case bailey versus Powell of the tenth Eq can ab pl pre Ch S c devise of  express legacy to the executor and also to the next of kin and no disposition  of the surplus how the surplus shall go Elizabeth burgess by will give several  legacy therein specify to all her next of kin by name and likewise give  particular legacy to mead and Powell two dissent minister and make they her  executor but do not make any express disposition of the surplus of her  personal estate the question be whether the executor must retain it to their  own use or shall be oblige to distribute it to the next of kin the case of sir  William Bassett Lord Bristol v Hungerford pre Ch S c cite as a much strong  case where he have devise his land to his executor to be sell for payment of  debt and further will that if there shall be any surplus after his debt be pay  it shall be deem part of his personal estate and go to his executor yet even  in this case they be decree to account and pay over the surplus to the next of  kin the surplus be decree to be equal divide between the plaintiff the brother  and sister of the testatrix Reg lib a fol note it be state in the answer of  both the defendant that the plaintiff on payment of their legacy give general  release to the defendant that mead assign without any valuable consideration  his moiety of the surplus to the plaintiff and that the testatrix often  declare in her lifetime that she will not leave her brother and sister more  than pound which be the amount of their respective legacy the defendant Powell  file a cross bill against the plaintiff and the defendant mead to have the  benefit of the lease and to be indemnified as to the legacy and for a account  of the estate of the testatrix come to the hand of mead and the other  defendant to the cross bill and that he may retain his moiety of the surplus  which be dismiss with cost and the plaintiff in the original bill and also the  defendant mead be to have their cost to be pay by Powell as to the  circumstance of the executor Powell be make to pay the cost the fact in  addition to the forgo be short and so far as be material correct state from  the register book by Loughborough then one of the lord commissioner of the  great seal in deliver the judgement of the court in Bowker v hunter Br Ch Rep  as follow there be legacy to most of the next of kin and to their child mead  child have legacy the executor also have legacy though unequal one pound the  other pound the executor have re resend to the next of kin that there will be  no residue Powell have arrest Bayley one of the next of kin for a debt due to  the testatrix and have upon remit the debt and upon a promise of pound of  which he pay he only pound obtain from he a release by some mean Bayley get  the release again and destroy it by other representation Powell obtain release  from the other next of kin after this Bayley attack the executor mead assign a  moiety the whole be pound to the next of kin Powell be indebt to the testatrix  the prayer of the bill be to set aside the release Powell insist in his answer  upon parole evidence and undertake to prove the testatrixs intent that the  surplus shall go to the executor he also insist that the debt be discharge by  his be appoint executor mead acknowledge in his answer that he have aid Powell  in this scheme but that be of opinion the next of kin ought to have the  surplus he have assign it to they he acknowledge that he have draw the will  and that no direction be give as to the surplus Powell file a crossbill insist  upon the release the decree be that Powell shall pay the debt the residue be  distribute and that Powell shall pay cost et vide foster v Munt ante vol p  Vernon chancery case er p Vernon chancery case de term S the number three in  curian porter