case Evelyn versus Evelyn e content see Ancaster v mayor bro c c wood v  Huntingford Ves Jun master of the roll in the Lord chancellor absence keb  fitzg Kel in Charles Eq can ab pl pl c a term of year create to raise portion  for daughter in failure of issue male as soon as convenient may b after the  father death but no maintenance nor any express time mention when the portion  be Payable there be three daughter and the old but eight year old the father  be dead but the mother who have a jointure on the estate be live the court  will not raise the portion for daughter so young out of the reversionary term  upon a bill bring by the plaintiff the three infant daughter of George Evelyn  by mary his wife for raise their portion of pound the old of the say daughter  be about the age of eight year the case be thus George Evelyn the defendant  father and grandfather to the plaintiff have three son John George and the  defendant Edward Evelyn George Evelyn the father be tenant for life remainder  to his old son John in tail male of art of the premise on the October together  with his old son John by deed and recovery settle the manor of Walkhamstead  alias Godstone in Surrey to the use of himself for life sans waste remainder  to his old son John Evelyn for life remainder to his first c son in tail male  successive remainder to his second son George Evelyn for life remainder to his  first and peer William other son in tail male successive remainder to his  three son the defendant Edward Evelyn in like manner with trustee to support  all these contingent remainder remainder to the heir male of the body of  George Evelyn the father remainder to he in fee with a power to George Evelyn  the father by deed or will to charge year lease mortgage or otherwise the  premise to himself limit for life with raise or pay any sue not exceed pound  also with a power to every of his son when in possession by deed attest by  three witness to limit before or after marriage to the wife of any of the say  son for a jointure all or any part of the premise so as such jointure shall  not exceed pound per annum for every pound which such son shall have receive  as the fortune of the wife with far power to his say son respective when in  possession by any deed or write under hand and seal attest by three credible  witness to make any lease or lease for year sans waste but without prejudice  to any jointure which shall be make by virtue of the say power for the raise  of portion for the daughter of such son so as such portion shall not exceed  that which such son make such lease shall have have with his wife and so as  such lease shall not take effect until there shall be a failure of issue male  of such son so make such lease with the usual power for George Evelyn the  father and his say son respective when in possession to make lease for  twentyone year at the most improve rend by other indenture of lease and  release date the that and saint of October George Evelyn the father in  consideration that his son John Evelyn have join with his father in the say  common recovery and settlement do settle other land videlicet peer William the  manor of Tandridge c of which he be seize in fee to the same use as the say  manor of Walkhamstead alias Godstone be settle by the former deed with this  difference only videlicet that as to the son power of lease for raise daughter  portion these word be add so as such lease or lease shall cease and determine  upon the raise of such portion and cost and charge for raise the same upon the  saint of April George Evelyn the father in pursuance of his power mortgage  part of the say land for pound for the term of year which mortgage afterward  by mesne assignment become vest in sir Thomas pope blunt with a covenant from  George Evelyn the son for payment of the mortgagemoney and sir Thomas the  mortgagee covenant to reassign to George Evelyn the son in June George peer  William er p Evelyn the father die in October John Evelyn the old son die  without issue upon which George Evelyn the second son enter upon the premise  comprise in the settlement August d upon the intermarriage of George Evelyn  the son with the daughter of Mr Garth who portion be agree to be pound in  consideration of the say then intend marriage and pound marriage portion for  settle a suitable jointure on her make provision for the issue of the marriage  and that pound shall on failure of issue male be secure to the daughter and  recite the say former settlement with the power for make a jointure and raise  portion for daughter the say indenture witness that for the consideration  aforesaid and in pursuance of the say power or any other George Evelyn the son  do limit and appoint to and to the use of the say mary his then intend wife  for her life for her jointure and in bar of dower diverse message and land in  Godstone not exceed the value of pound per annum also in pursuance of the  power in the say peer William settlement or any other the say George Evelyn  the son in case of failure of issue male between he and mary his say intend  wife grant and lease to trustee therein name all the premise limit to the say  mary for her life for her jointure and all other the manor and land comprise  in the say settlement to hold to the say trustee for the term of year to  commence and take effect from and after failure of issue male of the body of  the say George Evelyn the son upon trust that if there shall be failure of  issue male of the body of the say George Evelyn the son on the body of the say  mary and if he shall have one or more daughter by her then the trustee of the  say year term shall by and out of the rend issue and profit of the premise  comprise in the say term or by sale mortgage or lease thereof or of any part  thereof or by any other way or mean as to they in their discretion shall seem  meet as soon as convenient may be after the decease of the say George Evelyn  the son or in his lifetime if he shall think fit to have the same soon raise  and so direct levy and raise the sum of pound for the portion or portion of  such daughter or daughter to be pay to her or they and equal divide among they  if more than one share and share alike with a proviso that the term shall not  prejudice the jointure and that immediate after the raise the say pound with  all cost c the say term shall cease the marriage take effect but afterward in  the year George Evelyn die intestate leave the defendant mary his widow and  only three daughter who by their mother in the year bring their bill against  Edward Evelyn and James Evelyn his old son be the next remainderman in tail  peer William pray a present sale of the year term to raise the portion the old  daughter be not above four year old at the time of bring the bill and on the  other hand the defendant Edward Evelyn and his son the next remainderman in  tail bring their cross bill against mrs Evelyn the mother afterward marry to  governor Bohun be administratrix of her former husband George Evelyn pray that  the personal estate of her late husband shall be apply towards pay off the  mortgage of pound and in exoneration of the real estate these cause come on at  first may before the master of the roll in the absence of the chancellor he be  please to declare that the power in the deed of the that and saint of October  be well execute and direct that it shall be refer to the master to state the  value of the real and also of the personal estate of George Evelyn the late  husband of mary whereupon the master state the real beyond the jointure to be  pound per and the personal estate to be about pound and the debt beside the  mortgage to be about pound and afterward these cause be order to be set down  for hear before the Lord chancellor upon the master report and for far  direction and upon the petition of Edward Evelyn and James Evelyn his son to  his lordship allege that they apprehend themselves aggrieve by such part of  his honour decree whereby the power in the deed of the that and saint October  be declare to be well execute in regard the petitioner conceive that however  the term may be well raise yet that the say power touch the trust be not well  declare nor well execute or warrant by the abovementioned deed it be therefore  order that these cause shall be set down to be reheard touch the matter in the  petition mention at the same time that the matter of the master report be set  down for hear peer William and now the cause stand for judgement in the paper  the Lord chancellor assist by the Lord chief justice Raymond and master of the  roll deliver the resolution of the court peer William er p saint as to the  question whether the personal estate of George Evelyn the son shall be apply  to pay off the mortgage make by George Evelyn the father in regard the son  covenant to pay this mortgagemoney whereupon the mortgage be to be reassigned  to he or as be shall direct it be agree that the personal estate of the son  shall not be apply to pay off this mortgage make by the father forasmuch as  the charge be make by George Evelyn the father in pursuance of his power to  charge the premise and as he have such power the defendant Edward must be  content to take the land cum load that this be the original debt of George  Evelyn the father though his personal estate if any such be to be find will be  liable thereto yet the son personal estate ought not to be charge with the  father debt see the case of cope v cope salk and notwithstanding that the son  do afterward on the assignment to sir Thomas pope blunt covenant to pay the  mortgage money yet since the land be the original debtor this covenant from  the son will be consider only as a surety for the land that it be not like the  case of sir John Napier bro p c bro p c and ed where part of the estate of sir  John the mortgagor be after his death settle by a private act of parliament in  trustee as a fund to pay all his debt and sir Theophilus die son and heir of  sir John dispose of that fund be consequent and be able for the debt have have  the benefit of the fund set apart for they for which reason it be but just  peer William that upon his death his personal estate shall be answerable for  the debt of his father where as in the present case here be no fund for  payment of debt that come to the son but the land be the original debtor and  must continue so there be nothing substitute in its place that in the common  case where a mortgagor covenant to pay and die though quoad the mortgagee the  land may be look upon as the security on which he rely yet if the mortgagor  covenant to pay and do receive the money he be the original debtor and his  personal estate shall go to ease the land in favour of the heir but here  George Evelynthe son be not the original debtor his father be who actual  receive the money that in the case of the earl and countess of Coventry ante  where Gilbert late earl of Coventry on his marriage with the daughter of sir  Strensham master the earl be but tenant for life with a power to make a  jointure of land not exceed pound per annum on any wife he shall marry  covenant in consideration of the intend marriage that he or his heir will  after the marriage accord to the power give he by his father will or otherwise  settle land of pound per annum on his wife for her jointure and it be in proof  that the late earl direct his steward to look over his rentroll for a fit  parcel of the estate to make good the jointure and afterward the jointure deed  be draw and ingross but not execute though this depend only on a covenant yet  the jointure of land be the chief thing in view the decree be that the land  shall be settle and the covenant not make good out of the personal estate in  like manner in the case of freeman and Edward ante though the wife jointure  and the daughter portion be secure by article which be never peer William  complete by a settlement however those article be to settle land and the  covenantor leave land sufficient to answer it it be decree that the daughter  portion shall be raise out of the land and the personal estate of Mr freeman  the covenantor not be apply in exoneration of the land so that as to that part  of the cross bill which pray the mortgagemoney shall be pay out of the  personal estate of George Evelyn the son the same be dismiss with cost as to  the other point which be the most considerable it be agree that this pound  shall be raise out of the rend and profit of the premise comprise in the year  term and not by any sale or mortgage thereof and that no more than the sum of  pound in the whole shall be raise and the profit be account for from the death  of George Evelyn the husband the master of the roll who deliver his opinion  very full say he will consider the nature of such power in general the word  make use of in the present one and the precedent in the like case for secure  and raise portion for daughter as to the nature of such power they be to be  take strict be to charge burden and encumber the estate of a three person vide    fitzwilliams case also vent sail versus Freeland upon which occasion the  Lord chancellor Nottingham make this distinction where a man have a power to  make lease or any other charge which be to encumber a three person estate such  power be to have a peer William rigid construction but where it be to dispose  of his own state as in that case peer William er p the party who have the  power be tenant in tail the most liberal interpretation be to be make in vern  lady Charlotte Orby versus Lord Mohun the point then in question be no more  than tenant for life with power to make lease of land usual let at the ancient  rend the tenant for life make a general lease to I S of all his land usual let  reserve the ancient rend and though this general lease follow the word of the  power nevertheless since if good against the remainderman it will put a  difficulty upon he in his suit for the rend to set out what be the ancient  rend for every particular parcel of land and may endanger his be frequent  nonsuit before he can be able to recover the rend from the lessee it be  adjudge in chancery and affirm in the house of lord that such a general lease  be not warrant by the power to bind the remainderman which show that power  bind the interest of person in remainder ought to be take strict and as power  in settlement to use be raise by way of use which at commonlaw be trust they  be original cognisable and determinable in court of equity in levinz Jenkins  versus Kemys the same case also in Hardress Chan case tenant for life  remainder to his old son in tail with power to charge the land with pound they  both by lease and release join in a mortgage in fee of the premise to I S  under proviso to be void on payment of the pound and interest with a covenant  for far assurance but no mention make of the power decree by the Lord keeper  Bridgman that this mortgage shall not be intend a execution of the power but  only a common mortgage and so the father and son be both dead the mortgage be  not bind on the issue of the son either in law or equity consequent the money  be lose from whence it appear that court of equity be not free in extend power  give to tenant for life to bind a remainderman indeed in vern lady Clifford  versus Lord Burlington where the Lord Clifford by his marriage settlement be  make tenant for life remainder to his first c son in tail with power for he to  peer William make a jointure not exceed pound per annum and his lordship in  treat of the marriage covenant to settle a jointure of pound per annum give in  a particular of land as of that value and settle they but the land prove to be  only pound per annum whereupon after Lord Clifford death a bill be bring by  the jointress against the issue in tail to have the jointure make up pursuant  to the marriage article the decree be that the issue in tail shall make up the  jointure pound per annum it be true in that case relief be give to a purchaser  against a purchaser however this be to be look on as a family case where it  may be think severe not to make good her jointure to a lady who bring a  considerable fortune and the decree make probable on a faint defence beside it  do not appear to have be think a right decree or even sufficient approve of by  the reporter himself but see marchioness of Blandford v duchess of Marlborough  atk Sugden power Ed at least it be to be consider there be a power to make a  jointure of pound per annum a covenant and also a intention to execute it  whereas in the present case what be ask for the daughter seem not warrant by  the original power which can be exceed by the subsequent settlement of the  portion such part therefore of the deed secure the portion as exceed the  original power be to be look upon as of no force the son of Mr Evelyn the  father who be remainderman in his settlement be at least to be regard as much  as a heir at law from who nothing shall be take but by necessary implication  and though George peer William Evelyn the son in the execution of the power  seem not to have regard the conveniency of the remainderman yet the plaintiff  the daughter can ask nothing but what the power in the settlement of George  Evelyn the father warrant there be two way of raise portion the saint by sale  or mortgage the d by perception of profit now where a particular certain time  be limit for the payment of the portion there it carry interest from that time  and may imply a power of sale but here no certain time be limit for payment  which very much influence the present case and distinguish it from other see  the case of Trafford v Ashton vol and ante the case of ivy v Gilbert it be not  say or imply that the portion shall be pay or raise upon the death of George  Evelyn the son without issue male though it be true the right thereto do then  vest in the daughter videlicet a right to the bare sum of pound to be raise by  perception of profit and as it be unreasonable in itself to raise the portion  by a way so destructive to the estate and family as a sale will be it must be  more particular hard to do it in the present case when the daughter for who  they be to be raise be of such tender year and when it peer William er p  moreover appear to have be the plain intention of the maker of the settlement  to preserve the bulk of his estate in his name and family object the word  portion always imply a sum in gross and to be pay all at once resp if the  daughter be sure of their portion though the same be not to be raise or pay in  so beneficial a manner as they will have they it be however sufficient the  writ de rational part will do you much good never require that the child share  shall be pay in a gross sum peer William it be observable that the power give  or reserve by Evelyn the father to charge the land with pound be by lease  mortgage or otherwise without restriction but when he come to make a  settlement of his feesimple land his son power of lease for raise daughter  portion be restrain so as such lease or lease shall cease and determine when  the money shall be raise now this be the strong argument imaginable that  Evelyn the father do not intend a sale of the premise for the raise of these  portion but only to do it by perception of profit when even a lease thereof be  not to continue after the portion raise which can not be if after those sum be  raise and the child pay the term be still to subsist for the benefit of a  purchaser or mortgagee it be not possible that the term can cease upon raise  the portion inany other way than by raise they out of the grow profit and then  though the execution of the power by Evelyn the son be it defective will be  supply or help in equity yet where it come to exceed the power equity will  never support such excess the truth be there may be some hardship either way  to the daughter of Evelyn the son on the one side and to the remainderman the  brother on the other but the great hardship seem likely to fall on the  remainderman if the estate be a reversion shall now be sell whereas if the  daughter have their portion of pound though not pay in so beneficial a manner  as they can wish it still be a plentiful provision in the next place it appear  that the power to raise the portion for the daughter of Evelyn the son be so  as the same shall not exceed the portion which their father shall have with  his wife which be but pound be the same as if it have be express in the power  that the daughter portion shall not exceed that sum and this show that peer  William interest for the pound be not to be raise for that may double the sum  and eat up all the reversion and as to this point what have be cite from the  case of Lord kilmurry versus dr Gery salk see ves atk Hearle v Greenbank be  not applicable the decree there be ground on the particular circumstance of  the case the power arise upon a settlement make with the approbation of  trustee by a person during his infancy and confirm by act of parliament by the  settlement a power be reserve of charge diverse of those land at any time  during his life with the sum of pound he borrow this sum of the doctor and  have execute his power while a infant die soon after he come of age the  plaintiff his son bring his bill to redeem on payment of the principal sum  borrow but the court then decree a redemption upon the common term of payment  of principal interest and cost because here be a power give to he to raise  money and immediate to give security which be actual do and although perhaps  have he be of age at that time he shall have be oblige to keep down the  interest during his life yet be a infant at the time intend for the execution  of this power and therefore not capable of make his person liable to any part  of the engagement the land must from the necessity of the thing have stand  engage for interest as well as principal or it have be impossible for he  during his infancy to have raise any money at all which the nature of the  transaction require last his honour cite most of the case that have be adjudge  in relation to portion charge on real estate but take notice that the follow  be the principal case prove that when no time be limit for the payment of  portion and the daughter claim the same be of tender year peer William though  the right to the portion vest in such infant daughter yet they be to be raise  by rend and profit first vern earl of river versus earl of Derby where on a  marriage land be limit to the husband for life remainder to the wife for life  remainder to the first c son in tail male remainder to I S in fee proviso that  if there shall be no issue male and a daughter of the marriage live at the  death of the husband then the trustee shall stand seize of the premise to the  intent that such daughter shall receive pound out of the rend revenue and  profit thereof and pound per annum for maintenance and this pound to be for  her portion without appoint any time peer William er p of payment there be no  son and but one daughter who have live to seventeen die unmarried decree that  the portion of pound do go to her executor and be to be raise out of the  profit by the trustee so that here be the case of a portion vest decree to be  pay out of the profit and which be likewise a far answer to the objection that  by the word portion be to be mean a sum to be pay in gross second that of ivy  versus Gilbert ante decree by Lord Macclesfield and affirm by the house of  lord where a trust term be limit to raise pound for daughter portion by rend  issue and profit or by lease for one two or three life at the old rend and  decree that the direct the portion to be raise in this particular manner imply  a negative that it shall be raise in no other manner and therefore not by  mortgage or sale nor any more money be raise than the pound without interest  which be exact the same with the principal case a instance of a portion to be  raise by perception of profit without interest and his honour conclude peer  William that there be not one single precedent where a sale have be decree of  a trust term for a portion appoint to be raise by rend and profit and no time  limit for payment the Lord Raymond rely much on the intention of the maker of  the settlement which appear to be plain for preserve the estate in the male  line of the family so that there can be no design to extend the power for  raise portion for daughter to a sale or mortgage consequent such power be  neither express or imply nor any time limit for the payment of the portion it  will he think be extreme hard for the court to decree that which will prove  the destruction of the estate against the intention of the party Reg lib a fol  from which decree so far as it relate to the raise the daughter portion there  be a appeal to the house of lord but on the d may the party on both side come  to a agreement bro p c bro p c and ed which agreement be confirm by act of  parliament Geo the rule respect the application of the personal estate in ease  of the real as between volunteer for which vide Howell v price ante vol as  they proceed on the principle that the primary fund ought in conscience to  exonerate the auxiliary consequent can hold only in those case where the fund  in question stand in those relative situation the encumbrance may be in its  nature real or may become so by the act of the person who have power of charge  both fund or although the land be auxiliary only to the personal estate of the  original contractor it yet may become the primary fund as between it and the  personal estate of any other person who may take the land either by descent or  purchase subject to the charge in all those case the personal estate be charge  if at all only as a surety for the land and shall have the same measure of  equity as the land be entitle to when it be pledge as a surety for a personal  debt in Bagot v oughton ante vol land descend to the wife subject to a  mortgage make by her father on a assignment of the mortgage the husband  covenant for payment of the money to the assignee decree the husband personal  estate be not liable to exonerate the mortgage premise for the debt be  original the father and continue to be so the covenant be a additional  security for the satisfaction only of the lender and not intend to alter the  nature of the debt in countess of Coventry v earl of Coventry Mod and ante  although the covenantor be the original contractor yet the charge be in its  nature real and the covenant only a additional security the land be decree to  bear its burden so Edward v freeman ante in leman v Newnham ves the son tenant  in fee on a assignment of the ancestor mortgage covenant with the assignee for  payment yet determine that the personal security be only auxiliary and both  principal and interest be charge primary on the land for although the interest  have accrue during the possession of the son the interest must follow the  principal and be a charge on the same fund So lacam v Mertins ves in Robinson  v gee ves the same principle be lie down In parson v freeman before Lord  Hardwicke that October Amb atk a purchase a estate for pound which be at that  time mortgage for pound and he covenant to pay pound to the mortgagee and to  the vendor the court admit the rule of law above mention but in that  particular case think that although the covenant be with the vendor only and  the vendees personal estate therefore not liable in that respect to the  mortgagee yet the word be sufficient strong to peer William er p show a  intention in the vendee to make it his personal debt Reg lib fol in Lewis v  nangle that Nov Amb Cox before Lord Hardwicke mrs nangle be before her  marriage with the defendant indebt to sundry person and entitle to the  inheritance of land charge with the payment of sundry sum and before her  marriage enter into article whereby the premise be to be settle to the husband  for life sans waste remainder in like manner to the wife remainder to the  issue of the marriage remainder to the wife in fee the marriage take effect  and the husband be press for payment of the wife debt and have also occasion  for a further sum of money they borrow pound of the wife sister the original  plaintiff in the cause and secure it by a mortgage of the wife estate and the  husband covenant for payment of the whole money and also execute a bind  condition for payment of the money accord to the proviso in the mortgage  subject to this mortgage the land be settle to the husband for life remainder  to the wife for life remainder to the issue of the marriage remainder to the  wife sister the mortgagee in fee mrs nangle die without issue and the present  plaintiff be the devisee of the sister who bring his bill against Mr nangle  for payment of the mortgage money but the Lord chancellor hold that although  part of the money be raise for the husband use yet the mortgage be a single  transaction he must suppose the intention of the party to be uniform and that  such intention be to charge the wife estate with the whole debt and his  lordship dismiss the bill so far as it seek to compel the defendant nangle to  exonerate the land but direct he to keep down the interest during his life Reg  lib b fol in forester v leigh d and that June Amb Mr leigh the testator have  purchase several estate be subject to mortgage with regard to one of which he  enter into a covenant for payment of the mortgage money for the purpose of  indemnify a trustee and as to another which be a part only of a estate subject  to a mortgage upon split the encumbrance both party covenant to pay their  respective share and indemnify each other Lord Hardwicke think these covenant  will not have the effect of make the mortgage personal debt of the testator  they have be enter into for particular purpose and declare his opinion accord  in the decree Reg lib a fol in perkyns v bayntun sir W Osbaldiston by will of  that Feb take notice that his daughter Catherine be deaf and dumb and that  jane bayntun have take care of her devise certain real and personal estate to  jane bayntun her heir executor and administrator in trust by sale or fall  timber to pay all his debt and direct that jane bayntun shall receive the rend  and produce of his real and personal estate without account during his  daughter life she maintain his daughter and after the death of his daughter he  give all his real and personal estate whatsoever to jane b in fee and appoint  her sole executrix sir W oh die march and jane b prove the will sir W oh in  his lifetime mortgage part of his estate for secure pound and interest which  remain a charge at his death jane b pay off pound part of this pound and  afterward borrow a further sum of pound on mortgage of the estate which money  be in the mortgage deed express recite to have be borrow to enable her to  discharge sir W of his debt jane b afterward die and on the disposition make  by her and those claim under her of the property of sir W oh this cause be  institute the cause be first hear before Lord Bathurst on that February when  the court declare that the sum of pound part of the pound be not to be  consider as a debt of the say jane b but be to remain a charge on the real  estate and direct a account of her personal estate by a order make on rehear  on that August that part of the decree be reverse and instead thereof it be  declare that the say sum of pound appear to have be a charge make upon the  estate of sir W oh in his lifetime and remain such at his death be to be  consider as a continue lie thereon and that the subsequent charge make on the  estate by the say jane b be express in the mortgage deed to have be make for  the purpose aforesaid the same together with the pound amount in the whole to  pound be to be consider as remain a charge on the say estate Reg lib b fol and  fol in Wilson v earl of Darlington at the roll Feb Cox a real estate charge  with a sum of pound as a bounty be hold to be primary liable though the  personal estate be also subject by the covenant of the donor duke of Ancaster  v mayor bro c c in Shafto v Shafto before Lord Thurlow February Cox the case  be this in march George peer William er p Delaval mortgage land to W c to  secure payment of pound with interest at pound per cent and by will of d may  devise the land to his nephew g Shafto in tail male remainder to the plaintiff  in tail male remainder over and die in the same month in g Shafto suffer a  recovery to himself in fee the mortgagee call for his money W Gibbons agree to  advance the pound at per cent on assignment of the mortgage which be accord by  indenture of that June assign to he with proviso for redemption on payment of  the principal and interest at per cent and g Shafto for himself his heir  executor and administrator covenant with Gibbons that he his heir c some or  one of they will pay to Gibbons the say principal and interest in manner  therein mention in Shafto agree to raise the interest to per cent and by deed  covenant with the mortgagee that the estate shall remain a security for the  pound with interest at per cent and that he his executor c will pay such  interest for the same in Jan g Shafto die the interest on the mortgage be then  in arrear for about ten month the bill be bring among other thing to have the  pound and interest pay out of the personal estate of g Shafto or at least the  arrear of interest due at his death and the additional I per cent charge by  the deed of but the Lord chancellor be clear of opinion that the personal  estate ought not to discharge the mortgage the land be the primary fund his  lordship also think that the interest must follow the nature of the principal  and that the contract for the additional interest turn upon the same subject  must be in the nature of a real charge so earl of Tankerville v faucet bro c c  Cox in Basset v Percival at the roll saint July Cox Matthew deer by will of  that Jan devise estate to trustee for a term of year to raise money for  payment of his debt and legacy in aid of his personal estate and subject to  the term he devise the estate in strict settlement with the ultimate  limitation to his own right heir and he give the residue of his personal  estate to his executrix Catherine power the executrix apply the personal  estate in payment of some of the debt and all the legacy except a legacy to  herself of pound and then die while the limitation in strict settlement  subsist and after the death of c power her representative file a bill to have  a debt due to c power and her legacy raise and the only person then entitle  under the limitation in strict settlement die pen the suit by which event the  ultimate limitation to the testator right heir take place a supplemental bill  be file against Margery deer and m d Percival the coheir of the testator to  stop this suit the coheir liquidate the demand of the representative of c  power at pound and give their joint and several bind for that sum this demand  be afterward assign to Ann Basset who also buy in debt to the amount of pound  remain due from the testator Matthew deer and the coheir give another joint  and several bind to Ann Basset for this sum also so that Ann Basset become the  sole creditor on the estate Margery deer be dead and a bill be file by Ann  Basset for payment of these sum of money the question be whether a moiety  thereof shall be raise in the first place out of the personal estate of  Margery deer or out of the real estate his honour be of opinion that the real  estate be the original debtor and ought to bear the burden and again in  tweddell v tweddell bro c c the covenant of indemnity be not sufficient to  charge the personal estate In Mattheson v Hardwicke at the roll July the  testator devise a estate to a and b as tenant in common in fee charge with the  payment of his debt and legacy a pay off all the debt and all the legacy  except one of pound for which he give the legatee his promissory note and die  before he pay it as to the debt and legacy actual pay by he it be admit on the  part of his personal representative that be tenant in fee of a estate subject  to encumbrance he must be presume to have pay off those encumbrance with a  view of ease the estate from they altogether but as to the legacy of pound the  promissory note be say to be only a collateral security and that the devise  estate be the primary fund for the payment of it and his honour be clear of  that opinion billinghurst v walker bro c c Clinton v Hooper bro c c et vide  Astley v earl of Tankerville bro c c see also Lawson v Hudson bro c c Hamilton  v worley bro c c Ves jun wood v Huntingford Ves butler v butler Ves wear v  ware Ves Ves e of Oxford v lady Rodney Ves Lechmere v Charlton Ves Ruscombe v  hare dow Scott v Beecher peer William er p mad Noel v Lord Henley price than  as to the case of the earl of Belvidere v Rochfort bro p c and Edward bro p c  vide tweddell v tweddell ub sup peer William de term S the number three