c Philip v Philip S c Rep tempt finch and Charles can different state as to  the circumstance but agree as to the principle establish by the decree one W p  be uncle both to the plaintiff and defendant and have lend the defendant two  thousand pound he make his will and by it do devise that after his debt pay  the residue of all his good chattel debt ship c shall be divide betwixt the  plaintiff and defendant his nephew and make the defendant his executor and die  the question be whether or no this pound shall be throw into hotchpot among  the testator estate to be divide betwixt the defendant and the plaintiff with  the residue of his good or whether the defendant shall not have a moiety of  the residue beside this because this debt be extinguish as be object by the  defendant be make executor cro cro car and to this it be argue that although  as it be agree a debt due from a executor shall be asset in law Wankford v  Wankford salk but the action at law be go and though the duty remain it must  be sue for in equity or in the spiritual court flood v Rumsey Yelv Hudson v  Hudson atk to a creditor and so in equity if a particular sum be give for a  legacy and there be not asset beside it shall be asset for this legacy simmons  v Gutteridge Ves yet here it be urge by Mr attorney that this case differ from  that for there be a apparent intent of the testator that the legatee shall  have so much but here be only a devise of the residue after debt and no  apparent intent that this pound shall be compute in with the residue and then  the debt be in law extinct there be no reason to revive it when no intent of  the testator appear but the Lord chancellor hold clear that it shall not be  extinct but shall be cast in with the residue of the estate especial in this  case where debt be particular mention and this be a debt at the time of the  make ofthe will and if the word debt have not be in I believe it will have be  all one but that make it more strong brown v Selwyn can tempt Talb freeman and  it be aver in this case and agree per cancellar that if a executor have a  lease for year determinable upon the life of I S which be by a reasonable  estimate worth pound if the executor will not sell this but keep it and I S  die in a short time yet he shall answer the value of it at the time of the  death of the testator for it be his own fault that he will not sell it Jenkins  v Plomer Mod but it shall seem that all the circumstance ought to be take into  account before decide whether the executor do or do not exercise a sound  discretion Blue v martial p wms Powell v Evans Ves chamber v Minchin Ves and  so on the other hand if he shall keep it and I S shall live fifty year he  shall answer for no more this be more than doubtful a executor be quasi a  trustee and ought not to derive any advantage himself from the trust  property  Rocke v heart Ves and if he gain by any speculation all his gain be  upon ordinary principle for those who be entitle to the trust property ex part  James Ves if he will take upon himself to act with regard to the testator  property in any other manner than his trust require a executor put himself in  this situation that he can possible be a gainer by it any gain must be for the  benefit of his beneficiary and trust and if there be any loss he must replace  it   Piety v Stace Ves because here be a contingent gain but it may have be a  loss and as if it have be damnum he shall have bear it so be gain he shall  receive it another point be whether plate shall pass by the name of  householdstuff and it be plate that be in common use about the house the  counsel will not stand upon it but that it shall but if it have be plate lie  up it seem that it shall not Stuart v marquis of Bute Ves Kelly v powlet Ambl  establish that it be not the fact of the plate be common use or not which be  to decide whether it will or will not pass under a bequest of household  furniture however infrequent the use still if it be suitable to the rank of  the testator it will be well bequeathe by these word another point be the  testator have lend the plaintiff pound and after do declare that he have give  it he whether this shall be put in hotchpot this seem the point in the case to  which the before cite report in Charles can and Rep tempt finch appear  principal to advert Reg lib b fol on the hear of this cause on the that of  November the court declare itself full satisfy that the executor debt be not  discharge but that the same ought to come into account and be make good to the  plaintiff accord to his proportion and the court be also satisfy that the say  pound which the plaintiff do demand as a gift be a debt and ought to be bring  into the account as such and the court therefore order and decree that the say  party shall come to a account before a master of the court upon which account  the defendant the executor be to stand charge with all the estate the say  testator die possess of and which have come to the hand of they or either of  they and also order that the say defendant shall bring into account the say  pound and what other debt be owe by the say defendant to the say testator with  interest for the same and that the say pound which the plaintiff claim as a  gift shall also be bring into account as part of the say testator estate and  that there shall be a division and distribution thereof together with all  other the testator estate accord to the will of the say testator and it appear  there will be a considerable sum of money come to the plaintiff on the account  and his counsel pray that some money be forthwith pay to he it be further  order by consent of both party that the defendant shall pay to the plaintiff  the sum of pound in part payment of what shall appear to be due to he on take  the say account and per cancel it shall for if it be a debt at first to the  testator he shall not afterward talk himself out of it freeman er p