no words of limitation were used in the devise (n). Whether the real or the personal representative would have been the person to take, is a point on which the authorities appear to be conflicting. In Doe v. Lewis (o), where the estate had been demised to the grantee, his heirs and assigns, for lives, and he devised the premises, during the residue of the lease, to W. J. L., and his assigns, who died intestate, it was held by the Barons of the Exchequer, that the estate did not go to the heir of W. J. L., but to his personal representative; for that the devise by the original grantee defeated the title of his own heir as special occupant, and his devisee, W. J. L., took the estate to hold to him and his assigns for the residue of the term; and on the death of W. J. L., as there was no devise of the estate, nor special occupant thereof, it passed to the executors or administrators of W. J. L. ("the party that had the estate thereof”), within the express words of the Statute of Frauds. But in Wall v. Byrne (p), where a lessee of lands which had been demised to him, his heirs and assigns, pur autre vie, devised all his real freehold and personal property to his wife and children, share and share alike; and one of the children, who survived the testator, died intestate; it was held by Sugden, Lord Chancellor of Ireland, that the heir-at-law of such child, and not his personal representative, was entitled to his share of the estate pur autre vie. And the learned Judge said, that if ever a point was closed by decision, it was this; that where a man has an estate pur autre vie limited to him and his heirs, and devises that estate by words, which, without words of limitation, would pass the quasi inheritance, and the devisee dies intestate, the persons to take are the heirs, and not the personal representative of the devisee: That the point was so decided in Ireland many years since (q), and that decision had been followed in England (r); (n) Williams v. Jekyl, 2 Ves. Sen. 681. (0) 9 M. & W. 662. (p) 2 Jones & Lat. 118. (9) Blake v. Jones dem. Blake, 1 Hud. & Bro. 227, n. (r) See Phillpotts v. James, 3 Dougl. 425. and many opinions had been given upon it; and he must, therefore, decline to hear the question argued. His Lordship distinguished the case of Doe v. Lewis, on the ground that there the devise was to a man and his assigns, which, it was held, did not mean heirs; whereas in the case before him the devise was in general terms, and in words which were sufficient to pass the entire interest of the testator under the lease to his devisees; and that both law and good sense required that the devisees should take the same interest which he himself had. This distinction, however, does not appear to reconcile the two decisions satisfactorily, nor to afford any answer to the reasoning on which the Court of Exchequer proceeded. By stat. 1 Vict. c. 26, s. 3, (which, however, does not 1 Vict. c. 26. extend to any Will made before Jan. 1, 1838,) estates pur autre vie may be disposed of by Will, executed as required by that Act, whether there shall or shall not be any special occupant thereof, and of whatever tenure they shall be, and whether the same shall be a corporeal or incorporeal hereditament (s). And with respect to the estate, pur autre vie, of any deceased person, who shall not have died before the 1st day of January, 1838, the same Statute, (after repealing the above-mentioned statutes of Car. II. and Geo. II.) proceeds to enact, by sect. 6, that if no disposition shall be made thereof by Will, and in case there shall be no special occupant thereof, it shall go, (whether freehold or customary freehold, tenant right, customary or copyhold (t), and of any other tenure, and whether a corporeal or incorporeal hereditament,) to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator, either by reason of special occupancy, or by virtue of this Act, it shall (s) See this enactment, verbatim, Preface. (t) The statute of Car. II. does not extend to copyholds: Zouch v. Mortgages: considered part of the personal estate : be assets in his hands, and shall go in the same manner as the personal estate (u). 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 established 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 mortgage was in fee, and there was neither bond nor covenant for payment of the money; or where the consideration for 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 (2). 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. 1. (x) 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. (b) 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. the heir en But the mortgagee may, as between his real and personal in what case representative, 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 (d). 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 (ƒ). gage merges : 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). (c) Noys v. Mordaunt, 2 Vern. 581. S. C. Gilb. Eq. Rep. 2 Prec. Chanc. 265. Ante, p. 582. (d) Cotton v. Iles, 1 Vern. 271. Coote on Mortg. 618, 2nd edit. (e) Lawrence v. Beverley, cited 3 P. Wms. 217, in Lechmere v. Carlisle. (f) Ibid. (g) 2 Powell Dev. 146, Jarman's edit. Price v. Gibson, 2 Eden. 115. Donisthorpe v. Porter, ibid. 162. S. C. Ambl. 600. Compton v. Oxenden, 2 Ves. Jun. 261. VOL I. Grice v. Shaw, 10 Hare, 76. When RR title of executor of mortga gor in case of mortgage with power of sale. Devise of land to executors debts. a 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 (); 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). Where a mortgage deed contains a power of sale, with a direction that the surplus produce shall be paid to the mortgagor, his executors or administrators, if a sale takes 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). At common law, where a man devises land to his 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 himself, this reasoning has no ap- (i) Thomas v. Kemeys, 2 Vern. This was before the New Wills' (k) Gwillim v. Holland, cited 2 (1) Forbes v. Moffat, 18 Ves. 384. (m) Powell Dev. ubi supra. See also Lord Clarendon v. Barham, 1 Y. & Coll. C. C. 688. Swabey v. Swabey, 15 Sim. 106, 502. Faulkner v. Daniel, 3 Hare, 217. Byam v. Sutton, 19 Beav. 556. (n) Powell v. Morgan, cited 2 Vern. 206. Powell Dev. ubi supra. (0) Wright v. Rose, 2 Sim. & Stu. 323. Bourne v. Bourne, 2 Hare, 35. (p) Cordall's case, Cro. Eliz. 316. Corbet's case, 4 Co. 81, b. Manning's case, 8 Co. 96, a. Co. Lit. 42, a. Hitchens v. Hitchens, 2 Vern. 404. Ackland v. Lutley, Ackland v. Pring, 9 A. & E. 879. |