case John Elliot plaintiff thomas Hancock and jane his wife james Elliot and  thomas Cripps defendant die June in court lord commissioner Eq can ab pl S  real estate decree to be charge with a annuity give by the will though no  express word to charge the land the executor be devisee of the land John  Elliot the plaintiff late father be seize of a little message in Marlborough  of eight pound per and and possess of a personal estate to the value of two  hundred and fifty pound or thereabouts Oct make his will in write and thereby  devise several legacy and give to the plaintiff his old son five pound yearly  for forty year if the plaintiff shall so long live and make James his second  son executor and residuary legatee and also devise unto he the say message in  tail with several other remainder over James prove the will possess the  personal estate and enter on the real estate and pay the plaintiff annuity to  the time of his death and in Nov die and leave a infant heir and other child  and make his wife executrix who prove the will and after marry the defendant  Hancock and they pretend that James Elliot in his lifetime have full  administer Vernon chancery case the estate of the first testator or however if  he have waste any part of it yet he leave no asset to answer it and therefore  refuse to pay the plaintiff annuity and insist the real estate be not liable  to the payment thereof be never subject thereunto by the will and James have  by fine dock the entail he borrow fifty pound of the plaintiff and for secure  the same as also the five pound per and for three year James convey the  message c in fee to one Plasted in trust for the Vernon chancery case er p  plaintiff redeemable at three year end on payment of the fifty pound and  interest and the three five pound and that money be repay and the plaintiff  reconvey and so have extinguish what right if any he have upon the real estate  per cur the court take it that the devisee of the land be also executor the  land shall be liable to the five pound per and accord to the judgement in the  case of Clowdesley and Pelham Vol case and the rather because it be all the  provision that be make for the heir who be disinherit and the executor and  devisee have during all his lifetime which be above twenty year duly pay the  same and as to the pretence of extinguish his right by the accept of a  mortgage that be not a good defence nor to be regard in equity and therefore  decree to the plaintiff his arrear and grow annuity for the time to come and a  account of profit of the real estate for that purpose c Reg lib a fol so upon  evidence that the devisee have promise the testator to pay the annuity or  otherwise that the testator will have charge the land with it Oldham v  Litchford post but where testator devise his land to Charles his son and heir  in tail remainder to three other of his son successive in tail and give his  daughter pound a year till she attain and then pound a year till she marry and  give her pound for a marriage portion but do not express charge the land  therewith and make Charles his executor the court strong incline the land  shall not be charge with that pound Lord paulet v Parry pre Ch vide on this  head the case cite in not to Clowdesley v Pelham ante vol