case hopton versus dryden distinguish Wilson v Coxwell Ch d follow in re  Compton Ch d refer to in re Jones Ch d as to executor right of retainer see  also hind palmer Act Vict c Eq Abr c S c executor of a executor may retain  towards satisfaction of the debt owe by the first testator because he be  executor of the first testator but if one be indebt by bind to a and make a  and b executor and die and then a make c executor and die in this case c can  retain because he be not executor of the first testator but b be his executor  by survivorship and the only reason of allow retainer be because the executor  can sue himself Robert Clerkson and one find be partner in the trade of a  mercer Clerkson be indebt by bind to Edward Hopton in pound to which the  plaintiff be entitle as his representative and in to Dryden the defendant  testator for which he and find be bind Clerkson make his will and thereof  Dryden and another executor and devise his land to they and their heir share  and share alike to be sell for payment of his debt and die they employ the  great part of his personal estate in pay off a mortgage of charge on the real  estate devise for payment of debt but keep it on foot and take a assignment  thereof to themselves and Clerkson have also a bind take in Dryden name for  money due to Clerkson the plaintiff bring his bill against the executor of  Clerkson for a discovery of asset and to have a satisfaction of his debt  Dryden in his answer insist to retain out of the real estate when sell and  also out of the personal estate to pay his own debt the cause proceed to hear  and a decree for a account but Lore any far proceed Dryden die have make his  will and the defendant Dryden his wife executrix precedent in chancery who be  before executrix of find and the cause be revive against her for the defendant  it be insist that the mortgage be pay off with the asset which dr Dryden her  testator may have retain towards his own satisfaction and the mortgage be keep  on foot they in who it be ought sure in a court of equity to be look on as  trustee for the defendant for any just demand he have on the estate or pay off  with asset which he may have retain and so it will be for the real estate too  if Dryden and the other executor be tenant in common as it be urge they be and  that a court of equity can not take they from they till they be pay the reason  of retainer by a executor be because he can sue himself and the reason as to  the heir be the same and the law must be so too though there be no instance of  it for the plaintiff it be insist that the defendant as executrix to the first  testator Clerkson can pretend a right of retainer for she be not his executrix  for her testator be not the survive executor of Clerkson but the other  executor who be still live and the word of the devise of the real estate do  not make a tenancy in common and then she have no capacity of retain it be  agree Dryden may have retain but be not force to it not volens as be say on  the other side though prima fancy it may be look on as a retainer the testator  devise the mortgage to be pay precedent in chancery er p off out of his  personal estate and then to be sell to pay to his grandson which they have  clone and therefore pro tanto have renounce their right of retainer and this  debt for which the defendant will retain be the debt of find as well as of  Clerkson they be partner and coobligors and she be executrix of find also and  have asset of his to pay and therefore can retain only for a moiety of it Lord  keeper a executor of a executor may retain but not in this case the land be  devise to precedent in chancery the executor share and share alike make I  think a tenancy in common but here the executor of the executor be not the  executor to the first testator and therefore can retain and the personal asset  be go and the question be now as to the real estate and in equity all debt be  equal and therefore if you must come here you can prefer yourself and a court  of equity will never assist a that retainer and these be only equitable asset  you ought not to retain to pay all but only a proportionable part and as to  the bind you be a trustee and therefore that must follow the same rule wms  precedent in chancery de boundary S HILLARII in curian porter