case tempt Talbot case LUTKINS versus leigh novemb see in re smith Ch a devise  as touch his worldly estate after payment of his debt which he will to be  first pay his land in mortgage to b his wife for life and after her death to c  and direct the residue of his personal estate to be place out at interest b to  have the interest during her life and after her death to c and life b pound  provide she accept the devise and bequest in lieu of dower there be not  sufficient personal estate to pay the debt and legacy if the mortgagee take  part of the personal estate the legatee shall for so much stand in his place  Benjamin knight have mortgage his freehold land to Mr Ainscomb for secure the  sum of pound in make his will in these word as touch my worldly estate after  payment of my debt and funeral charge which I will to be first pay I give my  freehold estate in ken to my wife for life Chargeable with a annuity of pound  for life to Elizabeth knight and after his wife death he devise his say  freehold estate so charge to the child of his three sister and direct the  residue of his personal estate to be place out at interest his wife to have  the interest during her life and after her death to be divide among the child  of his three sister and give his wife pound with a proviso that the devise and  bequest in the will shall be accept by the wife in lieu of her dower and in  full satisfaction of her share of the personal estate the question be whether  the personal estate shall be apply in exoneration of the real the personal  estate of a testator be the primary fund for the payment of all his personal  debt or general legacy Eq Cas Abr c Eyre v Hastings Charles Rep Gower v mead  Prec in Chanc mead v hide vern cutter v Coxeter ibidem but this rule be to be  understand with some exception for if there be a express clause to exempt the  personal estate from payment of debt there the load lie upon the heir because  it be the will of he who have the dominion over both estate that the real  estate shall be charge in such manner wainwright v Bendlows Prec in Chanc vern  S c hall v brook pale yellow Eq Rep Eq Cas Abr S c Bamfield v Wyndham Prec in  Chanc heath v heath p will Stapleton v Colville post walker v Jackson atk duke  of Ancaster v mayor bro Ch Rep but in order to exonerate the personal estate  from payment of debt and legacy it be necessary not mere to charge the real  but the will must exempt the personal French v Chichester vern samwell v wake  bro Chan Rep duke of Ancaster v mayor sup in which last case all the authority  which apply either in affirmance or denial of the doctrine upon this subject  be through consider but where the intention to exonerate the personal estate  be beyond all doubt such intention shall prevail though no express word be use  for that purpose web v Jones bro Charles Rep so the personal estate shall not  be liable in ease of the real to the defeat of any legacy tip v tip p will  oneal v mead id so where the real estate be from the nature of the contract  primary liable countess of Coventry v earl of Coventry p will freeman v Edward  id Evelyn v Evelyn id so the personal estate shall not be apply where the debt  though personal in its creation be original the debt of another cope v cope  salk Bagot v oughton p will Lawson v Hudson bro Charles Rep tweddel v tweddel  bro Charles Rep the earl of Tankerville v faucet bro Charles Rep but where the  charge on the real be mere collateral and auxiliary to the personal estate the  latter shall be first apply so far as it will go and the deficiency only make  up out of the real Howell v price p will Bartholomew v may atk Gatton v Hanock  atk marchioness of Tweedale v earl of Coventry bro Charles Rep in Evelyn v  Evelyn sup the reader will find all the general reason upon this subject so as  to defeat the pecuniary legatee there not be sufficient to pay the pound in  case the personal estate shall be apply in exoneration of the real Mr attorney  general insist for the widow that this legacy be to be look upon as a charge  upon the real estate accord to the Lord warrington case and saia it be a great  while before this court will favour the devisee of land be but hres factus so  far as to entitle he to have the personal estate apply in exoneration of the  real Cornish v mead of this case Lord Hardwicke say it be the last in which  the court refuse to apply the personal estate in favour of a hres factus and  though this case be determine in Lord nottingham time Lord Hardwicke express  his opinion that it must have be determine by the master of the bolls or some  judge sit for he because Lord Nottingham have determine the contrary express  in a case prior which be the first case where a hres factus have this  determine in his favour videlicet that personal asset shall be apply in  exoneration but this be the case of a hres factus of the whole estate Galton v  Hancock atk Chan can and vern where it be say that a express devise shall haw  v Warner not be defeat even case tempt Talbot for a heir much less for a  devisee of land who be but hres factus Lord chancellor this point have be so  far determine that it seem quite settle and clear where a man leaves his real  estate charge the legatee and simple Vid the principal case upon this subject  collect by Mr Cox in his note upon Clifton v burt p will and arrange by he  with his usual accuracy and judgement contract creditor have a right to stand  in the room of bind creditor if these latter run away with the personal estate  and this in order to do justice both to the testator intent and likewise to  the creditor indeed where the contest be between the heir and executor and  there be either a mortgage or bind wherein the heir be bind the heir shall  always prevail to have the personal estate apply but that be only where no  case tempt Talbot er p prejudice be do either to a simple contract creditor or  legatee and have there be no devise of the land in this case the widow and the  other legatee will have have a right to apply to this court and to stand in  the room of the mortgagee if he fall upon the personal estate that be the  proper fund for their legacy and to have so much of the real estate as he have  out of the personal but here the real estate be devise away which give the  legatee rather a strong claim than when they have to do with a heir at law  since it be a long time before a devisee can prevail with this court to have  the personal estate apply in exoneration of the real as appear from many  ancient case which distinguish in that case between a devisee and a heir at  law though at last he have prevail where there be no damage do to a three  person but it have be endeavour here to put he in a better condition than the  heir and to that end have be cite salk there be a great difference between  that case and this for a bind effect not the real estate in the testator hand  nor do it the devisee until the statute of fraudulent devise nor before the  statute do it affect the heir will m c if he have alien before the writ bring  but in case of a mortgage that be a lie upon the land both in the hand of the  testator and the devisees and in who hand soever the case tempt Talbot land  come thus the court have go as far as be reasonable videlicet to put the hres  factus in as good a plight as the hres born but not in a better In the old  case this diversity be find to have be hold between Ceres factus and a devisee  of particular land videlicet that a devisee of particular land shall not have  the benefit of the personal estate but that the haeres factus of the whole  shall but in the case of Pockley v Pockley vern it be say by Lord Nottingham  that not only he who be haeres factus shall pray in aid of the personal estate  to have thereby but even a ordinary devisee shall have that benefit and Lord  Hardwicke in Galton v Hancocke atk observe that Lord nottingham opinion have  be follow ever since so the legatee must have the legacy out of the personal  estate in case the mortgagee keep to the real and if he fall upon the personal  they have a right to stand in his room for so much out of the real estate as  he shall take out of the personal that be a proper fund for their payment case  tempt Talbot er p