case deg versus deg on a appeal from a decree at the roll Lord chancellor king  Eq can ab pl pl money have no earmark and if invest in land or other thing it  can be pursue therefore if a receiver of rend or if a executor in trust lie  out the rend or the asset in apurchase of land in fee and die insolvent the  purchase will not be liable but where a receive a sum of money which he  covenant to lie out in land to be settle to certain use and afterward purchase  a estate which he do not settle but do by write own that this purchase be make  with the trust money this bind the estate and be a declaration of trust if one  have make himself tenant for life of land in dale with a power by any write c  to revoke these use and limit new one and he afterward by will devise all his  land in dale c to I S have no other land in dale except these they shall pass  if the will be circumstance as the power require though no mention be make of  the power a bill be bring by the creditor of Simon Deg the defendant father  some of which be bondcreditors and some simplecontract creditor for the  payment of peer William er p their debt out of a personal estate and out of a  trustestate create by the will of Simon Deg for that purpose on the marriage  of the say Simon Deg with Silena William sir Simon Deg the grandfather of  Simon Deg do by deed of settlement in settle land in Derbyshire and  Staffordshire to the use of Simon Deg for life remainder to Silena his wife  for her life remainder to the first and every other son of that marriage in  tail male successive with diverse remainder over remainder in fee to one Deg a  relation with a covenant in the settlement that pound be the wife fortune  shall be lie out in a purchase of land in feesimple in the name of trustee and  settle to the same use peer William in Silena the wife die leave three son by  this marriage the defendant Simon Deg William and John Simon Deg lie out pound  part of his wife portion of pound in the purchase of land and buy they in his  own name afterward Simon Deg marry the plaintiff jane his second wife with who  he have pound portion and covenant to add pound to her pound and to raise a  further sum of pound by pound per annum and to lie the same all out in land to  be settle to the use of himself and his wife jane for their life with  remainder to their child but during his first marriage by indenture of lease  and release date the saint and and of Feb recite the covenant for lie out the  pound in the purchase of land and settle they in the same manner as the say  land be settle upon Silena marriage and recite further that this pound have be  all receive by Simon Deg the defendant father and also that land in Derby  together with land in Mapleton have be purchase with part of this trustmoney  and that there be a defect in the say settlement make upon the say Silena  marriage in that there be no provision make for young son of that marriage  therefore Simon Deg for supply that defect and in pursuance of the trust  convey the land in Derbyshire and Mapleton to trustee to the use of Simon Deg  the defendant father for life remainder to the say trustee for year in trust  for raise such sum for the benefit of the two young son by Silena not exceed  in the whole pound as the say Simon Deg the defendant father peer William  shall appoint remainder to the first c son of the say Simon Deg by the say  Silena in tail male remainder to the first c son of the say Simon Deg by any  wife in tail male remainder over to the same use as be limit in the deed of  settlement make upon the say Silena marriage with a power of revocation  reserve to the say Simon Deg the defendant father by any instrument in write  attest by two or more credible witness June Simon Deg make his will attest by  three witness and therein by express word devise his land in Staffordshire and  all his land in Derby and elsewhere in the county of Derby and the equity of  redemption thereof and all his personal estate to trustee videlicet Lord  Macclesfield and pool Esq and to their heir executor and administrator in  trust that they shall sell all these devise premise and thereby together with  his personal estate pay all his debt and the surplus to be apply as by will  leave the trustee executor soon after the testator Simon Deg die leave three  son by his second wife be indebt pound and upward by marriage article which be  a debt by specialty vol Benson versus Benson and pound by simple contract and  pound for rend and profit receive by Simon Deg after his first wife death from  a estate that upon the death of his say first wife do belong to the defendant  Simon Deg his old son and upon this case the several follow point arise and be  determine saint that though money have no earmark insomuch that if a receiver  of rend shall lie out all the money in the purchase of land or if a executor  peer William shall realize all his testator asset and afterward die insolvent  yet a court of equity can charge or follow the land nevertheless in the  present case where the defendant father Simon Deg by his deed have own the  receipt of the money and that he have lie out the same in the purchase of land  in Derby and Mapleton this be resolve to amount to a declaration of trust and  to raise a specific lie upon those estate and though it be make a question at  the former hear whether the will of Simon Deg the father devise all his land  in Derby and elsewhere in the county of Derby to trustee for the payment of  his debt the testator have no other land there than the land in question do  not amount to a revocation of the settlement in since the will devise the same  land to different use and the circumstance require by the power be observe  though the power itself be not mention vide Tomlinson peer William er p v  Dighton ante vol which question be refer to the judge of the common plea who  determine that the will operate as a revocation yet it be now hold that the  will only operate as a devise of the legal estate still subject to the trust  before declare for the benefit of the defendant Simon Deg the old son and that  the trust be once declare he the father can not annex a power of revocation to  it or limit a term thereout for the benefit of his young son by his say first  wife peer William dly it have be object with regard to the land not affect by  settlement that the devise be to the executor and their heir to be sell for  payment of debt these land accord to the case in leo Alexander versus lady  Gresham lev dethick versus carravan Ro Abr it is pleasing and hard Rep berwell  and salt versus corrant be legal asset and consequent the debt must be pay in  a course of administration otherwise if the devise be to trustee who be not  executor or to executor and also to a three person a stranger vide Lord Masham  v Harding bunb in either of which case they will be only equitable asset but  in the present case the devise premise be legal asset must be administer  accord to law and consequent specialty debt be to have the preference in  payment to which at the first hear the master of the roll seem not to agree in  regard general all devise for payment of debt be to executor and see vern  accord however it be now resolve that the premise devise be mortgage in fee by  the testator and he have nothing but a equity of redemption can be only  equitable asset and consequent must go among all the creditor equal for as  much as a debt by judgement and a debt by simple contract be in conscience  equal dly the next point and what be principal appeal from in his honour  decree be that he have decree upon the special matter of the master report  April that though the specialty creditor be at liberty to take their  preference out of the personal estate yet in case these shall come in upon the  land devise in trust to pay all the debt they shall first peer William bring  into hotchpot what they have receive out of the personal estate against which  it be object that the specialty creditor as to the personal estate of the  testator be to have the preference and to be first pay and for the residue of  their debt remain unpay they ought to come in with the simplecontract creditor  upon the trust estate vide the case in vol of car versus countess of  Burlington that the testator have no power over the personal estate so as to  exempt the same from his debt or from payment in a course of administration  and therefore if the devise be of the personal estate to be equal divide  betwixt his specialty creditor and simplecontract creditor this will be void  and the specialty creditor will have all so that the devise of the personal  estate be void it be as if it be entire omit out of the will or the devise be  only of the real estate for the payment of debt and for the payment of debt  must signify the payment of all debt which will take in those by specialty as  well as by simple contract beside in this case the fact happen to be that if  the specialty creditor be to bring into hotchpot what they receive out of the  personal estate they then will receive little or nothing out of the real  estate and consequent the devise as to they for payment of their debt with the  other creditor out of the real estate will be vain however this part of the  decree be affirm by the Lord chancellor in regard the testator have connect  together his peer William real and personal estate with a view that all shall  go equal to pay his debt and he may give his equitable asset in what manner  and upon what term he please for instance he may dispose of they in trust to  pay his simple contract debt only contra Vernon v Vaudry Barnard and see  millar v Horton coop though it be true he have no power by his will to dispose  of his personal estate from his creditor or to devise it for satisfaction of  his simple contract creditor in preference to his specialty creditor but these  equitable asset be entire within his power he may let in the specialty  creditor for a satisfaction thereout under what term he shall think proper and  it be a very in argument to say that the specialty creditor have receive so  much out of the personal estate as to make it not worth their while to bring  it into hotchpot for the more they have receive of the personal estate the  less need they have of the aid of a court of equity to be pay out of the trust  estate in the last place it be object that the defendant Simon Deg the heir  ought not to be let into this fund of the equitable asset devise for the  payment of debt since peer William er p the Derby estate be part of the land  devise to pay the debt and the old son oppose this estate be be make liable to  they in which he oppose his father will and hinder as much as he can its take  effect and in case the defendant the old son will take any advantage of the  will he ought to abide by the whole will but to this it be answer and resolve  that as to the Derby and Mapleton land take it that the defendant the old son  have a specific lie thereupon then they be the defendant Simon Deg the son own  land and it be not to be suppose that a court of equity will compel any person  to admit a testator devise of land which be not the testator peer William own  but the land of the creditor who will come in upon the fund give by the  testator for the payment of debt so that as to the land in Derby the testator  the father devise be as much void as if the father have devise any other part  of the estate of the say defendant Simon Deg the son but the court think  otherwise in the case of Balgney v Hamilton Amb rial v rial Amb lane v Dighton  Amb see Sowden v Sowden bro c c Cox very v Phelips Ves Lench v Lench Ves Lewis  v Madocks Ves Ves savage v carol ba be tailor v plumer m S Liebman v Harcourt  mere where a man covenant to lie out money in the purchase of land to be  settle and afterward purchase land but do not settle it yet h shall be presume  to have purchase with intention to perform his covenant and the land purchase  shall be bind to the use of the settlement Lechmere v Lord Carlisle post vol  and the case there cite upon the principle of law that whatever come to the  hand of a person in the character of executor or by reason of his executorship  shall be asset in his hand accord to the case in lev hard c cite above the  generality of the old case determine that money arise by sale of land devise  to or subject to the power of executor to sell for payment of debt and legacy  shall be legal asset in their hand although they can not be charge with the  value of the land before sale Girling v lee vern Hawker v Buckland vern  greaves v Powell vern Cutterback v smith pre Charles anon vern Bickham v  freeman pre Charles walker v meager post Lord Masham v Harding bunb Blatch v  wile atk yet some of the old case consider the devisee c in the double  character of trustee and executor prefer the former and consequent make the  asset equitable Hickson v Witham finch anon vern and the late case incline  strong to this construction chamber v harvest mos hall v Kendal mos prowse v  Abingdon atk levuin v okeley atk silk v prime bro c c note Barker v Boucher  bro c c note Newton v Bennet bro c c Batson v Lindegren bro c c still however  it seem that where a estate descend to the heir charge with payment of debt it  will be legal asset Freemoult v Dedire ante vol Plunkett v Penson atk so young  v dennet dick but contra Hargrave v Tindal bro c c n Bailey v ekins Ves  Shiphard v lutwidge Ves clay v Willis b c vide the case of sir Charles Cox  creditor post vol but from the manner in which the case of Deg v Deg be  mention by the master of the roll himself in chamber v harvest mos and hall v  Kendal mos it seem not to have be decide on the ground of the premise devise  be a equity of redemption but upon the principle mention in note sup and  Bailey v ploughman mos be decide in the same manner upon the authority of Deg  v Deg so haslewood v pope post vol morris v bank of England can tempt Tal but  if the son have be a volunteer only and not a creditor he shall have be put to  his election noise v mordant vern Streatfield v Streatfield can tempt Tal it  be a general rule that a person can accept and reject the same instrument  Birmingham v Kirwan Sch l kidney v Coussmaker Ves agree with the principal  case that this doctrine be not applicable to creditor but see clarke v e of  ormond Jacob see far on the subject of election forester v cotton Amb Eden  whistler v Webster Ves jun lady cavan v Pulteney ib Wilson v Lord I Townshend  ib Wilson v mount Ves butter v nlean Ves woollen v tanner peer William er p  Ves Blount v Bestland Ves broom v monk Ves more v buller Sch l Judd v Pratt  Ves Ves thellusson v Woodford Ves dow Dashwood v Peyton Ves Dillon v Parker  swan Gretton v Haward ib Hume v rundell S S