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title of executor of mortgagor in case of a mortgage with power of sale.

Devise of land to executors

debts.

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-
plication: Johnson v. Webster, 4
De G. M. & G. 474, 488, by Lord
Cranworth.

(i) Thomas v. Kemeys, 2 Vern.
348. S. C. 1 Eq. Cas. Abr. 269,
pl. 9. Powell, Dev. ubi supra.
This was before the New Wills'
Act, and while an infant might
bequeath personal estate. (See
ante, p. 14.)

(k) Gwillim v. Holland, cited 2 Ves. Jun. 263.

(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, 9 A. & E. 879. Ackland v. Pring, 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 the chattels real of which the wife is or may be possessed during marriage, viz. an interest in his wife's right, with a power of divesting her property during the coverture (s). If therefore he so disposes of his wife's terms, or other chattels real, by a complete act in his lifetime, her right by survivorship will be defeated (t): but if he leave them in statu quo,

(g) Carter v. Barnadiston, 1 P. Wms. 509, 519. Ackland v. Lutley, 9 A. & E. 879.

(r) See this enactment, verbatim, Preface and see also sect. 31, ibid.

(s) 1 Roper, Husband and Wife, 173, by Jacob.

() And since the same rule of property must prevail in equity as in law, if the wife be entitled to a

term for years, held in trust for
her benefit, the assignment or
alienation of it by her husband,
will bind her surviving him: Sir
Edward Turner's case, 1 Vern. 7.
Bates v. Dandy, 2 Atk. 207. 1
Preston on Abstracts, 344. Bacon
Abr. Baron and Feme, (C. 2.) 1
Roper, Husb. and Wife, 177, 2nd
edit. unless the husband, before

1. The right band's executor, &c., to the

of the hus

wife's chattels

real:

if they remain

in statu quo,

and she sur

vive, she will be entitled,

and not her

husband's executors:

what amounts

to a disposition of the wife's

chattels by the husband, so as

to bar her right by survivorship:

the husband's Will does not :

effect of husband's proceedings at law in

his own name for the wife's term:

and the wife be the survivor, she will be entitled to them, to the exclusion of the executors or administrators of her husband (u).

It becomes, therefore, necessary to inquire what shall amount to such a disposition of the wife's chattels real by

the husband, as will exclude her title by survivorship: and as the object of this Treatise is merely to show what interest 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 Will of the husband cannot dispose of the chattels 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).

If husband and wife be ejected of a term which he enjoyed in her right, and he commences an action of ejectment in 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
of the term for her benefit: 1 Vern.

7. Draper's case, 2 Freem. 29. 1
Roper, 178. 1 Preston on Abstr.
343, 344: (See, as to trusts for her
separate use, Post, Pt. II. Bk. II.
Ch. II. § III.) So the contingent
reversionary interest of the wife in
the trust of a term for years may
be sold by the husband; and the
wife surviving will be bound by
such sale though the husband dies
before the contingency is deter-
mined or the reversion falls into
possession: Donne v. Hart, 2 Russ.
& M. 360. Secus, where the in-

terest cannot possibly vest during the coverture: Duberley v. Day, 16 Beav. 33.

(u) 1 Roper, Husb. & Wife, 173, 2nd edit.

(r) Anon. Poph. 5. Co. Lit. 351. a. 2 Black. Comm. 434. Bacon Abr. Baron and Feme, (C. 2.) 1 Roper, Husb. and Wife, 174, 2nd edit. 1 Preston on Abstracts, 343.

(y) Co. Lit. 46, b. Com. Dig. Baron & Feme, (E. 2.) Bacon Abr. tit. Baron & Feme, (C. 2.); but see Bret v. Cumberland, 1 Roll. Rep. 359. S. C. 3 Bulstr. 163, in which Coke, C. J., says, "A man

band's submitting the title to his arbitration:

wife's term to

It seems that if there is a dispute between the husband, effect of husclaiming a term of years in right of his wife, and another person, relative to the title, and they refer the matter to arbitration, and an award is made of the term to the husband, the property in it will be changed by the arbitrament, so as to amount to a reduction of the term into possession, which will defeat the wife's right by survivorship (2).

If the wife, at the time of her marriage, were a lessee for years, and her husband purchases or takes a lease of the lands for both their lives, that act will amount to a disposition of the term; because, by the acceptance of the second lease, the term is surrendered by operation of law, which surrender the husband is enabled to make under his general authority to dispose of the wife's leases in possession (a)

If the husband alone assign a term of which he is possessed in right of his wife, subject to a condition, and enter for the condition broken during the coverture, the husband will be again possessed in right of his wife as before; and the wife being the survivor may be entitled (b).

But if the husband die before the condition broken, his executors or administrators must enter for the breach of the condition, and will hold discharged of the title of the wife (c).

If the husband mortgages the wife's term, and by payment of the money at the day, the estate of the mortgagee ceases, it seems that the interest of the wife in the term will not be affected (d). If the money be not paid at the day, the estate

hath a term in right of his wife; he is ousted of it, and brings his action, and recovers the same again, and hath his judgment; he shall have it in statu quo." See also note (6) to Co. Lit. 46, b. Hal. MSS.

(z) 1 Roll. Abr. 245, Arbitrament (D.): but see Mr. Roper's note, vol. i. 185, 2nd edit., and Hunter v. Rice, 15 East, 100.

(a) 2 Roll. Abr. Surrender (F.)

p. 495, pl. 8. Bacon Abr. Baron
& Feme, (C. 2.), and 1 Roper,
Husband & Wife, 183, 2nd edit.

(b) 1 Roll. Abr. 344, 1. 45-50.
Bac. Abr. tit. Baron & Feme, (C.
2.) 1 Prest. on Abstr. 345.

(c) Co. Lit. 46, b. Bac. Abr. tit. Baron & Feme, (C. 2.)

(d) Young v. Radford, Hob. 3. 1 Roper, Husband & Wife, 184, Jacob's edit.

effect of the

husband taking

a new lease of

the land in has a term:

which the wife

effect of an alienation of

wife's term

by husband on which is broken

a condition

and the land re-entered:

effect of hus

band's mortgaging his wife's chattels

real:

effect of hus

band making
an underlease
of the wife's
term for
years:

of the mortgagee becomes absolute, and the alienation of the term being complete at law, the wife's legal right, by survivorship, is defeated; and if the equity of redemption were reserved to the husband alone, it has been said that her right will also be defeated in equity, by analogy to the cases in which it has been held that she is bound by the husband's voluntary assignment of her equitable chattels real (e). But if the equity of redemption were reserved to the husband and wife, she would be entitled to survivorship (ƒ): And unless his intention to defeat her right can be collected from the particular instruments of mortgage, it may be doubted whether it will be defeated by the reservation of the equity of redemption to him alone; for that this mere circumstance is not enough to rebut the ordinary presumption that nothing more is intended by the usual mortgage deed than that which is necessary to make the estate a security for the money advanced (g). If in any case the husband, after the estate of the mortgagee has become absolute, pays the money, and takes an assignment to himself, the property will be altered, and the term will go to the executors of the husband, to the exclusion of the wife (h).

The power which the law gives the husband to divest the whole interest of his wife in her chattels real, necessarily authorizes him to divest it partially (i). If, therefore, the husband be possessed of a term for years in right of his

(e) 1 Roper, Husband & Wife, 184, Jacob's edition. 1 Prest. on Abstr. 345. The latter writer adds, "sed quære."

(f) Pitt v. Pitt, 1 Turn. Chanc. Rep. 180: In that case a feme sole made a mortgage of a leasehold house and afterwards married; the mortgage was then transferred; the husband joined in the transfer, and covenanted to pay the money; and the equity of redemption was reserved to the husband and wife, their executors, administrators, and

assigns: It was held that the wife's right by survivorship was not affected: But on a bill by the wife to redeem the mortgage, the redemption was decreed on the terms, that the husband's estate should stand in the place of the mortgagee, for sums paid by him out of his property in reduction of the mortgage debt.

(g) Clark v. Burgh, 2 Coll. 221. (h) 1 Prest. on Abstr. 346. (i) Bac. Abr. tit. Baron & Feme, (C. 2.)

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