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dent, with remainder to his first and other sons in tail male; and on failure of such issue, to the appellant and his heirs. And the testator gave his said leasehold house in Bow-street to the appellant, for the remainder of the term to come therein, and gave all his plate to the respondent; and then the will goes on in the words following:

And as for the rest, residue, and remainder of my estate, whether real or personal, whereof I am seised or possessed, or which I am any ways entitled to, and which I have not herein and hereby before devised, given, bequeathed, or disposed of; I give, devise, and bequeath the same, and every part thereof, and all my right, title, claim, and interest therein and thereto, unto such my executor or executors herein after named, as shall duly take on him or them the execution of this my will, according to the true intent and meaning thereof, his or their heirs, executors, administrators and assigns, as tenants in common, and not as joint-tenants: and I do hereby constitute and appoint the herein-before-named Lieutenant Colonel John Brown (meaning the respondent) and William Selwin (meaning the appellant) to be executors of this my last will and testament, upon condition, that, before their intermeddling as executors, either by proving this my last will and testament, or disposing of any part of my estate or effects of the value of £100 or more, (except what may relate to, or be disposed of in or about my funeral, or the provision for my family, for a convenient time after my decease,) they shall give sufficient reasonable security, to be approved by the Honourable Colonel Edward Eaton, for the true payment of the several money legacies herein and hereby before given and bequeathed according to this my will; and in case they or either of them shall refuse or neglect so to do for the space of thirty days next after my decease, or shall in the mean time before such security given as aforesaid, intermeddle as my executors or executor, any further than as aforesaid, then and in such case I do hereby declare, that such one or both of them so refusing or neglecting, shall, from such intermeddling, neglect, or refusal, lose all benefit of executorship hereby given or intended to them, or such of them so intermeddling, neglecting, or refusing; and that such his or their executorship or executorships shall thenceforward cease and be void. But in case only one of my said executors shall intermeddle, neglect, or refuse as aforesaid, and that the other shall comply as aforesaid, then my will and meaning is, and I do hereby direct and appoint, that the executorship of him who shall so intermeddle, neglect, or refuse, and all the benefit and advantage thereby given or intended to him, shall go over, remain, and be to the other. And my will and meaning further is, that if one of my said executors shall die during [609] my life; and if the surviving executor shall give such security as aforesaid, then, and in such case, such survivor shall be my sole and only executor, and shall have and take to his sole use, benefit, and advantage, and of his heirs, executors, administrators, and assigns, all such residue and remainder of my estate, and all right, title, interest, and claim therein and thereto, which I have herein before devised to him and my said other executor as aforesaid. And my will is, and I do hereby give and bequeath to my said executors, or such of them as shall duly qualify themselves or himself in manner aforesaid, all such residue and remainder of my estate whatsoever, as shall be left after payment of my said debts and legacies; and that they or he so qualifying themselves, shall have and take the same to and for their or his own use or uses, notwithstanding any particular legacy or legacies herein before given or devised to them, or either of them.

On the 19th of November 1732, the testator died without revoking or altering his said will; and the appellant and respondent having both duly qualified themselves according to the testator's directions, proved the will, and took upon them the executorship, and paid the testator's debts, funeral charges, and money legacies, and divided equally between them, great part of the residue of his personal estate.

But the appellant being indebted to the testator in the principal sum of £3000, the appellant, for securing the payment thereof, with interest, became bound to the testator in a bond, bearing date the 20th of June 1732, in the penalty of £6000, with condition for payment of £3000 and the interest thereof, on the 25th of December then next ensuing; which £3000 and the interest remained due and unpaid at the testator's decease: and the appellant refusing to account for the money due on this bond, as part of the testator's residuary estate; but insisting to retain the whole thereof to himself, and refusing to pay or allow to the respondent the half of the money due on this bond; the respondent, on the 19th of March 1732, exhibited his bill in the court of Chancery