case gower versus mead January Eq Abr c S c pale yellow can vern case tempt  Talb wms e contra Eq Abr pl pl case tempt Talb I wms wms wms post vide the  case of wainwright v Bendlowes post and the note thereto subjoin a make b his  executor and devise to he pound and his real estate to I n upon condition that  he pay his debt and legacy the personal estate shall be apply in ease of the  real in discharge the debt and legacy a man make his will and I S his executor  and give he a legacy of pound and devise all his land to I n and his heir upon  condition that he pay his debt I precedent in chancery er p legacy and if the  debt be not pay within two month after his death and the legacy within three  month then the creditor and legatee may enter and the only question be whether  in this case the personal estate shall be first apply in ease of the real  estate devise to I n sergeant Phillips for the plaintiff argue that the  personal estate shall not be liable in this case and say it be the same as if  the testator have devise land to I n upon condition to pay pound to a and  pound to b and in that case without question the devisee of the land can have  no advantage of the personal estate sergeant Hutchins for the defendant it be  a settle rule that hres factus shall have the benefit of the personal estate  as well as the hres born and though the personal estate have be devise to the  executor yet if it be not say without be liable to debt it shall be apply in  ease of the real estate and to that purpose be the case of turner and zouch  and cook and guavas in the exchequer if a man make a mortgage and do not  covenant to wonder the mortgagemoney yet island personal asset shall be first  apply in ease of the real estate and so it must be in the present case Lord  commissioner Maynard if a man devise his real estate to another upon condition  to pay his debt and do not dispose of his personal estate that shall be first  apply in ease of the real estate and here the precedent in chancery condition  annex to the devise be not a condition to avoid the whole estate but only to  give a entry to the creditor and legatee Keck the creditor have likewise a  bill now at hear and have a demand primary against the personal estate and may  certain take their remedy against that if they please suppose in this case  there have be no executor name the administrator must certain have apply the  personal estate in ease of the real and the executor do take no more to his  own use than a administrator therefore the personal estate must be apply  Rawlinson there be a diversity betwixt hres factus and a devisee of particular  land for a devisee of particular land shall not have the benefit of the  personal estate but hres factus of the whole estate shall hres factus of the  whole estate shall have the benefit of the personal estate but a devisee of  particular land shall not e contra vern Chan case case tempt Talbot atk Lord  Hardwicke observe in Galton v Hancock that the first case where the question  be determine in favour of a devisee of part of the real estate only be the  case of Pockley v Pockley vern and that Lord nottingham opinion have be follow  ever since atk