Eq can ab can can Mews dig xv  but see in re Holmes l t Ramsay v Shelmerdine l r I Eq on the marriage of  Thomas Breton with the respondent Lucy in the year article be enter into  whereby in consideration of the marriage and of her portion it be agree that  he shall lie out pound in the purchase of land of pound per annum and settle  the same to the use of himself for life remainder to the say Lucy for life for  her jointure and in lieu of dower remainder to the first and other son of the  marriage in tail male with other remainder over there be issue of this  marriage two son and two daughter namely Francis the old son the respondent  William and Penelope and the appellant Dorothy but Mr Breton have live many  year separate from his lady he do not think fit to acknowledge William and  Penelope as his child in may a treaty of marriage be set on foot between  Tanfield Vachell and the appellant Dorothy and upon that occasion certain  article be enter into between Mr Breton and Ann the mother of the say Tanfield  Vachell who be then a minor whereby Breton agree to give as a marriage portion  with brown his say daughter pound down pound more at the end of six calendar  month and to secure the further sum of pound by bind Payable when Mr Vachell  shall attain and make a settlement accord to the proposal agree upon this  marriage take effect and Mr Vachell be in want of money apply to Breton for  his assistance who on the that of November borrow of one Mr Davis pound for  which he and Mr Vachell though under age join in a bind and in November Mr  Breton also borrow for Vachells use pound of Mr love and of sir Francis  winnington but for both these sum he give his own bind only and constant pay  the interest of all of they until the time of his death on the that of April  Mr Breton make his will and thereby devise all his real estate of the value of  pound per and to Francis his old son and the heir male of his body and for  want of such issue to the appellant Dorothy and the heir of her body with  diverse remainder over the testator then direct the sum of pound to be lie out  in the purchase of land of pound a year and settle to the use limit by brown  er p his marriage article and after some specific and pecuniary legacy to his  executor and other the testator go on in these word and I do order will devise  and appoint that my say executor or the survivor or survivor of they shall out  of my personal estate pay unto Penelope the daughter of my say wife the sum of  ten shilling and no more and also pay unto William son of my say wife the sum  of ten shilling and no more and also pay unto such other child or child which  shall or may hereafter be bear of the body of my say wife and which shall be  alive or wherewith my wife shall be ensient at the time of my death the sum of  ten shilling and no more the testator then charge his real estate with the  payment of sir Francis winnington bind and his other creditor and appoint the  respondent Benjamin jefferys and other executor of his will but make no  disposition of the surplus of his personal estate in April Tanfield Vachell  attain his age and have thereupon make a settlement pursuant to the agreement  on his marriage Mr jefferys the survive executor of the testator Breton pay Mr  Vachell the remainder of his wife portion without demand any part of the pound  which the testator have borrow for Vachells use as aforesaid the pound be also  lie out in a purchase and settle as direct by the testator will and upon the  death of Francis his old son without male issue which happen some time  afterward the appellant Dorothy become possess of all her father real estate  in Trinity term Mr Vachell and his wife exhibit their bill in the court of  chancery against Mr jefferys for a account of the testator personal estate and  to have the appellant dorothy distributive share of the surplus thereof and in  the respondent exhibit their cross bill for the same purpose and also brown  that the above pound may be consider as a debt due from Mr Vachell to the  testator personal estate and be bring into the same accord on the d of July  both these cause be hear at the roll upon bill and answer when his honour  decree that the surplus of the testator personal estate shall be divide as  follow videlicet one three part thereof to the respondent Lucy and the residue  among the appellant Dorothy and the respondent William Penelope and Ann in  equal portion and that the sum of pound borrow of sir Francis winnington and  other for the use of the say Tanfield Vachell shall be account for as part of  such personal estate and Mr Vachell be to answer the same accord but his  honour reserve the consideration of the interest of this pound until the  master shall report who be bind and who receive the money and who debt it be  the master have by his report state the circumstance of borrow the say pound  as above the cause be hear upon this special matter on the d of April when his  honour declare that the pound ought to carry interest and be account for as  part of the testator personal estate and decree the same accord from both  these decree the present appeal be bring and on behalf of the appellant it be  insist I Jekyll W Norris that the respondent William and Penelope have S  apiece give they by their father will and no more be thereby exclude from any  share of the surplus of his estate and that therefore the decree they any  share of such surplus be contrary to the express negative word of the testator  will and be in effect make a new will for he which he never intend to make and  that the testator be single bind for all but pound of the pound and have by  his will take particular care that the same shall be pay out of his estate the  say pound ought not to be consider as a debt due from the say Tanfield Vachell  but as the say testator own proper debt and therefore the decree Mr Vachell to  make satisfaction for this sum and interest be do what the testator himself  can not have do who executor or any claim under he can not be in a better  situation than he himself be on the other side it be contend f page that  although William and Penelope have S apiece give they by the will yet the  respondent Lucy and Ann have no such legacy give they and as the respondent  William and Penelope have only S apiece and no more give they by the will so  the appellant have one three of the plate and other specific legacy and no  more give they by the same will and brown er p not be executor they can not  entitle themselves to any more than what be express devise but as both the  appellant and respondent have legacy give they they can only claim such legacy  under the will and must entitle themselves to the surplus of the estate  undisposed of by virtue of the statute of distribution otherwise the right to  such surplus must be in the executor who do not claim it nor can be entitle  brown to it and as to the pound it be express admit by Vachells answer to have  be borrow for and receive by he and therefore as he stand debtor for it in the  testator lifetime it be conceive there be no word in the will which can amount  to a release of this debt and if not then the interest will necessary follow  the principal but after hear counsel on this appeal it be order and adjudge  that the decree of the d of July and the subsequent order and proceed ground  on that decree shall be reverse so far as the same relate to the dividend  decree to the say William and Penelope Breton and the pound decree to be pay  by the say Tanfield Vachell and to be part of the testator personal estate and  that what the executor have pay to the say William and Penelope Breton by  virtue of such part of the say decree so reverse shall be restore and as to  the residue the say decree and proceed thereupon be to stand and the surplus  of the say testator personal estate be to be divide in the same manner as be  appoint by the statute for settle intestates estate except that the say  William and Penelope be to be exclude as aforesaid and that the court of  chancery shall proceed to give the necessary direction for carry on the say  decree as now alter by this judgement jour vol p