case herne versus Meyrick Lord keeper Harcourt salk pale yellow Chanc Eq can  ab pl one seize in fee owe debt by bind and devise his land to his heir in  tail and give several legacy after which he die leave the heir his executor  the heir with the personal estate pay off the bonddebt by which mean there be  not asset to pay the legacy the legatee eat without remedy the land be devise  in tail to the heir otherwise have the land descend to such heir in fee one  seize of land in fee owe money by several bind and by will give several legacy  to his young child and devise his land to his old son in tail the old son who  be likewise executor have pay the bind with the personal estate and now the  legatee bring their bill pray that they may stand in the place of the  bondcreditors and be pay out of the land devise to the old son the late  statute against fraudulent devise have make the devise void as against  bondcreditors and this cause be hear before the master of the roll his honour  declare he will marshal the real and personal asset in such manner as that the  debt and legacy shall both be pay videlicet the legacy out of the personal and  the peer William bind out of the real estate and that as the bind have be pay  by the executor out of the personal estate so the legatee shall pro tanto  stand in the place of such bondcreditors and be pay out of the real estate but  from this decree there be afterward a appeal Oct to the Lord keeper before who  it be urge by the solicitor general and Mr how that these young child be  provide for by other land devise to they and that in case d the legacy be to  be charge upon the land of the old son he will be leave destitute that it be  as much the intent of the testator that the devisee shall have the land as it  be that the legatee shall have their legacy and therefore the one be not to be  favour more than the other nay that the rule in equity be that specific legacy  shall not be break into in order to the satisfaction of pecuniary one that of  in this case the devise have teen of h lease for year to the heir he shall  have keep that without have it make liable to the pecuniary legacy die shall  the heir be in a worse case in respect of land of inheritance devise to he  than if he have only claim a chattel by the will that the statute of  fraudulent devise be entire out of the case in regard be no creditor and that  statute be never make to help legatee these reason seem to have great weight  with the Lord keeper who say it will have be a very different case have the  land be suffer to descend in fee whereas the gift in tail to the heir be a  specific devise and as against legatee to be favour equal with d specific  legacy so long v short post Clifton v burt post haslewood v pope Vol III peer  William Mr Vernon on the other side insist that the young child be in nature  of creditor and in case a copyhold not surrender be devise to the court will  supply the want of a surrender say per cur here it appear the young child be  otherwise provide for vern the case may have be different if the testator have  devise his land to his old son exempt from the payment of his legacy but those  word be omit in the will the staff against fraudulent devise charge the land  devise with the bind but by Lord keeper there be no debt the statute be out of  the case then it be insist that whereas in this case one and the same person  be here and executor suppose they have be different person videlicet one  person heir and another executor and the bind creditor have sue the heir and  recover their debt out of the real estate the heir shall clear have have no  remedy and there be no reason that the heir when make executor shall alter the  case by his partial application of the asset however Lord keeper incline that  the heir be devisee in tail of the land the legatee shall have no remedy to  come upon the real estate in the place of the bondcreditors but say he will  reserve that point and in the mean time will direct a account of the personal  estate which for ought appear may be sufficient peer William er p pay the  legacy as well as debt and likewise order that precedent shall be peer William  search whether ever a legatee have relief against the heir in such case in  Scott v Scott Amb Eden S c it seem admit that a legatee can have relief  against a heir in such case afterward the case of Clifton v burt which see  post in Michaelmas term this decretal order of Herne v Meyrick be produce and  it appear that this ease be not resolve by Lord Harcourt but adjourn for  further consideration vide anon Charles can Culpepper v Aston Charles can  Clifton v burt post where this head of case be more particular consider tip v  tip post Lucy v gardener bunb haslewood v pope post vol Lutkins v leigh can  tempt Talb Reg lib a foe and in forester v Lord leigh Amb