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by the will, with a devise over at the same time, to the respondent the Duke, who had thereby the absolute property, was not such a legacy to the appellant, as could be construed to exclude her from the benefit of the surplus of the testator's personal estate, it being only in the nature of an exception, or saving of the use of the plate to the appellant for her life, out of the bequest of the plate itself, to the now Duke, and which was perfectly consistent with her having the surplus of the estate as executrix. That by this bequest, the general property of the plate was in the present Duke, the appellant having no more than the bare liberty of using it, as long as she lived; and Courts of Equity had never yet gone so far, as to deprive an executor of the surplus of the personal estate, where only the use of a particular thing, and for a particular time, was given to the executor, and where the property of that very thing was given over to another. That it could not be imagined, that the late Duke, who had entirely trusted the Duchess with the management of all his affairs, for many years before his death, and who often acknowledged, (as was proved in the cause,) that by her great care and conduct, his real and personal estates were very much increased, would have left her nothing out of his personal estate by way of legacy, either as a mark of his esteem, or for her own convenience, besides the use of his table-plate, if he had not intended that she should have the benefit of all his personal estate, after payment of his debts and legacies. It was admitted, at the hearing of the cause, that if the testator had devised the plate to the present Duke, after the appellant's death, without any express devise of the use of it to her, in the mean time; or if he had devised the plate to the Duke, reserving the use of it to the appellant for life; in either of these cases, the appellant would not have been barred of the surplus of the estate by any implication; and yet the words of the will plainly meant the same thing, and varied only from the cases se put, in the position of the words, but not in the [39] mind or intent of the testator. That the intent of a will, upon the whole frame of it, and not any particular words by themselves, much less the mere position of those words, ought chiefly to be regarded; and the naming the appellant first in the bequest, before any other, might be out of respect to the dignity of her person. That it was proved in the cause, that the testator fully intended, that the appellant should have the surplus of the personal estate to her own use; and this proof, as it agreed with the rules of law, to preserve the legal title to the executrix, and which of common right she had, so it should prevent, and ought to rebut the construction of a Court of Equity, which would create a resulting trust, and make the executrix a mere trustee for the next of kin. And that the case of Foster and Munt, (heard in Chancery 25 Nov. 1687. 1 Vern. 473. Affirmed in parliament 19 Apr. 1689. Jour. vol. 14. p. 181,) on which the present decree was founded, was manifestly different from this case in many particulars; for in that case, the executors were strangers, and had no relation to the testator; the legacies given to them, was a beneficial bequest in money, for their care and pains in the execution of the will; it did not appear, that the testator had any previous obligation to them in his lifetime, nor was there any proof that he intended the surplus for them.

On the other side it was insisted (J. Pratt), that the appellant, by having a specific legacy given to her by the testator's will, was excluded from claiming the residue of his personal estate as executrix; and that therefore the decree was just, and well warranted by the rules of equity, and by judicial determinations of the house in similar cases.

But after hearing counsel on this appeal, it was ordered and adjudged, that the decree therein complained of, should be reversed. (Jour. vol. 19. p. 176.)