case wheeler versus sheer all see white v white bro c c Moggridge v Thackwell  Ves mill v farmer Ves mere in court Lord chancellor Mr Verney for the  plaintiff Mr Granville Wheeler son heir and executor of sir George Wheeler his  father be plaintiff Jonathan sheer and Bridget his wife one of the daughter of  sir George Wheeler Robert grace and George Hutton the child of Elizabeth  Hutton another daughter Frances Middleton another daughter and her four child  Ralph Francis grace and Richard Thomas sharp and Judith his wife another  daughter Francisca another daughter unmarried George John mary and grace the  child of mary another daughter by posthumou S smyth the executor of the say  posthumous smyth the executor of grace Musgrave another daughter and the  attorneygeneral be defendant and the bill be bring for your lordship  determination of several point arise from the will of sir George Wheeler sir  George Wheeler have two son and seven daughter Frances mosely report Francisca  and Judith unmarried and grace mary Bridget and Elizabeth marry to three of  which he have give pound apiece for their portion and to the other pound by  will hear date the d of may devise to the plaintiff several house in London  charge with a annuity to his daughter Bridget to his three unmarried daughter  pound apiece to grace pound to be lie out in land or a annuity to Mr Hutton  pound if he augment his wife jointure pound a year otherwise the pound be to  be lie out in land to be settle on the wife and the like legacy and on the  same term to posthumous smyth to his soninlaw pound apiece for mourning and  several legacy to charity and then the will go on all the rest and residue of  my personal estate I give to m v executor debt funeral and legacy be discharge  in trust that what remain over pound to each of they pound to be deduct out of  the residue they shall employ to such charitable use as by codicil I shall  appoint and make his son George and his brother Charles executor that January  by codicil take notice that since the make his will Frances be marry to Mr  Middleton and that he have give her portion he revoke her legacy of pound and  devise to air Middleton pound if lie settle pound a year additional jointure  on his wife otherwise the pound be to be lie out in land for her use and  direct that his daughter smyth be dead since the make his will the pound he  have devise to her shall be divide among her child and then go on and whereas  I have by my will give the residue to my executor in trust c now I do hereby  direct and appoint that the same shall be apply to such use and purpose I as  by any other codicil or codicil shall be direct and appoint the d of march he  make a second codicil whereby take notice that his daughter Judith since the  make his will be marry to Mr sharp and that he have give her for her portion a  assignment of a mortgage of pound he revoke her legacy of pound and mosely  report er p likewise take notice that his son George be since dead he  constitute the plaintiff with his brother Charles the other executor for the  use trust and purpose in his will and that he shall have and partake of such  advantage and benefit by be one of his executor as George will have take and  receive as such if he have live the d of October he make a three codicil in  which be no direction as to his personal estate but only devise land he have  purchase in ken in augmentation of a charity to which he have bequeathe a  legacy by his will sir George Wheeler soon after die and Elizabeth Hutton be  since also dead Mr Charles Wheeler die before probate and the plaintiff the  survive executor prove the will the first question on this will be with Mr  attorneygeneral whether the king shall have the disposal of the surplus of  mosely report the personal estate to charitable use but the first codicil be a  plain revocation of the last clause in the will it take notice of that clause  and direct that the residue shall be apply to such use and purpose c and by  his subsequent codicil he have direct to other charitable use of the surplus  Mr attorneygeneral No argument can be draw in this case from the particular  express legacy the testator have give to charitable use if it appear to be his  intention that the residue also of his personal estate shall be apply to such  use if this question stand single on the will the testator not have appoint  the use by codicil the disposition of the residue belong to the crown  attorneygeneral versus siderfin vern Mr siderfin charge a manor with the raise  pound out of the profit to be apply to such charitable use as he have by write  former direct and no such write be to be find the king appoint the charity for  the benefit of the mathematical boy of Christ hospital so if a bequest be give  to a illegal use and it shall not be void for the benefit of the heir or  executor vern attorneygeneral versus Guise so the testator general intention  shall take effect though he have not specify the particular charity and the  king shall apply it vern Nels Rep in canc sir wm Jones versus peacock the next  consideration be whether the first codicil be a revocation of this clause of  the will I apprehend a prior will be not revoke by a codicil but either by  express word or because the codicil be inconsistent with the will but this  codicil be not a express revocation of the will nor be it inconsistent with it  the testator do not say the use shall be exclusive of the charitable use they  say by this codicil he may have give the surplus to any person why so he may  notwithstanding the will and declare any other use for the will be not like  the reservation of a power by deed Lord chancellor where a man devise to such  charitable use as he have appoint that suppose he have make a appointment  though it can not be find but here it be plain the testator have make no  appointment but only have it in his think to do so by the codicil he confirm  his will and make the trust of the surplus more extensive it be to be in trust  for a charity if he direct any mosely report Mr Verney the next question be  between the plaintiff and the other defendant whether the residue of the  personal estate whereof the trust be not dispose of shall go to the plaintiff  as executor or accord to the statute of distribution or the custom of York I  will not trouble your lordship with case when the surplus shall go to the  executor and when to the next of kin but this be the most favourable case for  the executor can come before your lordship he be a only son and the only child  not advance by the personal estate the other young child be provide for by  portion give by the testator in his lifetime or by his will for he design the  devise to they as filial portion and not as legacy for by his will he give his  three unmarried daughter pound apiece but have afterward give two of they  portion on their marriage he by codicil revoke his bequest to they and we have  express prove that the testator often declare he will never give his daughter  above pound apiece and that he give the pound to Francisca as her full portion  and the pound to the other daughter in augmentation of their portion most of  the book case be of a residue not dispose of but in this case the surplus be  express devise to the executor so that the plaintiff be entitle to it by law  and the testator only reserve to himself a power to declare the trust of it  and testator do not die immediate without a opportunity to take this power  into consideration but he afterward make three codicil and do not revoke the  devise by the first codicil but only declare the trust shall be to such use  and purpose as he shall after direct and he make no appointment by the other  codicil and on the death of his mosely report er p son George when the  testator come to substitute the plaintiff in his room he give he all the  advantage he design the other and if this point be with we the other claim of  the defendant be at a end Mr mead sir George Wheeler can be say to die  intestate as to any part of his personal estate because he have devise the  whole residue he appoint by his second codicil the plaintiff executor and that  he shall have the same advantage thereby as George which show he design the  executorship as a advantage which can be answer by the trifle legacy of pound  apiece nor be that give to they as executor therefore since the testator have  make no appointment the trust must result to the executor and no one can say  he have a title to the residue since by law it belong to the executor mosely  report and the testator himself have take notice of the legal privilege and  advantage of a executor in the case of milner versus Hooker decree by your  lordship April Mr milner give several legacy to Mr Hooker his executor and  also devise to he all his real estate and legacy likewise to his next of kin  the next of kin file a bill against the executor for a account and a  distribution of the residue and your lordship be please to say that the  testator have give legacy both to his executor and next of kin the law must  take place and to decree the residue to the executor Mr Wheeler in this case  be son of the testator and have no personal estate devise to he and the  testator have provide for all his next of kin which be a plain indication he  design the executor shall have the residue subject indeed to any trust he  shall appoint and therefore he have make no appointment the plaintiff to who  it belong by law must have it Mr rider by law the executor be entitle to the  residue and it be never take from he by this court but where it appear to be  the intention of the testator he shall not have it which the defendant will  gather in this case from the particular legacy by the word of the testator the  plaintiff be to have the same advantage by be executor as his brother George  but the pound be not give to he as executor and in consideration of his take  upon himself the burden of the executorship but suppose this a particular  legacy to he as executor it be not a manifestation of the intention of the  testator to exclude he from the residue a particular legacy be general think  indeed to be give by the testator with a design to exclude the executor but  not where his intention appear strong to exclude the next of kin for even  where there be equal reason to presume he design the residue to the one as to  the other the presumption be always in favour of the executor who have the law  with he and the trust not be declare it be as if no trust have be mention but  the second codicil show that this be the intention of the testator to give he  all the legal advantage of a executor for the legacy of pound can be call  benefit and advantage and we must consider that the testator be make a  provision for all his child and we have prove that he often declare that his  daughter shall have but pound apiece so that to decree they a share of this  residue will contradict his intention and such proof have be allow to be read  in the house of lord and they have decree upon they contrary to the case of  foster and Munt vern though that be a decree of their own house vern mosely  report Mr solicitor general for the defendant where a legacy be give to a  executor or to two executor equal to be divide between they it will be  misspending time to show that the court of equity have always take this devise  since the case of foster and Munt as a imply intent in the testator to give  the executor no more and have decree the surplus to be distribute but it be  say that in this case legacy be also give to the young child who be the next  of kin and so the implication be equal and the law must take place in favour  of the executor but nothing be give to mrs sharp by the will or codicil but  the testator have give her pound on her marriage revoke her legacy but the  court have in many case decree a distribution of the residue where the next of  kin have have particular legacy the next of kin take by the law by the statute  of distribution not by the intention of the testator but the executor can take  only by the will and intention and since he design to give he so much only the  next of kin come in for the residue without any regard to the intention of the  testator but it be further object that in this case the residue be express  devise to the executor in trust and that since no trust be declare it result  to they this be the first time I ever hear that a man can be a trustee for  himself but the very end of mosely report er p create a trust be to sever the  legal estate from the equitable estate and it can be say that by make they  executor he design they the advantage the law give they because he have devise  away all the residue but pound and there be no room to imagine that the  testator design they any more he have some design to give it to charity if not  it remain undisposed of so here by the express word of the will as well as by  implication from the particular legacy the executor be trustee and when no  trust be appoint this court have always declare they to be trustee for the  next of kin Ant Cas if a deed of gift be make on such trust as the donor shall  declare and he mikes no declaration the trust shall result to the heir at law  of the donor and the equitable estate shall not go to the donee who be design  and make use of bare as a instrument by the codicil the plaintiff must be  consider as a trustee as well as George for he be make executor for the same  use intent and purpose so that if George be not entitle to the surplus the  plaintiff can one of the use he be make executor for be to be a trustee of the  surplus and the mosely report pound be give to they as executor it be give to  they by the name of executor and they be to deduct it out of the residue the  plaintiff they say be unprovide for by the personal estate and the daughter  advance but he have a real estate of pound ayear by descent or settlement and  the daughter have only pound apiece which be a strong circumstance in their  favour and the surplus be not above pound and the other executor be only a  brother to the testator they have read proof that the testator intend the  daughter shall have but pound apiece on the authority of the case of  Littleburry and Buckley vern that a witness may be read in affirmance of the  right of the executor but not in disaffirmance whereas he must be read first  before it can be know which way his evidence go but what the next of kin take  do not arise from the intention of the testator but from the statute so the  defendant be entitle to the residue whatever be the intention of the testator  Lord chancellor let this cause stand over till Monday the d day of February  post Cas Thursday February the that motion