case plunket versus Penson a cause by consent April SC ante Semb p a cestuique  trust of a real estate make a mortgage upon it in fee and devise the equity of  redemption to his son and his heir subject to the payment of his debt and die  indebt by bind and simple contract as this be a mortgage of the whole  inheritance and nothing remain in the mortgagor the bondcreditor can have no  preference but must be pay acquire step with other creditor Mr Penson the  testator who be the cestuique trust of a real estate make a mortgage of it in  fee note in this mortgage one Benjamin young join who seem to have be atkins  er p the trustee but in the decree Lord Hardwicke direct the master to inquire  whether Benjamin young a infant be a trustee within the stat whether and the  equity of redemption be in he he by his will give and devise to his dear son  and to his heir for ever the mortgage premise subject nevertheless to the  payment of his debt annuity and legacy and die indebt by bind and simple  contract the question in this case be if the asset of the testator be legal or  equitable and whether the simple contract creditor be to come in acquire step  with the bondcreditor who be the plaintiff or whether he shall be pay first in  a course of administration Mr Cox who be counsel for the bondcreditor insist  that the asset of the testator must be consideredas legal because atkins  notwithstanding the devise to the heir it be exact the same as if the land  descend to he with a charge and therefore the simple contract creditor ought  not to come in acquire step he cite the case of Lord massam versus Harding  bunb S c in the court of exchequer where a equity of redemption be hold to be  legal asset but I must be so candid as to own that Lord chief baron comens  take this distinction that if it be a mortgage for year then it will be legal  asset because the whole interest be not go from the mortgagor the reversion in  fee be leave in he otherwise where it be a mortgage in fee and before Mr  Verney at the roll the case of Spencer versus biffin in mich term vide Cox p W  note be determine upon the authority of massam and Harding he cite also  Fremoult versus Dedire et e con p W in which Lord Macclesfield hold where one  devise his land for payment of his debt bind and simple contract debt shall be  pay equal but if he only charge his land with the payment of his debt so that  the land descend subject to the debt the bind shall be prefer before the  simple contract debt Mr attorney general for the simple contract creditor  insist that a devise to a heir of a estate charge with debt be exact the same  thing as devise it in trust to he for the payment of his debt and then they be  equitable asset and all creditor be entitle to come in acquire step the  bondcreditor in this case can recover at law because the testator who be the  obligor have not the legal estate it be a trust estate and in mortgage and  therefore be oblige to come into this court for a satisfaction Mr Moreton on  the same side cite the case of ken versus Craigs between the seal after  Michaelmas term the question there arise upon the will of Mr WrottesLev who  bequeathe after his lawful debt be pay and funeral expense be defray all he be  now in possession of or any wife entitle to to his aunt mrs Craigs and make  her executrix and yet hold by Lord Hardwicke that they be equitable and not  legal asset and that creditor must come in acquire step Lord chancellor if in  the case of Lord massam versus Harding it be a mortgage in fee the  bondcreditor can not come at it as the obligor have not the legal estate for I  think my Lord chief baron Comynss distinction be right in that case between a  chattel mortgage and a mortgage in fee atkins I shall be glad to be inform  whether there be any instance where a equity of redemption have ever be hold  to be liable to the execution of a bondcreditor in the life of the mortgagor  vide lyster v Dolland bro Charles Rep Ves jun S c to which the counsel in this  case make answer they can not recollect any instance where it have be so hold  the particular question here be whether the creditor shall come in acquire  step or whether a bondcreditor be entitle to the preference the testator be  never entitle any otherwise than as beneficiary and trust of a real estate  which he mortgage and have consequent the equity of redemption of a trust  estate make his will and devise to c Videathe will as before state then die  indebt by bind and simple contract the first question suppose the testator  have be seize of a legal state be whether by force of the will this be not out  of the statute of fraudulent devise will mark chap this depend clear upon the  construction of that statute by this act all will disposition or appointment  of land or tenement c whereof any person at the time of their decease shall be  seize in feesimple in possession reversion or remainder or have power to  dispose of the same by their last will shall be deem and take only as against  creditor by bind or specialty bind the heir to be fraudulent and void and  every such creditor shall have his action of debt upon his and their bind and  specialty against the heir at law of such obligors and such devisees joint  atkins er p now before the make of this act of parliament at commonlaw a  bondcreditor where the land be devise have no remedy against the devisee and  therefore this statute have take care that such a devisee shall not prevent  the remedy then come the proviso provide always that where there have be or  shall be any limitation or disposition of land or tenement for the raise or  payment of just debt or portion for child other than the heir at law in  pursuance of any marriagecontract or agreement in write good fide make before  marriage the same and every of they hall be in full force with respect to the  construction of this clause vide earl of bath v earl of Bradford Ves lingard v  earl of Derby bro Charles Rep Hugh v Doulben bro Charles Rep the consequence  of this proviso be that it operate by way of exception upon such devise as be  for payment of debt for this clause do not give any new force to the law in  this particular case but leaves it just as it stand before the make of the act  the question will be then whether the devise here have break the descent if it  have then in point of law all consequence atkins insist on by Mr attorney  general will follow for the bondcreditor be deprive of his remedy at law and  force to come into this court but if it have not break the descent then this  court have no right to take from a specialtycreditor his remedy at law as at  present advice I do conceive it do not break the descent and for this purpose  vide clark versus smith salk in Lord chief justice Trebys time where the court  hold that if the same estate be devise to h which he will have take by descent  he be in by descent notwithstanding the possibility of a charge if so I do not  know that a court of equity have ever take away from a bondcreditor his right  which he have at law contra Hargrave v findal bro Charles Rep in note Batson v  Lindegreen bro Charles Rep see Blatch v wile ante vol note the case of  Freemoult versus Dedire come very near the present in the five section of the  statute of fraudulent devise which relate to the heir at law alien the land  descend in order to avoid the payment of just debt before action bring against  he it be enact that such heir shall be answerable for such debt to the value  of the land so alien c in which case all creditor shall be prefer as in action  against executor or administrator and such execution shall be take out upon  any judgement so obtain against such heir to the value of the same land as if  the same be his own proper debt but as to that part in the first proviso which  take notice of a devise for raise portion it be so dark pen that I do not well  understand the meaning of it I think this case differ from ken versus Craig  cite by Mr Moreton for there the testator first charge his land with the  payment of his debt and then devise the estate so charge to a collateral  relation so that be a devise to a stranger the descent be break and there be  no remedy but from the statute and consequent there be a ground for make it  equitable asset but in Freemoult versus Dedire the descent be not break in ken  versus Craig the whole rest upon the statute for not only a devise but a  appointment for payment of debt be enumerate in the enact clause here the  descent be not break and the creditor may have his remedy at law suppose the  testator to have be seize of the legal estate but the second question will be  whether a equity of redemption of a mortgage in fee of a trustestate ought to  be consider as legal or equitable asset vide coal v warden vern Plucknet v  Kirk ibidem Sawley v Gower vern Trevor v Perryor Charles can Barthrop v west  Ch Rep I do agree that if a mere trust estate descend upon a heir at law that  it will be consider as legal and do as equitable asset and this be find upon  the three clause of the statute which give a specialtycreditor his remedy at  law by a action of debt against the heir of the obligor but it have not make a  mortgage in fee of a trust estate subject to the same thing atkins if there be  a mortgage for a thousand year and the reversion in fee leave in the mortgagor  it will be legal asset by where the mortgagor have himself but a term of year  the case of creditor of sir Charles Cox p W Hartwell v chitters Amb because  the bondcreditor may have judgement against the heir of the obligor and a to  be remiss execution till the reversion come into possession but where it be a  mortgage of the whole inheritance I do not see what remedy a bondcreditor can  have to make it asset at law and if the specialtycreditor shall bring a action  against the heir he may plead riens per dissent atkins er p therefore if the  plaintiff be under a necessity of come here for relief this court will act  accord to it be know rule of do equal justice to all creditor without any  distinction as to priority his lordship declare the will of Thomas Penson  ought to be establish and the trust thereof perform and decree the same accord  and direct a account of his personal estate and to be apply in payment of his  debt in a course of administration and if that shall not e sufficient then a  account to be take of the rend and profit of the testator real estate and to  be apply in payment of the testator debt not satisfy out of his personal  estate acquire step and in case the personal estate and rend and profit of the  real estate of the testator shall cc not be sufficient to pay his debt it be  order with the consent of the mortgagee that the real estate shall be sell and  the money arise by the sale after payment of the mortgage be direct to be  apply in discharge of what shall be remain due to the other creditor of the  testator acquire step and if any of the creditor by specialty have exhaust any  part of the testator personal estate in satisfaction of their debt then they  be not to come upon or receive any further satisfaction out of the testator  real estate until the other creditor shall thereout be make up equal to they  Reg lib b fol