share alike, and if either of them should die before attaining the age of twenty-one years, leaving issue, then the share of him or her so dying shall be released and assigned unto or in trust for such issue, but if there shall be only one such child, then unto such only child, his or her heirs, executors or administrators for ever; and if all my said present or future children or child shall happen to depart this life, and without leaving lawful issue them, him or her surviving, then, upon trust, to release my said real estates unto and to the use of my heir-at-law, and to assign my personal estate unto and equally between my next-of-kin, according to the Statute of Distributions." The testator died on the day after the date of his will, leaving his widow, now the defendant Mrs. Badham, and two children, Sarah Elizabeth Maud and Samuel Benjamin Maud, surviving him. The widow married the defendant James Billings Badham, in January 1838. The son died on the 8th of July 1841, in the ninth year of his age, and the daughter died on the following day (the 9th of July 1841), in the thirteenth year of her age; and under these circumstances the question is, who is entitled to the benefit of the trust to assign the testator's personal estate unto and equally between the testator's next-of-kin, according to the Statute of Distributions. By a decree, dated the 28th of January 1843, it was referred to the Master to inquire who were the testator's next-of-kin at the time of his death, or who would have been such next-of-kin if the testator had died without issue, and who were the testator's next-of-kin at the time of the death of the last surviving child.

The Master, by his report, has found that the two children of the testator were his next-of-kin at his death, and that the defendants, J. G. Maud and E. Maud, the brother and sister of the testator, would have been the testator's next-of-kin if he had died without issue, and that they were such next-of-kin at the death of the testator's last surviving child. Mrs. Badham is the legal personal representative of the two deceased children, and she claims the property in their right, as the testator's nextof-kin at the time of his death.

The brother and sister of the testator allege, that the testator having intended to give his children such particular interests as

were provided for them by the former clause of the will, cannot be deemed to have intended them to take absolutely under the description of next-of-kin, or intended as his next-of-kin the same persons upon whose death without issue he directed the property to go over. He must, it is said, have meant the persons who should be his next-of-kin at the time when the gift over took effect. I own, that in such a case as this, I cannot attach much weight to that which is supposed to have been the testator's intention in favour of or against particular persons as the next-of-kin. At the time when the will is made it is necessarily uncertain who will be the testator's next-of-kin at the time of his death. If at the date of his will he has children who are then his next-of-kin, they may die before him and give place to his brothers and sisters. If at the date of the will he has brothers and sisters, he may afterwards have children born who, at the time of his death, may displace his brothers and sisters. Contingencies of this kind are infinite, and it is, perhaps, probable the testator in such cases means only to provide for those whom he does mean to benefit in the way he thinks best and particularly sets forth in his will, and then to add, if events defeat that particular intention, the law may take its course. It is, indeed, quite unnecessary to express that, because the law would make its distribution without any direction; but it appears to me more probable, and more in conformity with the ordinary habits of men, that the testator should use that expression though unnecessary, than that he should have meant a particular benefit to any individual person who might chance to be his next-of-kin. If he had intended his bounty to go to his brother and sister, it is probable he would have named them, and not have left his bounty liable to be defeated before their death, or to be passed from one to another in succession, who might from time to time arise to answer that description. I think it is upon the effect of the words used by the testator that the case must be determined. That which is considered to be the true construction is in most cases (though unfortunately not in all,) considered to be the true exponent of the testator's intention. The cases of Briden v. Hewlett and Butler v. Bushnell, which were referred to in the

argument, were decided by the effect imputed to the particular words used in those cases. They were considered to be referable to the event on which the gift over was to take effect; they depended upon the words "would be," or "would happen to be." Now, the words "would be,' or "would happen to be," if they are important in this consideration, are not found in the clause in this will. Upon the happening of the event which the testator contemplated, there is an express and simple direction to assign to any next-of-kin, according to the Statute of Distributions. According to the plain construction of the language, the words mean his next-of-kin at the time when the will speaks, that is, at the time of the testator's death. There is nothing in this will which shews that the testator has put any other construction upon the words; and, upon the authority of Holloway v. Holloway, I think that the next-of-kin living at the testator's death were the persons who were entitled to the ultimate gift.

of a sum of 500l. and interest to John Wastie. By an indenture of assignment of the 17th of August 1831, made between John Wastie of the first part, W. H. Smith of the second part, and W. Browne of the third part, John Wastie assigned the two sums of 2,9997. and 500l. and interest, and all bonds and covenants executed for payment of the same, subject to redemption, on payment by J. Wastie to W. Browne, of the sum of 1,600l. and interest, and also subject to the trusts following: viz. that the said W. Browne, his executors and administrators, should, when he or they should receive the said sums and interest, stand possessed thereof in trust, in the first place, to pay to himself or themselves the sum of 1,600l. and interest, and the costs, charges, and expenses of recovering and enforcing payment of the sum of 1,6001. and interest; and, in the next place, should pay the surplus (if any) of the same sums and interest, to J. Wastie, his executors, administrators, and assigns. By the same indenture J. Wastie surrendered and released to W. Browne the mortgaged premises, subject to the same benefit of redemption as J. Wastie then held the same, and also subject to redemption, on payment by J. Wastie to W. Browne of the sum of 1,6007. and interest at the time therein mentioned. J. Wastie, by the same indenture, also entered into a covenant with W. Browne for payment to him of the sum of 1,600l. and interest, at the time mentioned in the indenture of the 17th of August 1831; and he also, by way of further security for the repayment of the sum of 1,600l. and interest, executed a bond to W. Browne, bearing even date with the mortgage indenture in the principal sum of 3,2001. On the 29th of November 1831, W. Browne was admitted tenant of the customary mortgaged premises; and he, on the 14th of December in that year, made his will, whereby he devised to his sons, John Browne and William Browne, and their heirs, all such real estates as were vested in him upon any trust, or by way of mortgage, and he appointed those persons, and his daughter Elizabeth Browne, his executors and executrix. W. Browne died in November 1834, and his will was proved by the executor, W. Browne, in January 1835. J. Wastie died on the 13th

of August 1835, and his will, by which he appointed William Alder and John Hardy his executors, was proved by them on the 20th of November 1835. By that will J. Wastie devised the mortgaged hereditaments beneficially to Elizabeth, the wife of James Lockhart the elder, the brother of J. Wastie, for her life, with remainder to Elizabeth, the daughter of J. Lockhart the elder, and her heirs. By a decree of foreclosure, dated the 28th of December 1841, and made in certain causes, wherein W. Browne and J. Browne were plaintiffs, and W. H. Smith, J. Hardy, W. Alder, J. Lockhart the elder, and Elizabeth his wife, and others interested in the devised estates of J. Wastie, were defendants, the usual accounts were ordered to be taken against W. H. Smith and the executors and devisees named in the will of J. Wastie respectively, in respect of the monies secured by the several indentures of mortgage, and afterwards all the parties, defendants to the last-mentioned causes, were formally foreclosed by the orders of the Court.

On the 21st of October 1844, and after attempts had been made to sell the mortgaged premises by public auction, the same were disposed of by private contract at the sum of 1,999l., being a sum less by the sum of 6421. 8s. 11d. than the amount found due to the executors of W. Browne by the Master's report from the estate of J. Wastie. A suit having been instituted for the purpose of administering the estate of the testator John Wastie, the Master made his separate report as to the debts due from his estate, dated the 20th of July 1844. After the confirmation of that report, the personal representative of W. Browne claimed before the Master to be allowed in the lastmentioned suit against the estate of John Wastie, the difference between the sum of 1,9997., the amount of the proceeds arising from the sale of the mortgaged premises, and the amount found due in the foreclosure suit. The claim having been allowed by the Master, exceptions were taken to his report by Alder, the surviving personal representative of John Wastie.

Mr. Kindersley and Mr. Lloyd, in support of the exceptions, contended, that as the mortgaged premises had been sold, and could not be restored to the mortgagor, the

mortgage could not be opened, and that in such a case a mortgagee would be restrained from proceeding at law on the bond or covenant given by the mortgagor by way of collateral security for repayment of the principal money and interest; that the contract between the mortgagor and mortgagee was not one merely for a loan, but for a loan accompanied by a pledge, and that whenever the loan should be satisfied, the pledge must be returned; that the representatives of J. Wastie had a right to say to the executors of the mortgagee, "If we perform our part of the contract by paying the amount due on the mortgage security, we shall insist on the performance of your part of the contract, by the reconveyance of the mortgaged estate;" that the contract between the parties, as respected the pledge, was at an end, by reason of the absolute decree of foreclosure that had been made, and it might happen that the mortgagee might, by reason of the discovery of coal, or some other circumstance after foreclosure, dispose of the mortgaged premises for a much larger sum than was due on the mortgage security, and in that case the mortgagor could claim no interest in the proceeds of the sale; that, in the present case, there was a want of mutuality of contract between the parties; and that it was quite unprecedented for an executor of a mortgagee to commence an action on the bond or covenant of the mortgagor for payment of the mortgage-money after foreclosure, and also sale of the mortgaged estate.

Perry v. Barker, 8 Ves. 527.

Tooke v. Hartley, 2 Bro. C.C. 125; s. c. 2 Dick. 785.

Mr. G. Turner and Mr. Shapter, contrà, contended, that the personal representatives of the mortgagor Wastie had no equity entitling them to deprive the personal representatives of the mortgagee Browne of their legal right to recover the amount due to them; and it was on that principle that Lord Thurlow proceeded, in Tooke v. Hartley; that the mortgagor could not be prejudiced by the sale of the mortgaged premises, if they turned out (as in the present case) to be of less value than the amount due thereon, and, therefore, the mortgagee ought to be permitted to proceed on his other remedies;

that, in the case of a pledge of chattels, accompanied by a promissory note, if the pledgor does not pay the amount advanced at the time appointed for that purpose, the pledgee was entitled to proceed at law on the promissory note, notwithstanding the sale by him of the chattels; that before it could be insisted by the other side, that the executors of the mortgagee ought to have sued the original mortgagor Smith, on his bond or covenant, ere they proceeded against the estate of Wastie, it must be shewn that Smith left behind him any estate or assets applicable to the payment of the debt due from him.

The cases of

Mason v. Bogg, 2 Myl. & Cr. 443; and Dyson v. Morris, 1 Hare, 413; s. c. 11 Law J. Rep. (N.S.) Chanc. 241, were cited on behalf of the surviving executor of the mortgagee.

The MASTER OF THE ROLLS, on the conclusion of the discussion of the case, stated the general view he took of it.

The debt was secured by a pledge of land independently of any trust, and by the mortgagor's bond and covenant. In equity the mortgagor, on full payment of the debt, expects to have the land back again, and this a court of equity will give him as a matter of right; a mortgagee may pursue all his remedies at the same time, but if he obtains full payment by means of an action on the mortgagor's bond or covenant, he is precluded from pursuing his remedy by bill to foreclose the mortgage. If the mortgagee recover on the bond or covenant only part payment of what is due to him, he may still proceed to foreclose for the residue, and may hold the mortgaged estate foreclosed, whatever may chance to be the value of it: on the other hand, if the mortgagee obtains a decree of foreclosure in the first instance, and alleges that the estate is insufficient to satisfy the mortgage debt, he is not precluded from proceeding in his action on the bond or covenant to recover the amount remaining due to him; but if he thinks fit to take that course, he must give the mortgagor a new right to redeem. I conceive it to be quite established that so long as the mortgagee after foreclosure remains possessed of the mortgaged estate, and can

give effect to the mortgagor's right to redeem, he may proceed at law against the mortgagor on the bond or covenant; but the question here is of a different nature: here the mortgage has been foreclosed, and the estate actually sold at the mortgagee's sole instance and pleasure; the understanding here is, that the mortgagee must be supposed to have commenced his action on the bond or covenant, and if so, what has become of the right of the mortgagor to redeem the estate? How can the mortgagor, on full payment of the amount due to the mortgagee, have back the mortgaged estate? Lord Thurlow considered if the mortgaged estate were fairly sold, the mortgagee might deduct from the proceeds. of the sale the expenses properly incurred by him, and recover what remained due by an action on the bond. Lord Eldon, however, was of a different opinion, and thought that after a sale of the mortgaged estate by the mortgagee, he could not claim payment of any part of the debt due by an action at law on his bond or covenant, not being in a situation to restore to the mortgagor his estate in specie. The case might have been different had there existed a trust for sale of the estate. I may add, that in some instances I have known the opinion of Lord Thurlow preferred to that of Lord Eldon, and therefore I shall say nothing at present about the cases that have been cited before me.

April 18.-The MASTER OF THE Rolls, after stating the facts, and that it was admitted that the estate had been fairly sold by the mortgagee, (and that the case was not one of a trust to sell, made some general observations on the rights of a mortgagee with reference to his remedies by foreclosure in equity, and on the mortgagor's bond and covenant at law; and added, that an action could not in his opinion be sustained by the mortgagee after he had sold the estate; that he apprehended the rule for opening a foreclosure was founded on the circumstance, that the mortgagor would lose his estate unless he paid the whole of the debt due thereon; that the mortgagee had always a right to foreclose, and if he considered the estate insufficient to satisfy the amount due thereon, he might at all

times proceed with his remedy at law on the mortgagor's bond or covenant; but when the mortgagor lost his right to redeem by reason of the sale of the estate by the mortgagee, the latter ought not to be permitted to proceed in his action on the bond or covenant of the mortgagor. His Lordship added, that the authorities left the matter in great obscurity, and that he wished to have it understood in equity, that whenever a

mortgagee sought payment by the mortgagor of the amount due to him on his mortgage security, the mortgagor on payment thereof was entitled to have his estate restored to him.

Exceptions allowed, and deposit ordered to be returned to the exceptant (Alder), the surviving executor of J. Wastie, the mortgagor.