« AnteriorContinuar »
be assets in his hands, and shall go in the same manner as
the personal estate (u).
of a mortgagee to the mortgaged property, it is obvious that,
gage was in fee, and there was neither bond nor covenant
redemption was upon payment to the mortgagee, his heirs
(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,
(a) Ellis v. Guavas, 2 Chanc.
(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
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
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).
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