case Cunningham versus Mellish novemb Eq can ab pl pre Ch S c one devise his  land to his nephew to pay his debt and make his nephew executor but make no  disposition of the surplus whether the devisee shall have the surplus or  whether it shall go to the heir if a express legacy be give to the heir in  such case the devisee shall have the surplus the testator devise several land  to the defendant his nephew to pay his debt and make his nephew executor and  make no disposition as to the surplus the question be whether here shall be a  result trust as to the surplus for the heir or whether the nephew shall take  the surplus as devisee and executor for the plaintiff it be insist that by the  devise to sell to pay debt the intention of the testator be to make provision  for the payment of his debt and not of any benefit to the devisee and the  rather because he devisee be also make executor who office it be to see the  debt pay vide foster v Munt ante vol and case cite in note there for the  defendant it be insist that in a like devise in the case of Crompton and north  Ch can cite more full Gainsborough v Gainsborough post the surplus be adjudge  to the devisee against the heir and by Mr finch though in a conveyance where  no use be declare as to the surplus it may result to the heir yet in the case  of a will there the devisee be to take to his own use if no trust be declare  and it can be no result trust for the heir a devise imply a consideration in  itself and therefore can be aver to be to the use of another than of the  devisee unless it be so express in the will Vernon case Rep a vide Hobart v  lady Suffolk post Vernon chancery case er p Vernon chancery case note in the  case of Crompton and north a particular legacy be devise to the heir Qure the  order the decree be that inasmuch as the say testator have by his will make no  devise of the surplus of his estate nor direct the executor to have any thing  for his care and pain in the executorship but that he shall sell the premise  for payment of his debt that the overplus thereof ought to go to the executor  and not to the heir at law and do so decree and that the defendant the heir  shall join in the sale Reg lib a fol note the testator have but the equity of  redemption in the premise vide Ackroyd v Smithson bro Ch Rep