case harris v INGLEDEW sir Joseph Jekyll master of the roll Eq can ab pl pl pl  pl pl a will begin as to all my worldly estate my debt be first pay I give c  the real estate be liable to the debt nothing be devise till the debt be pay  this bill be bring by the simple contract creditor of William Ingledew to  compel a sale of the real estate of the say William Ingledew for payment of  his debt he have peer William er p make a will to this effect as to all my  worldly estate my debt be first satisfy I devise the same as follow then lie  proceed to devise part of his estate be freehold to his brother in fee to who  also he bequeathe a term for year other part be copyhold he devise to a in fee  other part of his freehold to b and the remain part to c in fee after which he  die without issue leave his brother John Ingledew his heir who have on the  testator death enter on the freehold land devise to he and also on the  copyhold premise as not have be surrender to the use of the will make his will  whereby he devise all his estate real and personal to his wife and die leave a  son peer William the widow of John Ingledew the brother and her son be the  nephew and heir of the first testator join in a sale of several of these land  to several person for valuable consideration and the simple contract creditor  now bring their bill against the several devisees of the premise and also  against the purchaser in order that the several land may be sell for the  satisfaction of their demand the will be prove but John Ingledew the nephew  and heir of the first testator be not make a defendant to the bill upon which  it be insist that the heir at law ought to be a party it be ever do in like  case that the bill be for a sale if the heir be before the court the evidence  to the will will be perpetuate but in case he shall not be a party a decree  for sale of the estate will be vain for no one will buy at least he will not  give half the value for it whereas shall the heir be a defendant this will  charge the land with payment of the debt the heir will be decree to join that  the general practice in case where a will of land be prove be to declare the  will well prove that be well prove against the heir for it can be say to be  prove against any one else and suppose these land shall be sell by the  devisees pursuant to the decree and afterward the heir shall sue for the  estate and recover here will be a purchaser under the decree evict  notwithstanding for want of the plaintiff have make the heir a party and yet  the court ought not to suffer any thing to happen to the prejudice of those  who be to be purchaser under its decree peer William to which it be answer  that the descent be break by the devise and the estate be devise away from the  heir at law he be no more interest therein than any stranger that in case land  be by a deed convey to trustee to sell and afterward the grantor die unless  the heir be to have the surplus he need not be a party to the bill for compel  a sale master of the roll this seem a material objection for since the sale of  the estate must affect all the devisees in proportion a eat will not without  the heir be a party to the decree sell for near the value this may be a wrong  to all the devisees and occasion more of their land to be sell than will  perhaps be otherwise necessary with regard to what have be urge that where  land be convey by deed to trustee to sell the heir unless entitle to the  surplus need not be a party to a bill that pray a sale it must be observe that  the proof of a will be attend with more solemnity than that of a deed the  former be suppose to be make when the testator be in limit and therefore in  equity it be necessary to prove the sanity which be all presume in the case of  the latter also a deed may be prove viva voice at the hear but no such order  can be make for prove a will eaden v Lingood atk turner v Burleigh Ves lake v  Skinner James W the reason be because here more be to be prove than bare the  execution for instance you must prove that there be three witness and that  these subscribe their name in the presence of the testator which hold still  strong in the present case where two will be to be prove namely the will of  the first testator William Ingledew and afterward that of John Ingledew but  after a consider that William Ingledew the first peer William testator have be  dead ever since December and that the freehold land have be quiet enjoy under  the will his honour do decree a sale without the heir be a party anon Ves Jun  Graham v Graham Ves Jun but say he will stop pass the decree in case the  defendant counsel shall be able to show where in the like instance the court  ever refuse to make a decree without make the heir a party second in this case  one of the defendant have purchase a term for year and also part of the  freehold estate that have belong to the testator William Ingledew he plead  that he be a purchaser for a full and valuable consideration show the peer  William er p sum and that it be to the full value of the estate but omit in  his plea to deny notice of the will of William Ingledew see post n f and for  the plea it be argue that the plaintiff have reply to the plea he have admit  it to be good but join issue thereon insist it be not true in fact indeed have  he set it down to be argue it will then have be a good exception thereto that  the defendant have not deny notice but since the plaintiff have not think fit  so to do but have reply to the plea all that be incumbent on the defendant be  to prove what he have plead which if he shall be able to do the bill as  against he must be dismiss with cost beside otherwise the defendant may be  trick by the plaintiff who have find that the defendant have make a slip in  his plea may decline argue it and reply to it in which case the defendant will  be without remedy for he can do no more than prove his plea whereas if such  plea have be set down to be argue on its be overrule the defendant may still  have help himself by put all his defence in his answer on the contrary it be  say that when every one see here be a lease for year which of course be liable  to pay debt by simple contract and to which a purchaser can possible have any  title but by the will it be to be presume the court will hardly shut their eye  but permit the honest peer William creditor to follow the asset wherever they  can find they also this will be a prejudice to the devisees of the real estate  shall the term not be apply to the payment of debt because more of the land  devise must be sell than otherwise need be master of the roll the constant  course be in case a plea be reply to that the defendant need only prove his  plea and here it be the plaintiff own fault for he have it in his election to  have set it down to be argue wherefore if the defendant prove what he have  plead the bill be to be dismiss as against he with cost but with regard to the  objection that the devisees of the land will suffer by this in that more of  their land must now be sell this will not prevent the devisees or any of they  from bring their bill to compel a application of this lease in the first place  to the payment of their debt as be part of the personal estate three it be  contend that the real estate of the testator William Ingledew be not by his  will charge with the payment of debt for though it be say that as to the  testator worldly estate his debt be first satisfy he devise the same though  the testator do say his debt peer William shall be first satisfy yet he do not  say his debt shall be charge on his land or real estate but the master of the  roll think it to be very clear that in this case no land nor any part of the  testator worldly estate be devise until after his debt pay consequent that the  land be charge for which he cite vern Newman v Johnson vern Trott v Vernon and  he think it will have be sufficient though the word first have be omit  fourthly it be argue that admit the freehold of the testator to be charge with  payment of debt yet the copyhold which be not surrender to the use of the will  be not charge that not be in law devisable and though it have be surrender to  the use of the will yet even in such case it will have pass by the surrender  not by the will for which reason a copyhold will pass though by a will that  have not three witness to it so if I be to devise all my real estate though a  copyhold may in some sense be deem a real estate as it descend to the heir and  do not go to executor yet the copyhold will not pass in that case because the  intent of such will must be to devise a estate that be in its nature devisable  however the master of the roll be of opinion that in the principal case the  copyhold as well as freehold be well charge with the debt oh since all the  copyhold of the testator be by express word devise either to the heir or to  those that be not his heir so that it appear the testator take the copyhold to  be part of his worldly estate all which be by the will charge with the payment  of his debt peer William and it have be sufficient if the testator have only  say I charge my copyhold land with the payment of my debt in which case equity  will have supply the want of a surrender five but then it be insist for the  defendant that grant the copyhold land be make liable by the will to the  payment of debt yet that ought not to be till all the freehold land have be  first apply for they ought not to come in acquire step with the freehold land  because these be devisable at law which the other be not and equity must first  intervene and supply the want of a surrender before peer William er p copyhold  land can be liable whereas a freehold be devisable and Chargeable by the  testator by the will only to which it be answer that as this will be pen the  freehold be not devise but only charge with the debt which amount to no more  than a equitable charge as to the freehold as well as copyhold and the  copyhold be mention in the will it be the intention of the testator that they  shall be charge equal and in proportion though for the defendant it be reply  that let a copyhold be never so express devise vet unless it be for peer  William pay rend of debt a charity or by way of provision for a wife vide  Watts v Papal bull ante vol or child which case do not any way concern the  present equity will not supply the want of a surrender that this be never do  in favour of a devisee consequent there can be no reason to expect it in  favour of the devisees of the freehold estate in the principal case since it  do not as yet appear but that these estate if all sell will be sufficient to  discharge the debt and therefore the copyhold ought not to be charge acquire  step quod notam notwithstanding which his honour incline that the copyhold  shall be charge with the debt par step with the freehold by reason the former  be as express devise by the will as the latter and all the testator worldly  estate be subject to the payment of his debt but since it do not as yet appear  that the personal estate will not be sufficient to pay the debt this point  whether the copyhold shall contribute acquire step c be reserve till after the  account take but six hereupon on behalf of the creditor it be represent to be  hard that these shall be oblige to wait until the account be take and until  the master shall have certify how much will be the proportion that each  devisee or each purchaser be to contribute towards their satisfaction for that  the creditor ought to be at liberty to come upon any art of the freehold  estate after which the several devisees or purchaser may apportion the charge  among themselves and as to the freehold that have be sell the creditor be  Willing to take the money from the heir or devisees who have sell and so give  the purchaser no trouble peer William cur that will indeed make the matter  more easy but yet till the account shall have be take and it be know what the  proportion be that each devisee be to pay the creditor must wait  notwithstanding for they must not be leave at liberty to take the whole from  some of the devisees and but part from other which will be oppressive and if  the whole estate of any of the devisees be not liable then the whole purchase  money for which any part of the premise be sell will not be liable but if it  shall be report by the master that the whole of the freehold land will be  insufficient for payment of the debt then the creditor may proceed against any  one devisee for the whole in case I shall be of opinion that the copyhold  ought not to be charge acquire step but if I shall continue to think as I do  at present in such case the creditor must wait until the proportion be settle  what the owner of each be to contribute as well with regard to the copyhold as  the freehold see also Bowdler v smith pre Charles beachcroft v beachcroft vern  Davis v gardener ante vol Legh v earl of Warrington bro p c king v king post  Hatton v nchol can tempt Tal earl of Godolphin v penneck ves Thomas v Britnell  ves Kightley v Kightley Ves Jun William v city Ves king v denison V b Noel v  Weston V b Clifford v Lewis mad but if the direction for payment of debt be  confine to payment by executor not be also devisees it create no charge on the  real estate bridge v landen cite in William v city ub sup Keeling v brown Ves  Powell v robin Ves Sanderson v wharton price this the reporter admit to be so  but observe if it be but a equitable charge and the legal estate of the  copyhold have descend to the heir that will have make it necessary that the  heir shall be a party because otherwise the legal estate of the copyhold can  not be convey to a purchaser but if it bad appear which he think do not that  the heir at law have since the testator death convey away all the copyhold  estate then indeed the grantee of the heir be capable of convey to the  purchaser it may not be necessary to make the heir a party but this part of  the case of Harris v Ingledew be not now receive as the law of the court of  equity which supply the want of a surrender of a copyhold estate in peer  William er p favour of creditor so far only as may appear necessary for the  payment of the debt and consequent while any freehold estate remain applicable  to that purpose the want of the surrender of the copyhold shall not be supply  notwithstanding the express intention of the testator to charge the copyhold  rateably with or in preference to the freehold drake v Robinson ante vol  haslewood v pope post mallabar v mallabar can tempt Tal Coombes v Gibson bro c  c hellier v Tarrant can tempt Tal d edit note Lindopp v Eborall bro c c  Growcock v smith Cox Milbourne v Milbourne Cox Judd v Pratt Ves Ves kidney v  Coussmaker Ves but this be to be understand of the legal estate only for a  equitable estate of copyhold will pass by such devise without surrender car v  ellison atk Tuffnell v page Barnard Allen v Poulton ves Macnamara v Jones bro  c c but now by stat Geo c copyhold estate will pass by devise or appointment  without a surrender to the use of the will in all case where they will have  pass by devise or appointment with such surrender in this case the master of  the roll do not alter his opinion it appear by the register book that the will  of the testator William Ingledew be declare to be well prove and that the  freehold and copyhold estate particular devise by his will be liable to the  payment of his debt acquire step march Reg lib a fol in the argument of  hellier v Tarrant ub sup the case of Harris v Ingledew be treat as a case in  which the heir at law be bind to make good the surrender of the copyhold by  his election to take under the will accord to the principle of noise v mordant  vern Streatfield v Streatfield can tempt Talb c but it do not appear by the  plead or by the word of the decree that the case be put upon that ground