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veniency, by two persons in the will named, unto the respon-[41]-dent and her heirs, in trust, to convey the same to the like uses, as the lands which the appellant should convey to the respondent and her heirs, in lieu thereof, were settled; but the respondent was to have the capital messuage for her life, if she desired the same. And as to the residue of his real estate, (except one close devised to a charity,) and the lands which the respondent was to have in exchange from the appellant, the testator devised the same to the respondent and her heirs, in trust to sell the same, or so much thereof, as should be needful for payment of his debts and legacies; and he gave all his personal estate to the respondent, towards payment of his debts and legacies, and made her executrix.

On the 20th of May 1704, the testator died; and soon afterwards, Mr. Hayne, who drew the will, wrote two letters to the testator's son Robert, acquainting him with the contents of it; in one of which letters he said, that the respondent had all the estate the testator died seised or possessed of, at her own disposal, paying his debts and legacies; and in the other, that the testator had given the respondent all his lands and estate, both real and personal, paying his debts and legacies, and left her executrix.

In August following, the exchange of lands between the appellant and respondent took place; and mutual conveyances thereof were then executed, pursuant to the testator's will.

But in Hilary term 1705, the appellant exhibited his bill in Chancery against the respondent, for an account of the testator's real and personal estate, and for a conveyance of the surplus thereof, after payment of his debts and legacies, suggesting, that the respondent was only a trustee for him, as to such surplus, Whereupon the respondent filed a cross-bill against the appellant, to establish the testator's will, and for quiet enjoyment of the devised estate.

Both these causes were heard together, before the Lord Chancellor Cowper, on the 10th of February 1707; when, upon reading the several wills, and the parol evidence, his Lordship declared,

That there was no implied or resulting trust in the executrix, for the benefit of the heir; but that, on the contrary, it appeared by the written words of the will, as also by the proofs, that such an implication was strongly contradicted; and that it was the testator's intention, that this should be a beneficial devise to the wife and executrix;

and therefore ordered, that the original bill should stand dismissed, without costs; and decreed, that the plaintiff in the cross cause should hold and enjoy the lands devised, subject to the trusts of the testator's will against the defendant in that cause, and all claiming under him.

But from this decree the plaintiff in the original cause appealed; insisting (C. Phipps, A. Kettleby, W. Fitzherbert), that the testator's will was silent as to the disposition of his real estate, after the trust was performed, and the debts and legacies paid; that whatever is not given away from an heir at law, of course descends to him; and that a son and heir being favoured by the law, ought not to be disinherited by implication. That by the will, there was an express legacy of £1000 given to [42] the executrix, which might be intended as a reward for her trouble in the execution of the trust, and might be reasonably supposed to exclude her from taking any farther benefit under the will. That the devise of the testator's real estate to the respondent, was mentioned to be upon trust, not made to her by the denomination of a wife, but merely as executrix, which is an office of trust; and as the case would have been the same, if the devise had been to a mere stranger, and not to the wife; so it could not be intended as a beneficial devise to her, but a trust only. That the respondent herself was so conscious of her husband's intent to make her a trustee only, as to the devise of his real estate, that on being asked, after his death, why she permitted her son, the appellant, to have an advantage, which it was supposed he had, in the exchange of the lands she answered, that she submitted to that, to prevent his searching into his father's will, whereby he might discover himself to be entitled to the benefit of the surplus of his father's estate. And therefore it was prayed, that the decree of dismission might be reversed; and that the respondent might be decreed to be but a trustee of the surplus of the testator's real and personal estate, after payment of his debts and legacies; and might account with the appellant for the same accordingly.

On the other side it was contended (R. Raymond, J. Pratt), that from the testator's former wills, his intention uniformly appeared to be, that the appellant should not have the surplus of his estate; because he had thereby otherwise disposed of that surplus.