case and warner widow and other appellant Nathaniel haw and other respondent d  march Mews dig way a estate in mortgage be devise to a and several legacy give  to other the mortgage shall be first satisfy out of the personal estate and if  that fall short the legatee must abate in proportion viner vol p can vol p can  Eq can ab can can Nathaniel haw have issue Thomas his only son who die in his  lifetime and the appellant Ann Warner widow his only daughter but he have  several grandchild by each of they he be seize in fee of several message and  tenement in Thames brown er p street London which be mortgage to one wood for  pound and he be indebt to the estate of his son Thomas in above pound for the  dividend of pound east India stock and the rend of certain land in Yorkshire  which belong to Thomas under these circumstance Nathaniel make his will date  the saint of July and thereby devise a message and several warehouse to his  grandson Nathaniel haw and his heir another message to his grandson Thomas haw  and his heir and another to his granddaughter Ann Warner for life with  remainder to his grandson Thomas haw and his heir he also give to his  granddaughter Ann haw and Elizabeth haw pound apiece with benefit of  survivorship to Elizabeth his son widow pound to his daughter Ann Warner pound  to his granddaughter Ann Warner pound to his grandson Edmund Warner pound to  his granddaughter Elizabeth Warner pound to his granddaughter mary Warner  pound and to his granddaughter Katherine Warner pound these with some small  legacy amount to pound which sum the testator by his will calculate to be the  residuary part of his personal estate his debt and funeral expense be first  thereout pay but he declare that in case his estate shall by loss or otherwise  fall short of that estimate a proportionable abatement shall be make by his  several legatee out of the legacy thereby give they and if his estate shall at  the time of his death exceed the say estimate of pound then he give the  surplus whatever it shall brown prove to and among all his say grandchild  share and share alike then follow a proviso in these word videlicet provide  always and it be hereby declare that the several devise of the say message and  tenement and the legacy herein give to my daughterinlaw Elizabeth haw and to  her two son Nathaniel and Thomas and to her two daughter Ann and Elizabeth be  so give on these condition videlicet that if they and every of they shall not  at the request of my executor make and execute to my executor a sufficient  release and discharge for all money part share claim and demand whatsoever  which they or any of they can or may reclaim out of my personal estate or be  entitle unto by virtue of the custom of London or otherwise howsoever or which  they or either of they can claim or demand in right of my son Thomas decease  or in reference to my say son or my own estate in any manner of wise then I  give and devise the say several message tenement and other legacy to the child  of my say daughter Ann Warner share and share alike in Michaelmas term Thomas  and Ann haw two of the testator grandchild exhibit their bill in the court of  chancery against the appellant and other proper party for a account of the  testator personal estate and satisfaction of their legacy and that the pound  due on the mortgage may be pay out of such personal estate and the premise  devise to they discharge thereof the cause be at issue be hear before the Lord  keeper wright on the that of February when it be decree that the say pound and  all the interest thereof shall be discharge by the executor out of the  personal estate and that the legatee shall abate in proportion in case the  personal estate shall fall short and the usual account be direct to be take  the master report the personal estate to be deficient in pound S d and  therefore be charge the devisees of the real estate as well as the pecuniary  legatee to contribute by a pound rate to make good this deficiency but upon  exception be take to the report on account of charge the devisees of the real  estate to contribute such exception be allow from so much of this decree as  direct the pound and interest to be pay out of the personal estate and also  from the order allow the exception the present appeal be bring and on the part  of the appellant it be say S Cowper t powys that the intention of the testator  throughout his will seem to be that in case the personal estate shall prove so  deficient as not to make good the particular legacy every legatee shall abate  in proportion and if the testator have mean that the mortgage premise shall  not have bear their own burden but shall be exonerate out of the personal  estate he will have provide so by his will when he be devise those premise  beside it be not likely that he can mean the mortgage to be pay out of the  personal brown estate because he calculate that to be pound which be very near  what the master have certify the same to be videlicet pound S d and it will  have be more if the interest of the pound from the testator death have not be  pay out of it from whence it appear that the testator have frame his will upon  a brown er p calculation of his estate that as the real estate devise be pound  per and if the devisees shall pay the pound charge thereon they will still  have near twice as much as any of the other legatee and therefore it be  conceive that the testator will will be best fulfil by let the real estate  bear the mortgage which be its own burden and the personal estate be apply in  payment of the legacy which in that case will be near sufficient on the other  side it be insist W Marriot that the money due upon the mortgage be a debt of  the testator and the mortgagedeed contain a covenant from he to pay it this as  well as all his other debt ought to be pay out of the personal estate which be  still more plain from the word of his will whereby he have direct that his  debt and funeral charge shall be pay in the first place out of his personal  estate and it be not strange that in the calculation of that estate he shall  be a little mistake consider that at the time of make his will he be engage in  a partnership trade the account whereof be long confuse and intricate and have  not be settle for the space of sixteen year that as to the question of  abatement there be a know difference between a devisee and legatee the former  be of a real estate the latter only of personal thing and this difference be  accord well know and take notice of by the testator in the word of his will by  direct all his debt to be pay out of his personal estate and therefore as the  real estate be special devise it ought not to contribute to any deficiency of  the personal estate that in the present case it be much the strong because  there be a good and valuable consideration on the part of the devisees namely  the pound and upward which the testator owe his son and which be near  equivalent to the value of the real estate devise and that the decree by  discharge this debt be rather more hard upon the respondent and their family  than upon the appellant accord after hear counsel on this appeal it be order  and adjudge that the same shall be dismiss and the decree therein complain of  affirm jour vol p