be assets in his hands, and shall go in the same manner as

the personal estate (u).
Mortgages : With respect to the title of an executor or administrator

of a mortgagee to the mortgaged property, it is obvious that,
at law, this will depend on the fact whether the mortgage is
in fee or for years : in the former case the legal estate in the
land will descend to the heir; and in the latter, it will go, like
any other term for years, to the executor: But with regard
to the money due upon the mortgage, it is now fully estab-
lished in equity, that, in every case, it is to be paid to the
executor or administrator of the mortgagee; by reason of
the rule of equity that the satisfaction shall accrue to the
fund that sustained the loss (x). Doubts seem to have at
one time existed on this head in cases in which the mort-

gage was in fee, and there was neither bond nor covenant
considered part for payment of the money; or where the consideration for
of the personal
estate :

redemption was upon payment to the mortgagee, his heirs
or executors (y); but the law is now clearly settled, that
whatever be the form of the mortgage, it will be part of the
personal estate of the mortgagee (z). Consequently, if the
mortgage be in fee, the heir or devisee of the mortgagee will
be a trustee of the land for the executor or administrator;
and will, upon application, be directed to convey to him (a).
So if the land becomes irredeemable in the hands of the
heir, either by the length of possession, or by his purchasing
the equity of redemption, or foreclosing, it will nevertheless
belong to the personal representative, and the heir will be a
trustee for him (b).

(u) See this enactment, verbatim, post, Pt. iv. Bk. 1. Ch. I.

(2) Thornbrough v. Baker, 1 Chanc. Cas. 283. S. C. 3 Swanst. 628. Winne v. Littleton, 2 Chanc. Cas. 51. S. C. 1 Vern. 3. Canning v. Hicks, 2 Chanc. Cas. 187. Tabor v. Tabor, 3 Swanst. 636.

(y) Coote on Mortg. 617, 2d edit.

(z) Ibid. A Welsh mortgage is

so considered : Longuet v. Scawen,
1 Ves. Sen. 406.

(a) Ellis v. Guavas, 2 Chanc.
Cas. 50.

(6) Ibid. Canning v. Hicks, 2 Chanc. Cas. 187. Tabor v. Grover, 2 Vern. 367. But it should seem, that if the heir chooses, he may pay off the mortgage money to the executor, and retain the land : Clerkson v. Bowyer, 2 Vern. 66.

But the mortgagee may, as between his real and personal in what case

the heir enrepresentative, by a manifest declaration of his intent, con- titled : vert the mortgage, as well as any other part of his personal estate, into land, and make it pass accordingly (c). So if a man purchase an estate, which afterwards proves to be subject to an equity of redemption, and dies, the money will belong to his heir, and not his executor (dl). Again, if mortgage money be articled to be laid out in land and settled, the money will be bound by the articles (e). So if the mortgagee in his lifetime obtain a release of the equity of redemption, or obtain an absolute decree of foreclosure, and enter into possession, and after his death, the foreclosure shall be opened, or the release set aside, the heir, and not the executor, will be entitled to the money (f).

If the mortgagee becomes entitled to the land in fee when a mortsimple, as if it descends upon, or is devised to him, a question may arise between his heir and executors, whether the charge is to be considered as subsisting for the benefit of his personal representatives, or is merged for the benefit of the person taking the land. The rule in these cases is, that if it be indifferent to the party in whom this union of interest arises, whether the charge be kept on foot or not, it will be extinguished in equity upon the presumed intention, unless an act declaratory of a contrary intention, and consequently repelling such presumption, be done by him (g).

gage merges :

(©) Noys v. Mordaunt, 2 Vern. 581. S. C. Gilb. Eq. Rep. 2 Prec. Chanc. 265. Ante, p. 582.

(d) Cotton v. lles, 1 Vern. 271. Coote on Mortg. 618, 2nd edit.

(e) Lawrence v. Beverley, cited 3 P. Wms. 217, in Lechmere v. Carlisle.

Grice v. Shaw, 10 Hare, 76. When
the owner of an estate has also a
charge on it, and there is some in-
termediate charge or estate between
his own charge and his ownership
in fee, it may be reasonable to say
that without some special act, no
presumption can be made of an in-
tention to merge the charge in fee;
for that might be against the inte-
rest of the owner by letting in the
intermediate estate or incumbrance:
But where the intermediate interest
is created by the act of the owner

R R

But if a purpose, beneficial to the owner, can be answered by keeping the charge on foot, as 'if he be an infant, so that the charge would be disposable by him, though the land would not (i); or a beneficial use might have been made of it against a subsequent incumbrancer (k), or the other creditors of the person from whom the party derived the onerated estate (1); in these, and similar cases, equity will consider the charge as subsisting, notwithstanding that it may have been merged at law (m): and the rule is adopted in favour of the creditors of the person in whom these interests

centre (n). title of execu- Where a mortgage deed contains a power of sale, with a tor of mortgagor in case of a direction that the surplus produce shall be paid to the mortgage with

mortgagor, his executors or administrators, if a sale takes power of sale.

place in the lifetime of the mortgagor, the surplus is personal estate ; but if after his death, it is real estate, as the equity

of redemption descends to the heir-at-law (0). Devise of land At common law, where a man devises land to his executors to executors for payment of for payment of his debts, or until his debts are paid, or till

a particular sum shall be raised out of the rents or profits, the executors take thereby only a chattel interest, i. e. an estate for so many years as are necessary to raise the sum required (p): and this interest determines when the rents or profits would have raised the sum, although the executors

a

debts.

himself, this reasoning has no ap

Y. & Coll. C. C. 688. Swabey v. plication: Johnson v. Webster, 4 Swabey, 15 Sim. 106, 502. FaulkDe G. M. & G. 474, 488, by Lord ner v. Daniel, 3 Hare, 217. Byam Cranworth.

v. Sutton, 19 Beav. 556. (i) Thomas v. Kemeys, 2 Vern. (n) Powell v. Morgan, cited 2 348. S. C. 1 Eq. Cas. Abr, 269, Vern. 206. Powell Dev. ubi supra. pl. 9. Powell, Dev. ubi supra. (0) Wright v. Rose, 2 Sim. & This was before the New Wills' Stu. 323. Bourne v. Bourne, 2 Act, and while an infant might Hare, 35. bequeath personal estate. (See (P) Cordall's case, Cro. Eliz. ante, p. 14.)

316. Corbet's case, 4 Co. 81, b. (k) Gwillim v. Holland, cited 2 Manning's case, 8 Co. 96, a. Co. Ves. Jun. 263.

Lit. 42, a.

Hitchens v. Hitchens, (1) Forbes v. Moffat, 18 Ves. 384. 2 Vern. 404. Ackland v. Lutley,

(m) Powell Dev, ubi supra. See 9 A. & E. 879. Ackland v. Pring, also Lord Clarendon v. Barham, 1 2 M. & Gr. 937.

may have misapplied them (q). But by stat. 1 Vict. c. 26, s. 30, where any real estate, (other than a presentation to a church), shall be devised to any trustee or executor, such devise (if the Will be made on or after Jan. 1, 1838] shall pass the fee simple or other the whole estate of the testator, unless a definite term of years, or an estate of freehold, shall thereby be given to him expressly or by implication (r).

SECTION II.

Right of Executors and Administrators to Chattels Real,

with relation to Husband and Wife.

Before quitting the inquiry as to the interest which executors and administrators have in the chattels real of the deceased, it is proper to consider the subject as it bears on the relation of husband and wife. It is therefore proposed to investigate, 1st, when the wife survives, the rights of the executor or administrator of the husband to her chattels real: 2nd, when the husband survives, the rights of the administrator of the wife to the same. 1. The law gives a qualified interest to the husband in 1. The right

of the husthe chattels real of which the wife is or may be possessed band's

execuduring marriage, viz. an interest in his wife's right, with a tor; &c., to the power of divesting her property during the coverture (s). If real : therefore he so disposes of his wife's terms, or other chattels if they remain real, by a complete act in his lifetime, her right by survivor- and she sur:

quo, ship will be defeated (t): but if he leave them in statu quo, be entitled,

vive, she will t (9) Carter v. Barnadiston, 1 P. term for years, held in trust for Wms. 509, 519. Ackland v. Lut- her benefit, the assignment or ley, 9 A. & E. 879.

alienation of it by her husband, (r) See this enactment, verbatim, will bind her surviving him : Sir Preface: and see also sect. 31, ibid. Edward Turner's case, 1 Vern. 7.

(8) 1 Roper, Husband and Wife, Bates v. Dandy, 2 Atk. 207. 1 173, by Jacob.

Preston on Abstracts, 344. Bacon (1) And since the same rule of Abr. Baron and Feme, (C. 2.) 1 property must prevail in equity as Roper, Husb. and Wife, 177, 2nd in law, if the wife be entitled to a edit. : unless the husband, before

and not her

and the wife be the survivor, she will be entitled to them, to husband's ex

the exclusion of the executors or administrators of her ecutors :

husband (u). what amounts

It becomes, therefore, necessary to inquire what shall to a disposition of the wife's amount to such a disposition of the wife's chattels real by chattels by the husband, so as the husband, as will exclude her title by survivorship: and to bar her right by survivor

as the object of this Treatise is merely to show what interest ship:

the executor or administrator of the husband takes by the defeat of the wife's claim, the instances selected will be confined to cases where the question is between her and the executor or administrator, and not between her and an alienee. The general principle is, that the transaction must be of a description to effect a complete alteration in the nature of the joint interest of the husband and wife in the

wife's chattel real. the husband's The Will of the husband cannot dispose of the chattels Will does not :

real of the wife, against her surviving him; for as that does not take effect till after his death, the law takes precedence, and vests the term in the wife immediately upon

his decease (x). effect of hus- If husband and wife be ejected of a term which he enjoyed band's proceedings at law in in her right, and he commences an action of ejectment in his own name for the wife's his own name, and obtains judgment, the recovery will

change the wife's property in the term, and vest it in the
husband (y)
marriage, consent to the settlement terest cannot possibly vest during
of the term for her benefit: 1 Vern. the coverture: Duberley v. Day,
7. Draper's case, 2 Freem. 29. 1 16 Beav. 33.
Roper, 178. 1 Preston on Abstr. (u) 1 Roper, Husb. & Wife, 173,
343, 344: (See, as to trusts for her 2nd edit.
separate use, Post, Pt. 11. Bk. II. (x) Anon. Poph. 5. Co. Lit. 351.
Ch. II. § 111.) So the contingent 2 Black. Comm. 434. Bacon
reversionary interest of the wife in Abr. Baron and Feme, (C. 2.) 1
the trust of a term for years may Roper, Husb. and Wife, 174, 2nd
be sold by the husband ; and the edit. 1 Preston on Abstracts, 343.
wife surviving will be bound by (y) Co. Lit. 46, b. Com. Dig.
such sale though the husband dies Baron & Feme, (E. 2.) Bacon Abr.
before the contingency is deter- tit. Baron & Feme, (C. 2.); but
mined or the reversion falls into see Bret v. Cumberland, 1 Roll.
possession : Donne v. Hart, 2 Russ. Rep. 359. S. C. 3 Bulstr. 163, in
& M. 360. Secus, where the in- which Coke, C. J., says, “A man

term :

a.