stances was relieved, and the heir or executor was declared to hold in trust for the creditors and others interested in the assets of the estate; and if the heir or executor were not named in the grant, then the remainder of the estate, after the death of the grantee, become assets in the hands of the personal representative. And this provision of the statute of frauds has unquestionably been generally adopted in the American states as part of the common law, where it has not been specially re-enacted. 6. It was also held, anterior to the provision in the statute of frauds just referred to, that such residue of an estate pur autre vie was not devisable, but by that statute it is made so. This provision of the statute is unquestionably adopted in this country as a general thing, either upon the basis of its innate justice and propriety, or as incorporated into the common law at the time of the separation of this country from England. 7. The interest of the mortgagee will always go to his personal representative, whether it be for a term of years or in fee, it being regarded in all cases as mere personalty, and strictly a chattel interest.7 The same rule obtains universally in the American states.8 And it will make no difference that the estate was in the course of foreclosure at the time of the decease of the testator.9 And where the administrator takes a mortgage upon real estate to secure the payment of a debt due the intestate, and after foreclosure sells the estate, and wastes the money received in payment for the same, the mortgagee acquires no such equitable title to the estate as will justify any interference with the title of the purchaser, who will hold the becomes a chattel real, and goes to the personal representative. Reynolds v. Collin, 3 Hill, 441. 'Tabor v. Tabor, 3 Swanst. 636, and numerous earlier cases cited, 1 Wms. Exrs. 608, n. * Smith v. Dyer, 16 Mass. 18. 'Fay v. Cheney, 14 Pick. 399. The heir of the mortgagee has no such title as to enable his grantee by quitclaim deed to maintain an action even against the heir being in possession. Taft v. Stevens, 3 Gray, 504. same exempt from all equity or liability to see to the application of the purchase-money.10 In other words, no trust attaches to the estate under such circumstances, as to lands so situated in the hands of the administrator, which can be followed into the hands of a bonâ fide purchaser. 8. And the same rule will apply to a Welsh mortgage, where the estate is to be held by the mortgagee until the debt is paid by the rents and profits. And even where the land becomes irredeemable, in the case of an ordinary mortgage, by adverse possession, release of the equity of redemption, or foreclosure, the heir will hold the same in trust for the personal representative.12 But where the mortgagee devises the land in such a form as to indicate his purpose to have it treated as real estate, or where he indicates such purpose in any other mode, it will be so regarded and treated.18 9. But it has been held, that if the mortgagee in his lifetime, by any process, foreclose the equity of redemption, and enter into possession, and after his death the decree be opened, or a release of the equity set aside, the heir and not the executor will be entitled to the money.14 The executor of the mortgagee is the proper party to enforce the mortgage.15 10 Long v. O'Fallon, 19 How. U. S. 116. "Lord Chancellor Hardwicke, in Longuet v. Scawen, 1 Ves. Sen. 402, 406. 12 Clerkson v. Bowyer, 2 Vernon, 66. But it is here said, if the heir in such case will pay the mortgage-money to the executor, he may hold the estate. See also 1 Wms. Exrs. 608, and cases cited. Demarest v. Wynkoop, 3 Johns. Ch. 129. 14 Lawrence v. Beverly, cited in Lechmere v. Carlisle, 3 P. Wms. 211, 217. The executor of the mortgagor, suit brought by such mortgagor Douglass v. Sherman, 2 Paige, to redeem, and who died pending the same. Ch. Rep. 358. But where by the death, which abates the suit, the title passes to others besides his personal representatives, and it becomes a disputed question to whom the title has passed, the suit for redemption cannot be revived except by a supplemental bill in the nature of an original bill, setting forth all the facts. Ib. 10. Where the mortgaged estate comes to the mortgagee either by devise or descent, it may become a question how far the charge is thereby merged. The general rule in courts of equity seems to be, that the union of the two estates of mortgagor and mortgagee will effect an extinguishment of the mortgage estate, by merger, unless it be for the interest of the mortgagee to still keep it on foot, in which case it will be treated, in equity, as still subsisting, although extinguished in strictness of law 16 The same rules of construction, in regard to the extinguishment of the mortgage by the union of the estates of the mortgagor and mortgagee, obtains, for the most part, in the American states.17 But these questions but seldom arise, if ever, in this country, as between the heir and the executor. 11. Where a mortgage deed contains a power of sale, and by means of the sale of the whole estate a surplus of money is produced, above what is required to pay the mortgage, if this be done during the life of the mortgagor, it will thereby become personal estate to all intents. But if the sale take place after the death of the mortgagor, it will still be regarded as real estate, since an equity of redemption is always so regarded, and, as such, primarily goes to the heir.18 The same rule obtains in the American states.19 12. Questions sometimes arise between the wife and the personal representative of the husband, where she survives, whether her chattels real shall go to the one or the other. This depends "Price v. Gibson, 2 Eden. 115; Donisthorpe v. Porter, id. 162; s. c. Ambler, 600; Compton v. Oxenden, 2 Ves. Jr. 261; Gricè v. Shaw, 10 Hare, 76. Where the owner has two charges, and a third person has also a charge, interposed between the others, it is not presumable that he will desire to have his charges merged, thus bringing the intervening one to the first place. Lord Cranworth, Chancellor, in Johnson v. Webster, 4 DeG., M. & G. 474, 488. "Marshall v. Wood, 5 Vt. R. 250; Brien v. Smith, 9 W. & S. 78; Moore v. Harrisburg Bank, 8 Watts, 138. 18 19 Wright v. Rose, 2 Sim. & Stu. 323; Bourne v. Bourne, 2 Hare, 35. Bogert v. Furman, 10 Paige, 496; Moses v. Murgatroyd, 1 Johns. Ch. 119; Cox v. McBurney, 2 Sandf. Sup. Ct. 561. in every case, upon the prior inquiry, whether the husband, during his lifetime, had done any act to dispossess his wife of her interest; for unless this be done, the chattel interest in the realty will survive to her.20 13. It is certain that the mere devise of the wife's chattels real will not devest the interest of the wife, if she survive him, as no estate vests under the will until the death of the husband, and the wife's right of survivorship will be regarded as first taking effect.21 But if the husband and wife be ejected of a term which he held in her right, and the husband bring ejectment for it, in his own name, which he may do,22 and recover, that will devest her interest it is said. Or if, upon a dispute between the husband and another person, in regard to a term of years, claimed by the husband in right of his wife, it be referred to an arbitrator who awards the same to the husband, that will defeat the wife's right to survivorship.23 14. As the husband may devest the right of the wife, in her chattels real, by any absolute disposition of the same, so if he make a partial disposition of them, as by assigning or underleasing a portion of the term, this will operate to devest her interest pro tanto, and the reserved rent upon such partial assignment will go to his executor.24 So, too, if the husband mortgage the term and then pay the money, taking an assignment to himself, it will defeat the wife's survivorship.25 But if the husband 201 Wms. Exrs. 612, and n. 21 Ibid. 22 Brett v. Cumberland, Bulst. pt. 3, 163. 23 1 Wms. Exrs. 613, and n. But see Hunter v. Rice, 15 East, 100, where it is said that the title does not pass by the award. But the better opinion is that it does pass by the award, and so are the more recent cases. Akely v. Akely, 16 Vt. R. 450, and numerous cases there cited. * Lord Eldon, in Druce v. Denison, 6 Vesey, 385, 394. But the residue of the term will be regarded as undisposed of, and as such survive to the wife. Sym's Case, Cro. Eliz. 33; 1 Wms. Exrs. 615. 25 1 Wms. Exrs. 614. pay the money due upon the mortgage, taking no assignment, it will be regarded as restoring the estate to the same condition it was in before the mortgage.26 And a note and mortgage, made to husband and wife, will go to the wife if she survive.27 15. But if the husband survive the wife he will take her chattels real, by survivorship, and is not required to have taken letters of administration during his life, in order to have them pass to his next of kin.28 But this rule will not extend to the chattels real of the wife of which she and the husband were not in possession during the life of the wife, she having been dispossessed of the same, and the husband never having recovered them, either for himself or for himself and wife jointly.29 But in most cases where the personal representative of the wife has obtained possession of her chattels real, where the husband survived her, he has been held liable to account as a trustee 30 to the representative of the husband, or to the husband himself, if alive. But where a distributive share of personal estate accrues to the wife, during coverture, and the husband dies before decree of distribution, and without any act on his part to reduce it to possession, it survives to the wife.31 16. So chattels real may accrue to the personal representative, by reason of the non-performance of a condition, upon the part of the grantee of the decedent, whereby it was agreed the grant should become void. And the grantor having deceased, his personal representative becomes seised of the estate by reason of the non-performance of the condition. Or the grant may * Yong v. Radford, Hob. 3. Draper v. Jackson, 16 Mass. 480; Burleigh v. Coffin, 2 Fost. 118; Hawkins v. Craig, 6 Mon. 254. 10 1 Wms. Exrs. 616, and notes. Ibid. Humphrey v. Bullen, 1 Atk. 458; Elliot v. Collier, 3 Atk. 526; s. c. 1 Ves. Sen. 15. In the latter case the personal representative of the husband was held entitled, in preference to the representative of the wife. |