case CLIFTON versus burt pre Charles one die indebt by bind and by will give a  legacy of pound and devise his land in fee to I S leave a personal estate  sufficient only to day the bind the legatee shall not stand in the place of  the bind creditor t charge the land in regard the land be specifical devise by  if the land have descend to the heir a seize in fee of freehold land and  likewise of some copyhold land which he have not surrender to the use of his  will and indebt by bind in which his heir be bind in make his will whereby lie  devise his freehold land to b in fee without charge they with any of his debt  and legacy peer William and give his copyhold land to c in fee in trust to  sell to pay b be debt and legacy and have give a legacy of pound to d die  leave e his executor d the legatee of the pound bring his bill for his legacy  upon which Lord Harcourt decree that as to so much of the personal estate as  be exhaust by the bonddebt the legatee of the pound shall stand in the place  of the bind creditor against the land and that the freehold estate shall be  liable in default of personal asset to pay the legacy from this decree the  devisee f the freehold land now appeal to the Lord Parker insist that the  pound legacy be by the will charge on the copyhold estate and that fund fail  for want of a surrender the freehold estate which be express devise to another  person ought not to be liable and that the land be specifical devise be not  Chargeable with a general pecuniary legacy Lord Parker have take time to  consider of it reverse that part of the decree whereby the freehold estate be  subject to the legacy observe saint that though equity will marshal asset in  favour of a legatee as well as of a simple contract creditor yet every devisee  of land be as a specific legatee and shall not be break in upon or make to  contribute towards a pecuniary legacy so forester v Lord leigh Amb dly that it  be a rule if one give a specific legacy of a horse or diamond and also a  pecuniary legacy of pound to b and there be not asset to pay both still the  specific legatee shall be prefer and have his whole legacy for be the executor  to make he contribute towards the pecuniary legacy peer William this will be  pro tanto to make such specific legatee buy his legacy against the manifest  intention of the testator dly that if a specific personal legatee shall not  contribute towards a pecuniary legacy much less a specific devisee of land  thly that if in the principal case the testator have devise the pound to a and  a term of year to b without leave asset to pay the pound still the specific  legatee of the lease ought to prevail without contribute towards the pecuniary  legacy and if such pecuniary legatee shall not break in upon a specific  legatee of a term a strong shall he not disappoint the will as to a devise tin  fee which be more to be favour peer William er p than a devise of a term in  regard it be with more difficulty that a court of equity in any case break in  upon or charge a real estate five that this case be still strong where the  testator have appoint a fund for the payment of the legacy videlicet the  copyhold and though that have fail for want of a surrender the consequence  will be that the fund fail the legacy must fail also indeed the bind creditor  may elect to have his debt out of the asset in the hand of the heir or of the  devisee but in such case the heir or devisee shall have this relief videlicet  to stand in the place of the bind creditor and reimburse himself out of the  personal estate six but though equity will thus marshal the application of  asset yet will it not do this to disappoint the will of the testator by break  in upon the devise of the freehold which peer William the testator do not  intend to charge but on the contrary show his design to charge the copyhold  estate therewith and note that the decretal order in the case of Hern v  Merrick vide ante be produce whereby it appear that Lord Harcourt do not then  determine this point but reserve it for far consideration in Reg lib a foe  this case be thus state John Bignold by will devise all his estate in Merrow  and Stoke to his son John Bignold and the heir of his body and for want of  such issue to the defendant Joseph burt his heir and assign for ever and also  devise his copyhold estate which he have before surrender to the use of his  will to his say son John Bignold and the heir of his body and for want of such  issue to the defendant Joseph burt James burt and Elizabeth Horsnaile and  their heir and assign for ever subject to the annuity therein mention to the  intent that they or the survivor shall sell the copyhold and apply the money  arise thereby to make good and pay his debt and legacy and he divide the  residue between the say Joseph burt James burt and Elizabeth Horsnaile equal  and further devise to the plaintiff James Clifton pound within three month  after the decease of the testator say son if he die under age and not marry in  which case he direct that all his personal estate other than what will pay his  debt and funeral expense and the say pound to the say James Clifton and the  other legacy by the will give shall be equal divide between the say Joseph  burt James burt and Elizabeth Horsnaile equal and make Clifton and Joseph burt  and two other executor the son die under age upon the original hear the court  decree a account of the testator personal estate and of the rend and profit of  his real estate accrue since his death and also a account of his debt and  which be debt by specialty and which by simple contract and what debt remain  unpay and also what legacy be unpay and the personal estate and such rend and  profit be to be apply in payment of the debt and legacy so far as the same  will extend and order that for make good the deficiency as to what debt and  legacy the say personal estate and rend and profit fall short to satisfy the  testator real estate shall be sell to the best purchaser and in case any of  the personal estate have be apply to pay the debt by specialty the creditor by  simple contract and legatee be to stand in the I place of the creditor by  specialty and to have satisfaction out of the real estate so far as the  personal estate have be apply in payment of such debt in equal proportion with  this decree Joseph burt be dissatisfy petition for a rehear for that the  administration of the personal estate in payment of the debt by bind and cc  simple contract during the lifetime of John Bignold the son and tenant in tail  and before the reversion in fee of the say real estate come to the say Joseph  burt in possession be a legal administration and ought not to be unravel  marshal or transpose to other purpose neither be the reversion in fee of the  freehold expectant cc on the say estatetail asset to pay debt by specialty  before the determination of that estatetail neither do the say testator  subject the say reversion to the say pound legacy which say legacy be also not  Payable when the personal estate be so administer but be a remote possibility  and doubtful whether the same will ever arise and also for that such  administration of the personal estate before the estatetail determine ought to  be allow as rightful act and the legacy of pound when it become Payable will  only affect such part of the personal estate as then remain unadministered  together with the copyhold estate which cop hold only the will subject to the  legacy in regard the legacy and that trust be by the will appoint to commence  together and for that the debt by bind and simple contract peer William er p  be all pay which do not appear at the say hear and the say defendant conceive  that the freehold land in his hand as devisee thereof ought not to be liable  to the legacy which the testator never intend to charge thereon and for that  the rend and profit of land receive by a heir at law or devisee before the  testae of the original at law or the fill a bill in equity be not recoverable  from such heir or devisee whereupon his lordship declare that the say decree  so far as direct a sale of the freehold estate for satisfaction of the say  legacy of pound give to the plaintiff ought to be reverse and that the  defendant Joseph burt ought to hold the land accord to the say testator will  it be the object of a court of equity that every claimant upon the asset of a  decease person shall be satisfy as far as such asset can by any arrangement  consistent with the nature of the respective claim be apply in satisfaction  thereof it have be long settle that where one claimant have more than one fund  to resort to and another claimant only one the first claimant shall resort to  that fund on which the second have no lie Lanoy v duke of Athol atk lacam v  Mertins ves mogg v Hodges ves if therefore a specialty creditor who debt be a  lie on the real asset receive satisfaction out of the personal asset a simple  contract creditor shall stand in the place of the specialty creditor against  the real asset so far as the latter shall have exhaust the personal asset in  payment of his debt anon Charles can Sagitary v hide vern neave v Alderton Eq  can ab Wilson v Fielding vern Galton v Hancock atk and legatee shall have the  same equity as against asset descend Culpepper v Aston Charles can Bowaman v  reeve pre Charles tip v tip post Lucy v gardener bunb Lulkins v leigh can  tempt Talb so where land be subject to payment of all debt a leg thou shall  stand in the place of a simple contract creditor who have be satisfy out of  personal asset haslewood v pope post Vol III so where legacy by will be charge  on the real estate but not the legacy by codicil the former shall resort to  the real asset upon a deficiency of the personal asset to pay the whole hide v  hide Charles Rep master v master ante Bligh v earl of Darnley post Vol h  bonner v bonner Ves Norman v Morrell Ves but from the principle of these rule  it be clear that they can be apply in aid of one claimant soas to defeat the  claim of another and therefore a pecuniary legatee shall not stand in the  place of a specialty creditor as against land devise though he shall as  against land descend Clifton v burt sup haslewood v pope ub sup Scott v Scott  Amb Keeling v brown Ves but such legatee shall stand in the place of mortgagee  who have exhaust the personal asset to be satisfy out of the mortgage premise  though specifical devise Lutkins v leigh ub sup forester v Lord leigh Amb for  the application of the personal asset in ease of the real estate mortgage vide  Howel v price ante do not take place to the defeat of any legacy oneal v mead  post tip v tip post Davis v gardener post Vol two rider v wager ib and it be  to be observe that none of the rule abovementioned subject any fund to a claim  to which it be not before subject but only take care that the election of one  claimant shall not prejudice the claim of the other atk ves so in Robinson v  tongue on Oct a seize of freehold and copyhold land mortgage the same in his  lifetime and die indebt by mortgage and on several bind the specialty creditor  insist that the court in marshal the asset shall cast the whole mortgage upon  the copyhold estate in order that the specialty creditor may have the benefit  of the whole freehold estate but the court say that copyhold estate be not  liable either in law or equity to the testator debt further than he subject  they thereto and order that the copyhold estate shall bear its proportion with  the freehold estate for payment of the mortgage and shall not be liable to  make satisfaction for the specialty debt in aldrich v Cooper Ves the case of  Robinson v tongue be overrule as be inconsistent with the principle above lie  down the accuracy of which be full recognize Reg lib b fol it be now settle  that the court will not marshal asset in favour of a charitable bequest so as  to give it effect out of the personal chattel it be void so far as it touch  any interest in land mogg v Hodges ves I Cox S c attorneygeneral v Tyndal Amb  Eden S c foster v Blagden Hilliard v tailor ib foy v foy I Cox ridge v  Morrison ib attorneygeneral v burst Cox Makeham v Hooper bro c c where a  legacy be give out of peer William er p a mix fund of real and personal estate  Payable at a future day and the legatee die before the day of payment Qure  whether the court will marshal asset so as to turn such legacy upon the  personal estate it will not pierce v Loman Ves in which case it will be vest  and transmissible whereas as against the real estate it will sink by the death  of the legatee vide prowse v Abingdon atk pierce v tailor Trin Vac before Lord  Thurlow as to the right of a wife to have asset marshal in respect of her  paraphernalia vide tip v tip post as to marshal a vendor lie on the estate for  his purchase money see coppin v coppin post Vol