brown case Samuel buckley appellant george Littlebury respondent that may Mews  dig way where the executor have a legacy give he and no disposition make of  the surplus parole evidence be admit to prove the testator intention that the  executor shall have it viner vol p note to can cite in Wingfield v Atkinson  vern Isaac Littlebury by his will date the that of December give to the  respondent who be his brother of the half blood and to his wife a legacy of  pound each to their four child pound each to be pay they at their age of  twenty year to Sarah Lynch his housekeeper pound with the furniture of his  house and as full possession of every thing therein as he have at that time  book except and to the appellant all sum of money which be or shall be due  from he to the testator upon bind or note together with whatsoever may be due  to the testator from parish Rome or Lisbon for good former send thither and of  his say will which the testator therein declare to have make and write with  his own hand he constitute and appoint the appellant sole executor soon  afterward the testator die and the appellant have prove the will the  respondent in October exhibit his bill against he in the Lord mayor court of  the city of London for a account of the surplus of the testator personal  estate not dispose of by his say will to this bill the defendant put in a  answer and thereby insist that the testator do not design the plaintiff shall  have any more or other part of his personal estate than what he have give he  by the will but that he intend the benefit of the rest of his estate after  debt and legacy pay for the defendant and that the make he executor be a gift  in law to he of all the personal estate on the that of April this cause be  hear before sir Peter king the recorder of London who decree that the  defendant shall account with the plaintiff for the residue of the testator  estate after all debt and legacy be pay and which be not particular devise by  the will and refer it to the two atorneys of the court who be neuter in the  cause to take and settle the account and make the defendant all just allowance  from this decree the defendant appeal insist r Raymond S mead that it manifest  appear from the proof take in the cause that the testator not only intend to  exclude the respondent from any other share of his personal estate than what  he have express give to he and his family by will but also that by make the  appellant his executor he shall have all the residue of his personal estate  that it likewise appear by the proof that for many year before the testator  death there brown er p be a very strict and uninterrupted friendship between  he and the appellant that brown the appellant have be very serviceable to the  testator and that he constant declare to his friend and acquaintance that at  his death he design to give the appellant his personal estate as some  recompense to he and as a mark of the affection and esteem he have for he that  the make the appellant executor of his will accord to the legal notion of a  executor full answer the testator intention and as there be not in this case  the least pretence or colour of any fraud or imposition so there be no ground  to raise a trust for the respondent benefit contrary to the testator design in  make the appellant his executor and to his own explanation of what he intend  by do so on the other side it be contend g pauncefort that the residue of the  testator estate be not dispose of by his will to any person that the appellant  have a considerable legacy give to he be not entitle to the residue but that  accord to many precedent in the court of equity below the respondent who be  the testator next of kin be well entitle to the benefit of it and therefore it  be hope that the decree will be affirm but after hear counsel on this appeal  it be order and adjudge that the decree complain of shall be reverse jour vol  p vide the case of the duchess of Beaufort v lady Granville and other ante p  where the same point receive a similar determination upon the same kind of  evidence