When however the real estate is devised away, the right of a legatee differs from that of a creditor. The devisee has an equal claim as an object of the testator's bounty to have his estate, as the legatee to have his legacy; and there can be no reason for favouring the latter at the expense of the former. If therefore a man devises his real estate, and gives general pecuniary legacies not charged on that real estate, and dies leaving specialty debts, and the specialty creditors exhaust the personal estate; the legatees shall not stand in their place, and come upon realty. But if, though specifically devised, the land is made subject to all debts, that distinguishes the case; for there is a double fund; and the creditor shall not disappoint the legatee. It is the same also, where, instead of the case of a mere specialty creditor, the land specifically devised is subject to a mortgage by the testator: there he shall not disappoint the legatee. A wife in regard to her paraphernalia is entitled to stand in the place of a specialty creditor against assets descended. Bona paraphernalia, it has been held, are not devisable by the husband from the wife, who as to these has been looked upon in the nature 264. Masters v. Masters, 1 P.W. 421. Bligh v. E. Darnley, 2 id. 620. Hanby v. Roberts, Ambl. 127. 1 Dick. 104. Norman v. Morrell, 4 Ves. 769. a Ambl. 129. 1 Dick. 105. Herne v. Meyrick, 1 P.W. 201. 2 Salk. 416. Clifton v. Burt, 1 P. W. 678. Pr. Ch. 540. Haslewood v. Pope, 3 P. W. 322. Keeling v. Brown, 5 Ves. 359. b 8 Ves. 397. Foster ". Cook, 3 Bro. 347. Bradford v. Foley, and of a creditor, and as having a right to be reimbursed to their value out of the real estate, if charged with debts.b If the real estate is devised to the heir in tail, the assets will not be marshalled for legatees: nor will they, it has been thought, if the estate be devised to him in fee; for though he takes by descent, yet the devise is sufficient to manifest the intention of the testator that the heir should have the land as much as the legatees their legacies." Hyper Sunni- It has been doubted whether the lien, which -ker 2 mg the equity gives the vendor of an estate for his purchase money, is such a charge as to entitle third persons to call for a marshalling of the assets; so that if the vendee die, and the purchase money is afterwards paid out of his personal estate, his legatees can stand in the place of the vendor against the estate. Lord Hardwicke is reported to have said that this equity would not extend to a third person; that it was confined to vendor and vendee; and if the vendor should exhaust the personal assets of the purchaser, a legatee would not be entitled to stand in the vendor's place, and to come upon the purchased estate. But Lord Eldon observed, that the lien of the vendor was in equity very like a charge; and the cases of marshalling seemed to have gone this length; that where there was a charge upon an estate descended, a a 1 P.W. 730. 2 Atk. 78. 3 id. 369, 395. b Probert v. Clifford, ante 359. Incledon v. Northcote, 3 Atk. 430. Boynton v. Parkhurst, 1 Bro. 576. 1 Cox, 106. Herne v. Meyrick, 1 P.W. 201. 2 Salk. 416. d3 P.W. 367. N.A. Scott v. Scott, 1 Ed. 458. Ambl. 383; on which see the note to Doe v. Timins, 1 B. and A. 542. • Pollexfen v. Moore, 3 Atk. 272; and see Coppin v. Coppin, 2 P.W. 291; and Mr. Sugden's observations on these cases. Vend, and Purch. Chap. 12. 2. legatee should stand in the place of the person having that charge, resorting to the personal estate.” Sir W. Grant also held that creditors were entitled to avail themselves of this charge upon the general principle of marshalling; and Lord Eldon subsequently again observed, alluding to the case before Lord Hardwicke, that if the meaning was, that he (Lord Hardwicke) would follow the case of Coppin v. Coppin, and that if the vendor exhausted the personal assets, the legatee of the purchaser should not come upon the estate, there was great difficulty in applying the principle; as it would then be in the power of the vendor to administer the assets as he pleased; having a lien upon the real estate to exhaust the personal assets, and disappoint 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 was anomalous.a Where also a man, after reciting by his will that he had contracted for the purchase of an estate, directed his executors to pay the purchase-money, and devised the estate to his natural son, and gave several legacies; and the personal estate was about sufficient to pay either the purchase-money, or the legacies, but not both the Master of the Rolls held it to be a case for a rateable contribution between the devisee and the legatees. When the real estate is charged in aid of the personal for the payment of legacies, and a legacy is given payable at a future time, the Court will not marshal the assets so as to turn such legacy upon the personal estate, in which case it would be vested and transmissible; while, as against the real estate, it would sink by the death of the legatee before the time of payment." Lord Hardwicke in one case appears to have thought differently; but Lord Loughborough said the point was of little moment in that case, and he would not follow it to introduce a new rule as to marshalling, and charge the real estate indirectly.d e It seems also now to be settled, notwithstanding several former opinions to the contrary, that assets will not be marshalled or arranged in favour of a charity. If a legacy to a charity is charged upon land it has been justly said, that to marshal the assets would be to support a legacy contrary to law, and to evade the statute of mortmain: or where the charity is only residuary legatee, there can be no reason for the Court doing for it what it would not do for any one else. But that in the case of a mere personal bequest a charity shall not be entitled to the same equity as any other legatee, seems to be going a great way. Accordingly where Lord M. by his will charged his real estate with the payment of his debts and Vid. ante 172. ↳ Prowse v. Abingdon, 1 Atk. 482. Ord v. Ord, 2 Dick. 439. с Reynish v. Martin, 3 Atk. 330. 1 Wils. 130; and see Keily v. Monck, 3 Ridg. P. C. 251. Pearce v. Loman, 3 Ves. 135. e See Att. Gen. v. Ld. Weymouth, Ambl. 25. Att. Gen. v. Graves, id. 158. 1 Coll. Jur. 451. v. Tomkins, Ambl. 216. James, cited 2 Dick. 476. Att. Gen. v. Caldwell, Ambl. 635. Negus v. Coulter, 1 Dick. 326. Att. Gen. v. Att. Gen. Martin, cited 3 Bro. 377. High. on f See Mogg v. Hodges, 2 Ves. 52. 1 Coll. Jur. 442. Waller v. Childs, Ambl. 524. Foster v. Bladgen, id. 704. Hillyard v. Taylor, id. 713. 2 Dick. 475. Foy v. Foy, 1 Cox, 163. Makeham v. Hooper, 4 Bro. 152. See Arnold v. Chapman, 1 Ves. 108. Att. Gen. v. Tyndall, 2 Ed. 207. Att. Gen. v. E. Winchelsea, 3 Bro. 374. Att. Gen. v. Martin, id. 377, cited. Att. Gen. v. Hurst, 2 Cox, 364. legacies, except three legacies given for charitable purposes, which three legacies he directed to be paid out of his personal estate: Lord Northington decreed the charity legacies to stand in the place of the specialty creditors, for what they should exhaust of the personal estate." However in a case before Lord Kenyon, in which the question was, whether the Court would marshal or make any arrangement of assets, so as to assist charitable legacies: his Lordship said, that whatever, difference of opinion there might have formerly been upon the subject, he considered it to have been the established law of the Court from Lord Northington's time, not to marshal or arrange assets in favour of a charity." SECTION V. Of the Executor's Assent. C ALL the personal estate of a testator devolves upon the executor as a trustee: he alone has a title in law to every thing bequeathed, and nothing passes to a legatee without his assent. If a legatee take possession of the thing devised without such assent, the executor may have an action against him; or if he enters into a term he may be considered as a disseisor. Neither can he retain possession of a chattel bequeathed to him, which happens to be in his possession at the testator's death, notwithstanding the |