case tate versus austin disapprove Hudson v Carmichael key l I Ch and see case  there discuss Lord chancellor Cowper Eq can ab pl vern husband borrow money  husband and wife levy a fine of the wife land as a mortgage for it and husband  by will give legacy to charity to the amount of his personal estate and die  the mortgage shall be pay out of his personal asset though the charitable  legacy will be thereby lose but all the husband debt though by simple contract  shall be prefer to the mortgage husband seize in right of his wife borrow  pound in order to supply his occasion particular to buy himself a commission  in the army and for the secure of this money he and his wife levy a fine of  the wife inheritance and raise a term of year which be limit to the person  lend the pound to be void upon the payment of the pound and interest with  remainder to the use of the wife in fee and in the deed the husband covenant  to pay the mortgagemoney afterward the husband make his will by which he give  several charity out of his personal estate and die indebt by simple contract  the widow bring her bill to have this mortgage make of her inheritance  discharge out of her husband personal estate on the other hand peer William  the asset be not sufficient to pay the mortgagemoney and also the charity give  by the will Lord chancellor this mortgage be a debt of the husband which must  be pay before legacy and the wife by consent to charge her land with it do not  make it less his debt than it be before the personal estate shall be liable to  pay debt before legacy though to a charity for they be still but legacy but  all other debt of the husband shall be prefer to this everything shall be take  favourable for wife who for the supply the husband occasion have agree to  charge her land with a debt of his the fine and deed of use by which the  mortgage be create be but as one conveyance so that these legacy though for a  charity be to be leave unpay since it appear there be not asset of the husband  to pay both the mortgage and the legacy on this occasion Lord chancellor put  the counsel in mind of Lord huntingdon case vern where husband seize in fee in  right of his wife do with his wife by deed and fine mortgage her estate for  year remainder to the use of the wife in fee the mortgage be to raise a sum of  money for the use of the husband to buy he a place which accord he do buy and  thereby get money and pay off the mortgage take a assignment of it in trust  for himself his executor and administrator afterward the husband and wife die  and the heir of the wife bring his bill to exonerate the inheritance and to  have this mortgage pay off out of the husband personal estate peer William and  though it be decree by Lord keeper wright that the heir of the wife be not  entitle to have the personal estate of the husband so apply yet upon a appeal  to the house of lord that decree be reverse and the mortgage decree to be pay  out of the husband personal asset bro PC and Edward bro PC which Lord Cowper  think be very just quod notam it be insist upon that it be a gift of so much  money from the wife to the husband and therefore not to be refund vide post  master v master and attorneygeneral v Hudson legacy to a charity on a  deficiency of asset be to abate in proportion as well as other pecuniary  legacy so attorneygeneral v robin post Vol yet it be say in the report of  Robinson v gee ves that if the mortgagee have receive satisfaction out of the  personal estate of the husband the creditor of the husband will not stand in  the place of the mortgagee as against the real estate of the wife peer William  er p Reg lib b foe decree for a general account of the testator personal  estate his lordship declare that the specific legacy of pound to the defendant  John Austin can take place of the say testator debt and as to the question  whether the mortgage make to Elizabeth Fitzhugh be such a debt of the say  testator as ought to be pay out of his personal estate his lordship be satisfy  that the say pound for which the say Susan his wife so pledge her land be  borrow for and come to her husband own use and do conceive that what be do by  he after the fine levy be part of the agreement between they for levy the fine  and make the mortgage and her husband have in the deed of mortgage covenant to  pay the mortgage money and interest the same ought to be take as part of that  agreement and that thereby he undertake to discharge his wife estate and that  therefore her estate ought to be discharge by her husband asset but that the  say specific legacy of pound ought to be liable to pay his other debt in the  first place in case there be not other personal estate sufficient and  afterward to make the plaintiff I e the widow and her second husband  satisfaction so far as they shall not be otherwise satisfy by other asset of  the say testator and do order and decree the same accord and that after the  other debt and the plaintiff demand satisfy the specific legacy to take place  et vide pocock v lee for Bagot v oughton post Evelyn v Evelyn post Vol two  Lewis v nagle Amb and post Vol two note Cox S c earl of Kinnoul v money cite  bro C C swan Clinton v Hooper ib Parteriche v powlet atk lacam v Mertins ves  inn v Jackson Ves Bligh Ruscombe v hare dow