BLATCH and agnis in behalf of themselves and all other creditor of Francis  Elliot decease plaintiff this case be take from atkins it appear in Lord  hardwicke notebook but there be only the follow note of his judgement decree  for a account and sale of the real estate No point appear to have be make in  the cause whether the real estate devise by the will be to be consider as  legal or equitable asset and wile and other defendant may rd atk a testator  devise all his real and personal estate to be sell for payment of his debt and  appoint the defendant executor the personal estate not be sufficient a bill  bring by bind and note creditor of the testator to be pay their demand out of  the real estate the question whether the executor can sell the same as the  testator have give it general to be sell without direct who shall sell Francis  Elliot be indebt to the plaintiff by bind and note and to several other person  and be seize in fee in diverse land part freehold and part copyhold and of a  considerable personal estate have duly surrender the copyhold make his will  and thereby devise all his real and personal estate whether freehold or  copyhold to be sell for payment of his debt and appoint the defendant wile and  agnis executor wile alone prove the will and take upon he the execution  thereof and the personal estate not be sufficient to pay his debt the  plaintiff bring their bill to be pay their respective demand out of the  testator real estate the defendant admit the will but wile the executor submit  to the court whether he can safe proceed to a sale of the estate in regard the  testator have only give it to be sell general without direct who shall sell  the same west tempt Hardwicke Mr fazakerley insist the executor ought to sell  and for this purpose cite Jo Leon Lord chancellor I be of opinion that money  arise from the sale of land devise to a executor for that purpose or which the  executor be empower to sell be legal asset in his band and administrable as  such and west tempt Hardwicke such money c be asset likewise in the same  manner in the present case it be a very reasonable construction that the  executor shall be the person who shall make the sale and therefore I decree  that in case the personal estate shall not be sufficient to pay the debt and  legacy that then the real estate of the testator both freehold and copyhold  shall be sell and likewise that the executor and the heir shall join in the  sale and all other proper party as the master shall direct and his lordship  declare that the money arise by such sale be apply in satisfaction of the debt  and legacy of the testator remain unsatisfy and that the surplus of the money  arise by such sale or sale do belong to Ann Elliott the widow of the testator  and in case any of the say testator creditor by judgement or specialty shall  take any part of their satisfaction out of the personal estate of the say  testator then they be not to receive any thing out of the money west tempt  Hardwicke er p arise by sale of the real estate till the other creditor be  make up equal to they Reg lib a fol it be agree in this case that where land  be devise to trustee to be sell for payment of debt and the heir at law be a  infant he have no day give he to show cause on his come of age otherwise where  there be no devise of land express to any particular person for in that case  he have and this be one of these case his lordship direct the infant the  customary heir of the copyhold premise to join in the sale thereof on attain  twentyone unless within six month after he shall attain such age he show cause  to the contrary and the purchaser of the copyhold in the mean time to hold and  enjoy the same west tempt Hardwicke er p Lord Thurlow say there must be a  mistake in Blatch v agnis for it be always hold that a estate devise to a  executor to sell be equitable asset Newton v Bennet bro c c but what be here  state to have be say by Lord Hardwicke be consistent with the old case for it  be former hold that whatever come to the executor hand or they be entrust with  as trustee shall be consider as legal asset roll Abr pl Dethicke v caravan lev  Burwell v corrant hard Girling v lee vern Hawker v Buckland vern greaves v  Powell vern anon ib Cutterback v smith Prec Ch Bickham v freeman Prec Ch  walker v meager p wms and though in some of the old case a distinction prevail  where the executor and trustee be the same person and a intention be show by  the testator to separate the office of trustee from that of executor as where  a testator devise land to trustee and their heir upon trust for payment of  debt and afterward make they executor Deg v Deg p wms and Mr Cox note to that  case Hickson v Witham Fineh chamber v harvest mrs hall v Kendal mrs prowse v  Abingdon ante p levuin v okeley atk or where a testator devise real estate to  executor and their heir in both case they be hold to be equitable asset silk v  prime note in bro c c but now by modern case it seem settle that where the  devisee of real estate unite the character of trustee and executor a court of  equity will prefer the character of trustee and it make no difference whether  the real estate be devise to he quasi executor or quasi trustee for the  purpose of be sell to pay debt the money arise from the sale of the real  estate will be affect with a trust and will be consider as equitable asset  Newton v Bennet bro c c Barker v Boucher bro c c in note Batson v Lindegreen  bro c c but where the executor have a mere naked power to sell how executor it  seem doubtful whether they will be consider as legal or equitable asset see  silk v prime bro c c and see Barker v Boucher ib in former case where a estate  descend or be devise to a heir charge with the payment of debt it be hold  legal asset because the descent be not break Freemoult v Dedire p wms plunket  v Penson atk young v Dennett dick Rep allam v Heber Str but by the late case  it have be hold and seem now to be settle that a estate devise to a heir or  which have descend to he subject to the payment of debt will be consider as  equitable asset Hargrave v Tindal bro Ch can note Batson v Lindegreen d per  Lord Thurlow bro Ch can Bailey v ekins Ves Shiphard v lutwidge Ves if there be  a mortgage for year and the reversion in fee leave in the mortgagor it will be  legal asset because the bondcreditor may have judgement against the heir of  the obligor and a to be remiss execution till the reversion come into  possession d per Lord Hardwicke in plunket v Penson atk but a equity of  redemption of a mortgage in fee coal v warden vern Plucknet v Kirk ib Sawley v  Gower vern Trevor v perryn Ch can Barthrop v west Ch Rep Plunkett v Penson atk  clay v Willis b c or of a leasehold estate be equitable asset the case of sir  Charles Cox creditor p wms Hartwell v chitters Ambl lyster v Dolland Ves jun  Scott v Scholey east judgement creditor however have a general lie upon land  have a priority over bind and simple contract creditor in respect of the  equity of redemption of a mortgage in fee shar v earl of carborough Ves by the  statute of fraud the trust of a inheritance though not of a term be make legal  asset king v ballett vern and see lyster v Dolland Ves jun