case williams against williams in chancery easter term Geo a give his real  estate to b and his personal to b and c his executor who prove the will and  act b die and a bill be bring for a legacy charge upon the real and personal  estate it be not sufficient to make the survive executor and b s heir at law  party but b s executor likewise because b s heir be interest in the discovery  of personal estate since that be to be first apply and it seem to be a rule  that where a defendant be interest in the have another make a defendant the  plaintiff must make such a defendant but where the plaintiff only be affect he  may or may not make such party a defendant at his pleasure one Griffith  William make his will and devise all his land to his son William William and  his heir upon the condition therein and thereafter mention videlicet to pay  all my just debt and to live with my wife and child for five year the testator  then go on devise part of his personalty to his son and the other part to his  wife and then he go on and direct that his son William pay to his daughter  Elizabeth the sum of one hundred pound at the end of five year to his daughter  jane the sum of eighty pound at the end of seven and his son John the sum of  sixty pound at the end of ten year and of this will make his wife Margaret and  son William executor this will be prove by both Margaret and William but  William intermeddle most with the personal estate and then die make a executor  this bill be bring by Elizabeth jane and John William child of the say  Griffith the testator in order to have a satisfaction for their legacy in the  first place out of the personal estate and if that be deficient out of the  real estate to this bill they have only make Margaret the survive executor of  Griffith a defendant modern report er p and have not the representative of  William before the court but only his heir at law and it be object that as the  bill pray a account of the personal estate of Griffith the testator not only  his survive executor but also the representative of the decease one ought to  be before the court and that there be a defect of party Hardwicke Lord  chancellor where a plaintiff be only concern in interest there he may waive  such demand and omit make the party a defendant to his bill but here the  defendant themselves be interest in the have William executor before the court  for it be bring by the legatee to have payment in the first place out of the  personal estate and if that be deficient to charge the real estate and for  that purpose they have make the heir at law party now the heir at law have a  interest in modern report have William executor before the court that there  may be a complete account of the personal estate and to have that apply in the  first place in discharge and ease of the inheritance therefore I be of opinion  if the personal and real estate be liable as the case be open to I that there  be a defect of party Mr Wilbraham as the survive executor be make party it be  sufficient for she may be Chargeable with the whole personal estate and have a  remedy by bill against the representative of the decease executor for what  come to his hand Hardwicke Lord chancellor there be case where the make a  survive executor only defendant will be sufficient but where you want party  before the court to have a complete account there you must have all the  executor or the representative of every executor before the court for each  executor may possess some distinct part of the personal estate though you be  not oblige to pursue the personal estate into the hand of stranger and to make  they defendant suppose there be two executor and both have administer as they  may each of they by law get in distinct part of the personal estate and as  each of they be answerable only for such part as come to his hand if one die  it be necessary that his representative be make a party to the account  therefore there be a defect of party Mr brown and Mr Robinson then insist that  the personal estate in this case be not liable to these legacy but only the  real estate in the hand of William William and then as we have his heir before  the court we have proper party and the prayer of the bill as to the account of  the personal estate must be dismiss Mr attorneygeneral and Mr Wilbraham and Mr  welldone to the contrary it be insist that these legacy devise to the  plaintiff be not to come out of the personal estate and that for several  reason as that there be no express charge upon the personal estate that they  be not bequeathe by the general name of legacy that the personal estate be not  intend to be charge because it be specifical devise away part to the son and a  part to the mother but then the plaintiff must prove that this be Chargeable  on the real estate and in order to this they say that this be Payable by the  devisee of the real estate and that the real estate be devise upon condition  to pay these fortune but it be not so for the condition be to pay his debt and  to live with his wife for five year c and as there be no express word to  charge the real estate it ought not to be charge by implication Hardwicke Lord  chancellor in the present case there be no doubt but that in one degree or  other the real estate be Chargeable either in the first place in the hand of  the devisee of the real estate William William or second in his hand in case  the personalty shall be defective the plaintiff insist the modern report real  estate be liable the defendant that the personal estate give to the son be  liable and that the real estate be only subject in default of personalty and I  be of opinion that part of the personal estate give to the mother be not  liable for these fortune to the plaintiff be not give as general legacy but  only as William the son be devisee of the real estate but suppose both the  real and personal estate in the hand of the son have be liable but not the  personal estate devise to the mother and suppose the son live can he upon this  bill have insist that there shall be first a account of the personal estate No  for it will be a vain thing as he have both fund in he and it be not material  out of which fund the money be pay whether real or personal estate indeed  where two person be entitle one to the personal estate and the other to the  real or if there have be devisee for life remainder in tail the court can not  do justice modern report er p to the person who have the real estate in the  first case nor to the remainderman in the second without a account of the  personal estate in the first place in ease and relief of the real estate here  appear a plain intention to charge the fund of the real estate only for he  give his land to his son William in fee upon the condition therein and  thereafter mention videlicet that he pay my debt and live with my wife and  child for five year after this these follow several bequest of the personal  estate specifical such and such thing by name to the son and such and such  thing to his wife and then there follow a direction that the son William pay a  hundred pound to one child eighty pound to another and sixty pound to another  Payable however at distant time it be insist for the defendant that the  condition annex to the devise must be take to be those only which immediate  follow it but I be of a different opinion for the whole of a will must be take  together and all a man direction can be give together but must be successive  and follow one another and if a man put his think and direction in a improper  order and succession yet the court will marshal they and in this case the  direction to pay the fortune to the child be part of the term upon which he  have give the real estate to the son notwithstanding they be separate from one  another by the intervene bequest of the personal estate and this construction  that the real estate be Chargeable be so fortify upon the time of payment some  be at the end of five some at seven and other at ten year this be to give time  to William to pay they out of a fund which be continual produce something by  annual profit and therefore as to the party you may go on