atkins case prowse v Abingdon easter term SC cite Com Rep Eq can Abr n SC t c  devise all his land to t c and I p and their heir in trust that they shall  sell his land in m and p and out of the purchase money pay his debt and as to  the rest in trust to receive the rend and to make lease for year determinable  c and therewith to pay his debt and legacy then then to the use of I a wife of  c a for life remainder to the issue male and female of her body and make the  trustee executor he likewise give a legacy of pound to his nephew Thomas  prowse to be pay at or marriage who die before personal estate of the value of  pound the land in m and p not sufficient to pay the debt bill bring by the  administrator of Thomas prowse to have the pound raise the Lord chancellor of  opinion as the legacy be charge upon the real as well as personal estate it  can not be raise as the legatee die before the time of payment and dismiss the  bill see bind v brown Charles can Paulett v Paulett vern smith v smith vern  Yates v Phettiplace vern Charles Prec S c carter v Bletsoe Prec Charles vern S  c war v war Prec Charles tournay v tournay Prec Charles Stapleton v Cheeles  Charles Prec Jennings v look p W Bateman v roach Mod Gordon v reins p wms  Bradley v Powell can tempt Talb hall v terry post van v clarke post boycot v  cotton post Richardson v grief post vol attorney general v milner post vol  Basset v Basset post vol Sherman v Collins post vol the reader be refer to Mr  Cox note to p W and to Butl   Litt a note Thomas Compton by will date the that  of August devise all his land in general word to John clement and John prowse  and their heir in trust and to the use intent and purpose follow videlicet  that they shall sell all his land lie in Mindford and Pinard and out of the  purchase money arise from such sale shall pay and satisfy the testator debt as  far as the same will go and as to the rest of the land c the will declare that  the trustee shall stand seize of they in trust to receive the rend issue and  profit thereof and to make lease of the same for the term of year determinable  on three life and therewith to pay all the testator debt and legacy that the n  they shall stand seize to the use of Isabel Abingdon wife of Charles Abingdon  and sister of the testator for life remainder to the issue male and female of  her body remainder over c and make the trustee executor of his will be  bequeathe likewise a legacy of pound to his nephew Thomas prowse to be pay at  his age of twentyone or marriage the nephew die before he attain the age of  twentyone and unmarried the personal estate of the testator be about the value  of pound the estate in Minford and Pinnard be not sufficient to pay the  testator debt atkins the bill be now bring by the administrator of Thomas  Prognse to have the sum of pound raise against the defendant who claim the  land under Isabel subject to the payment of testator debt and legacy upon a  supposition that Thomas prowse have a interest vest in this legacy  transmissable to his representative though the legatee die before the time of  payment come Mr Chute for the plaintiff insist that this case be very  difterent from that of a devise of land to a three person charge with the  payment of legacy out of it that the land here devise to the trustee for the  payment of debt and legacy must be consider as the personal estate of the  testator accord to the general doctrine of a court of equity which often  consider land as money and vice line accord to the nature of the case and the  intention of the party who direct the disposition of the one or the other that  the trustee may in fact have enter here and continue in possession till they  have receive money enough by the rend and profit and fine take upon grant long  lease accord to the power give by the will to pay off all the debt and legacy  and in such case as the fund out of which this legacy will atkins er p be  Payable will be personal estate the contingency of the legatee die before the  age of or marriage not be annex to the devise of the legacy it self but to the  time of payment the plaintiff will be entitle second it must however be admit  that this legacy be Chargeable upon the personal as well as the real estate  and as the personal estate be the primary and natural fund to be charge and  the real estate come in only in aid of the personal estate and as a security  only for payment of the money the real estate here ought to be subject to the  same rule with the personal and subservient to the same purpose and more  especial so since in order to avoid that confusion which must otherwise follow  if in determine whether this legacy be due or not regard shall he have to the  different resolution which prevail in case of this kind where the personal  estate only or the real estate only be charge with the payment of legacy three  that admit this legacy be Chargeable only on the real estate yet the rule  which have prevail for portion to sink into the estate for the benefit of the  heir at law will not extend to the present case nor be this within the reason  of those case of portion which have always be determine on this foot that  child die before they can want their portion there can be no occasion for  raise they nor be it to be suppose the testator can intend to have such sum  raise mere in prejudice of any other child who shall have the estate when no  provision of that kind be now want he cite the case of Jackson v farrand vern  atkins Mr fazakerley on the same side insist that the trustee to who this  devise be make be likewise executor the estate devise must be consider as  personal legal asset in their hand and governable by the same rule as if the  testator have actual leave personal asset in specie to that value he cite for  this purpose lev and rely on what be there say by Mr justice Twisden and also  dyer b No he likewise insist that it appear there be sufficient personal asset  leave in specie to satisfy this legacy as the other creditor and legatee have  a undoubted right to take their remedy against the land for a satisfaction of  their debt and legacy and if the plaintiff can be entitle to this legacy  suppose it to be Chargeable on the land this court will so marshal the asset  as will make every part of the will effectual and charge the personal estate  only with the payment of this legacy he rely likewise much on the case of  Jackson v farrand vern Lord chancellor before they begin for the defendant  interpose and say he be clear of opinion the estate devise can not be consider  as personal asset at law in the hand of the trustee that by the devise in  general of all his land to they and their heir here be plain a disposition of  the estate to they and a trust create in they for the payment of debt and that  money arise from the sale of a real estate be legal asset only where the  estate be sell under a bare power give to sell and not where the interest in  the estate pass by the will to the devisees as it do here and that make the  trustee executor likewise can not alter the case but see silk v prime bro  Charles Rep in note and Blatch v wile ante note that the other part of the  devise whereby the devisees be direct to receive the rend c can with much less  colour admit of the construction contend for but be in the nature of the thing  plain intend as a trust and take notice likewise of what have be say by Mr  FazakerLev that as to this part of the case it may be consider as a devise to  they of the legal estate until what time they shall have receive sufficient  out of the real c to answer the purpose and that then the estate shall vest in  Isabel by way of executory devise his lordship say suppose such a construction  shall be suffer to prevail yet there be no colour for say the rend c so  receive will be legal asset and put the case of a devise to a and b and their  heir till such a sum shall be raise for the payment of debt and legacy will  that create a fund of legal asset at that rate a legatee may sue a and b under  those circumstance in the ecclesiastical court but such a jurisdiction in a  case of that kind be certain never think on nor can it possible be maintain  but a provision of that sort be proper only to give the devisee a interest in  the estate specifical not to turn the land into personal estate and make they  legal asset in the hand of the devisee Mr attorney general for the defendant  insist on the settle distinction between legacy charge on the real and atkins  those charge on the personal estate where a legacy be charge on the personal  and make Payable at a future day and the legatee die before the day of payment  the court in compliance with the rule of the civil law atkins er p and in  order to make the proceed in this and the ecclesiastical court as they have a  concurrent jurisdiction uniform and consistent have determine such legacy  shall not be consider as a lapse legacy but shall go to the representative but  that rule have never be extend to charge on a real estate that there be no  ground whatever for the distinction take between a legacy as here and money  give to a child by a parent as a portion nor be it suppose by any authority  but the only question in such case be upon what fund the charge be lie whether  on the real or personal estate that the case of Jackson v farrand vern as  appear by the report of it in Prec in Chanc turn entire upon this that the  legatee there die after marriage and that therefore have happen which be the  cause of the portion it shall be raise after her death that it be not at all  material here that the legacy be charge on a mix fund or real and personal  estate too that so it be in the case of Jackson v farrand but this objection  be not so much as make so it be in the case of the duke of chandos v Talbot in  Lord chancellor king time mich Geo where a sum of money be by will charge on  the real and personal estate of the testator Payable at the age of it be hold  in that case that the legatee die before the age of his representative be not  entitle but the bill be dismiss and the Lord chancellor in that case cite the  case of Jennings v lurk in the time of the lord commissioner exact to the same  purpose p wms Mr attorney general cite the case of Yates v Fettyplace vern  carter v Bletsoe vern and Mr Floyer of the same side cite smith v smith vern  Lord chancellor say the only inducement he have to suffer so long a debate in  this court by the bar be in order to receive satisfaction as to the point  which have be insist on in relation to this legacy be Chargeable on a mix fund  consist of real and personal estate too he say that be a difficulty which  always stick with he and it be something very extraordinary that the real  estate which be only a auxiliary fund to the personal shall in case of this  kind be Chargeable in a different manner and not be make liable to the same  rule and determination with the primary security the personal estate but he  say he find the resolution so strong that there be no difference between a  charge on the real estate only and a charge on the real and personal estate  too that he can not at this time of day think of determine in a different  manner see Beynish v Martin post vol atkins he say it be very clear that  charge on land Payable at a future day can not be raise if the party die  before the payment that there be no difference at all whether that charge be  create by deed or will nor whether it be provide by way of portion for a child  or give mere as a legacy by collateral relation or other and this be the case  in the duke of chandos v Talbot and Jennings v lurk in which he be counsel for  in neither of they be the provision make by a parent see case cite in note  above and hall v terry post as to what be say that the asset may be so marshal  as for the present plaintiff to receive a complete satisfaction out of the  personal estate though the executor be not before the court and so impossible  to make any decree on that foot yet if they think it will be material he will  retain the bill with liberty to make the executor party but he say he conceive  that point can by no mean be maintain for that rule of marshal asset in the  manner before mention will hold only where it be proper to be do at the time  the legacy first take place and not where it be owe to a fact which happen  subsequent to the death of the testator and to a mere accident as here the the  death of the legatee before see post vol he say the resolution in the case of  Jackson v farrand vern be find on a single circumstance the marriage of the  legatee which be the foundation of that judgement imply plain if the case have  stand only on the devise to the legatee at the age of and she die before that  time that the court will in that case have determine against the plaintiff if  they can not have lie hold on the circumstance of marriage beside the  authority of that ease seem to be much weaken by the subsequent resolution in  carter v Bletsoe vern I have of ten hear it say that the reason why legacy c  charge on land Payable at a future day shall not be raise if the legatee die  before the day of payment though it be otherwise in the case of a charge on  the personal estate be this that the heir be a favourite of a court of equity  and ought to have the preference of the representative atkins er p of a  legatee and likewise that the court will go as far as they can in keep the  real estate entire and as free from encumbrance as possible but I think the  court have never go upon such reason but the true reason take to be this that  the court will govern themselves as far as be consistent with equity by the  rule of the commonlaw in the case of personal estate the rule be the same here  as in the civil law that there may be a uniformity of judgement in the  different court but in the case of land the rule of the commonlaw have always  be adhere to as suppose a person shall covenant to pay money to another at a  future day if the covenantee die before the day of payment the money be not  due to his representative the same rule hold in the case of a promise to pay  money c the bill dismiss