arrear and growing interest, he apprehended, would with the said principal sum before the death of Richard and Alice Huntingford, or before the said John should come into possession of the mortgaged premises, amount to the value of the fee-simple thereof, had applied to Richard Huntingford to take upon himself the payment of the same, and to save harmless him, John Huntingford; and that in consideration thereof, he would convey and assure all his right, title and interest, in the premises to Richard Huntingford and his heirs, the said estates were conveyed with all the usual covenants from John for farther assurance and indemnity; and Bullen, the trustee, was directed to stand seised to the use of Richard; who covenanted to pay all the arrears due upon the mortgage. Richard Huntingford afterwards borrowed a farther sum of £40 from Wright, and made a new mortgage to him for the whole sum of £340. Upon these facts the question was between the heir and the younger children, whether the mortgaged premises were to be exonerated by the personal estate of Richard Huntingford. The cases cited were from Mr. Cox's collection in the note to Evelyn v. Evelyn, 2 P. Wms. 664, and Hamilton v. Worley, 2 Ves. Jr. 62. THE MASTER OF THE ROLLS. [SIR RICHARD PEPPER ARDEN.] This is one of the most doubtful questions, I have ever had to determine. When it is stated, it will occur to every one, that perhaps no point has given rise to more cases or more nice discriminations and distinctions. All the cases of any considerable weight have been very judiciously and accurately selected by Mr. Cox in his note upon the case of Evelyn v. Evelyn. The bench, the bar and the public in general, are much obliged to him for his very valuable edition of those very valuable reports. He has there in as short a note, as the subject would admit, put together all the cases, and selected all the material points both of fact and reason. Almost all the cases, that were quoted at the hearing, are brought together in that note; and he has there stated the rules respecting this question so accurately and shortly, and so well extracted the principles from all the cases, particularly Tweddell v. Treddell, which is a very governing case, that I would rather refer to his words than use my own. I have taken the more time to consider this case, because the inference, I draw from these transactions, is different from that, Lord Thurlow drew from the transactions in Tweddell v. Tweddell; for I am of opinion, that what has been done here is sufficient to make this the personal debt of the vendee; and I have taken great pains in order to show, that my determination does not in any degree contradict the principle there established. I shall state the grounds, upon which I think, this case differs from that. It may be said, they are nice but they are the only grounds, that can exist; unless you lay down at once, that the debt never can be made the personal debt of the vendee, unless by his expressly declaring, that it shall be his personal debt. It comes to this point only, whether by acts it : may not be necessarily inferred, that he meant to make it a debt of his own. Teddell v. Tweddell is very fully reported twice in 2 Bro. C. C. 101, 152; and has many expressions in it, which so fully govern my opinion, that I cannot wholly omit them. Lord Thurlow begins by stating, that in the first place it is absolutely necessary, the executor should be liable at law; for if not, it is impossible there can be any equity in the heir to call upon him to pay out of the personal estate, when he would not be liable to pay at law. But though he may be liable at law, it does by no means follow, that he shall be equally liable in equity, where both the personal and real estate descending upon the same person are liable to the debt. In the known case of an obligation binding both the heir and executor, the heir has a right to call for exoneration out of the personal estate; which must be first applied. Where by the original contract the personal estate is the original debtor, and the real only a collateral security, it is much stronger in favor of the heir. Then this case has arisen. A man makes a contract pledging both his real and personal estate; the latter by a general obligation; part or the whole of his real estate as a specific pledge by way of mortgage. That estate descends upon his son as heir at law the personal estate goes to the executor; and the question is, who pays the debt. It was a mixed debt of the father; but the son's only as owner of the collateral pledge; and he has a right to call upon the personal estate. Therefore if a person succeeding to an estate of that kind has done no act to adopt the debt and make it his personal debt, his personal estate is not liable: but if by his acts he has put himself so far in the place of his ancestor as to make the debt his own, that is understood to be the same as if he was the original mortgagor: but the court has been extremely anxious not to make that inference, unless where it is perfectly clear and obvious; therefore though, the mortgagee pressing for his money, the heir is obliged to have a transfer of the mortgage, and, as every one knows, no assignee will take it without some personal covenant, upon that transaction he executes a bond to the new mortgagee, if he does it only for that purpose, not meaning to make himself more liable, it has been determined not to make it the personal debt of the party, whose original debt it was not. It has been attempted to prove, that what Richard Huntingford has done comes to that case, and that he joined only for that purpose. Most of the cases in Mr. Cox's note are of that kind: Tweddell v. Tweddell is of a different nature. That was not the case of a mortgaged estate descending upon the heir; but it was a purchase of an estate subject to a mortgage. There was no communication with the mortgagee: but upon the sale there was a mere covenant of indemnity against the mortgage by the vendee. That is strongly relied on by Lord Thurlow. In commenting on Tweddell v. Tweddell he does not seem to disapprove the case of Parsons v. Freeman; but seems to agree with Lord Hardwicke's reasoning, and recognizes the principle, as far as it can be taken from the short note in Ambler. He intimates his doubt of Lord Rochford v. Belvidere; upon which therefore I shall not rely; as there are many difficulties occurring against that judgment, though by so high an authority. Tweddell v. Tweddell amounts only to this: that where a man buys subject to a mortgage, and has no connection or contract or communication with the mortgagee, and does no other act to show an intention to transfer that debt from the estate to himself as between his heir and executor, but merely that, which he must do, if he pays a less price in consequence of that mortgage, that is, indemnifies the vendor against it, he does not by that act take the debt upon himself personally. It remains to consider, whether in this determination I do infringe upon that principle. I should be extremely sorry to do so; and have taken so much time in order to be sure, I do not. It is very unpleasant for a judge, where an inference is to be drawn from equivocal acts; and the facts, upon which the decision turns, are distinguished by such nice lines. This is a sale of the estate by John Huntingford to Richard who takes upon himself the payment of this money; to which before he was liable at law, and John both at law and in equity. The question is, whether that transaction, and the subsequent loan of £40 and new mortgage by Richard acting as owner, did not make the debt his own? I cannot collect, that Lord Thurlow said, a man never could make a debt his own without an express declaration; and no case short of that can have that effect, if this is not sufficient. I am of opinion, that under all these circumstances Richard has clearly adopted the debt and made it his own, though primarily the debt of his son in equity and of himself and his son at law. The transaction in 1767, and the subsequent one with Wright, show he meant to put himself in his son's place; who has therefore a right to be exonerated out of the personal estate.1 JOHN TYSON being entitled to a copyhold estate to him and his heirs, according to the custom of the manor, mortgaged the same on the 9th October, 1811, to Richard Mills, to secure £1,000 and afterwards surrendered the same to Mills and his heirs pursuant to the covenant in the mortgage deed. Tyson also gave his bond to Mills for payment of the money advanced. The mortgage money was not paid at the appointed time. Tyson died in November 1814, and by his will, 14th. December 1813, devised all his estate and effects to his wife, Elizabeth Tyson, and in 1 See Oxford v. Rodney, 14 Ves. 417 (1807); Gould v. Winthrop, 5 R. I. 319 (1858); 2 White & L. R. C. Eq. (5th ed.) 712, 713. particular his copyhold estate, and appointed her executrix; and she proved the will, and was admitted to the copyhold, subject to the mortgage; she died in May 1816, without issue, leaving her brother, the plaintiff, heir at law, according to the custom of the manor. In February 1819, letters of administration of the unadministered estate of John Tyson were granted to the plaintiff and the defendant Frances Beecher, the wife of the other defendant Alexander Beecher, and upon the death of Elizabeth Tyson, letters of administration of her estate, were also granted to the plaintiff and the said Frances Beecher. Richard Mills, the mortgagee, threatened to proceed to recover by ejectment the mortgaged premises, whereupon the plaintiff filed the present bill, insisting that he ought to have the mortgage paid out of the personal estate of the mortgagor, he having left assets more than sufficient for that purpose, and the prayer of the bill was accordingly. The defendants by their answer admitted that the assets of James Tyson were more than sufficient for the payment of his funeral expenses and debts, including the mortgage debt and interest thereon, and that E. Tyson had in her life-time possessed assets of James Tyson more than sufficient to pay all debts, including the mortgage, and that at her death there was also outstanding of James Tyson sufficient to pay the mortgage; but they submitted, that under the circumstances, the plaintiff must take the copyhold estate, subject to and chargeable with the mortgage debt, and that he was not entitled to have the personal estate applied in discharge of the mortgage. Mr. Pepys and Mr. Walker, for the plaintiff. Mr. Lovatt and Mr. Palmer, for the defendants, were stopped by THE VICE-CHANCELLOR. [SIR JOHN LEACH.] Elizabeth Tyson was devisee of the copyhold estate, and was also residuary legatee and executrix of the mortgagor. If she had thought fit, she might have paid off the mortgage out of the personal estate of her husband, for it is admitted that she possessed assets sufficient to pay all the debts, including the mortgage, and it may therefore be said that she elected to continue the mortgage as a charge on her real estate. But I apprehend this is not a case in which her personal representative is bound to make out any such fact of election. By the gift to her as residuary legatee, the personal estate of James Tyson became her personal estate, but the mortgage debt of James Tyson was not her debt, and her heir therefore has no equity to pay off this mortgage out of her personal The bill was dismissed with costs.1 estate. 1 See Ilchester v. Carnarvon, 1 Beav. 209 (1839); Clarendon v. Barham, 1 Y. & C. C. C. 688 (1842); Bruce v. Morice, 2 De G. & Sm. 389 (1848); Swainson v. Swainson, 6 De G. M. & G. 648 (1856). But cf. Bond v. England, 2 K. & J. 44 (1855). MIDDLETON v. MIDDLETON. CHANCERY. 1852. [Reported 15 Beav. 450.] THE question arose on the will and codicil of Charles John Middleton. By his will, dated the 28th of February, 1831, he expressed himself as follows: "I desire and direct that all my debts, funeral and testamentary expenses, and all legacies herein mentioned, or which by any codicil to this my will I may hereafter give or bequeath, may, in the first place, be paid and satisfied out of my personal estate, or if that should prove insufficient, out of my real estate; and I hereby charge the same upon my personal and real estates respectively in the hands of my devisees and executors hereinafter named." He then devised his freehold, leasehold, and copyholds "in England, or wheresoever situate, to trustees and their heirs forever, in pure trust, subject to debts, expenses, and legacies, as aforesaid, to suffer and permit" his wife to enjoy them for life, and after her decease, to his brother, H. J. Middleton, for life, with remainders over. He bequeathed all his personal property to his wife absolutely, subject to certain pecuniary legacies. He then, after reciting that he possessed estates in the East and West Indies, devised his lands, &c. in the colonies to his wife and her heirs absolutely, "subject only to payment of debts, expenses, and legacies, as aforesaid; for his will and intention was, to bequeath to her all he possessed, and to create an interest in his lands and real estate in England only, after her decease, as detailed above." The testator had a copyhold estate at Midanbury, in Hampshire, and a share in a freehold estate in Jamaica. He afterwards purchased two houses in Calcutta, and by a codicil made in 1835, after reciting he had purchased these two houses in Calcutta, he proceeded thus: "Now I desire and direct, that these tenements shall follow the uses of my will now in England, and in the event of my demise, shall become the sole property of my wife, to be enjoyed and disposed of by her as fully and entirely as if I had myself been alive." On the 12th of January 1843, the testator borrowed the sum of £1,500 from Messrs. Child, his bankers, and he gave his bond of that date for securing the repayment, together with an equitable mortgage on the Midanbury property. The testator died in January 1844; and a bill having been filed for the administration of his estate, it was found, that the personal estate was insufficient for the payment of the debts, that a small balance of £15 remained unapplied, and that there was still a debt by simple contract, of £194, and that the debt of £1,500, to Messrs. Child & Co., |