case galton versus Hancock June rehear see Goodwin v lee king I Scott v  Cumberland lr Eq on the one hand it will be hard for a heir at law out of a  small pittance to pay a debt in favour of a devisee and on the other hand  where the estate descend be large it will be as hard to leave the burden on  the specific devisee when the mortgage almost exhaust the estate on account of  these difficulty Lord Hardwicke adjourn the cause to search for entry of  judgement at law on the statute of fraudulent devise and for precedent in  equity where there be specialty debt and mortgage estate devise beside Mr  solicitor general Mr Murray counsel for the defendant the devisee the statute  of the will mark ch of fraudulent devise show that the heir and devisee be not  put upon the same foot the devisee can be sue alone upon that statute for the  heir must be join with he and as I be inform the general practice upon  judgement on this statute be to insert that the heir must make the first  satisfaction which be very particular because there be no direct word in the  statute to warrant it the statute have make no manner of alteration but bare  between the creditor and the devisee and as to heir and devisee the law be the  same as before for if a bind creditor exhaust the personal asset the legatee  shall stand in his place and come upon the real asset for that e heir be only  entitle after all gift be satisfy so that a legatee be prefer to a heir at law  why then shall a legatee of a personal thing be in a better condition than  atkins a devisee of a real thing vide Hern contra merick before Lord Harcourt  in canc salk this be the settle rule that the heir can take nothing but the  surplus after all gift be satisfy consider the principle on which it be find  for every rule be find upon reason or maxim of law namely that if a testator  can dispose of the whole a strong he may dispose of a part a bondcreditor may  certain sue the heir first if he please without come against the personal  asset kinaston versus clark October ante S c Mr Chute of the same side say it  be the duty of a executor in the first place to discharge the mortgage and if  there be no personal asset the heir must prevent the mortgagee from encumber  the specific devisee Clifton versus burt wms Mr attorney general for the  plaintiff here be no creditor before the court and therefore come naked and  simple on the proper equity between a devisee and the heir at law the devise  estate be liable in two capacity saint as it be subject to the mortgage dly  under the statute of fraudulent devise there be many case where the turn of  the scale be give to a heir at law for the sake of the heir at law but the  gentleman of the other side have not show that equity have take the burden  from the hres factus where the scale be equal and throw it upon the hres born  they consider it in too narrow a view without reflect how the will have give  it and the circumstance if it appear that it be the testator intention that  the devisee shall take it encumber there be a end of the question it be  impossible that the testator can intend she shall take it disencumber for he  say after all my just debt be satisfy then I give to my wife this estate post  atkins which show she be to pay the debt in the first place afterward by  another independent clause he give her all other his estate real and personal  I have prove by the word that it be the intent of the testator to give it  subject to this burden and the law charge it as I say before in a double  capacity and therefore it will be absurd to discharge it contrary to the  intention and contrary to the atkins er p effect of the law Videathe case of  Lord Warrington versus lee Sel Cas in Ch in Lord king time he that know he  have give her all subject to his debt can not but know that this estate be  equal subject as the law have make it so the devisee be subject here by the  particular intention the heir only by a remote operation of law the statute of  fraudulent devise be not applicable to the present case because the statute  have no lie upon debt arise from the contract of the party but upon general  debt only of a testator Mr solicitor general in his reply say that clear  before the statute the heir at law be liable in the first place to pay  specialty debt and the devisee be not to pay any part of that debt and since  the statute the law be the same for the statute enter not into any other case  of mischief but only provide that the creditor shall be pay at all event and  do not in the least disturb any right the devisee may have before against the  heir at law a heir can never have any contribution against the devisee because  he can have nothing from his ancestor but what be leave uudisposed of nor be  there any instance of a heir bring a bill against the devisee for contribution  he cite Harberts case in   b it be resolve that in case of a common person the  heir of a conusor or be against who the judgement be give in debt shall be  only charge and shall not have contribution against the terretenant in some  case foe if a man be seize of three acre of land and acknowledge a  recognizance or a statute c and feoff a of one acre b of another and the three  descend to the heir in this case if execution be sue only against the heir he  shall not have contribution for he come to the land without consideration and  the heir sit in the seat of his ancestor Harberts case Lord chancellor this  case have be more full argue than it be before but as counsel on both side  have allow there be no case exact in point for the argument have be chief draw  from analogy to other case of marshal asset I will not be over hasty in  determine atkins some person who have sit in this court think it have go too  far in give one volunteer a remedy by way of circuity against another though  both real and personal estate be liable to debt yet the real asset be a favour  fund to be sure there be a good deal of weight in the consequence of the other  side and therefore these thing deserve the consideration of the court for  though it seem hard that where a heir at law have a small pittance the court  shall make he pay a debt out of his fund in favour of a devisee of a estate  which be make subject to this debt and a devisee likewise of all the residue  both real and personal yet on the other hand suppose a estate of pound per and  shall descend upon a heir at law and the testator shall have devise another  estate subject to a mortgage which almost exhaust the estate will it not be as  hard to leave the burden upon the specific devisee where there be real assets  sufficient to discharge all the debt his lordship adjourn it to Michaelmas  term to look into the entry of judgement at law upon the statute of fraudulent  devise and likewise for precedent of case in this court where there be  specialty debt and mortgage estate devise beside June after Lord Hardwicke  have take a twelvemonth time to consider of the case he this day give  judgement in it as follow this cause come on last upon a petition of rehear  see the state of the case before page at the first hear I determine against  the defendant the principal question be whether the defendant be entitle to  have the mortgage upon the land devise to her under the will of her husband  exonerate out of the real asset descend upon the plaintiff the heir of the  testator this will depend upon two more particular question first whether  there be any word in the will to throw this upon the heir at law atkins second  whether accord to or in consequence of those rule which have be establish in  equity the defendant shall prevail to have the mortgage on the estate devise  to her exonerate out of the real asset descend on the plaintiff the testator  in his will set out with a desire that all his debt may be pay in the first  place ante and conclude with a general residuary devise to the defendant who  he make his executrix vide post note walker v Jackson post on the part of the  plaintiff it be insist that the introductory clause in the will be sufficient  to charge the defendant with the encumbrance upon the estate devise to her and  that she ought to take it cum load so I think it will with regard to creditor  but it be by no mean sufficient to fix the onus or burden upon the legatee or  to make a variation with regard to the atkins er p different fund out of which  the debt be to be pais or to transpose the order in which the fund be to be  apply for that purpose for these clause in will have receive such a  construction mere for the aid and assistance of creditor that they may not  lose their just debt as to part of the real estate devise to the wife the will  be clear revoke and must be take as if they have never be devise I mean those  which be only pur auter vie at the make of the will and the inheritance of  they purchase in afterward by the testator but it will sound extreme harsh in  a court of equity if I shall strain to charge the devisee with this debt and  by that mean lessen even the estate which remain to her under the will when  clear the intention of the testator be to give her the whole and total to  disinherit his heir the second question be a new one and be never before bring  in judgement or in specie I shall consider it in two light first how it will  have stand in case this have be a general debt by bind or covenant where the  heir be bind without any mortgage to secure it second whether the mortgage in  this case will make any difference atkins there be two period of time which  will be material how it will have be at commonlaw before the statute of  fraudulent devise and how since at commonlaw the devisee be not liable to the  demand because the dissent be break the rule of equity before the statute do  not differ from the rule of law unless there be some particular circumstance  in the case this court have be often attempt before the statute to make a  devisee liable to specialty debt but be not able to come at it which be the  occasion of the statute the heir before the statute will have have the benefit  of the personal estate in this court in ease of the real but if there be no  personal the heir can have have no relief not so much as a contribution from  the devisee the next question be upon the operation of the statute abstract  from the mortgage in this case the word of the statute of the W m cap be these  whereas it be not reasonable or just that by the practice or contrivance of  any debtor their creditor shall be defraud of their just debt and nevertheless  it have so often happen that where several person have by bind or other  specialty bind themselves and their heir and have afterward die seize in  feesimple of and in manor message land c or have power or authority to dispose  of or charge the same by their will or testament have to the defraud of such  their creditor by their last will or testament devise the same or dispose  thereof in such manner as such creditor have lose their say debt for remedy of  which be it enact c that all will and testament limitation disposition or  appointment of or concern any manor message land tenement or hereditament or  of any rend profit term or charge out of the same whereof any person or person  at the time of his her or their decease shall be seize in feesimple in  possession reversion or remainder or have power to dispose of the same by his  her or their last will or testament shall be deem and take only as against  such creditor or creditor as aforesaid his her and their heir successor  executor administrator and assign and every of they to be fraudulent and clear  absolute and utter void frustrate and of none effect c atkins by force of this  statute the devisee be make liable at law and the action must be bring joint  against the heir and devisee sect and for the mean that such creditor may be  enable to recover their say debt be it further enact that in the case before  mention every such creditor shall and may have and maintain his her and their  action and action of debt upon his her and their say bind and specialty  against the heir and heir at law of such obligor or obligors and such devisee  or devisees joint by virtue of this act the next question will be what  judgement be to be enter up in this case it have be insist by the defendant  counsel that there ought to be two distinct judgement first that the heir  shall make satisfaction and if he have not sufficient asset then that the  devisee shall do it atkins er p but there have be no precedent of any  judgement in this action cite in support of this but then it be say this be  the only reason why the statute direct the heir and devisee to be join in the  action because if the heir have not asset enough then judgement may be enter  against the devisee but this be not conclusive for I take the provision in the  act to be introduce for the benefit of the creditor mere without any regard  either to the heir or devisee for the enable clause entitle the creditor to a  new form writ and to bring a new action for otherwise there may have be a  collusion between the devisee and heir at law to play off the will or not just  as it shall suit they best therefore it be a necessary and wise provision of  the act to join the heir and devisee in the action to secure the creditor at  all event I direct the solicitor on both side to search for precedent of  judgement at commonlaw on this statute but they have not be able to find any  the reason must be that the proceed in this court be more expeditious for they  may have a sale direct as they have both heir and executor before the court  there be three print case on this action one in cliff entry and another in  lily entry which be a better book the case of Joseph versus the duke and  duchess of Hamilton in the exchequer but no plea or judgement be mention  atkins the three be in lily entry Ann but there likewise be no plea or  judgement nor any entry of it in the office in all these precedent the writ  charge the heir in the debet and the to hold off and so it be in all action  against coheir vide kinaston v clark ante accord to the know rule of law the  judgement must follow the writ and count therefore I concludeathe judgement  here must likewise be of both vide   where the reason for a judgement against  both the heir be full set forth there be another consideration which be that  from the nature and form of the judgement itself there can be two distinct  judgement vide Plowd Davy versus Pepys where there be a precedent of a  judgement at large against coheir the land descend be to be deliver to the  creditor upon the execution at a certain annual value until his debt be  satisfy if so when can the second judgement take place for you can never say  that this may not be satisfy out of the real asset of the heir since the  judgement be the creditor to hold quousq debt is owed be satisfied to be what  be the rule in equity why in case of a debt by specialty that the personal  asset shall be first apply and if deficient the heir shall be charge for asset  descend No case be cite at the bar but there be one which have some  resemblance to it Gawler versus wade p wms it be say there by Lord Cowper it  be the act of parliament make this asset in the devisees hand and that require  the heir to be make a defendant you must follow the remedy therein prescribe  and this bill in equity be as a action at law but his lordship say nothing as  to a contribution between the heir and devisee there be two case where this  point have be determine Saville versus Saville before Lord king and Lord  conway case I shall add another case Pitt versus Raymond January before Lord  Talbot a new bill there be bring after a long course of proceed to have  satisfaction out of asset both descend and devise his lordship direct there  that if the personal be not sufficient then in the next place a account be to  be take of asset descend upon the heir at law and if that shall be deficient  then a atkins account be to be take of the devise estate which show his  opinion as to the order in which the asset be to be marshal I take it that the  notion of contribution in the case of Gawler versus wade be not well find for  it be only start by counsel but be not support by any authority the statute of  fraudulent devise be make mere for the sake of creditor and not at all in  favour of heir at law the enact clause make will void against such creditor  but leaves the law as it be before with regard to heir in this case it will be  contrary to the plain intention of the testator to make the devisee the wife  liable to the debt so that she shall in whole or in part be defeat of her  legacy the second question be whether there be a mortgage upon this estate  devise to the defendant the wife will make any alteration atkins er p it must  be admit that this be a debt by specialty and that the land be only regard as  a pledge or security for the money in this court Lanoy v Athol post it be not  the covenant to pay or the bind which occasion this construction for the land  be only consider as a security for the personal debt cope v cope salk Meynell  v Howard Prec Charles king v king p W post vol on the other hand where the  real estate be original or afterward become primary liable the real estate  shall be first apply ugh a covenant be add or a bind give for such covenant or  bind be only intend as a collateral security to the land and can alter the  fund Bagot v oughton p W Evelyn v Evelyn p W leman v Newnham l Ves Shafto v  Shafto Cox p W Tankerville v Fawcett bro Charles Rep ware v Dudley ibidem  billinghurst v walker ibidem say vide Lanoy v Athol post where the court take  advantage of a covenant to pay a rentcharge in a marriage settlement in favour  of a young child portion but in the case of a mortgage if a mortgagor release  or sell the equity of redemption and the purchaser covenant with the vendor to  pay the mortgage debt the personal estate of the purchaser shall not exonerate  the real estate mortgage Pockley v Pockley vern forester v leigh Amb Cox p W  SC tweddel v tweddel bro Charles Rep contra parson v freeman Amb see also cope  v cope salk Lawson v Hudson bro Charles Rep where the debt be original  personal have afterward become a char e upon the real estate the mortgagee may  take his remedy indeed against the executor or against the heir at his  election but it must likewise be admit this election of the mortgagee will not  determine which fund ought proper to be charge nor vary the right as to those  fund this be determine original in favour of the heir for these reason because  the heir be in the seat of the ancestor and while the ancient tenor subsist be  oblige to perform the service the first execution be become facias and become  facias which affect chattel only but do not take the land vide   b William  Harberts case and so tender be they ancient of land estate that even in the  case of the crown if the good and chattel of the king debtor be sufficient and  so can be make appear to the sheriff whereupon he may levy the king debt then  ought not the sheriff to extend the land and tenement of the debtor or of his  heir Inst and Lord coke in Harberts case b give the reason why the land of the  king debtor be liable to the king execution because thesaurus king be peace  vinculum war Nervii and therefore the law give the king full remedy for it  atkins he may have add another reason why this judgement be in favour of the  heir because otherwise it must have be against the person of the heir and this  be to discharge and exonerate his person here it be that this court step in  and find a equity upon it by direct the personal estate to be first apply in  favour of a heir and be not tie down to the rule of law because this court can  bring both heir and executor before they at the same time Cornish versus mew  Ch Cas be the last case where the court refuse to do it in favour of a hres  factus this be in the time of my Lord Nottingham indeed but I believe  determine by the master of the roll or some judge sit for he because Lord  Nottingham have determine it express contrary in a case before which be the  first case where a hres factus have this determine in his favour that personal  asset shall be apply in exoneration vide Ch Cas hay against hay but this be in  the case of a hres factus of the whole real estate the first case where it be  determine in favour of a devisee of part of the real estate only contra Prec  Charles be the case of Popley versus Popley as it be call in Ch Cas but in  vern Pockley versus Pockley I need not mention any more case for the opinion  of this great man Lord Nottingham have be follow ever since by the will in the  present case the land be give to the wife the devisee which must mean  effectual for if give subject to the mortgage the whole benefit will be draw  from the devisee and render ineffectual now if the devisee be entitle to be  exonerate suppose there be simple contract creditor and a specialty creditor  as the mortgagee in this case be exhaust the personal asset have not the  simple contract creditor a equity to stand in his place and to come upon the  real asset and be it not the constant course of this court Lanoy v Athol post  it be agreeable likewise to the reason and equity of the statute against  fraudulent devise which leaves it in full force against the heir at law in the  last place I think this opinion will coincide entire with the intention of the  testator here come in the objection of the most weight on the part of atkins  the plaintiff that this be plain a estate devise with a lie upon it which show  the testator mean she shall take it cum load so that at least it may be say in  favour of the plaintiff there be intention against intention but if a  inference shall be draw from a testator mortgage particular land and devise  they so mortgage that he intend these very land shall be liable in the hand of  the devisee to this burden that will equal hold against personal asset be  first apply see note and it be the constant direction of this court that the  mortgage estate shall be consider only as a pledge for money but as to the  proper application of the fund for payment of that debt it be leave just as it  be before it be equal to the creditor to go first against the land devise and  if the court will in that case construe it in favour of the devisee against  the heir at law where by circuity atkins er p the simple contract creditor  stand in the place of the specialty then what reason can in be assign why the  devisee shall not have the benefit direct against the heir at law Clifton  versus burt p wms one die indebt by bind who by his will have give a legacy of  pound and devise his freehold land to b in fee leave a personal estate  sufficient only to pay the bind the legatee shall not stand in the place of  the bondcreditor to charge the land in regard the land be specifical devise  otherwise if the land have descend to the heir this case prove that even  general pecuniary legatee be to be prefer to a heir at law much more a  specific devisee of land and this too be analogous to the rule of law for  every devisee be in nature of a purchaser and so lie down in Harberts case   b  that the heir shall not have contribution against any purchaser although in  rei in point of fact the purchaser come to the land without any valuable  consideration forth consideration of the purchase be not material in such case  in the search I order to be make for precedent there be but one case which be  like it and that indeed come very near Serle versus saint eloy p wms hear  before sir Joseph Jekyll January one devise his land in d to a his cousin a  infant at her age of subject to the encumbrance thereupon and the rend during  her infancy to be pay to her father and devise all his other land to trustee  to pay his debt the infant the devisee insist that the mortgage upon her  estate ought to be discharge out of the personal estate and if that be not  sufficient then out of money arise by sale of the trustestate atkins the  defendant the heir at law and reversioner insist that the mortgage be to be  pay off out of the rend and profit of the estate devise to the plaintiff while  she be under age sir Joseph Jekyll be of opinion that the debt by mortgage on  the plaintiff estate be part of those debt which be to be pay off out of the  money arise by sale of the trustestate and though the infant by her bill have  submit to pay it off yet he say he must take care of the infant and direct the  bill to be amend this cause come on before Lord chancellor king on a appeal  from the roll the that of may who after two day hear affirm the decree I have  do with the case and shall now take notice of the observation of the counsel  on both side the first observation be on the part of the plaintiff that this  doctrine will extend to level all devise for accord to this rule if a testator  shall have mortgage upon different estate for different sum and devise those  estate to several person a devisee of the estate which have the large mortgage  upon it and least in value will be entitle to come upon the other devisees for  a contribution vide post but this be not warrant by the case of carter versus  Barnardiston p wms the other observation be on the part of the defendant that  if she be not entitle to have the estate descend apply to discharge the  mortgage it will have this consequence that if the mortgagee shall bring his  action against the heir and recover which he may certain do the heir will then  be entitle in this court to have satisfaction against the land devise as  original subject to the mortgage and this be right argue for it be admit that  the election of the creditor will not determine what shall be ultimate the  fund which shall be charge it will be a most absurd consequence if the heir at  law shall in this case draw away from the devisee the benefit which the  testator mean to give her by this devise by make her bear the burden contrary  to the testator intention and at the same time take beneficial himself when  the testator clear intend to give away the whole from he atkins these be the  reason which induce I to alter my opinion and I be not ashamed of do it for I  always think it a much great reproach to a judge to continue in his error than  to retract it I may at first be influence by the appearance of hardship in  this case on the part of the heir but the rule of a court of equity in marshal  of asset be of great consequence to the practice of this court and ought to  countervail any argument hardship to particular person beside upon mature  deliberation I do not think the case of the heir at law so hard as I do before  because it be not the intention of the testator that the heir shall take a  part of his be ten and it be a mere accident throw a part upon he atkins er p  videlicet the ignorance of the testator that it be necessary after purchase in  the fee of these estate pur auter vie to republish his will to make they pass  to the defendant the widow upon give this case all the consideration that I be  capable of I think the former decree ought to be reverse total as to this  point and accord direct a account shall be take of the real asset descend upon  the heir and apply to pay off and exonerate the mortgage upon the estate  devise to the defendant Reg lib a for the rule respect the order of affect  asset seem to be this saint the personal estate of the mortgagor shall be  apply in discharge of the mortgage debt Howel v price p W Prec Charles Meynell  v Howard Prec Charles cope v cope salk Pockley v Pockley vern king v king p W  Portsmouth v Suffolk Ves Robinson v gee ibidem dly ordinary speak estate  devise for payment of debt Bartholomew v may ante vol Tweedale v Coventry bro  Charles Rep Bateman v Bateman ante vol note dly estate descend and this too  where the mortgage estate devise be subject to a general charge for payment of  debt as in the present case of Galton v Hancock powis v Corbet post Davis v  top bro Charles Rep bro Charles re SC wride v clark bro Charles Rep thly real  estate specifical devise subject to or general charge with the payment of debt  carter v Barnardiston p W Davis v top bro Charles Rep vide Serle v saint eloy  p W but we must observe that the personal estate can be apply in exoneration  of the real estate mortgage as against legacy pecuniary or specific or debt  though it must as against a executor or residuary legatee oneal v mead p W tip  v tip p W Davis v gardener p W rider v wager p W cutler v Coxeter vern  Phillips v Philips bro Charles Rep hale v Cox bro Charles Rep for when a  testator give a legacy he show a intention to exonerate his personal estate so  far as it relate to such particular legacy so though the personal estate be  original liable yet the testator may exempt the whole of it either by express  word or plain manifest intention as by give it as a specific legacy Adam v  Meyrick Eq ab pl Bamfield v Wyndham Prec Charles Wainright v Bendlowes ibidem  Amb SC Stapleton v Colville can tempt Talb Phipps v Annesley ante Bicknel v  page ante walker v Jackson post Ancaster v mayor bro Charles Rep web v Jones  bro cham Rep but the mere charge a estate with or create a term for payment of  debt will not alone create such a intention of exempt the personal estate  dolman v smith Prec Charles French v Chichester vern Stapleton v Colville can  tempt Talb haslewood v pope p W Fereys v Robertson bunb Brudenel v Boughton  ante walker v Jackson post Bridgman v dove post vol Lord inchiquin v obrian  will Amb S c bro Charles Rep SC samwell v wake bro Charles atkins er p