case hall versus Kendal at the roll Mr wright by article previous to his  marriage with mary one of the defendant covenant to lie out pound in iron work  and that the profit and produce of the trade mosely report er p in case his  wife survive he shall go to her for her life and after her decease to their  child in such proportion as Mr wright shall appoint and for want of such  appointment share and share alike Mr wright make his will and his wife and two  other executor and take upon he to dispose of his whole real and personal  estate he direct all his stock in the iron work and all his personal estate to  be sell for the payment of his debt and devise all his real estate to his  executor and their heir in trust to pay to his wife pound a year for life in  lieu of the provision make for her by the marriage article and to pay his debt  the executor contract with the plaintiff for sale of part of the land and  agree he shall discount out of the purchase money pound the testator owe he by  simple contract and afterward contract with he for the purchase of the rest of  the land and agree he shall retain out of the purchase money pound which Mr  wright owe by bind to the plaintiff brother who representative the plaintiff  be the plaintiff mosely report file his bill for a specify execution of these  article and the wife insist that she be a creditor by specialty and ought to  be prefer to the demand of the plaintiff and that if the court shall establish  these article they will decree the executor to commit a devastavit the asset  be deficient to satisfy all the creditor and the great question be whether the  money raise by sale of the estate be to be consider as legal or as equitable  asset in the hand of the executor master of the roll in the case of degg and  degg where a estate be devise to executor and their heir in trust to sell for  payment of debt I decree that the money raise by the sale be not legal asset  and the decree be affirm on appeal by the earl of Macclesfield but if a  authority be give to executor to sell for payment of debt or if the estate be  devise to they and their heir to sell to pay debt the money arise by the sale  be asset at law but where the estate be devise to they in trust call they  executor it be only consider as describe the person who be to sell and I  always strong incline to a equality among creditor cro Elizabeth Mr  attorneygeneral for the plaintiff the executor by the article express agree  that we shall retain what be due to we out of the purchase money this retainer  be part of the term of our purchase and the reason why we give so much for the  estate and the executor can take advantage of one part of the agreement unless  they will perform the whole and mary can defeat these article which she  herself enter into here be a general and special trust repose in the executor  which they may be compel to perform in this court in the case of degg and degg  the land be devise to person who be afterward make executor and their heir in  trust for payment of debt the creditor by specialty have receive part  satisfaction of their debt out of the personal estate and they insist to be  pay the residue preferable to the other creditor out of the money raise by  sale of the real estate and this bring on the question whether the money be  asset or not and your honour decree they shall receive nothing out of this  money till the other creditor have receive as much in proportion as they have  out of the personal estate and the reason of this decree be that by the  statute of fraudulent devise a devise of land be void against a bind creditor  except the devise be for payment of debt so this devise stand as at commonlaw  and the descent be break by it the bind creditor have no lie on the land  mosely report but can only come into this court to have the trust perform Mr  Lutwyche for the defendant mary a devise of land to executor to sell imply a  trust so I do not see how such a devise differ from a express devise in trust  c and executor be in all case trustee by their office it be the same thing  whether the trust to sell be express or imply and a creditor by take a  superior security depend upon his have gain a preference to the other creditor  here the estate be express devise to they by the name of executor in the case  of degg and degg the estate be devise to they by their particular name in  trust and in the follow part of the will they be make executor and the court  therefore will not join together their office of executor and trustee and the  statute of fraudulent devise will make no alteration in this case for all  devise before the statute break the descent and leave nothing in the heir  master of the roll a executor or administrator be not a trustee by his office  for then he will be Accountable only in a court of equity and not at law this  case be strong than the case of degg and degg this be a trust for a particular  purpose to pay pound a year to the wife and she may make her election to take  by the article or mosely report er p the will and she choose to stand by the  article whereby she have a specific lie on the stock for so much as it amount  to for it be in the contemplation of the party that the pound shall be invest  in the iron work and let the master take a account of the real and personal  estate and if there be not enough to pay all the debt she must be pay the  residue in equal proportion with the other creditor and in compute what her  proportion will amount to a account must be take of what be due to her for  principal and interest and the plaintiff can retain but after the account be  take he may consider whether he will go on with the article without retain for  I adjudge the money raise by the sale of the land not to be asset at law and I  be sure there be a hundred such decree for I think the testator design this a  trust in the executor to be perform under the direction of this court and not  a legal interest such as the law give they Ant Cas Cas Cas and a creditor by  specialty must be pay in proportion to what his principal and interest amount  to Nels Fol Rep in canc vern Chan Cas vern Chan Cas lev Wentw off of ex vern  stat h ch dyer Swinb part sect n dyer mosely report de term S trin in cur  porter Tuesday may the that motion