castle, Mr. James Smith, draper, Gateshead, Low Fell, and Mr. John Colman, chymist, Gateshead. My widdow shall be principal treasurer, that is, to receive and pay all, subject to the inspection of my trustees. Should anything occur that may be considered an improvement to the property, my widdow, with the consent of two of my trustees, shall be at liberty to make any alteration as aforesaid; if by sale, the money to be invested in some public security for the benefit of the family. This I declare to be my last will and testament, revoking and making void all former wills made by me. Signed, sealed, and declared, this 27th day of May, A.D. 1845. And I do hereby subscribe my name in the presence of the following witnesses, whose names are herein written, and in the presence of each other. "Witness, Luke Blenkinsopp, "William Gibbon. "Matthew Thomas Clark." This will was proved at Durham on the 8th of February, 1847, by the defendant Maria Gibbon, widow, the sole executrix according to the tenor named in the said will, to whom administration was granted, she having been duly sworn, as usual. Effects sworn under 40001. Testator died 26th of December, 1846. At the time of the testator's death, there was due to him as such mortgagee in possession, the sum of 597. 16s. 10d., of which the sum of 381. 10s. 1d. was for interest which had become due in his life-time; and the sum of 211. 6s. 9d. was for money paid, and money due and owing by the testator, in his life-time, as such mortgagee in possession, to tradesmen, for repairs of the mortgaged property. The personal estate of the testator not specifically bequeathed, was more than sufficient to liquidate his debts; and the defendant, as executrix, paid thereout 1853. GIBBON, 1853. GIBBON, the said several debts due by the testator to tradesmen, for work done to the said property, and the other debts of the testator. The plaintiff entered into possession of the said property in Percy Court immediately on the testator's death, or into receipts of the rents thereof; and he received for his own use the said sum of 381. 10s. 1d. which had accrued due in the testator's life-time as aforesaid. The defendant, as executrix, being in possession of the mortgage-deed and the other deeds relating to the mortgaged property, refused to give them up to the plaintiff, unless and until she was paid the sum of 387. 10s. ld. for arrears of interest, and the sum of 211. 6s. 9d. paid and incurred for repairing the mortgaged property, making together the sum of 597. 16s. 10d.; and, after some negotiation between the parties and their solicitors, the plaintiff, in order to obtain possession of the deeds, and protesting against the right of the defendant to such payment, and in consequence of the defendant's refusal to give up the deeds, paid the defendant the said sum of 591. 16s. 10d., and thereupon received his deeds. The following is a copy of the account, shewing the items claimed by the defendant and paid by the plaintiff: : "Mr. Joseph Hedley Dr. to Maria Gibbons. "1846. Dec. 26. Balance of interest "Mr. Grant's bill for joiner's work "Mr. W. Hymer's, for grate. 38 10 1 10 5 3 1 2 6 "Weatherhead's bill, mason work, &c. 4 4 0 "Ormston, bill for painting 5 15 0 £59 16 10 This action was brought to recover back the sum of 50%., the unabandoned part of the payment so made by the plaintiff to the defendant. On behalf of the defendant, it was contended at the trial,-first, that the bequest made by the testator, of his interest in the mortgaged property, to the plaintiff, was a specific bequest of 1500l., and no more; and that, in point of law, the bequest of a debt or sum of money due upon a particular security passed only the capital, and not any arrears of interest owing at the testator's death; -secondly, that, as to the arrears of interest, there had been no assent of the defendant as executrix to such arrears being a bequest or legacy; and that, consequently, the plaintiff's remedy, if any, was in equity, and not at law; and, thirdly, that, as to the money paid or incurred for repairs, the amount was a debt due to the testator as mortgagee in possession, and was secured by the mortgage; and that, consequently, the defendant, as executrix, was entitled to hold and retain the deeds until she, as executrix, was paid the money so paid and incurred for the repairs of the mortgaged property. The learned judge was of opinion that the arrears of interest did not pass under the bequest contained in the will; and, moreover, that, without the assent of the defendant as executrix, the county-court had no jurisdiction over this part of the plaintiff's demand; and that, as to the money paid for repairs, the defendant, as executrix, was entitled to retain the deeds until the money so paid was reimbursed to her as such executrix. He, therefore, directed judgment to be entered for the defendant, or a nonsuit, at the election of the plaintiff. The plaintiff refused to be nonsuited, and judgment was entered for the defendant. The question for the opinion of the court is, whether the judgment of the learned judge be correct or not. Milward, for the appellant. 1. The arrears of interest, as well as the principal sum due on the mortgage, passed by the devise to William Gibbon. The words. 1853. GIBBON, App., GIBBON, Resp. 1853. GIBBON, of the will are,-"To my son William Gibbon, I give all my interest and claim on household property in Percy Court, Newcastle-on-Tyne, belonging to the successors of the late Joseph Hedley, on which I have a mortgage of 15001." The distinction between that and the previous bequest to Margaret Colman, the testator's daughter, is observable: the language there is,-"I give to my daughter Margaret Colman 850l., secured by way of mortgage on household property situated &c." Under that bequest, it may be that the 8501. would pass, and no more. [Maule, J. The first words of the devise to William Gibbon unquestionably give the fee: the subsequent words "on which I have a mortgage," are merely descriptive. Was not this a question of title?] The simple question was, whether the plaintiff was entitled to recover back money which he had been improperly forced to pay. If the title did come in question, the point was not taken in the county-court. [Maule, J. It was the essence of the thing.] The only points made at the trial, were,-first, that the bequest of the testator's interest and claim in the mortgaged property to the plaintiff, was a specific bequest of 1500l. and no more, and that, in point of law, the bequest of a debt or sum of money due upon a particular security, passes only the capital, and not any arrears of interest owing at the testator's death,-secondly, that, as to the arrears of interest, there had been no assent of the defendant, as executrix, to such arrears being a bequest or legacy, and that consequently the plaintiff's remedy, if any, was in equity, and not in law,-thirdly, that, as to the money paid or incurred for repairs of the mortgaged property, the amount was a debt due to the testator as mortgagee in possession, and was secured by the mortgage, and that consequently the defendant, as executrix, was entitled to hold and retain the deeds until she, as executrix, was re-paid the money so paid and incurred. It is submitted that all the interest and claim which the mortgagee him- 1853. GIBBON, App., GIBBON, |