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. MATHER V. 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. (a) 2 Wms. Saund. 400. n. 2. (c) 3 Ves. 348. (d) 6 Ves. 577- messuages 66 messuages only; for in declaring the trusts he refers to 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. VOL. X. E (c) 2 Vez. sen. 46. and 1883. MATHER THOMAS. and the case, after a reference to the record, has 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 |