case sir Barnham rider versus sir Charles wager all econt Lord chancellor king  Eq can ab pl pl a have a debt due to he from I S devise pound of it to b and  the residue of it to c but do not mention what the debt be which be owe from I  S a receive the whole debt in his lifetime b die in the testator lifetime the  testator receive in the debt in his own lifetime be a ademption of the legacy  as to the devise of the residuum of the debt but it may be otherwise as to the  certain legacy give to b if b have survive the testator a devise pound legacy  to the second son of I S and devise other legacy to the other son of I S and  declare that if any of the young son of I S shall die before they be capable  of receive their share the share or legacy of he so die shall go to the  survivor the second son die in the testator lifetime this pound give to the  second son shall not survive admiral Littleton by will date march devise to  his wife six house in burystreet London in the possession of in bar of dower  and subject to his legacy devise to his old daughter and her heir one moiety  of his real estate as also one moiety of his personal estate and devise to his  young daughter and her heir the other moiety of his real estate and also of  his personal estate he devise to his godson James master second son of sir  Harcourt master pound part of the money owe to he by sir Harcourt the rest of  the money owe to he by sir Harcourt he give to and among all the rest of the  young child of sir Harcourt the same to remain in sir harcourt hand until the  child shall be capable of receive it and the legacy or share of any of they  die before such time to go to the survivor and survivor of they afterward the  testator marry his old daughter to the plaintiff sir Barnham rider give with  her a portion of pound in money and previous to that marriage by article date  the that of October covenant to settle one moiety of all his real estate to  the use of himself for life remainder to sir Barnham and his intend wife for  their life remainder to the young child of the marriage in tail general  remainder to sir Barnham in fee and also covenant that he will stand possess  peer William er p of one moiety of all such personal estate as he shall peer  William leave at his death subject only to his debt and such legacy as shall  amount to pound in trust for sir Barnham and his say intend wife for their  life and afterward to be pay to their young child subsequent to this the  testator make a codicil to his will thereby recite that he have by deed date  the same day pursuant to a power limit a jointure of pound per annum to his  wife for her life in bar of dower and then give his Southsea stock be about  pound to his young daughter and confirm his former will subject to the article  make on the marriage of his daughter to sir Barnham rider and the testator  have a debt due to he from one Batson his brotherinlaw of pound by his codicil  devise to this Batson the money owe from he to the testator after the make of  this will and codicil the testator and his wife mortgage the say estate to one  Clayton for pound about which time sir Harcourt master who at the make of the  will be indebt to the testator in about pound do at the testator desire pay in  this pound unto the testator also Batson acquaint the testator that he will  pay he in his debt the testator thereupon order his agent to receive the same  from Batson but to take no interest after the make of this will and in the  lifetime of the testator the second son of sir Harcourt master die but sir  harcourt other young son be then live and make plaintiff in the cross cause  peer William hereupon the question be saint whether the young child of sir  Harcourt master be entitle to any part of the pound debt give they by the will  but receive by the testator after the make thereof and as to this it be argue  that with respect to the pound part of the say debt give by the testator to  the second son of sir Harcourt if the second son have survive the testator  there may have be some reason that though the testator after the make of his  will have receive the same yet the second son of sir Harcourt shall be entitle  thereto because it be a certain sum of pound which be give by the will to the  say second son and where a certain sum be give out of any fund if the testator  himself in his lifetime receive it whereby his personal estate be increase  this must be make good to the legatee out of some other part of the personal  estate but where the thing give be specific videlicet such a debt or the  residue of the say debt and the testator himself afterward receive in this  debt as the devise be specific and the thing in specie by the act of the  testator do not continue to have any subsistence this be proper and reasonable  a ademption of the legacy and that it be a material distinction where the  testator himself call in a debt which he have devise by his will and where the  debtor unprovoke or uncalled upon pay it in for in the latter case it can be  say to be the act of the testator and therefore will be no ademption nor  revocation the of peer William will but in the former case and which be the  present case the admiral call for the debt from sir Harcourt and have receive  it and the legacy of the residue to the young child of sir Harcourt be  specific the testator himself have by his own act put a end to the legacy and  extinguish the same and though object that by this will it be declare that if  any of the young child of sir Harcourt master shall die before they be capable  of receive their share then the share or legacy of he or her so die shall go  to the survivor or survivor yet the court take it that this must be intend if  the legatee shall have survive the testator so that the right to the legacy  become vest in he and that in such case only the survivor shall take but that  where the legatee die in the life of the testator as nothing can ever vest in  the legatee so neither can it survive from he but at the same time the court  admit that where a devise be to a for life remainder to b and a die in the  testator lifetime b shall take present or if a devise be to a and b and a die  in the testator lifetime and then the testator die there b shall have the  whole show salk for these case seem to be within the plain intention of the  testator but in the principal case it be quite a strain to support a legacy  give out of a fund which the testator himself have by his own voluntary act  put a end to for which reason Lord chancellor declare that all these legacy to  the young child of sir Harcourt master be extinct and shall not be make good  and upon this point be cite Raymond paulet case Swinbourne part cap and the  case of orm v smith vern Eq can Abr peer William dly as to the point where the  testator devise to Batson the money which peer William er p he owe to the  testator and which he afterward himself receive Lord chancellor say this also  be clear for though the evidence be not so strong as to the testator call in  the money yet there do not appear to have be any intention in he to forgive  any thing but the interest of this debt and that this be intend to be no more  than a release by a will which though not in strictness a release for it be by  will can operate only as a legacy and must be asset and liable to pay the debt  of the testator yet it seem only intend as a release by his will which  intention be alter by the testator consent in his lifetime to receive the debt  himself and the will intimate no more than that the testator executor shall  not after his death give any trouble or molestation to Batson for this debt  and therefore as to this legacy claim by Batson the court declare that it be  also extinct the next point be concern the moiety of the real estate of  admiral Littleton which he covenant to settle to the use of himself for life  remainder to the use of sir Barnham rider c and it be insist and so hold by  the court that though this be but a covenant and therefore at law no  revocation of the will by which the testator have dispose of his real estate  yet that the same be for a valuable consideration be in equity tantamount to a  conveyance and consequent in equity a revocation of the will as to the moiety  of the six house peer William devise by the testator to his wife so that the  plaintiff sir Barnham rider be entitle to one clear moiety of the real estate  and to a account of the rend and profit thereof from the death of the testator  but as to the six house devise to the testator wife it be the testator  intention that she shall have they the court hold that she shall leave a  satisfaction out of the remain moiety and that the wife shall not suffer by  the marriagearticle there be enough out of the other moiety to supply and  satisfy the devise of the six house to her although on the other side it be  object that the wife have a jointure of pound per annum make to her there be  the less reason for the court to strain any thing in her favour against the  coheir the young daughter who be leave but indifferent provide for the  remainder of this pound per annum jointure be to go over after the jointresss  death to collateral heir male in the next place as to the other moiety of the  real estate it be decree that the testator widow be to have for her life six  house part thereof and the residue of such moiety subject to the wife estate  for life in the six house to be divide in moieties one moiety thereof to go to  the elder daughter and the other to the young and though it be insist that it  appear to be the plain intention of the testator that both daughter shall have  equal portion by the pound in money give to the old daughter on her marriage  and the which the testator reserve power to dispose of in legacy by his will  and that it be a very common case vern prece in Chan where a man by will give  a portion of pound to one of his daughter peer William and afterward life to  marry that daughter and give her pound or some great portion to construe such  portion to go in satisfaction and discharge of the legacy it be as if the  testator have himself pay his own legacy in his lifetime and that it be within  the same reason in the present case where the testator by his will give a  moiety of his real and personal estate to his old daughter and afterward in  his lifetime upon her marriage give her a moiety of his real and personal  estate that this shall be a satisfaction and payment of the legacy vide hartop  v Whitmore ante vol yet to this the Lord chancellor say that though it may be  the intention of the testator it be nevertheless go too far from plain word  and this case be the strong in regard that after the testator have enter into  these article for the give half his real and personal estate to the plaintiff  sir Barnham rider he execute a codicil whereby he confirm his will subject to  the article which confirmation be a republication of his will and as if he  have write it over again or have afterward for a valuable consideration assign  over a moiety of his real and personal estate to his old daughter by which the  say moiety thus dispose of do no long continue any part of the testator estate  so that the testator afterward by devise a moiety of his real and personal  estate must be intend to have mean the remain moiety only and to have divide  that moiety into moieties thly it be urge that the testator admiral Littleton  and his wife have join in the mortgage by lease and release and fine this be a  revocation of the admiral will peer William er p Lord chancellor reply that it  can only be a revocation pro tanto peer William thly it be contend that this  mortgage be a debt must be pay out of the personal estate nay that it shall be  pay out of the personal estate prior to the specific legacy at least before  the pecuniary legacy and it be say to have be determine this be determine in  the case of ball v ball by Lord Macclesfield in that a mortgage shall be pay  out of the personal estate in preference to the customary or orphanage part by  the custom of London which last be admit by the court because the custom of  London can take place till after the debt pay however it be afterward admit by  counsel on both side that the land be make by the testator himself a fund for  t payment of the mortgagemoney though the same shall be ease against a  administrator or residuary legatee yet it shall not be ease so as to  disappoint any of the debt or even legacy give by the will either specific or  pecuniary so tip v tip ante vol Davis v gardener ante c as to this distinction  vide Savile v blacket ante vol attorney general v Parkin Amb Ellis v walker  Amb Backwell v child Amb ashburner v macguire bro c c Badrick v Stevens bro c  c simmons v vallance bro c c Robert v pocock Ves chaworth v beech ib inn v  Johnson ib Kirby v potter ib Raymond v Brodbelt Ves Barton v cook Ves Sibley v  very Ves Webster v hale Ves dean v test Ves Wilson v Brownsmith Ves Lambert v  Lambert Ves Gillaume v Adderley Ves smith v Fitzgerald v b so Orme v smith Eq  can ab pl crockat v crockat ante birch v baker mos partridge v partridge can  tempt Tal say contra earl of thomond v earl of Suffolk ante vol ford v Fleming  post Ashton v Ashton post vol Drinkwater v falconer ves attorney general v  Parkin Amb hambling v Lister Amb ashburner v macguire bro c c Humphreys v  Humphreys in Charles July Cox see the late case in note to Lord thomond v Lord  Suffolk vol say vide Perkins v Micklethwaite ante I vol Willing v baine post  vol vide Elliot v davenport ante vol sibthorp v Moxom atk so Cotter v Layer  post bridge v duchess of chandos Ves jun knoll v Alcock Ves Ves Sugden vendor  edit that Vawser v Jeffere Ves swan Bennett v earl of Tankerville Ves Rawlins  v burgis v b vide Acherley v Vernon Com Rep and bro p c bro p c and ed potter  v potter ves Gibson v Lord Montfort ves S c nom Gibson v Roger Amb Jackson v  hurlock Eden barn v crow bro c c Ves jun Lord Walpole v Lord Cholmondeley t r  Strathmore v bow t r bow v bow Bos p Pigott v Waller Ves Holmes v Coghill Ves  broom v monk Ves Goodtitle v Meredith m S Hulme v Heygate mere Rowley v Eyton  mere but in izard v burst Freem such a republication as hold not to set up a  legacy which as in the principal case have be satisfy by a portion and see  monk v Lord monk I ba be so York v stone salk Perkins v walker vern hall v  Dench vern parson v freeman atk S c Amb sparrow v Hardcastle atk Amb Kenyon  Tucker v Thurstan Ves Cholmondeley v Clinton James W so a conveyance in fee to  trustee to raise money to pay debt be in equity only a revocation pro tanto  Vernon v Jones pre Ch Ogle v cook cite in Robinson v tailor bro c c bridge v  duchess of chandos Ves jun William v Owen ib cave v Holford Ves Lord temple v  duchess of chandos ib Harwood v Oglander Ves Ves Vawser v Jeffere Ves swan it  be former hold that a mortgage to the devisee be a total revocation Harkness v  Bayley pre Charles coke v bullock cro James but contra Baxter v dyer Ves peach  v Phillips dick peer William er p