ambler case forester against Lord leigh in chancery June lib Reg a foe b  Charles leigh be seize of a real and personal estate and be indebt by mortgage  contract by himself and in other mortgage contract by the former owner on part  of his real estate from who he purchase and also in simple contract debt by  will of that July after give several specific legacy to lady Barbara his wife  and several legacy to plaintiff the will go on touch and concern all his real  estate both freehold and copyhold in the county of Bedford and all other his  real estate in the county of buck Hertford Warwick and Chester or elsewhere in  England whereof he or any in trust for he be seize in possession reversion or  remainder except the several church and college lease therein after mention he  give the same to his wife for life remainder to Thomas Lord leigh for life  remainder to trustee c remainder to second three four c son of Thomas Lord  leigh other than the old son remainder to testator right heir Thomas Lord  leigh be dead leave defendant Lord leigh his only son bill by plaintiff to be  pay their legacy and in case any of the personal estate shall be exhaust in  payment of debt by specialty that plaintiff may stand in the place of such  creditor and be pay out of the real estate four question be make by Mr  solicitorgeneral saint whether plaintiff as legatee have right to stand in the  place of creditor d whether the personal estate of Charles leigh be liable to  those mortgage which be contract on the estate by the former owner ambler d it  appear testator have give a bind for pound to Lord Scarborough in trust for  lady Barbara whether the bequest in the will shall be a satisfaction for that  bonddebt or if not whether the plaintiff shall stand in her place as to that  bonddebt and be pay so much out of the real estate that whether a house hold  by lease for year from sir Robert Grosvenor be consider as specifical devise  but the three point of satisfaction be give up the Lord chancellor after  argument at the bar deliver his opinion there be several question saint  whether plaintiff be entitle to marshal the asset and to stand in the place of  the specialty creditor general d if the house in Brookstreet be to be take as  part of the real estate that be chattel real saint shall consider the question  as contend that be to stand in the place of bind creditor not accompany with  mortgage where there be a devise of land d shall consider it where there be  mortgage to the saint No authority go so far they be otherwise the heir at law  always have a right either in case of mortgage or not to have the inheritance  exonerate from debt by the personal estate this question can never arise with  respect to devisee before the statute against fraudulent devise for the  descent be break and the devisee do not want such aid cope v cope salk anon Ch  can Culpepper v Ashton ib haslewood v pope p W Scott v Scott post oneal v mead  p W Davis v gardener p W rider v wager ib tweddel v tweddel bro c c see haw v  Warner bro p c Edward Toml p aldrich v Cooper Ves spong v spong I you I quere  if since that statute in case of devise of land and sufficient personal estate  to pay all the debt and be exhaust by they whether pecuniary legatee have a  right to stand in the place of specialty creditor and have satisfaction out of  the realty devise ambler Clifford v burt p wms be a determination to the  contrary the statute make such devise fraudulent against creditor I only not  against legatee ambler er p the reason of Lord Talbot in Lutkins v leigh be  such forester report he distinguish between a mortgage and a bind debt in  respect of pecuniary legatee stand in the place of such specialty creditor  Herne v Merrick p wms salk pale yellow Ch can Eq can Abr be determine  different and though the master of the roll decree be not reverse yet in  Clifford v burt I p wms Lord Harcourt determine contrary to it and there be no  difference between the case from any particularity in either Clifford v burt  be allow in Lutkins v leigh so it be in case of a specific legacy there be no  reason that pecuniary legatee shall break in upon the devisee the justice will  be for all to abate in proportion but no such decree be ever make but see long  v short p wms haw v Warner vern S c bro c p Edward Toml p it may be that the  value of the whole devise may be take to satisfy pecuniary legacy objection  that the devise here be not specific but of opinion every devise of land be  specific see per Lord Eldon in Milnes v slater Ves see spong v spong I you I  bridge v duke of chandos Ves jun see p wms p wms v b Ves bro every legacy of a  personal estate be not because personal fluctuate and vary land do not for no  more passes by a will than the testator have at the time of make his will  former a devisee can not have aid of the personal but afterward as in Cornish  v mew in Ch can and Pockley v Pockley vern it be hold a particular devisee of  land shall have aid of the personal estate d question as to the mortgage they  be of two sort saint those which be contract by the testator himself d those  contract by the former owner of the estate see the statement of the case from  l b infra note see Sugd vend the covenant for payment of those mortgage enter  into by the former owner will not bind the personal estate of Charles leigh  they be enter into to visit look at the two purchaser do it to indemnify each  other the debt be apportion on each part and leigh covenant to pay his  proportion or to indemnify the purchaser of the other part of the estate where  a estate descend subject to a mortgage if nobody will take assignment of the  mortgage without the heir at law covenant to pay such covenant only subject  his personal estate collateral ambler of opinion plaintiff have a right to  stand in the place of the mortgagee to have satisfaction out of the real  estate for what they shall exhaust of the personal there be a difference as to  the bind debt a mere specialty debt be no lie on land in the hand of the  obligor his heir or devisee Coleman v winch p wms Troughton v Troughton atk  see price v Fastnedge post see powell mortgage a mortgage be a lie and a  estate in the land by devise of land mortgage nothing passes in point of law  but the equity of redemption if it be a mortgage in fee if for year the  reversion and equity of redemption passes before the statute of fraudulent  devise the devisee of mortgage land can not take in prejudice of simple  contract creditor he must have come here for benefit of his devise and then  the court will have make term for the simple contract creditor that be that  they shall stand in the place of the specialty creditor the determination in  Clifton v burt p wms be right and find on its not be a mortgage here be a  devise to lady Bab for life reversion to the heir at law the plaintiff may  stand in the place of the bind creditor against the heir at law and then the  question will be whether lady Bab shall be contributory will reserve that  consideration till it be see whether there will be sufficient to pay without  it d question as to the house the testator intend a specific devise only of  the renewable lease and that the house shall pass by the residuary bequest of  the personal estate if he have intend it specific yet the word be not  sufficient decree c N B Mr solicitorgeneral say the roll have be search and it  do not appear the decree in Hern v Merrick be reverse by Lord Harcourt as say  in Eq can a vide parson v freeman Oct distinction where one purchase the  equity of redemption with covenant to pay off the mortgage and where one  contract for the whole estate at a certain sum and covenant to pay part of it  to the mortgagee and the rest to the seller Amb see Evelyn v Evelyn p wms wear  v ware Ves jun Lord Oxford v lady Rodney Ves Sugd vend ambler er p the bill be  file by c forester and I price on behalf of themselves and all other the  legatee of the testator who legacy be valid the testator after give to his  wife and the plaintiff and to several other person legacy to a considerable  amount proceed to devise as mention in the text and then after recite that he  be entitle to a freehold lease of land at Leighton for three life from the  prebendary or church of Lincoln and to another lease for twentyone year from  the dean and chapter of Windsor of land in the same place he give the same to  his trustee on trust for the person to who he have before give his land of  inheritance for the same estate as he have give they respective as near as can  be and he give the residue of his personal estate to his wife and appoint her  his executrix it also appear from lib Reg that the devise estate be subject to  two mortgage of pound and pound create by the testator and that the manor and  land of leigh part of the estate devise be purchase by the testator under a  decree subject to a mortgage to one Barecroft of pound under the same decree a  manor and land of Dalton be purchase by a person of the name of Lant the whole  of the land at leigh and Dalton be sell subject to judgement debt of the owner  to the amount of pound S and a agreement be enter into between Lant and the  testator by which it be agree that part of that sum shall be charge on the  Dalton estate and pound S the residue on the leigh estate and mutual covenant  be enter into by the testator and Lant to pay the respective sum so agree to  be charge on their respective estate and to indemnify each other against any  claim by the judgement creditor on the several estate beyond what it be agree  shall be bear by they respective the bill charge that the covenant so enter  into by the testator never be intend to make he personal a debtor for the say  sum of pound S yet that if the judgement creditor shall attempt to levy more  on the say manor of Dalton than by the say agreement be intend that such  attempt will be in favour of the devisee of the say manor of leigh or the heir  at law of the say testator and that if any demand shall be make by Lant on the  personal representative of the testator for a breach of the covenant and he  shall recover for any such damage then it be submit that the same ought to be  repay out of the rend and profit of the say manor of leigh the decree after  direct the usual account be as follow as to the mortgage or encumbrance on  part of the say testator real estate for certain sum of money due to the say  Barecroft and Nelthorpe the judgement creditor respective his lordship do  declare that as between the plaintiff and defendant they be not to be consider  as debt to be satisfy out of the testator personal estate but this be to be  without prejudice to any other person but as to the other mortgage on the say  estate which be create by the testator himself his lordship do declare that  they be to be consider as debt to be satisfy out of the personal estate of the  say testator in respect of the mortgagee but in case the say mortgagee as  specialty creditor shall exhaust a his part of the say testator personal  estate for their satisfaction then his lordship do declare that the plaintiff  or the other legatee who legacy be good and valid have a right to stand in the  place of the mortgagee to receive a satisfaction out of the real estate  comprise in the say mortgage for their legacy so far as the personal estate  shall be exhaust by such mortgage and as to the other specialty debt of the  say testator not secure by any mortgage or encumbrance on the say real estate  in case the say specialty creditor shall exhaust any part of the say testator  personal estate that these legatee be entitle to receive satisfaction out of  the reversion in fee of the say testator real estate which by the event which  have happen have descend to the defendant Lord leigh as his heir at law and as  between lady b leigh and the defendant Lord leigh whether there ought to be  any contribution by the defendant lady b leigh out of her life estate and in  what proportion towards the money to be raise for such purpose his lordship do  reserve the consideration until after the master shall have make his report it  be also declare that the devise of the house in Brookstreet be not a specific  devise but pass as part of the personal estate not specifical bequeathe there  be no mention of the house in the will as give in the register book but it  appear from the answer of the lady leigh that it be hold by the testator on a  lease for twentyone year ambler er p