appoint all the creditors; who, if he had resorted to his lien, would have been satisfied; and in that respect, with reference to the principle, the case is anomalous."

The cases seem now, however, to have clearly settled, that the vendor's lien will prevail, not only against the purchaser, but also against his heirs, and every person claiming through him, and even against a purchaser, for a valuable consideration, with notice. The only question, therefore, now is, not whether this lien extends to the purchaser, and those claiming through him, but admitting the general lien to that extent, whether the real and personal estate of the purchaser shall be so marshalled as to throw the lien on the real estate for the benefit of legatees of the purchaser: a question, it will be observed, between volunteers, all of whom derive their interests from the testator. It seems to be admitted, that assets would be so marshalled in favour of legatees, where the lien is an equitable mortgage, as well as where it is a legal mortgage; and there appears not to be any substantial difference between an equitable mortgage and the vendor's equitable lien for his purchase money unpaid, which is, by construction of equity, a charge upon the estate in the hands even of a purchaser, for a valuable consideration with notice: it would, therefore, seem to follow, that no substantial reason can be given against the marshalling of assets in this case. The only plausible objection against it was urged arguendo in the case of Coppin v. Coppin, and is forcibly stated by Mr.. Sugden, in the discussion before alluded to, on the ground of the Statute of Frauds; but no practical inconvenience is likely to arise on this head. The authorities, therefore, may be considered, as having established the rule as to marshalling assets in favour of legatees, in the case of the vendor's lien in opposition to the case of Coppin v. Coppin, and the dictum of Lord Hardwicke in Pollexfen v. Moore. But, if the point is yet to be thought doubtful, at least the weight of authority is in favour of the rule, that the purchased estate, in respect of the vendor's lien for purchase money unpaid, shall be marshalled, so as to keep the heir or devisee to the estate; or, if they resort to the personalty for payment of the lien, the legatees may stand in their place, and resort to the purchased estate to the amount of the personal assets applied in discharge of the purchase money. SECT. III. The marshalling of assets in favour of legatees, where the real estate is neither charged with debts nor legacies, nor subject to a specific lien, but there is merely a general lien on the real estate, which descends to the heir. The next rule is, that assets are marshalled in favour of legatees, where the real estate is neither charged with debts nor legacies, nor subject to any specific lien, but there is a general lien and the estate descends to the heir. This rule was stated by Lord Hardwicke, in Hanby v. Roberts,(n) thus; if there be debts by specialty and legacies, and no devise of the real estate, but it descends, if the creditors exhaust the personal estate, the legatees may stand in their place, and come upon the real estate: This is against an heir-at-law. In the case of Aldrich v. Cooper,(0) Lord Eldon observes, "In the (n) Amb. 127. (0) 8 Ves. 396,

cases of legatees, against assets descended, a legatee has not so strong a claim to this species of equity as a creditor; but the mere bounty of the testator enables the legatee to call for this species of marshalling; that, if those creditors, having a right to go to the real estate descended, will go to the personal estate, the choice of the creditors shall not determine, whether the legatees shall be paid or not."(p)

The rule was admitted in the case of Scott v. Scott.(g) There Scott devised to Henry his eldest and only son by a former wife, and to his heirs and assigns, all other his real estate not before devised; nevertheless, in case he should die without issue, not having attained twenty-one, then immediately after his death under age and without. issue, unto the testator's son William and the heirs male of his body, with remainders over. The eldest son attained twenty-one. The specialty creditors, not having a lien on the estate, having exhausted the personal estate in satisfaction of their demands, the legatees contended to stand in their place, and come upon the real estate. The question was, whether the eldest son took by devise or descent; in the latter case, the legatees would be entitled, in the former not. And the Lord Keeper Henley, after having taken time to consider the point, gave his opinion, that the eldest son took by devise, as having under the will a different estate from that which would have descended to him; the one being pure and absolute, the other not.

SECT. IV. Exception, where the estate is devised.

But where the estate is neither charged with debts, nor legacies, nor subject to any specific lien, but there is only a general lien on the estate, and the estate does not descend to the heir, but is devised to a stranger, or to the heir taking as a devisee, the assets are not marshalled at least in favour of general legatees, so as to throw the general bond creditors upon the real estate. The reason is, that the will affords evidence of as strong an inclination on the part of the testator in favour of a specific devisee, as of a general legatee.

Thus, in the case of Clifton v. Burt,(r) John Bignold devised all his estate in Morrow and Stoke, to his son John Bignold, in tail, remainder to Joseph Burt in fee. He also devised his copyhold estates, which he had before surrendered to the use of his will, to his said son J. Bignold, in tail, remainder to the defendants Joseph Burt, James Burt, and Elizabeth Horsnaile, and their heirs, (subject to the annuity therein mentioned,) to the intent to sell the copyhold, and to apply the money to make good his debts and legacies, and he devised the residue to Joseph Burt, James Burt, and Elizabeth Horsnaile, equally. The testator further devised to the plaintiff, 500l. within three months after the death of the testator's son, if he died under age, and unmarried, in which case, he directed that all his personal estate, beyond what would pay his debts and funeral expenses, and the 5001. and the other legacies given by his will, should be equally divided among Joseph Burt, &c. and he appointed the plaintiff and two other persons executors. The son died under twenty-one; Lord Harcourt decreed, that the rents of the

(1) See also Herne v. Meyrick, 1 P. Will. 202.
(9) Amb. 383.
(r) 1 P. Will. 678.

real estate, together with the personalty, should be applied in payment of debts and legacies; but in case of deficiency, and if it appeared that any of the specialty creditors had been paid out of the personal estate, then the simple contract creditors and legatees were to stand in their place, and have satisfaction out of the real estate so far as the personal estate had been applied in payment of such debts, in equal proportion. Upon an appeal from this judgment, Lord Chancellor Parker reversed so much of the decree, as directed a sale of the freehold estate for the satisfaction of the legacy of 500l. and observed; First, that although equity will marshal assets in favour of a legatee, as well as of a simple contract creditor, yet every devisee of land is as a specific legatee, and should not be broken in upon, or made to contribute towards a pecuniary legacy. Secondly, that it was a rule, that if one give a specific legacy of a horse or diamond, and also a pecuniary legacy of 500l. to B. and there were not assets to pay both, still the specific legatee should be preferred, and have his whole legacy; for were the executor to make him contribute towards the pecuniary legacy, this would be, pro tanto, to make such specific legatee buy his legacy, against the manifest intention of the testator. Thirdly, that if a specific personal legatee should not contribute towards a pecuniary legacy, much less should a specific devisee of land. Fourthly, that if in the principal case the testator had devised the 500l. to A. and a term of five hundred years to B., without leaving assets to pay the 500l. still the specific legatee of the lease ought to prevail, without contributing towards the pecuniary legacy, and if such pecuniary legatee should not break in upon a specific legatee of a term, a fortiori, he should not disappoint the will as to a devise in fee, which was to be favoured more than the devise of a term, in regard it was with more difficulty that a Court of Equity, in any case broke in upon, or charged, the real estate.

But there appears to be a distinction in the application of the preceding rule, as to marshalling in favour of specific legatees; for in that case it seems, that the real and personal assets specifically devised and bequeathed, will, upon failure of the general personal estate, be so far marshalled, (if indeed that term can in strictness be applicable,) that the specific devisee and legatee shall, each in proportion to the value of their respective gifts, contribute to the payment of the specialty debt. But with respect to a simple contract creditor, the exception is not admitted; for he must resort alone to the personal estate specifically bequeathed, as that is the only fund liable to his debt. This exception, in favour of the specific legatee seems more properly to fall under the doctrine of abatement, before discussed in Chap. V. sect. 2.(s)

The case of Long v. Short,(t) seems to establish the above exception. In that case, David Long, seised in fee of some lands, and possessed of a lease for years in other lands, and being indebted by specialty and simple contract, devised a rent-charge of 401. a year, out of the lease for years to one grandson, the lease itself to another grandson, and all his land in fee to the plaintiff and his family in (t) 1 P. Will. 403.

(8) p. 253.

strict settlement. None of the devisees were the testator's heir, and the will was made since the statute for relief of creditors against fraudulent devises. (u) There being a deficiency of assets to pay debts, the question was, whether they should be charged on the freehold or the leasehold estate? And it was decreed by Lord Cowper C., First, That the devise of a rent-charge out of a term, was as much a specific devise, as if it had been of the term itself. Secondly, That the devise of a term for years was as much a specific devise as a devise of land in fee; wherefore each being equally specific devises, it would, in this case, be an equal disappointment of the testator's intention to defeat either, by subjecting it to the testator's debts. Thirdly, That since the statute of Fraudulent Devises, lands in fee were equally subject to debts by specialty in the hands of the devisee, as leases in the hands of the executor or legatee were to debts by simple contract at common law; so that, to prevent the disappointment of the testator's intention, the Court thought it reasonable, that the devisee of the fee simple estate, and the devisees of the lease and annuity, should respectively contribute to the debts by specialty, in proportion to the value of the premises; but that as to the debts by simple contract, if there should not be enough besides to pay them, they should fall upon the leasehold premises only. It was objected, that the fee simple lands ought to be more favoured than any of the personal estate and leases, for that the latter had always been decreed to go in aid of the former, and therefore, in this case, the leasehold estate ought to bear all the debts by specialty, as far as it would extend. But this objection was overruled by the Lord Chancellor, for that it might utterly disappoint the testator's intention in providing for his grandsons out of the lease; though his Lordship allowed, that if the devise had been to B. of all the rest of the testator's lands, it would have been a residuary, not a specific devise, and the devisee should not have come in till after the debts by specialty or otherwise had been paid out of his inheritance.

The fifth resolution in Haslewood v. Pope, (x) may probably at first sight be considered at variance with the case last cited. That resolution was in these words: "Where a man dies indebted by bond and leaves a personal estate, and devises lands to J. S. in fee, and gives specific legacies, and the creditor by bond comes on the personal estate to be paid his bond; the specific legatees shall not stand in the place of the bond creditor, to charge the land devised, because the devisee of the land is as much a specific devisee as the legatee of the specific legacy." It is presumed that Lord Talbot, in the expression "the specific legatees shall not stand in the place of the bond creditors to charge the land devised," must have intended, not that the devisee should not contribute, but that the specific legatee had no right to have the assets marshalled against the specific devisee, so as to throw the bond debt exclusively upon the real estate devised, to the exoneration of the personalty specifically 'bequeathed. In this qualified sense, the resolution in question and the case of Long v. Short probably may be reconciled, but the point cannot be considered free from doubt. The two authorities last (x) 3 P. Will. 322.

(u) 3 Will & Mary, ch. 14.

cited are clearly distinguishable from the case of Clifton v. Burt,(y) which decided that, in the absence of any charge of debts, or any specific lien upon the estate devised, specialty debts should not be thrown on the devised estate, in favour of a general legatee.

SECT. V. The extent to which equity will permit legatées to stand in the place of specialty creditors.

Having considered, in the preceding sections, in what cases equity will and will not marshal assets in favour of legatees, as between them and specialty creditors; we proceed to inquire, to what extent it will permit the legatees to stand in the place of specialty creditors, in those cases, where the assets are thus marshalled. The rule of the Court is, that legatees shall not be entitled to any greater privilege or advantage than the creditors themselves would be entitled to, from the amount or nature of their securities. The subject has been in a manner anticipated in the preceding sections, and sufficient cases have been adduced to show, that the legatees are entitled to resort to the real estate, only to the amount of the specialty debt or lien upon the real estate, in discharge of which the personal estate may have been previously applied. It remains further to remark, that if a creditor cannot, under his contract, affect the real assets in the hands of the heir or devisee, with the payment of his debt, a legatee who merely stands in his place, and upon the same terms, cannot be in a better situation. This is the case with all debts by simple contract, or by specialty, where the heir is not expressly bound by the contract; and, if so with them, legatees must be in the same predicament.

The case of Lacam v. Mertins(z) illustrates this rule with respect to a simple contract creditor, and may therefore be applied to the case of a legatee. In that case, Mrs. Hay, in the life of her husband, levied a fine of her estate, making it subject to a debt of 2000l. which had been contracted by her husband. After his death, she borrowed a further sum of 400l. and by an indorsement agreed, that the estate so pledged should stand charged with this 400l. and not be redeemed without payment of all these sums. The question was, how far simple contract creditors were entitled to come upon her real estate, in the place of specialty creditors. And by Lord Hardwicke, C., it was observed, "The rule of the Court, as to marshalling assets, and directing simple contract creditors to stand in the place of specialty creditors, pro tanto, to receive satisfaction, is a very just and beneficial rule, and ought to be adhered to; and the Court leans and endeavours to bring creditors within that rule, and extends it that all the creditors may receive satisfaction: yet it must be as between the real and personal assets of a person deceased; for the Court has no right to marshal the assets of a person alive; it not being subject to such a jurisdiction of equity till the death. Nor can the court extend this relief to creditors, further than the nature of the contract will support it; therefore it must be a specialty creditor of the person whose assets are in question, such as might have remedy against both the real and personal estate, or either, of the debtor deceased: it not being every specialty creditor, (y) Supra, p. 636. (z) 1 Ves. sen. 312.