The present is not a case in which the real estate became equitable assets for the payment of debts.
In order to constitute such a case, there must be a devise to .executors or trustees, in trust to pay debts. This appears by the case of Benson v. Le Roy, 4 J. C. R. 651, where a testator devised his estate, both real and personal, to four trustees in fee, three of whom were his executors, in trust to pay his debts and then to distribute the residue. Here it was held, that the assets were placed under the jurisdiction of the Court of Chancery and became equitable and the creditors were to he paid pari passu. , And in this case of Benson v. Le Roy, the ' court interfered by enjoining a creditor, who was proceeding .at law for the purpose of gaining a preference over other creditors. In some cases, where the estate is charged with the payment of debts generally and the devise is to executors •to sell, by means whereof the descent to the heir is broken, ;the,re the proceeds upon a sale become equitable assets. While *205in other eases, where the descent is not broken and there is a charge for payment of debts and an intention clearly expressed that the property should be sold for the purpose, the same principle attaches: see Lord Eldon’s observations in Bailey v, Ekins, 7 Ves. 323, and in Shiphard v. Lutwidge, 8 Ves. 26.
But the present case is distinguishable from all these, because here there is no devise in trust. It is an absolute one to the two sons in fee, whereby they take as beneficial owners—charged, it is true, with the payment of a legacy and with debts which they were personally liable for at law. There is also in the case before the court a power to sell for the payment of debts, provided the personal estate should prove insufficient. But this is surplusage: as owners under the devise these devisees could sell without such a power, and in case they did not sell or pay the debts they were liable at law. The creditors had and have a perfect legal remedy against them; and when they choose to resort to it, this court will not interfere. They might all engage in the race of legal diligence at one time and the first obtaining judgment would be protected in his priority. Where the law gives a priority, equity will not destroy it: Codwise v. Gelston, 10 J. R. 508. The same principle is fully recognized in Purdy v. Doyle, 1 Paige’s C. R. 558.
In the present instance the creditors prosecuted the devisees at law and recovered judgments. The judgments became liens upon the lands devised: because the legal title was in the defendants. The prosecuting creditors have acquired rights which, as against other creditors, would not be disturbed; much less, then, will this court now interfere in favor of Palmer Canfield, one of the defendants, against whom the judgments have been recovered, although he may be a creditor of the estate. He should have applied earlier, provided he had equities which entitled him to protection; and if he had a right of retainer for his debt, he should have pleaded it at law.
I am satisfied the injunction ought to be dissolved.
The complainants, through one of the answers, have an offer to convey to them upon terms; and which they may accept if they think proper.