case richard Matthew appellant christopher fitzsimon and other respondent that  February Mews dig way a be possess of a bind for pound deposit it in the hand  of b who sign a proper acknowledgement for the same a afterward assign this  bind to b and take his promissory note for the value but the note be never pay  a by his will give several legacy and appoint b and another executor but make  no disposition of the residue of his estate hold that the money due on this  bind be part of the residue and shall go to the executor equal and that b s  note be not such a debt as can be extinguish by his be make a executor this  case be not report in any other book decree of the Lord chancellor of Ireland  affirm except as to cost Christopher Leonard be in his lifetime indebt to the  testator James Welsh in pound by bind date in the year in the penalty of pound  condition for the payment of pound and interest with a warrant of attorney to  confess judgement thereon which be enter up in Trinity term in the court of  common plea in Ireland James Welsh on the that of September deposit this bind  with the appellant who thereupon sign a acknowledgement thereof in the follow  word videlicet memorandum Mr James Welsh deposit in my hand for his own use a  bind Payable from Mr Christopher Leonard decease to he the say Mr Welsh for  principal money fourteen hundred pound and also one other brown bind Payable  from Thomas power and Simon Kirwan with Michael bodkin to the say Mr Welsh for  principal money three hundred pound give under my hand in Dublin September the  word for his own use be interline brown er p Christopher Leonard the obligor  die seize of a freehold lease of land call Coolebegg and Ballinaclough in the  county of Wicklow leave a only daughter his heiress at law who intermarry with  Patrick Byrne and he not be ready to pay the say debt which have be many year  owe and the recovery thereof be likely to be attend with difficulty and  trouble the say James Welsh who be a intimate friend and acquaintance of the  appellant agree to assign he this judgement for pound S d which then remain  due thereon and also to procure and be at the expense of Patrick Byrnes  acknowledge a statute staple to the appellant as a far security for the debt  in pursuance of this agreement James Welsh do by deed date the d of April in  consideration of pound S d therein mention to be pay by the appellant to he  absolute assign and transfer to the appellant the say judgement against  Christopher Leonard and all principal and interest due thereon and at the same  time sign a receipt on the assignment whereby he acknowledge to have receive  the say pound S d of the appellant who give Welsh his promissory note which  Welsh know he to be a person of substance and fortune ready accept date the  say d of April whereby the appellant promise to pay to Welsh on demand pound S  d sterling value receive in Dublin and so become Welsh debtor for this  judgement the appellant afterward obtain a statute staple from Patrick Byrne  but as the same be agree to be pay for by Welsh the appellant accord on the  that of February make he debtor in a account between they for pound S the  charge of the statute staple the say Patrick Byrne in order to raise money  towards the discharge of Christopher Leonard debt in the year convey his right  and title in the say land of Coolebegg and Ballinaclough subject to the  appellant demand to Daniel ready Esq who then stand indebt to the appellant in  pound and upward on various account and on the that of November the appellant  deliver Welsh a bind from ready to the appellant for pound which Welsh accept  in discharge of the interest accrue on the appellant say note of pound S d to  Michaelmas but instead of assign over this bind to Welsh the appellant make  the follow endorsement on his note memorandum I give Mr ready and his brother  bind take in my name but in trust for Mr James Welsh to the amount of three  hundred pound which clear all interest to Michaelmas last date November that  brown the appellant beside this note of pound S d be far indebt to Welsh in  pound for money lend on the that of may for which the appellant then give his  note Payable to Welsh on the that of July then next with interest and have  afterward pay half a year interest due thereon the that of November he endorse  that payment on the note the appellant be Willing and offer to pay Welsh both  his say note but Welsh refuse to take the money and die on the saint of  December have by his will date the that of April appoint Raymond fitzsimon the  respondent Christopher fitzsimmons father and the appellant his executor  provide they pay and discharge all his legacy and the debt he shall owe at his  death and give legacy to the say Raymond fitzsimmons wife and child to the  amount of pound but no legacy whatsoever to the appellant and make no  disposition or take any notice of the residue of his estate after payment of  his debt and legacy and Raymond fitzsimon and the appellant both prove his  will in the prerogative court of Dublin and pay all his debt and legacy the  testator James Welsh lodging several year and die in Raymond fitzsimmons house  in Dublin he as one of his executor possess himself of his security money  effect book write paper and account and the next day be the d of December the  appellant hear of the testator death and go to the say Raymond fitzsimmons  house he produce to the appellant Welsh will and such of his bind note and  cash as he think fit whereupon a inventory and account be take and a gross  computation make of the same in order to see what fund there be for payment of  the debt and legacy one part of which inventory or account consist of and be  entitle account of note find in the escrutore of Mr James Welsh decease d  December and the brown er p other part consist of and be entitle a account of  bind find in the escrutore of Mr James Welsh decease d December in which  inventory or account be include pound S d cash in the house and as soon as  this be do Raymond fitzsimon possess himself of the pound S d cash and all the  note amount to pound S d among which be the appellant say two note for pound S  d and pound so that he take to himself in cash and security of the testator to  the amount in the whole of pound S d and it be think improper that the other  security shall remain in his hand only he deliver to the appellant the  testator bind amount to pound S d part of which to the amount of pound S d the  appellant afterward deliver back to he to receive the money upon they and  which he receive accord but no division then be or can be make between the  executor of their part or share of the testator estate his debt legacy and  funeral expense remain to brown be pay and no perfect account of his whole  estate be yet take on the d of march about three month after Welsh death the  appellant and Raymond fitzsimon meet at a tavern to see what of the testator  debt and legacy have be pay what money be receive by the executor and what  bind or note remain unreceived at which meeting one Ambrose Farrel be present  who take down a account or computation in write whereby it appear that the  appellant have receive from the testator estate no more than pound but that  the other executor Raymond fitzsimon have receive to the amount of pound S d  and have discharge several legacy therein mention which with what he have pay  for debt and funeral expense amount to pound S d so that accord to such  computation he have receive pound S d more than he have pay and much more than  have be receive by the appellant and among the legacy charge to have be pay by  he be those leave to his own wife and family and particular two legacy of  pound each give by the testator to the respondent Christopher and his sister  jane fitzsimmons and by the say account or computation it also appear that  there remain in the executor hand the several bind therein specify and in the  hand of Raymond fitzsimon several note Payable to the testator and among other  the appellant note for pound S d therein mention to be for pound and his other  note for pound but no demand be make at this meeting on the appellant for the  say note or either of they nor be the say account or computation a settle or  complete account of the testator estate or intend as such the voucher for it  be not produce sum of money be fraudulent charge therein as pay by Raymond  fitzsimon which be afterward demand of and recover from the appellant and no  calculation or charge be make of the testator plate household good or other  movable in Raymond fitzsimmons possession it appear however by the account  that a considerable sum of money have be receive by Raymond fitzsimon for part  of the bind which by the inventory of the d of December be mention to be in  the appellant hand and he also receive other sum to a considerable amount for  other part of the say bind which have be redeliver to he by the appellant but  which he never account for and only deliver to the appellant a note of pound S  of one Thomas wolf that the appellant may get payment of which be one of the  note mention in the inventory to be in Raymond fitzsimmons hand no other  account of the executorship or of the testator estate be ever settle or take  between Raymond fitzsimon and the appellant nor be the quantum of the surplus  or residue after payment of debt and legacy ever fix or any division thereof  make between they brown in April soon after the above meeting John Welsh the  testator only brother and next of kin to who the testator have leave a legacy  of pound to be divide between he and his child institute a suit in the court  of exchequer in Ireland against the appellant and the say Raymond fitzsimon  for a distribution of the residue of the testator personal estate undisposed  of by his will but on the d of February his bill as to that be dismiss in the  latter end of the year the say Daniel ready who have purchase of Patrick Byrne  the say Christopher Leonard land and premise call Coolebegg and Ballinaclough  subject to the appellant demand fail in his credit his estate real and  personal be soon afterward vest by act of parliament in trustee to be sell for  the payment of his debt and the say Daniel Reddis interest in the brown er p  land of Coolebegg and Ballinaclough be by they sell at a public can it to  William Cooper Esq in trust for Isham bag Esq the appellant on the that of  August in the say Raymond fitzsimmons lifetime receive from the say Isham bag  the principal sum of pound with interest and cost due on his judgement and  statute staple and deliver up to bag the assignment make to he by the testator  Welsh Raymond fitzsimon die on the that of February have make his will and his  son Thomas fitzsimon his sole executor and although he have retain out of  Welsh effect pound for the legacy give to his daughter jane fitzsimon as  appear by the account and computation of the d of march yet the say jane on  the that of November exhibit her bill in the court of exchequer in Ireland  against the appellant as Welsh survive executor for her say legacy of pound  and interest allege it be still due and unpay to her and on the that of may  obtain a decree for the same in obedience whereto the appellant on the that of  June follow pay her pound S d for principal and interest with pound S d for  cost make pound S d the say Thomas the son of Raymond die in June have make  his brother the respondent Christopher fitzsimon his sole executor and  residuary legatee who thereby become the representative also of Raymond  fitzsimon their father No soon have the appellant satisfy the say jane demand  but the respondent Christopher fitzsimon himself make a like demand upon he  and though the respondent be then the say Raymond fitzsimmons representative  and well know his father have also retain out of Welsh effect pound for the  legacy give the respondent yet he insist on have receive no more than pound  and on the saint of October exhibit his bill in the court of exchequer in  Ireland to compel the appellant to pay he the say legacy of pound with  interest from Welsh death deduct thereout the pound pay he and the appellant  in order to avoid charge on the that of December pay brown he pound demand by  he as the balance take a receipt for the same in full of the remainder of the  principal of his say legacy with interest and cost the say respondent do not  when he file his bill for and receive what he pretend be unpay of his legacy  set up any other demand whatever against the appellant on account of the  testator Welsh estate but upward of two year after videlicet on the that of  February he think fit to file a bill in the court of chancery in Ireland  against the appellant for a account of James Welsh personal estate and to  compel the appellant to pay he one moiety of the sum recover from Daniel  Reddis trustee and of the say note of pound and of all Welsh other effect  charge the appellant to have be but a trustee for Welsh in the judgement and  statute staple and that he have never pay any thing or give any value upon the  assignment of the judgement to he consequent the same be to be consider as  part of Welsh estate he also charge that the appellant say note of pound and  pound S d be subsist in equity for his the respondent benefit and that it be  evident from the transaction both before and after the assignment that neither  the appellant consider himself nor do Welsh consider he as a debtor on the  foot of the assignment or statute staple but mere as a trustee the appellant  by his answer to this bill positive deny his take the assignment from Welsh of  the judgement against Christopher Leonard in trust for Welsh or that he have  ever own look upon or imagine himself in any sort as a trustee therein for  Welsh and say that Welsh have agree to be at the charge of the statute staple  and that the note give by the appellant in consideration of the assignment be  a full and adequate consideration for the same and that he take the assignment  for his own benefit and that the statute staple be execute to he for his own  use that during Welsh life he be his debtor for the pound S d the content of  his note give for the assignment but that as he and Raymond fitzsimon take  under Welsh will not as residuary legatee but as executor he admit he refuse  account for any part of the money owe upon his two note and insist that be by  Raymond fitzsimmons death Welsh only survive executor he be as such become  entitle to all his personal estate not possess by Raymond in his life brown er  p time and therefore insist upon the same in bar of any relief which the  respondent Christopher fitzsimon can have against he as to Welsh personal  estate or the moiety of the money receive by the appellant Isham bag or of  that owe by the appellant on his say note the respondent fitzsimon afterward  amend his bill and make the other respondent party thereto and answer be put  in by all the defendant issue be join and witness be examine and publication  pass the cause come in to be hear before the lord chancellor on the that that  and that of brown December on the last of which day his lordship order it to  stand over and that the respondent Christopher fitzsimon shall be at liberty  to examine the appellant on personal interrogatory which be accord exhibit on  the that of January and on the that of may follow the appellant put in his  answer to they on the d d that that that and that of may the cause come on  again and on the d of August follow his lordship be please to decree that the  respondent Christopher be entitle to a moiety of the money receive by the  appellant from the say Isham bag on the foot of the say judgement and statute  staple with interest from the time the same be pay to the appellant by the say  Isham bag and that the respondent Christopher be also entitle to a moiety of  the money receive by the appellant on account of the principal and interest  due on the bind execute by Daniel ready bear date the that day of November to  the appellant in trust for the say James Welsh decease and it be refer to the  master to take a account of the money receive by the appellant from the say  Isham bag with interest for the same from the time of the payment thereof as  also to take a account of the several sum receive by the appellant on account  of the say bind so execute to he by the say Daniel ready in trust for the say  James Welsh with and without interest from the respective time of payment upon  which account all just allowance be to be make and the usual direction be give  for examine witness and likewise the respondent Christopher and the appellant  on interrogatory and for their produce on oath all deed paper evidence and  book of account in their or either of their power relate to the say account  and in case any matter shall appear difficult to the master in state the say  account he be to report the same special and on return of the report such  further order be to be make as shall be fit and his lordship be please to  reserve the consideration of such further or other direction in relation to  the say account as shall from time to time be think necessary and it be  thereby further order that the respondent Christopher fitzsimmons bill as to  the note of pound and also as to the respondent the next of kin of the say  James Welsh shall be dismiss and that they shall have their cost against the  respondent Christopher and that he shall have the same over against the  appellant the master in pursuance of this decree proceed to take the account  thereby direct and on the that of December make his report whereby he certify  that he find by the appellant answer to the respondent Christopher fitzsimmons  charge that the appellant do on the that of August receive from the say Isham  bag on the foot of the say judgement and statute staple pound with a moiety of  which be pound S the master do thereby charge the appellant together with  pound S d for interest make pound S d brown and the master also find that the  appellant do on the that of September receive from the trustee for the  creditor of Daniel ready on account of the say Daniel Reddis bind pound upon a  moiety of which be pound the master have compute interest amount to pound S d  which add to the pound make together pound S d but it do not appear to the  master that the appellant receive any other sum on account of the say bind so  that pound and interest still remain due on the foot thereof which say pound S  d be add to the pound S d the amount of the principal and interest of the  moiety of the money receive by the appellant from Isham bag make together  pound S d and the master also find that without charge interest for the say  sum of pound the sum due to the respondent Christopher amount to pound S d  upon this report which be absolute confirm the cause come to a final hear on  the that of February when it be order and decree that the appellant shall pay  the respondent Christopher fitzsimon the sum of pound S d brown er p be the  balance report due to he the say respondent counsel wave the sum of pound S d  be the interest of the pound together with interest from the time to which the  master compute the same to be compute by the register and the register have so  do the same amount to pound S d which be add to the say sum of pound S d make  in the whole the sum of pound S d and it be further order and decree that the  respondent Christopher be entitle to and shall have and recover a moiety of  the sum of and interest remain due upon the bind execute by the say Daniel  ready to the appellant in trust for the testator James Welsh when the  appellant shall receive the same and it be further order that the respondent  Christopher shall have and recover his cost against the appellant from the two  decree of the d of August and the that of February the present appeal be bring  and on behalf of the appellant it be argue c York a forester that the  assignment of the judgement against Leonard make by the testator Welsh and the  statute staple afterward enter into by Patrick Byrne to the appellant be  absolute for his own use and benefit and so intend by Welsh who receive a  valuable consideration from the appellant on that account that the appellant  become his debtor from that moment and liable at all event to pay he the pound  S d for which he have give his note he never consider himself as a trustee for  Welsh nor do Welsh consider he as such but as a debtor if however the  appellant be mere a trustee it be very strange that his coexecutor Raymond  fitzsimon who at Welsh death take into his custody the appellant note and  other memorandum relative to this transaction who live seven year after the  testator death and upward of four year after the appellant receipt of the  money upon this judgement shall never in all that time proceed to brown  recover any part of it when he appear to have be as well acquaint with the  state of the testator affair as the appellant but admit the appellant to have  be only a trustee for Welsh and the money receive upon this judgement to be  part of Welsh estate still the respondent fitzsimon have no right to any part  of it for here be no specific bequest of the surplus to the executor they take  it plain as executor and as on the one hand the law be clear that the creditor  make his debtor executor be a extinguishment of the debt and so admit by the  decree of the d of August as to the pound note so on the other hand it be no  less clear that where two be make joint executor and one die the office and  interest survive to the other who thereby become the sole representative of  the testator and this the respondent have himself admit by bring his bill  against the appellant after Raymond fitzsimmons death not for a moiety but for  the whole of what he insist be unpay of his legacy No complete account  therefore of the undisposed surplus of Welsh estate have ever be take by his  executor no division thereof make between they nor any thing do to sever the  jointtenancy each executor have a right to retain such part of that surplus as  he possess and all that remain unreceived whether legal or equitable interest  do upon the death of Raymond fitzsimon survive to the appellant who have  therefore a right to keep the whole money by he receive from bag upon the  judgement as much also as be receive from Reddis trustee upon his bind and  what still remain due upon that bind that the decree complain of charge the  appellant with a moiety of the money due upon the judgement and upon Reddis  bind and yet make he no allowance for the pound S d and pound which he pay the  respondent fitzsimon and his sister after their father Raymond death for the  principal interest and cost of their two legacy whereas these sum ought to  have be special allow he out of the testator asset even admit the decree to be  well find especial as Raymond fitzsimon have retain the money Payable for the  same and consequent the appellant be in danger of be compel to pay these  legacy twice over that the several defendant who be make party to the  respondent fitzsimmons bill as next of kin to the testator Welsh be improper  and unnecessary make so they have no sort of right to the undisposed surplus  and so it have be determine by the court of exchequer upon the bill bring by  John Welsh the testator brother and only next of kin their cost therefore  shall have be pay they not by the appellant as direct by the decree of August  but by the respondent fitzsimon brown er p on the other side it be contend r  Henley c Pratt that the dismission of John Welsh bill have determine the right  of the two executor to their testator residuary estate and that the appellant  have by his answer and cross bill in those cause insist that the brown  testator by constitute they executor without any particular legacy do intend  that they shall have the residuum of his estate to their own proper use and  that the same do in law amount to a disposition of such residue to they can no  long contend that they be not entitle to such residue as a bequest of the  beneficial interest consequent there be no pretence to exempt any particular  part of the asset from distribution by consider the note in question in the  light of a debt to be extinguish by the executorship but admit that the rule  of law can take place and that the debt of each coexecutor shall be extinguish  by the executorship yet in this case the appellant be a mere trustee for his  testator for neither the deposit of the bind or the assignment of the  judgement pass any property to the appellant in these security either in law  or equity the only consideration which can possible convey any equitable  interest to the appellant in either be the promissory note but when that be  couple with the express declaration of trust when the bind be deliver and  explain afterward by the account and the delivery of Reddis bind to the  testator with the endorsement upon the promissory note the whole appear to  have be a trust from the beginning how otherwise can he account for the  interest home to the death of Welsh when the note carry no interest or charge  Welsh with the expense of the statute staple and the renewal of the lease  after all these security have be absolute exchange for the note what business  have Welsh with Reddis bind or the receipt of rend if he have already part  with the judgement which be the only lie upon the estate all this show the  appellant to have be a mere trustee nor be it credible that any man shall sell  a real security carry interest for a mere personal promise in a note which  carry none as to the other point contend for by the appellant namely the  benefit of survivorship because no severance or division of the money in  question have be make during the life of his coexecutor it be answer that the  transaction at the two meeting in December and march amount to a actual  severance of the whole residuum the division not be partial only but of the  whole as appear from the appellant own bill and answer in jane fitzsimmons  cause and the only reason why his two note be not divide for they be the only  effect leave undivided proceed from his own fraud and misrepresentation of  which he can never be suffer to avail himself that no acquiescence can be  impute in this case for it appear that Raymond fitzsimon complain of the  grievance while recent and at the very time it arise and frequent threaten to  apply to equity for relief and that both Raymond and his son make several  application afterward to the appellant for redress which he have often refuse  and so late as in the cause of jane fitzsimon the appellant insist upon that  settlement of account as a bar which he will now represent as no settlement at  all which with brown his subsequent submission to pay the respondent legacy  mere upon a bill be file and before answer betray in the strong manner his own  conviction of the justice of the respondent claim but his own  misrepresentation and fraud independent of every other circumstance at once  account for and justify every appearance of acquiescence after hear counsel on  this appeal it be order and adjudge that that part of the decree of the d of  August which direct that the respondent Christopher fitzsimon shall have such  cost as he be thereby direct to pay to the defendant the next of kin of James  Welsh over against the appellant shall be reverse and that the say decree  shall in all other respect be affirm and it be further order and adjudge that  the other decree of the that of February shall be affirm jour vol p brown er p