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given by the will, that the sum of £8000 should be raised by Lloyd the executor, out of the term devised to him; and part of that sun so to be raised, was as expressly ordered to be laid out in discharging the mortgage on Little Oakley; no construction therefore, in favour of the heir at law, ought to suppress or supersede such positive directions. That the excepted lands ought, in all events, to be exposed to sale by the trustees, in order to give the great-grandson an opportunity of purchasing them; for it was plain, by the words of the will, that the testator intended he should enjoy those lands, as well as the manor of Croft; and the reason of this intention was expressly assigned, namely, to preserve the lordship of Croft from being mangled. That it appeared by the will, to be the testator's intention that the respondent Mr. Trotman should have no interest in any part of his freehold estate, or any controuling power over it; yet if the excepted lands wore not sold, but suffered, as the decree seemed to direct, to descend to the heir at law, who was married to Mr. Trotman, he would have, during the coverture between them, a controuling power over those lands: and notwithstanding the recommendation given to Lady Drake in the decree, to settle the excepted lands upon her grandson Mr. Drake, she might sell or otherwise dispose of the same to whomsoever she pleased, though [58] he or his guardians should be ever so desirous to become the purchaser thereof. That although the testator, in one part of his will, mentions the overplus to be raised out of the real estate, and in another place mentions the overplus of his personal estate, yet these two expressions created no real difference; for as the personal estate is always deemed assets in the hands of an executor, for the performance of the will, so in this case, the overplus arising from the lands was bequeathed to the executor for that very purpose, which plainly made it assets in his hands, and part of the testator's personal estate. That by the computation which the Master had made, a pretty large overplus might remain, after debts and legacies paid, in case the surplus arising out of the real estate should be added towards increasing the personal estate; and that it should be so added, was perfectly agreeable to the express words of the testator's will, where he says, And if the sale produce an overplus, as I hope it will, and a considerable one, above the £5000 and interest, I shall hereafter, in my will, or by a codicil, direct the disposing of it. But if the heir at law should take great part of this overplus, by way of a resulting trust, as to so much, the Court of Chancery must be said to be the disposer, and not the testator. That there can be no resulting trust for an heir, but where there is some failure in the disposition of the surplus; but in the present case, the surplus. was fully disposed of, by being plainly given to the executor, and being made personal estate, to be equally divided between the testator's daughter and granddaughter. As to the expression in the will, I give the overplus towards performance of my will, it imported nothing more than that the bequest was not made to the executor for his own benefit, but to be employed in satisfying all the testator's debts and legacies. That the devise of the residuum to the testator's daughter and granddaughter, was as much a legacy, as any particular sum given by the will; and the testator's will could not be said to be fully performed, if, by any construction in favour of the heir at law, the residuum was made less than the will itself had made it.

On the part of the respondents it was contended (E. Northey, J. Pratt), that the appellants were not entitled to any part of the surplus profits of the ten years term, or to any monies to be raised by sale of the excepted lands; for Lady Drake being the testator's heir at law, ought not to be disinherited by doubtful words, but in that capacity, was entitled to whatever real estate was not expressly devised away from her. That by the constant rules of equity, a personal estate is to be applied in ease of a real estate, and in favour of the heir, for the payment of debts and legacies, unless there be express words in the will to the contrary; but the words of this will were so far from preventing such an application of the personal estate, that it was positively directed to be so applied; and though the two mortgages mentioned in the will, were debts originally contracted by the testator's son, yet they were now to be taken as the testator's own debts, he having not only so declared in his will, but actually received the profits of the mort-[59]-gaged premises till his death, and paid the interest of both the mortgages, and a considerable part of the principal monies. That throughout the whole will and codicils, there was not any express devise of the surplus profits of the ten years terin, or of the surplus monies arising by sale of the excepted lands, or any declaration that the same should be taken as part of the testator's personal estate; but