case noel versus Robinson novembris in court Lord chancellor vent Ch can Ch  Rep S c upon a rehear the case be thus sir Martin Noel father of the plaintiff  be possess of a great personal estate and of a moiety of a plantation beyond  sea make his will September and the defendant Robinson and two other his two  son Martin Noel and Thomas Noel since decease r l executor thereof and devise  his say moiety of the plantation and of the negro and stock thereto belong to  the plaintiff Nathaniel grace and Elizabeth his child then infant and direct  the executor to receive the profit and to give a account and pay the proceed  thereof for the maintenance and education of the plaintiff the defendant  Robinson only prove the will and take on he the management of the testator  moiety of the plantation and afterward make a lease thereof to one Worsam for  a term of year and reserve the rend to himself in trust for the plaintiff use  it appear that the other executor join in the probate but do not intermeddle r  l note it be now settle that where a bill be file against person as executor  and one of they say he have not prove nor intermeddle the bill shall be  dismiss as against he with cost as be a unnecessary party Willis v walker that  Feb in Ch not report the plaintiff bring their bill against Robinson the  executor and one falconer who have purchase of the executor Vernon chancery  case the say moiety of the plantation for a valuable consideration that they  may account for the profit of the plantation and pay the same to the plaintiff  that they may convey to the plaintiff the say moiety if the plantation and  that they may hold and enjoy the same accord to the will they insist that the  defendant Robinson by make the say lease have assent to the devise of the  moiety of the plantation to the plaintiff the defendant Robinson by answer  admit the will and his make the say lease and reserve the rend in manner  aforesaid but say he make the same in such manner without due consideration  and not with intent thereby to assent to the devise to the Vernon chancery  case er p plaintiff and thereby deprive the creditor of their just debt and  exempt the estate therefrom and that the estate fall short of pay the testator  debt and he have therefore be force to sell the testator moiety of the  plantation to the defendant falconer for which he have apply in payment of the  debt and the defendant falconer insist on his purchase for the defendant  Robinson it be insist that he be now before the court in three capacity  videlicet as a executor as a trustee and as a creditor to sir Martin noel  estate and saint that this lease at most be but a imply assent and it may be  take to be do two way either as a trustee or as executor and in this case it  ought to be take as do quatenus a trustee because that way it can work no  wrong to any one but it be insist that in truth there be no assent for that  depend upon the intent of the party and it appear he do not intend to assent  to the legacy for when a lease be specifical devise if the executor assent  there be no long any interest in the estate leave in the executor and it  appear that in this case the executor apprehend a estate still remain in  himself as appear by his sell this plantation and by other subsequent act  concern the Vernon chancery case same and it be likewise insist that though in  law this lease may amount to a assent yet in equity it shall not and cite  several case in which this court have mitigate the rigour oh the law in  relation to executor and particular in the matter of refund legacy videlicet  the case of Biscoe and Nelthrope Ch can and the case of grove and Benson grove  v banson Ch can and that in this case the defendant have do no more than what  in equity he may have be compel to have do and his do of it without the  trouble of a suit ought not to be turn to his prejudice vide autem the  distinction between a executor do a thing voluntary and by compulsion with  respect to his be indemnified infra p and earl of Winchelsea v Norcliff post  then it be insist that in this case the defendant the executor be to be  consider as a creditor to sir Martin noel estate for be a executor and in  disburse for debt by he pay which be owe by the testator he be now become a  creditor for so much to the testator estate and that a creditor shall be  relieve against a legatee that have receive his legacy be settle in the case  of Chamberlayn and Chamberlayn Ch can if a executor assign a term without  consideration and asset fail the creditor shall follow this estate into who  hand soever it come and in this case a executor who have carry himself fair  and without exception and it may be if he have come to any one here to advice  with he can not have be direct how to have manage himself more prudent it not  appear nor be it in the least suspect when he make the lease of the plantation  but that the asset will have answer all debt with a great overplus which  afterward become deficient by the break of two eminent Spanish merchant that  deal in negro and break for the value of pound and be then debtor to sir  Martin noel estate to the value of pound and therefore in a case of such  extremity the executor ought to be relieve against the rigour of the law and  they cite the case of holt the goldsmith Ch can and cite Baden v earl of  Pembroke post vol who be a executor have give a recognizance for payment of a  legacy and afterward the asset become Vernon chancery case deficient to pay  the debt by the fire of London he be relieve against this recognizance and  where a fine be order to be levy by the decree of this court if it be so do as  to pass a great estate or to operate further in law than this court intend  these though a fine be the most sacred conveyance at law this court will  restrain it to what be the original intention of levy it so Goodrik v brown Ch  can cite in Baden v earl of Pembroke post vol p and a fine shall be avoid when  obtain mala fide such dic arg sawyer v Vernon post so this court will relieve  against conveyance by deed and fine gain without consideration and indirect  Wilkinson v Brayfield post vol for the plaintiff it be argue by their council  and saint as to the objection that this plantation be a feesimple estate but  by the custom of the country make a testamentary and personal estate in  relation to debt only but be not a personal estate in any other respect and  therefore in this case the executor have no power to assent as he may where a  term be specifical devise it be answer that a executor may dispose of a term  or of a feesimple estate that he have in trust for payment of debt and that  this assent amount to a disposition as to the objection that the defendant  Robinson in this case be a creditor that we deny for where a executor pay a  legacy that he shall not have do that shall Vernon chancery case er p not make  he a creditor to his testator estate and as to the case of Hodges and dunkin  it be not there resolve that a executor shall be relieve upon the voluntary  payment of a legacy as to the objection that where a thing may be take two way  it shall not be construe to do a wrong they may do well to remember another  maxim of the law that a man own deed shall be take strong against himself Lord  chancellor there be a difference between a suit for a legacy in this court and  a suit for a legacy in the spiritual court if in the spiritual court they will  compel a executor to pay a legacy without security to refund there shall go a  prohibition as be resolve in the case of knight and clarke but legatee be not  now oblige in this court to give security to refund in case of deficiency of  asset anon atk but in this court though there be no provision Vernon chancery  case make for refund yet the common justice of this court will compel a  legatee to refund it be certain that a creditor shall compel the legatee to  refund Hodges v Waddington term pasch car vent anon post Newman v Barton post  vol and so shall one legatee compel the other where the asset become deficient  the distinction be between the case where there be original a deficiency of  asset and where the executor have waste they in the former case a legatee who  have be pay more than his proportion must refund but in the latter the legatee  who have receive their legacy have receive no more than they be entitle to and  the executor be therefore the only person to be resort to Walcot v hall d Feb  bro Ch Rep cite anon p wms in note say vide Orr v Kaimes ves and even in case  of original deficiency the court conceive that where executor voluntary pay  the full legacy neither the executor nor any of the other legatee shall compel  a refund contra if the legatee have recover his legacy by decree Newman v  Barton post vol say vide anon p wms but he must refund if deficiency be create  by debt which do not appear till after payment of the legacy nelthrop v hill  Chan can but whether the executor himself after he have once voluntary assent  unto a legacy shall compel the legatee to refund be causan prim impression a  bill file by executor against legatee after assent to the legacy be dismiss  for that a executor shall not be admit to undo his own assent Hodges v  Waddington vent and it must be allow that there be a great difference between  a voluntary assent and where the executor be compel to assent so if trustee  for a infant will with the profit save out of infant estate purchase land  adjoin to infant estate the court on application will enable they to make such  purchase and indemnify they therein but if they do it voluntary and of their  own head and afterward the infant die within age they be Accountable to the  infant executor for the money they shall have so apply earl of Winchelsea a v  norcliffe post we know the common case if a man voluntary pay money to a  bankrupt after lie become a bankrupt it be in his own wrong and he may be  force to pay it a but otherwise it be if the bankrupt recover it against he by  course of law and a small matter shall amount unto a assent to a legacy a  assent be but a rightful act vent and executor compel to assent in the  spiritual court and when once give can be retract Wentworth off executor so  assent of one executor shall bind all such dict southward v Millard march so a  assent by infant executor shall bind the other ibidem et vide burn  ecclesiastical law whereupon the Lord chancellor confirm his former decree and  the plaintiff bill be dismiss vent and executor compel to assent in the  spiritual court and when once give can be retract Wentworth off executor so  assent of one executor shall bind all such dict southward v Millard march so a  assent by infant executor shall bind the other ibidem et vide burn  ecclesiastical law not so the case be state with sufficient accuracy but the  decree be that the lease to Worsam the defendant have assent to the plaintiff  legacy give tothen by the will of their father and that the devise by the say  will be a good devise and that the plantation and stock do well pass thereby  and that the say act of the defendant Robinson be voluntary he put the say  estate out of the power of the creditor of sir Martin Noel or of any  administrator de good non of he and that therefore the defendant shall assign  the say moiety of the plantation and stock thereto belong to plaintiff and  that they shall have the counterpart of Worsams lease and that Worsam shall  henceforward pay the rend to the plaintiff and a account of profit decree  against defendant Robinson Reg lib b fol note this cause be three time hear  before the Lord chancellor Nottinqham and a decree pronounce by he for the  plaintiff and twice confirm and on June James this cause be reheard by the  Lord chancellor jefferies who reverse the Lord keeper north decree and affirm  the decree make by the Lord chancellor Nottingham the decree for plaintiff  after declare that the plantation and stock in question be not subject to the  debt of sir Martin Noel and after reverse the order of Lord keeper north and  confirm the order of Lord Nottingham order that the defendant Robinson and  falconer the assignee of Worsams lease shall assign the premise in question to  the two senior six clerk subject to the order of the court and that the arrear  of rend due and also the grow rend shall be bring into court except one year  rend for the present support of plaintiff and that defendant Robinson shall  account with plaintiff for the rend and profit of the say plantation receive  by he or by his order from the death of sir Martin Noel with allowance for all  payment make by he say defendant for the plaintiff use together with all just  allowance Reg lib b fol in the argue of this case be cite the case of Davie  and draw alias drewry draw v Baily vent S c in which it be resolve in the king  bench and afterward in this court that where a executor make a lease render  rend his administrator shall have it and not the administrator de good non  Vernon chancery case er p