ambler c langley against earl of oxford easter ante p a specific legatee of  part of a sum due to testator on mortgage bind by a account settle between the  mortgagor and the executor of the mortgagee bequest over on a general failure  of issue be void see chamberlain v Jacob Amb h p ms sir Matthew dale have  agree with a Mr Arnold for the purchase of a estate in Herefordshire a  particular of the rend have be deliver to sir Matthew and it be agree that if  any of the rend in the particular be overcharge that then there shall be a  deduction after the rate mention in the article out of money agree to be pay  for the purchase in Mr AuditorHarley agree with sir Matthew to purchase this  estate and to stand in his place as to the article accord Mr Harley pay part  of the purchase money to Arnold and for the residue which be about pound he  mortgage a estate to Arnold but no part of this money be to be pay till after  the death of a mrs colt who have a jointure out of the estate but this pound  be to ambler er p be subject to some deduction and in particular those  deduction above mention Mr Arnold afterward die and leave Dennis Arnold his  sister and John Arnold Langley his executor and by his will bequeathe the sum  of pound part of the debt due to he from Mr Harley to Dennis Arnold in case he  shall survive he and have issue but in case of failure thereof then he give  pound of it to John Arnold and pound of it to the plaintiff John Arnold  Langley prove the will auditor Harley be a debtor to the testator by the  abovementioned mortgage and the account of the deduction be very long and  intricate he after a great many application make to John ambler Arnold Langley  come to a account with he the account be state and settle and the balance due  to the testator estate be pay to the executor John Arnold Langley and this  before the death of mrs colt John Arnold Langley afterward die insolvent upon  which the plaintiff who be a legatee of pound after the death of Dennis as  above bring this bill against Lord Oxford the executor and it be insist upon  that the defendant shall be oblige to pay this money over again to the legatee  because they have a specific lie upon this estate and though Mr Harley must  have have notice of the will yet he have pay it to the executor who have only  the legal interest in it without the intervention or privity of the legatee  who have the equitable interest and that this be like the case of bind be  assign by the obligee in which case though at law the obligee be the person  entitle to receive the money yet if the obligor pay it to he after notice of  the assignment he shall be oblige to pay it over again to the assignee the  case of humble and boil vern crane and drake vern be cite and in this case the  defendant have pay the money before by law he be oblige to pay it that this  account shall be set aside upon circumstance of fraud or that the account  shall be open or at least that the plaintiff shall be let in to surcharge or  falsify some particular item upon a suggestion of there be several error in  the account as to the first point the solicitorgeneral for defendant cite the  case of Johnson v Coxeter Merlin v web mead v Lord orrery atk S c serjeant  hill ms vol vol ewer v Corbett p win Burton v Howard nugent v Gifford atk cite  Ves Elliot v Merryman atk burn Lord chancellor say that the general question  be whether the plaintiff be entitle to relief upon the foundation of his have  a special lie upon the debt due from Mr Harley as legatee that this case  differ from that of a assignment of a bind or of the declaration of the trust  of a term for there the purchaser or assignee have nothing to do but to have a  account take between himself and the obligee which may as well be do between  they as between ambler the obligee and obligor but in this case if the  intervention of the legatee be necessary as if a term for a year be devise the  purchaser must enter into a account between the executor and creditor and  legatee there must be a account take of the asset and of the debt in order to  see if there be a sufficiency to pay the debt without the term his lordship  consider this as if it be a case of a term for year devise to a particular  person and be of opinion that a person may purchase such a term from the  executor without the intervention of the legatee in regard to the great  inconvenience and difficulty that will follow if it be otherwise for then a  person before he purchase must come into a court of equity to have a account  take of the asset leave by a testator and of the debt due from he and whether  it be necessary for a executor to sell this term for payment of debt ewer v  Corbett see Roger v Skillicorne Amb and case in note there if the sale be for  a less value that the term be worth or if a purchaser have notice that there  be no debt due from testator or that all the debt have be pay that will take  such a case out of the general rule as it will be consider as a circumstance  of fraud it be true that this rule be go great way that notwithstanding the  term be devise to a particular legatee that yet person shall purchase from the  executor without the privity of the legatee therefore the court will attend to  all the particular circumstance of the case and will go as far as they can to  affect the purchaser in favour of the legatee but this case be strong for this  be a particular sum to be pay out of a debt which be much large and which debt  be subject to a litigation and many deduction it will be very hard upon a  debtor if a testator can by create a charge upon the debt disable the debtor  to settle it with the executor that Mr Harley must have bring his bill against  the executor and legatee the executor may have insist ambler er p that the  asset be insufficient to pay the debt and that he be the proper person to  settle the account the legatee may have insist upon a account be take of the  asset in a adversary way and this will ambler have great entangle the debtor  suppose there be two partner and one of they shall by will give a sum of money  out of his share of the partnership effect the executor of the partner who be  dead and the survive partner may settle the account of the effect without the  legatee for all the legatee be entitle to be to come out of the surplus which  be after the account take so if a legacy be give out of a debt due to a  merchant by a person beyond sea and therefore the law very proper trust the  executor and make he only liable in case of fraud or collusion as to the  devise over his lordship say he be very doubtful whether it be good or not if  it be to be understand as a general failure of issue then it will be void but  it be not necessary to determine that point as to the second point his  lordship be of opinion for the defendant and dismiss the bill and say it will  be very oppressive to the party to enter into a account for the plaintiff will  be strict entitle to recover no more of the defendant than he will have be  entitle to have have of the executor so that if a account be to be decree  there must be a account take of the asset come to hand of the executor and of  the administration of the asset lib Reg a foe see Andrew v Wrigley bro c c  Scott v tiler bro c c Dickinson v Lockyer Ves Bedford v Woodham ib n tailor v  Hawkins Ves MLeod v Drummond ld Ves hill v Simpson Ves