Statement of Facts. "Third. I hereby appoint said Cyrenius Beers executor of this my last will and testament, hereby waiving from him all bail and security, as I have a right to do under the statute in such cases made and provided, as such executor. "In witness whereof I have hereunto set my hand and seal this fourteenth day of September, in the year of our Lord one thousand eight hundred and sixty-nine. "MARY BEERS. [SEAL.] "The above instrument, consisting of three pages, was, at the date thereof, declared to us by Mary Beers, the testator therein mentioned, to be her last will and testament, and she at the same time acknowledged to us, and each of us, that she had signed and sealed the same, and we thereupon, at her request, and in her presence, and in the presence of each other, signed our names thereto as attesting witnesses. Cyrenius Beers, the husband, accepted the trust, and duly qualified as executor and administered upon the estate, and was discharged on the 20th September, 1877. When the debt secured by the mortgage matured on the 24th February, 1874, it was not paid; but instead thereof Beers on that day entered into a written agreement with the company, in which, after reciting the execution of the bond, and that it was wholly unpaid, and the execution and delivery of the mortgage "by the said Cyrenius Beers and Mary his wife," "to secure the payment thereof," it was agreed as follows: "Now, this memorandum witnesseth that the said The Connecticut Mutual Life Insurance Company, in consideration of the covenants and agreements on the part of the said Cyrenius Beers hereinafter contained, the prompt and faithful performance whereof is a condition precedent hereto, and time being the essence of this contract, doth hereby extend and postpone the time of payment of said principal sum of twenty thousand ($20,000) dollars in the condition of said bond mentioned until Statement of Facts. the twenty-fourth day of February, which will be in the year of our Lord one thousand eight hundred and seventy-nine, interest to be paid thereon at and after the rate of nine per centum per annum, half yearly, in the same manner and at the place or places in the condition of said bond mentioned. "And the said Cyrenius Beers, in consideration of such extension of the time of payment of said principal sum, doth hereby convenant, promise, and agree to and with the said The Connecticut Mutual Life Insurance Company, its successors and assigns, that he will well and truly pay the said The Connecticut Mutual Life Insurance Company, its successors and assigns, said principal sum of twenty thousand ($20,000) dollars, on the twenty-fourth day of February which will be in the year of our Lord one thousand eight hundred and seventynine, at the place in the condition of said bond mentioned, and also interest thereon at the rate of nine per centum per annum half yearly, to wit, on the twenty-fourth day of each of the months of August and February, which will be in each and every year during such extended time of payment, according to the tenor and effect of the ten (10) coupons or due-bills signed by said Cyrenius Beers, bearing even date and given herewith; it being expressly understood and agreed by and between the parties hereto that in the event of a failure to pay either or any of said coupons at maturity then, at the election of said The Connecticut Mutual Life Insurance Company, its successors or assigns, the whole of said principal sum of twenty thousand ($20,000) dollars in the condition of said bond mentioned shall thereupon at once become due and payable, and may be collected without notice, together with all arrearages of interest thereon, in the same manner as if said extension had never been granted. "It is further expressly understood by and between the parties hereto that nothing herein contained shall operate to discharge or release the said Cyrenius Beers, his heirs, executors, or administrators, from their liabilities upon said bond, but it is expressly understood that this instrument is to be taken as collateral and additional security for the payment of said bond. "It is also expressly understood and agreed by and between the parties hereto that in the event of a failure on the part of the said Cyrenius Beers, his heirs, legal representatives, and assigns, to fulfil, keep, and promptly perform, as well in spirit Argument for Appellants. as in letter, the covenants in the said mortgage contained, given by said Cyrenius Beers to said company, then, at the election of said The Connecticut Mutual Life Insurance Company, its successors or assigns, the whole of said principal sum in the condition of said bond mentioned shall thereupon at once become due and payable, and may be collected without notice, together with all accrued interest thereon at said rate of nine per centum per annum, anything herein before contained to the contrary notwithstanding." Cyrenius Beers died intestate in February, 1878, leaving the mortgage debt still due and unpaid. The appellants and Charles G. Beers, one of the defendants in the original suit, were his heirs. They were also the children and devisees of the said Mary Beers. Charles G. conveyed his interest in the property to the appellants before the date of the cross-bill. The extension of the mortgage debt in 1874 was made without the knowledge or consent of the appellants or of the said Charles G. Beers. The contention of the appellees was that under the circumstances it operated as a discharge of the mortgage lien. The court below decreed the foreclosure of the mortgage and sale of the mortgaged estate. From this decree the defendants below appealed. Mr. John S. Miller for the appellants. I. Mary Beers occupied the position of surety. The appellants, as her privies in estate, are entitled to every defence which could have availed to her. Bank of Albion v. Burns, 46 N. Y. 170; Smith v. Townsend, 25 N. Y. 479; Gahn v. Niemcewicz, 11 Wend. 312; S. C. 3 Paige, 614; Johns v. Reardon, 11 Md. 465; Purvis v. Carstaphan, 73 N. C. 575; Aguilar v. Aguilar, 5 Madd. 414; Stanford, &c., Banking Co. v. Ball, 4 De G., F. & J. 310; Earl v. Countess of Huntingdon, 2 Bro. P. C., case 1. II. By the extension of the time of payment, the mortgaged estate was released. Bank of Albion v. Burns, 46 N. Y. 170; Smith v. Townsend, 25 N. Y. 479. III. The will devised a life estate to Cyrenius, and remainder to the children. Doe v. Considine, Opinion of the Court. 6 Wall. 458; Doe v. Martin, 4 Term R. 39; Lambert v. Thwaites, 2 Law Rep. Eq. Cas. 151-5; Minors v. Battison, 1 E. L. R. App. Cas. 428. The extension was not authorized by the power in the will. Ward v. Bank of Ky., 7 T. B. Mon. 93; Seitzinger v. Weaver, 1 Rawle, 375; Horwitz v. Norris, 49 Penn. St. 213; Slifer v. Beates, 9 S. & R. 166; Hetzel v. Barber, 69 N. Y. 1. In making the extension, Beers acted solely in his own interest, and not as donee of the power. Sir Edward Clere's Case, 6 Coke R. 17 B.; Andrews v. Emmott, 2 Bro. C. C. 597; Cox v. Chamberlain, 4 Ves. 631; Nunnock v. Horton, 7 Ves. 391; 1 Sug. Pow. *367, *412; Denn v. Roake, 2 Bing. 497; S. C. 5 B. & C. 720; S. C. 1 Dow & Cl. 437; Blagge v. Miles, 1 Story R. 426; Jones v. Wood, 16 Penn. St. 25; Bell v. Twilight, 22 N. H. 500; 2 Story Eq. Jur., § 1062 a; Coffing v. Taylor, 16 Ill. 457; Pease v. Pilot Knob Iron Co., 49 Mo. 124; Mory v. Michael, 18 Md. 227; Maryland Mut. Ben't Society v. Clendinen, 44 Md. 429; Funk v. Eggleston, 92 Ill. 515; Towles v. Fisher, 77 N. C. 437; Blake v. Hawkins, 98 U. S. 315. The power to sell was a naked power not coupled with a trust. Lewis on Trusts, 22, 6th London Ed. 19; 3 Redf. on Wills, 469; Hill on Trustees, 67; 2 Sugden on Powers, 159; Eldridge v. Heard, 106 Mass. 579. Mr. Edward S. Isham for the appellee. MR. JUSTICE MATTHEWS delivered the opinion of the court. After reviewing the principal facts, he said: This extension of the time of payment of the mortgage debt was made without any consent thereto on the part of the appellants. It is claimed on their behalf that, as owners of the estate mortgaged by the testatrix to secure the debt of her husband, they are in a position of sureties, and that the extension of time for the payment of the debt, without authority from them, is, in equity, a discharge of the lien of the mortgage. The appellee insists, in reply to this claim, that the agree ment by which further time was given for the payment of the debt, during which the mortgage was continued in force, was Opinion of the Court. authorized by the will of Mary Beers and binds her devisees. Whether this be so is the precise question we are required to decide. We are reminded, at the outset of the argument, by the counsel for the appellants, that being sureties, they are favorites of the law; that their contract is strictissimi juris; and that nothing is to be taken against them by intendment or construction. It is quite true that "the extent of the liability to be incurred must be expressed by the surety, or necessarily comprised in the terms used in the obligation or contract;" that is, "the obligation is not to be extended to any other subject, to any other person, or to any other period of time than is expressed or necessarily included in it." "In this sense only," continued Mr. Burge, Law of Suretyship, 1st Am. Ed., p. 40, “must be understood the expression that the contract of the surety is to be construed strictly. It is subject to the same rules of construction and interpretation as every other contract." Besides, the rule of construction applies only to the contract itself, and not to matters collateral and incidental, or which arise in execution of it, which are to be governed by the same rules that apply in like circumstances, whatever the relation of the parties. So that the fact that the appellants occupy the relation of sureties cannot control the determination of the question whether the agreement extending the time of payment of the mortgage debt, and the continuance of the mortgage as an encumbrance upon the estate, was a valid execution of the powers conferred by the will of the testatrix. That question must be answered according to its own rules. It is further said, however, on the part of the appellants, that the agreement of February 24th, 1874, cannot be sustained in support of a continuation of the mortgage lien, as an execution of the powers conferred by the will of Mary Beers, because it does not appear that it was so intended by Cyrenius Beers, the donee of those powers. It is argued that the agreement of extension makes no reference either to the power or to the property of the testatrix, which is the subject of the power; that every provision contained in it can have its full operation and effect; that is, all that it professes to do or provide for can |