case moses Hawkins george daw sen all plaintiff Samuel mason defendant S c bro  PC in court master of the roll there be a difference between make a man  executor and express devise the residue to he for in the first case if be die  before he have full administer administration de good non c shall go to the  next a kin of the testator but in the other it shall go to the next of kin of  the executor carter go off of executor dyer Plowd shower cro can Swinb part  see n great cham ch Perk title devise ch fol Doct and Stud lib ch bro title  Adm n title ex n Inst Edward Edward Edward Swinb part sect n sect n if the  executor have a particular legacy the residue shall go to the next of kin John  Hawkins a freeman of London have only one daughter Sarah the wife of the  defendant who he have full advance in marriage and no wife make his will the d  of June and thereby inter all devise to his brother Moses Hawkins and his heir  a message and house in Berks pound for mourning and pound south sea stock and  to his sister mary daw pound south sea stock and after her death his will be  that the say stock so give to her shall be divide to her child then live and  pound to buy mourning for himself her husband her son and her daughter and  give to the defendant and his heir two house in Wapping pound and pound to buy  he mourning and devise to trustee pound south sea stock in trust for his  daughter Sarah to be at her disposal and after several other legacy he give  and bequeathe the rest and residue of his real and personal estate to his  daughter Sarah to hold the same during her natural life and after her decease  he give and bequeathe the same to her child and child bear of her body for  ever in case such child or child shall attain the age of eighteen or be marry  but in case they die before such age or marriage then in such case he give and  bequeathe the say rest and residue of his estate as follow to his brother  Moses Hawkins and his heir for ever all his message or tenement in Hounsditch  and woolpack alley and to his kinsman Moses Hawkins and his heir the lease of  his house in the those inferior in rank es in London and make his daughter  Sarah executrix for life and Moses Hawkins his mosely report brother and  George daw senior his brotherinlaw executor from and after her decease march  the that the testator die and April the saint the defendant say late wife  Sarah prove the say will and she and the defendant possess themselves of the  testator personal estate and April the that the defendant wife die without  issue and thereupon the say Moses Hawkins the brother and George daw procure  letter testamentary on the say will from the prerogative court of Canterbury  and may the that the defendant take letter of administration to his say wife  out of the say court and this bill be bring by the executor and legatee  against the defendant for a account and satisfaction of their legacy and that  the surplus undisposed of may be pay to the executor Moses Hawkins and Georqe  daw senior for after the death of his daughter without child the testator have  dispose only of part of the residue videlicet his message and leasehold house  and the defendant by his answer insist that he as administrator of his say  wife the testator only child live at his death be entitle to the remainder of  the testator personal estate which be undisposed of by the say will and this  cause come on to be hear in the high court of chancery before his honour the  master of the roll on the that of June Mr attorneygeneral argue for the  defendant this question must depend on the will and intention of the testator  there can be no doubt but that many case may be mention where executor may  have the legal estate in they and yet be consider in this court only as  trustee a executorship by the civil law which be the rule in legatary case be  say to be only a trust undertaking and the legacy give by the testator be only  so many special direction as to the disposal of this trust and the whole  estate vest in the executor till he assent mosely report er p if one make a  executor and he die intestate before he have full administer the next of kin  to the testator and not the next of kin to the executor shall have  administration de good non but the next of kin to the executor shall have the  administration if the residue be express devise to he which show plain that  the law make a difference between bare nominate a man executor and express  devise the residue to he and executor have always be construe trustee where it  appear the testator intend to make they so as where he devise particular  legacy to they which be a evidence that he intend they no more for if by make  they executor he design they the whole it will have be unnecessary and absurd  to have give they any thing in particular which will be to give they all and  some and then this be within the reason of those case for the testator have  leave Moses Hawkins pound for mourning and pound south sea stock and pound to  mosely report mary the wife of the other executor which vest in he as her  husband and pound for mourning for herself husband son and daughter that be  pound apiece and the case of Fosler and mount vern which be the first case of  this nature do not turn on a fraud but on a imply trust and in Lord keeper  wright in the case of coke versus walker vern decree the surplus to the next  of kin where pound as here be give to the executor for mourning but there be a  further evidence in this case that the testator do not think that by make they  executor he give they any thing for he have make his daughter executrix for  life and have also give her all the residue of his personal estate for life  which will have be whole unnecessary if he think it have belong to her as  executrix and the statute of distribution settle the succession of the next of  kin as the commonlaw do of heir in case of land and if a man devise his land  to his heir for life he shall have the reversion by descent so here since part  of the residue neither by express word or by implication belong to the  executor the next of kin must of consequence be entitle to it as if he have  die intestate Mr solicitor general this question arise as a consequence of the  statute of distribution for it never be dispute till after that statute the  executor take the whole in right of the testator and therefore if he die  intestate not his next of kin but the next of kin to the testator shall have  administration de good non and though the executor have a power by law to  dispose of the whole yet what he have not dispose of the law doubt consider as  his but as the testator but if he be also residuary legatee then his next of  kin shall have administration for then it belong to he in his own right and  not in right of the testator so that make he executor doubt give he a interest  in the estate but only a power over it before the statute a administrator no  more than a executor be oblige to distribute and if the spiritual court go  about to compel he a prohibition lie because till the statute no body have a  better title which be the foundation a court of equity now go on but I allow  that since the statute if it appear from the will or by proof that the  testator design the executor shall have the surplus he certain must for a  distribution be find on the testator intention that his executor shall not  have it one evidence of which be the give he a particular legacy as be do in  this case but they say here that only one of the executor have a legacy  bequeathe to he and that therefore both be not exclude from the surplus but in  this case legacy be give to both of they to Moses Hawkins express and to the  wife of the other mosely report executor and what be give to the wife be give  to the husband but also pound be give for mourning for her and the husband and  the child but in the case of Darwell and Bennet vern quote in the case of ball  versus smith vern a legacy to one executor exclude the other two from their  share of the surplus and it be decree to be distribute if the daughter here  have a child or child the whole residue will have be they then in that case  the executor can have take nothing as such Freem S p and yet their authority  as executor will have continue and though this contingency do not happen yet  since it appear that in that case they be to have have a bare authority only  there be no reason to think he design they more in any other case and since he  give the residue to his sister express for life he can only design to make her  a nude executrix and then when he appoint the other executor after her decease  he must be suppose to make they executor too in the same sense suppose the  executor have die before the daughter their authority will have be determine  and they can have no interest in case his daughter die without child then he  say he give the rest and residue of his estate as follow and name only two  bequest and drop the rest which must therefore belong to his next of kin but  they say he have give her a legacy mosely report er p of pound and the residue  express for life whereby he have show his intention that she shall have no  more but what the next of kin take be not by the intention of the testator but  by the statute of distribution because the testator have not complete his will  whereas the executor can only take by the will and intention of the testator  Mr lutwych for the plaintiff though the learning be still very doubtful when  the surplus belong to the executor and when to the next of kin yet there can  be no question in the case before we in the case of foster and mount the  executor be stranger and have pound apiece give they for their care and  trouble and Lord chancellor jefferies order the account to be take before he  make his decree and the surplus on the master report come out to be pound he  decree it to the child for it look like a fraud and the executor before that  time be never question because the law be for they and no equity be against  they but many case of this nature have indeed be determine since though no  certain rule be yet lie down to know when a executor be exclude no not even  the give he a particular legacy but the determination whole depend on the  circumstance of the case and the intention of the testator for in ball and  Smiths case vern a legacy be give to the executrix and yet the surplus be  decree to her but here nothing be give to they as executor he give they  nothing out of that residue of which they be to be executor after mosely  report the death of his daughter but only particular legacy out of his  personal estate so no implication against they can arise from thence for by  this will there be two residues one devise to the daughter for life and the  other be a part of this first which the testator have make no disposition of  after her death but his intention be plain against the defendant by his will  he give the daughter the residue during her natural life only how then do it  appear that he design her all will not this be intend her all and some and  this will be no more than the make a provision for his daughter and her child  if she have any if not for his brother and brotherinlaw and then since the  executor have the legal title in they what equity be there in this case to  take it out of they where a feesimple be devise to the heir for life he shall  take the reversion by descent because no body else have a title but here the  executor have the legal right to what the testator have not dispose of here he  have leave his daughter a particular legacy who will be entitle to the surplus  as his next of kin by the statute of distribution so may not we say she have  no title because he have make a particular provision for her in the case of  somner versus Hooker particular legacy be give to the next of kin as well as  to the executor the residue be decree to the executor for the implication be  equal strong see ant case post case that the next of kin be to have no more as  that the executor be not and then the law which be for the executor ought to  take place and this be not a case where both the executor have legacy for  George daw have no legacy for the forty pound be not bequeathe to he and then  if both the executor have not particular legacy neither be exclude post case  case vern contra dr Cotesworth bring a bill against Brangwin his coexecutor  for a account of the surplus undisposed of and that it may be decree to he  because the defendant have a particular legacy but Lord Cowper be incline to  think that neither be exclude because both be not but direct a account to be  take and after a report make the cause come on to be hear before Lord Harcourt  in he decree that the estate shall be divide between the executor a executor  in his lifetime may do what he please with the estate and if he leaves a  executor he will be entitle to the estate of the first testator but if the  executor die intestate a administration de good non must of course be grant to  the next of kin to the testator Mr will the council for the defendant will  collect the intention of the testator from the particular legacy he have give  legacy indeed to his brother Moses Hawkins immediate but none to the other  executor but devise pound to his wife for mosely report life and then to her  child which he seem to have do on purpose that her husband may not be exclude  from what he design for he as executor but suppose that legacy be bequeathe to  both the executor we be not within the reason of the common case where the  executorship and legacy be to commence immediate because here the legacy be  give absolute but the executorship only on a contingency so that it may be the  testator intention that they shall have these legacy at all event and the  residue on a contingency will they have only Moses exclude that will be  contrary to the testator intention for he design he shall be better provide  for than the other executor or will they exclude the other only but no mosely  report er p case can be mention where the surplus be decree from the executor  if he have no legacy leave he or will they have both exclude why then they  must be trustee for the defendant wife though the testator by express word  have give her the residue only for life he have also give her pound and to the  defendant her husband pound from whence it may be as strong infer that he  design her no more as that he design the executor nothing further and they be  executor only of the residue which be express devise to the daughter for life  c on a contingency by their construction the next of kin will have nothing but  the residue will go over to the defendant who be a stranger while the daughter  be alive who be next of kin the executor have no title nor if she have child  and the executor themselves be next of kin when they come to be entitle Mr  attorneygeneral reply in the case of foster and mount the legacy be give to  the executor express for their care and pain but there have be many case since  where legacy give to the executor general have debar they of the residue and  those resolution have turn upon the impertinence of the thing of give he a  part for who he design the whole yet I allow in particular case the surplus  have be decree to the executor though legacy have be leave they where the  intention of the testator plain appear or be prove as in Littlebury and buckle  case vern and in ball and smith case in which there be evidence of kindness to  the wife which take off the presumption that the testator design her no more  but in all other case the executor have be exclude but I allow that the  question will principal depend on the construction of the will here they say  the legacy be give in prsenti but they be make executor only after the  daughter death but this objection I think make against they suppose they have  die in the lifetime of the daughter they can not have take nor their  representative though mosely report the contingency have after happen and  suppose she have leave issue they will have be executor yet can have take  nothing which show plain that he design they only a authority and no interest  and it import nothing that he have give the residue to the daughter for life  for that be do pure for the sake of her child to make the legacy sure to they  and if she have no child he only give particular part over if he have make no  executor it must be admit she will have have the residue but the make executor  will not alter the case for they have only the legal interest in they but they  say this be different from the case of a reversion which will descend on the  heir though the land be express devise to he for life because here the  executor can take but there no body else have a title but suppose they  beneficiary and trust in fee devise to his heir for life in that case there be  a trustee to who the reversion in fee by law belong yet the trust of the  reversion shall go to the heir and in the case of personal estate the next of  kin be as strong entitle to the trust of the surplus as the heir in the other  case be to the trust of the reversion and there be many precedent where the  surplus have be decree to the next of kin though they have have particular  legacy devise to they for they take by the statute not by the intention of the  testator the executor want the will to take by but the next of kin do not here  they say a legacy be leave only to one executor but in the case of Darwell and  Bennet that exclude the other two from claim the residue and in the case of dr  Cotesworth and Brangwin the question be only between the executor and it do  not appear that the next of kin be before the court his honour the master of  the roll declare that by give a legacy to one of the executor neither of the  executor be exclude and inter all decree that the executor be entitle to the  surplus which be about pound and that the defendant shall account for the same  vern vern salk Cas Chan Cas this decree be affirm in the house of lord on  Wednesday march the that mosely report er p mosely report de d S Michael in  cur porter