1833.

MATHER

ข.

THOMAS.

true that, in Galliers v. Moss (a), it was held that the legal estate in mortgage property will not pass in a devise under the words securities for money: but the authority of that decision may be questioned; it is at variance with the decision in Crips v. Grysil (b), where it was held that a devise of mortgages passed the mortgaged land; and, at all events, it is distinguishable from the present case, in the circumstance that here the devise of the securities is to the trustees and their heirs. In Galliers v. Moss the devise was to the trustees and their executors, for trusts to be discharged by the trustees and their heirs; and the trusts to be discharged by the heirs being accounted for by other passages in the will, the Court was much influenced in its decision by the omission of the word heirs in the limitation of the estate devised. Doe d. Spearing v. Buckner (c). With the exception of Silvester v. Jarman (d), all the authorities shew that mortgaged land will pass in a devise under the words securities for money: Ex parte Whitaker (e), Renvoize v. Cooper (g), Silverschildt v. Schiott (h). The mortgagee is a trustee for the mortgagor; and lands held in trust pass under any devise of real estate; Braybroke v. Inskip. (i)

At all events the legal estate passed by the conveyance under 11 G. 4. & 1 W. 4. c. 60. s. 8., by which it is enacted," that where any person seised of any land upon any trust shall be out of the jurisdiction of or not amenable to the process of the Court of Chancery, or it shall be uncertain, where there were several trustees, which of them was the survivor, or it shall be uncertain whether the trustee last known to have been seised as

aforesaid be living or dead, or, if known to be dead, it shall not be known who is his heir, or if any trustee seised as aforesaid, or the heir of any such trustee, shall neglect or refuse to convey such land, for the space of twenty-eight days next after a proper deed for making such conveyance shall have been tendered for his execution by, or by any agent duly authorized by, any person entitled to require the same; then and in every or any such case it shall be lawful for the said Court. of Chancery to direct any person whom such Court may think proper to appoint for that purpose, in the place of the trustee or heir, to convey such land to such person and in such manner as the said Court shall think proper; and every such conveyance shall be as effectual as if the trustee seised as aforesaid, or his heir, had made and executed the same." The statute applies to cases where the heir is not known, and, à fortiori, to the case where it is known there is no heir. The ratio of the statute is de non apparentibus, and eadem est ratio de non existentibus. The conveyance is within the equity of the statute, as administrators have been holden to be within the equity of statutes relating to executors. In Eyston v. Studd (a) it is said, "In order to form a right judgment when the letter of a statute is restrained, and when enlarged, by equity, it is a good way, when you peruse a statute, to suppose that the law-maker is present, and that you have asked him the question you want to know touching the equity, then you must give yourself such an answer as you imagine he would have done if he had been present."

Coleridge Serjt. for the Defendant. The mortgaged estate could not pass under the words " messuages or dwelling-houses," as it consists almost exclusively of land in cultivation; Buck v. Nurton (b), Smith v. Mar

1833.

MATHER

V.

THOMAS.

1833.

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THOMAS.

tin (a); besides, the trusts declared by the will of the property included in the bequest are altogether inapplicable to property of which the testator was only a mortgagee, and consequently could not pass under a general devise of real estate: Galliers v. Moss, first

The question is, there

resolution: Braybrooke v. Inskip.
fore, whether the property would pass by the words
"securities for money." It may be conceded that if
these words were used by themselves and without being
collocated with words descriptive of personal estate only,
they would be sufficient to pass the mortgaged estate,
unless a contrary intention could be gathered from the
trusts or purposes to which the property was to be
applied. Ex parte Sergison (b), Duke of Leeds v. Mun-
day (c), Ex parte Brettell (d), Wall v. Bright. (e) But
on the other hand it seems equally clear that where the
words are used in association with words descriptive
only of personal estate, or where the purposes to which
the property is destined are inapplicable to a mort-
gagee's interest in the mortgaged property, there the
mortgaged estate will not pass under such a descrip-
tion. For this position, Galliers v. Moss, second reso-
lution (in which the bequest is very similar in terms to
the present), is an express authority. That case was
expressly decided on the ground of the words "secu-
rities for money" being associated with words de-
scriptive only of personal estate. Now in the present
case not only are there no words (except those in
question) which can relate to real estate, but inde-
pendently of this, it is clear from the context and the
nature of the trusts that the testator never considered
that he was devising any thing but personal estate. The
testator in using the words "messuages or dwelling-
houses" must be considered as speaking of leasehold

(a) 2 Wms. Saund. 400. n. 2.
(b) 4 Ves. 147.

(c) 3 Ves. 348.

(d) 6 Ves. 577-
(e) 1 Jac. & W. 494.

messuages

66

messuages only; for in declaring the trusts he refers to
these as his last devised chattels real. And the trusts of
the will shew clearly that the words "securities for
money" in this bequest mean personal securities only,
such as bonds, notes, &c. because the testator in declar-
ing the trusts divides what he has before bequeathed into
two classes, namely, money and chattels real; considering
ready money, securities for money, debts, and per-
sonal estate" to fall within the former class, and "mes-
suages or dwelling-houses and buildings" to fall within
the latter. Even if the lands could be held to pass
under the description of " securities for money" collo-
cated as that description is with personal property, yet,
as the trusts declared by the testator prove that he did
not contemplate passing such an interest, the authori-
ties are conclusive that, on this ground, it could not be
held to pass.
It is true Bayley J., in Galliers v.
Moss, lays some stress on the absence of the word
keirs in the limitation to the trustees, though it oc-
curs in the trusts; and in this case it occurs in the
limitation, but is omitted in the trusts. But the circum-
stances of the omission of these words in the trusts,
shews that they were, in the first instance, used inad-
vertently as general words, and without any weight
being attached to them by the testator. In Silvester v.
Jarman (a), the legal estate was held not to pass under
the word mortgages, when the property was made sub-
ject to uses inapplicable to mortgaged estate and Wil-
kinson v. Merryland (b) is to the same effect. See also
Attorney-General v. Meyrick (c).

In Crips v. Grysil, the words "mortgages and specialties for money," are much stronger than the words ❝securities for money" in their present collocation;

(a) to Price, 78.
(b) Cro. Car. 44.7-

VOL. X.

E

(c) 2 Vez. sen. 46.

and

1883.

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THOMAS.

and the case, after a reference to the record, has
been put upon a new ground by Bayley J., in 9 B.
&C. 282. In the case of Renvoize v. Cooper (a), the
words "mortgages and other securities for money,"
were coupled with the words "estates, effects what-
soever and wheresoever," and were not subjected to
any trusts: and the words "mortgages and other
securities for money," shewed that the testator had
mortgages in his mind.
In Ex parte Whitaker, the
same words were coupled with "lands and heredita-
ments." In Silberschilt v. Schiott, no cases were cited:
the opinion was extrajudicial: and it is not clear that
Sir William Grant referred to the legal estate, but rather
to any interest which might afterwards be acquired
under a foreclosure, in contradistinction to the interest
in the money before foreclosure. Besides, the dictum
that a gift of the money would pass the estate in the
land (if it can be supposed that Sir William Grant
referred to the legal interest), is clearly not law: Duke of
Leeds v. Munday. (b)

The Court relieved the learned Serjeant from arguing the second point.

Stephen in reply, contended that the will contained sufficient indications of an intention to pass the mortgaged estate.

The following certificate was afterwards sent:

We have heard this case argued by counsel, and considered it, and we are of opinion, that the legal estate in the premises comprised in the indenture of mortgage of the 1st day of May, 1783, passed under the will of Joseph Crew to William Currie and Richard Mytton, and the survivor of them, by the devise of the testator's secu