
    Depau against Moses and others.
    
      May 11.
    Where the testator devised his real and personal estate to his executors» for the payment of his debts ; on a hill for an account, stating, that the ex" ecutors refused to distribute the personal estate, and to sell and distribute the proceeds of the real estate rateably among the creditors, and 'threatened to transfer it, to secure certain favourite creditors, who were entitled to no preference at law or in equity, the court granted an injunction to restrain the executors from selling or disposing of the estate.
    But whether this court will, in such a case, at the instance of a creditor, compel a rateable distribution of assets by the executors/ Quare,
    
    BILL stating that the plaintiff sues as well on behalf of himself, as of the other creditors of Isaac Moses deceased, who shall come in and contribute to the expenses of the suit; and that Isaac Moses, together with Moses L. Moses and David Moses, two of his sons, traded under the firm of Isaac Moses Sons, and became indebted to the plaintiff and others, in divers sums of money; to the plaintiff in 4,650 dollars, by a promissory note to him, and payable on the 15th of April, 1818. That the firm became indebted to various persons, to 200,000 dollars and upwards, and after-wards stopped payment, and became utterly insolvent. That subsequent to such insolvency, the said Isaac Moses died, on the 16th of April last, leaving Mary Moses his widow, and the other two defendants aforesaid, together with Hyman Moses, Joshua Moses, Maria Levy, (wife of Aaron Levy,) B.ebecca Moses, Lavinia Moses, Sally Moses, and Saul Moses, his children, and leaving a will, whereby he devised his real and personal estate to his executors, for the payment of his debts, and particularly of the debts of the firm; and appointed the three defendants his executors. That the will has not been proved, and is kept concealed by the defendants, and the plaintiff cannot state its contents more precisely. That by the ivlll, the real and 
      
      personal estate was made equitable assets. That the de~ fendants have refused to distribute the personal estate, and to sell and distribute the proceeds of the real estate rateably among the creditors; but declare, that they will secure certain favourite creditors, who have no legal or equitable priority, and will assign the estate to some trustee for such favourite creditors, in fraud of the other creditors. ,
    Prayer, that the defendants may account with the plaintiff and the other creditors, who shall come in and contribute, and pay them in equal and rateable proportions; and for an injunction, restraining the defendants from selling or transferring the real and personal estate, except under the direction of this court, and that they may be compelled to sell the real and personal estate under such direction, and bring the proceeds into court, to be applied to the entire, or rateable payment of the plaintiffs, and such other creditors as shall come in and contribute as aforesaid, and that until such sales, a receiver may be appointed to receive the rents, issues, and profits, &c.
    
      T. Jl. Emmet,, for the plaintiff,
    moved for an injunction, on the ground that the will made the real estate equitable assets, and that the personal estate was devised for the payment of the debts: Independent of the will, he contended, that equity would enforce equality in the, application of assets, and referred to the opinion of Sir J. Mansfield in 1 CampbeWs N. P. 148. and who, he said, was one of the best Chancery lawyers in England, in his day.
    He contended, that equity would equally restrain a creditor from seeking, by legal process, to acquire a preference, and an executor from giving it voluntarily; that Chancery even would consider deeds for the purpose of preferring creditors who had no legal or equitable priority as fraudulent.
   The Chancellor,

without giving any opinion on the suggestions of the counsel, thought the bill contained ground for an injunction, and referred to what he had said in the case of M’Kay v. Green.

Injunction granted. • 
      
      
        Ante, p. 56.
     