impossible to impute to the testator the intention to pass property vested in him as trustee or mortgagee. Again, if the devise is subject to the payment of debts and annuities, that is "a circumstance of evidence" that such property was not intended to pass. So, if the devisee is to have a full and uncontrolled and beneficial enjoyment, it could not be intended that " a mere dry trust estate" should pass. In short, the purpose or object of the testator must be considered as the criterion of his intention, and in endeavouring to ascertain what will best effectuate his object, or what his purpose requires, we should not confine ourselves to the mere words of the will; qui hæret in literâ, hæret in cortice. We may look also to "the person of the devisee," and the persons and situation of the heir or heirs at law. These principles, derived from Lord Eldon's judgment in Braybrooke v. Inskip, were enforced and acted upon by Sir T. Plumer in Wall v. Bright. There, the testator, after having contracted in writing to sell an estate, made his will, devising all his property in general terms to trustees, in trust to sell and convert into money. The question was, whether the legal estate in the property sold passed to the trustees. The words of the will were against such a construction, for the testator could not authorize his trustees to sell what was already sold; but the Master of the Rolls looked to the purpose or object of the testator; to the nature of his interest in the premises subject to the contract, that it was not a dry trust estate to the persons of the trustees,-that they were persons capable of conveying to the person of the heir, who was an infant; and he decided that the legal estate did pass.

Now to apply these principles to a case which lately occurred in practice. Mary Host, seised of some real estate in her own right and beneficially, and possessed of a considerable personal estate, part of which was invested in her own name on mortgages in fee, but none on mortgages for a

'8 Ves. 433. Lord Eldon's expression. 2 Ex parte Brettel, 8 Ves. 435.

3 Lord Eldon's expression, 8 Ves. 436.

4 Mr. Jarman (2 Powell's Devises, 151,) argues against Lord Eldon on this point, but not very satisfactorily. He seems to forget that the simple question is, what was the intention of the testator?

1 Jac. & Walker, 494.

term of years, devised all her estate both real and personal, in the most general terms, to two trustees, (a son-in-law and an unmarried daughter,) their heirs, executors, administrators, and assigns, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, and declarations in her will expressed and declared of and concerning the same: one of which provisoes was, that it should be lawful for the trustees, and the survivor of them, or the executors or administrators of such survivor, to sell, transfer, and dispose of the stocks, funds, and securities whereupon the said trust monies were or should be laid out and invested.' It may be observed that this power was not given to the heirs of the surviving trustee; but the will was not very accurately drawn, for there were no words of limitation at all in the gift to the children, though real estate was given to them; and it is important to remember that the testatrix had no other mortgage securities at the time than mortgages in fee. The testatrix vested all her estate in the trustees, upon trust to pay one-third part of the annual proceeds thereof to a married daughter, for her life, for her separate use, and upon her decease to divide such third part amongst her children equally, with powers to afford them maintenance and advancement. Another third was upon similar trusts for another married daughter (whom she describes as "the wife of John White, now residing in America, Lieutenant of artillery,") and her children. And the remaining third was for her unmarried daughter, the trustee, absolutely. Was it the intention of the testatrix that the legal estate in the mortgaged property should pass to the trustees? What was her object? Clearly that the trustees should have power to hold and divide all her property as she directed, Could they do so if they had not the legal estate in the mortgages? They could not. In the first place they could not have transferred the mortgage securities, as the will clearly authorizes them to do: the proviso stated above assumes that all the securities of the testatrix were vested in the trustees. If the interest of the mortgage monies had remained un

1 It was suggested that the trustees might, under this power, transfer the legal estate in the mortgaged premises by an appointment.

paid they could not have distrained; nor have brought ejectment to recover the possession; nor could they have exercised the powers of sale contained in the mortgage deeds. In fact, as to a very considerable part of her personal estate, her trustees could not alone have performed the trusts. The three daughters were the co-heiresses of the testatrix. Is it a probable intention to impute to her that the powers of the trustees were to be dependent on the concurrence of two married women, one of whom she recognizes as the wife of an officer in the army, and residing in foreign parts? But assuming that the trusts require the trustees to divide the property mortgaged amongst the cestuis que trust, this is not such an inconsistency as would prevent its passing under a general devise:' but though the mere words of the trusts may seem to require this, their spirit and substance do not; and the principle of the case of Wall v. Bright is an answer to the objection. Of course a dry trust estate would not have passed by the devise in question; but it should be observed that a mortgagee, merely as mortgagee, has a beneficial interest in the land to the extent of his mortgage money and interest.

Instead, then, of its being doubtful, on the intention of the testatrix, whether the mortgaged estates were included in her general devise, her manifest and main object, that her whole estate should be under the controul of her trustees, would be to a great extent defeated if such estate were held not to pass; and as Lord Eldon and Sir Thomas Plumer have both decided that the intention, legitimately ascertained, is to be the guide in each case, we think that the estates vested in Mary Host as mortgagee in fee passed by the general devise in her will.

Our readers are aware that in case a mortgagee die, and the legal estate in the mortgaged premises descends to an infant, a conveyance may be obtained under 1 Wm. 4, c. 60, by an order from the Court of Chancery; but the frequent occasion there is to have recourse to the Court for such purpose, and the expense of the procedure, scarcely ever less than £30, and frequently £50, render it very important that some plan should be devised by which the personal representative of the mortgagee should have power to dispose as well

1 See Ex parte Whiteacre, 1 Saund. Uses and Trusts, 359.

of the estate in the land as of the mortgage money. Besides, the act just referred to, though useful, is defective; it does not provide for the case of the heir of a mortgagee being unknown.' The following form, which has already been given in a note to Hayes' Short Introduction to Conveyancing, has been proposed:

and all and singular

"To have and to hold the said other the premises hereby granted and released or intended so to be, subject nevertheless to the proviso for redemption hereinafter contained, unto the said [mortgagee] and his heirs, to the uses following, that is to say, To such uses and upon and for such trusts, intents, and purposes as he the said [mortgagce] or his executors or administrators within twenty-one years after his death shall from time to time or at any time by any deed or deeds appoint; and in default of and until such appointment, To the use of the said [mortgagee] his heirs and assigns for ever."

The power of sale should be given "to the said [mortgagee] or other the person or persons who shall for the time being be competent to appoint or convey the said hereby mortgaged premises.

Sometimes a difficulty arises with respect to the legal 'estate in mortgaged premises, from all the trustees named in the mortgagee's will dying in his lifetime or renouncing. There should be a power of appointing new trustees in the will so framed as to meet such cases. Such a power may be given to one or more of the beneficial devisees, if any of them may be fitly entrusted with it; and it may be given to the trustees named in the will, though they renounce. Again, it should be declared, that immediately upon the appointment being made, the legal estate in the trust premises should vest in the new trustees by virtue of the will. This case lately occurred in practice. A testator, seised of considerable real estate, devised it and all his personal estate to two trustees upon various trusts for the benefit of infants; there was a power enabling the trustees, though they renounced, to appoint new trustees, but no declaration that the trust premises should be vested in the new trustees appointed by them. The trustees

did both renounce and appointed new trustees, but the legal estate remains in the heir at law of the testator, an infant. The following form is submitted to the consideration of the learned reader.

“Provided also, and I do hereby declare, that if and when the said [two trustees named in the will], or either of them, or any trustee to be hereafter appointed shall die, or decline, or become incapable to act in the trusts of this my will before such trusts shall be fully performed, it shall be lawful for the said [a beneficial devisee, if any fit,] during his [or her] life, and after his [or her] decease, for the said [two trustees named in the will], or the survivor of them, though they or he should renounce the trusts hereby or intended to be hereby reposed in them or him, or for the surviving or continuing trustees or trustee, or for the executors and administrators of the surviving trustee, as the case may be, by any deed duly executed, to appoint a new trustee or trustees, and the trust-estate and premises for the time being shall thereupon, by virtue of this my will, or of a sufficient conveyance, or other assurance, as the case may require, be vested in such new trustee or trustees solely, or in such new and such surviving or continuing trustee or trustees jointly, as the case may require, upon the same trusts and with the same powers as are hereinbefore mentioned and declared concerning the same, or such of the same trusts and powers as shall be then subsisting and capable of taking effect."

Thus the person appointing a new trustee would in fact have a power, a common law authority, to vest the whole trust estate, whether there were a continuing trustee or not, in the new trustee or trustees solely if there were no continuing trustee, or in the new and the continuing trustee or trustees jointly; and as at present advised, we see no objection to the validity of such a power; it could only be exercised during the continuance of the trusts, and therefore would be within the limits provided against perpetuities.

W. C. W.