by the parties thereto, that the said Samuel Robert Topping and Robert Loosemore, their executors, administrators, and assigns, should stand and be possessed of and interested in the same several freehold and leasehold hereditaments and premises respectively, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, declarations, and agreements thereinafter declared and contained of and concerning the same; that is to say, upon trust to permit and suffer the said William Knapman, his heirs, appointees, executors, administrators, and assigns respectively, to receive and take the rents, issues, and profits of the said several freehold and leasehold hereditaments and premises, with the appurtenances, to and for his and their own absolute use and benefit, until some default should happen to be made of or in the said annual sum of £50 or £200, (as the case might be,) or some part thereof respectively, at or on the days or times and in the manner therein before appointed for the payment thereof respectively; and in case the said annual sum of £50 or £200, (as the case might be,) or any part thereof respectively, should happen to be behind or unpaid by the space of forty days next after the said days or times of payment thereof, then upon further trust, for better securing to the said Sarah Loosemore, or such her appointees and assigns as aforesaid, the payments of the said several annual sums of £50 and £200 (as the case might be); and, for that purpose, upon trust, that they the said Samuel Robert Topping and Robert Loosemore, or the survivor of them, or the executors, administrators, or assigns of such survivor, should, from time to time, by and out of the rents, issues, and profits of the several freehold and leasehold hereditaments and premises, by demising, leasing, selling, or mortgaging the same premises, or any of them, or any part or parts thereof respectively, for all or any part of the said term of 500 years, as respects the said hereditaments therein comprised; and as to the said leasehold premises, for all or any part of the then residue of the said several terms of years, save and except the last ten days thereof respectively, or either of them, or by all or any of the said ways, or by any other ways or means, levy and raise such sum and sums of money as should be sufficient from time to time to pay and satisfy the said yearly sum of £50 or £200, (as the case might be,) or so much thereof as should from time to time happen to be in arrear and unpaid, together with all loss, costs, charges, damages, and expenses, which the said Sarah Loosemore, or such her appointees or assigns as aforesaid, or the said Samuel Robert Topping and Robert Loosemore, or the survivor of them, his executors, administrators, or assigns, should sustain, expend, or be put to for or by reason of the non-payment of the said yearly sum of £50 or £200, (as the case might be,) or any part thereof respectively, at the days or times and in manner therein before mentioned for the payment thereof, and should pay, and apply, and dispose of the same moneys accordingly. And upon further trust, that they the said Samuel Robert Topping and Robert Loosemore, or the survivor of them, or the executors, administrators,

and assigns of such survivor, should permit and suffer the said William Knapman, his heirs, appointees, executors, administrators, or assigns respectively, to receive and take the residue or surplus of the rents, issues, and profits of the said several freehold or leasehold hereditaments and premises. And the settlement contained a proviso for cesser of the term on satisfaction of the said trusts.

The marriage was shortly afterwards solemnized. William Knapman died in August, 1835, having by his will confirmed the jointure of £200 to his widow, and devised the estates, subject thereto, to his son Henry Knapman, whom, together with the said Sarah Knapman, he appointed executor and executrix of his will.

From the testator's death until the death of Henry Knapman, in July, 1840, Sarah Knapman received the rents of part of the hereditaments, but not to a sufficient amount to satisfy her jointure during those years, and considerable arrears were due to her in respect thereof at the time of her death in March, 1852. Sarah Knapman died intestate, and John Loosemore became her legal personal representative, and also the administrator de bonis non &c., with the will annexed of William Knapman, her deceased husband. John Loosemore filed the bill in this suit against the trustees of the settlement of 1833, and against Mary Knapman, who, as devisee of all the real estate of Henry Knapman, was beneficially entitled to the hereditaments and premises comprised in the settlement, subject to the jointure, insisting that these hereditaments were primarily liable to the jointure, and praying for an account, and that Mary Knapman might be decreed to pay to the plaintiff what should be found due, upon taking such account, in respect of the jointure.

Mr. Rolt, Q. C., and Mr. Elwin, for the plaintiff.

Mr. Glasse, Q. C., and Mr. G. Lake Russell, for the defendants. VICE-CHANCELLOR SIR W. PAGE WOOD. I think, although there is a distinction to be found in the cases, that I am bound on principle to hold that this is a charge primarily on the real estate. First of all, there is the decision of Lord Hardwicke in Lanoy v. The Duke of Athol, 2 Atk. 444. I believe there are prior cases, but that is the leading case on the subject. He says in effect, that, although where there is a covenant for payment the personal assets are first charged, this is not extended to provisions in a settlement; and the ground must be that which is pointed out in the argument in Lechmere v. Charlton, 15 Ves. 193, that, in a security of this description, there is not any benefit accruing to the personal estate of the party who is the debtor, but the whole arrangement is merely for the purpose of securing a jointure or portion; and the personalty not having received any benefit, the true intent is, that the real and not the personal estate should be the primary fund. That was the ground of the decision in Graves v. Hicks, 6 Sim. 398. In that case there was an agreement to secure a sum of £6,000 by way of mortgage; and the Vice-Chancellor takes a distinction which is nice, but of some importance, as to what

would have been the effect if the wording there had been different — if it had been an agreement to pay and not to secure the £6,000. (See 6 Sim. 403.) The use of the word "pay" might have been evidence of an anterior debt, as the question was, whether it was a debt at the time of the settlement. That question is asked here, and the answer must be, that no debt then existed. Then the question arises — which is the only difficulty occasioned by the peculiarity of this case whether the form of the settlement is such as to indicate an intention that the personal estate is to be the primary fund; for such an intention must be expressed in the deed, if the principle is, that, there being no benefit to the settlor's personal estate, as between his real and personal representatives an intention is not to be prima facie imputed to him, of securing the debt on his personal estate. But the intention appears to me to be upon the whole frame of the deed, to make a charge by way of mortgage on real estate, as a provision by way of a settlement, which, as in Graves v. Hicks, must make the real estate the primary fund, unless clear evidence to the contrary be found in the deed. If the deed had contained a recital, that, "whereas on the said marriage William Knapman had agreed to secure an annuity of £200 by way of mortgage," the case would have been identical with Graves v. Hicks. That, however, is not the recital, but it recites an agreement to secure the annuity "in manner hereinafter expressed." If the settlor had said, I intend to secure it by way of mortgage, the deed would have been in this form: There would have been a covenant to pay the annuity, and a term created to secure it; and the deed would have contained a proviso that the mortgagor should hold until default, which is the common form of deeds of mortgage. No question could then have arisen. The case would have been like Graves v. Hicks. But the recital is merely that the security is to be made "in manner hereinafter expressed;" and the form of the deed is this: - There is first a demise for a term, upon the trusts thereinafter mentioned; and then there is a covenant to pay the jointure annuity at certain fixed periods; and then a trust to allow the settlor to hold until default, and forty days after default to raise the money. It occurred to me, that the defendants might say, supposing the lady, or her executors, to have sold before the forty days had elapsed, and to have been fortunate enough, by the effect of the proceeding, to have recovered the annuity, could the executors urge that the money was to be raised out of the land? The answer to that would be, that the court considers that the essence of the transaction is a mortgage, and the principle of Lanoy v. The Duke of Athol would apply, namely that where the personal estate takes no benefit, the election of a third party to sue upon the covenant would not disturb the equities of the parties; and although the personalty was obliged to pay the money before actual default, yet the real estate, and not the personal estate, was the primary fund, out of which it should come. I observe that the learned editor, in Lechmere v. Charlton, has printed the following part of the argument in italics:

"The cases in which the personal estate is applicable in exoneration of the real estate, are all cases where a personal debt is contracted, by which the personal estate has been augmented and the real estate was only pledged." Probably the reason for doing so was, that that part of the argument shows the principle upon which the decision rested. I do not, however, rely upon that, but upon the decision in Lanoy v. The Duke of Athol, and the view which the Vice-Chancellor took, in asking, in Graves v. Hicks, whether any debt was due at the time? Asking the same question here, and it appearing that there was no debt, and no augmentation of the personal estate, I must hold, according to the authorities, that the transaction is to be regarded as a security made by the settlor upon his marriage, in which, his personal estate taking no benefit, the onus is thrown upon those who wish to make it liable to show some reason for doing so.

HOFF'S APPEAL.

SUPREME COURT OF PENNSYLVANIA. 1855.

[Reported 24 Pa. 200.]

WOODWARD, J. The testator devised to his wife, the appellant, for life, the house in which he dwelt on Chestnut Street, together with the policy of insurance and furniture. When he purchased the house in 1847, there was a mortgage resting on it for $8,400, made by a former owner, and his will is silent in regard to the payment of the mortgage. The executors paid it off out of the personalty, and took an assignment; but the creditor and the Court of Common Peas refused to allow them a credit for it on the ground that the widow took the estate cum onere, and that she must pay the mortgage. She appeals, and the question is whether the mortgage is chargeable on her estate or on the personalty.

The will contains, in the introductory clause, the usual direction as to payment of debts, a phrase which in England is necessary to charge debts on the realty, but wholly unnecessary here, where lands as well as personal estate are bound for every decedent's debts. Still the words "after the payment of my lawful debts," cannot be treated as meaning nothing; and if they are to have any significance, it must be that the executors should pay the debts before distribution be made of the estate in pursuance of the will. A debt secured by a mortgage of the testator's own making, is no less a debt within the meaning of the introductory phraseology of wills than a promissory note; and executors are as much bound to pay the one as the other. The reason assigned in the English cases for throwing such a mortgage upon the personalty, is that the personal estate has been benefited by the making of the mortgage; a

1 The opinion only is given.

reason for which we stand in no need, though it is as applicable here as there. As to the mortgagee, the mortgage is a specific lien, and he cannot be restrained from resorting to the land pledged; and as between him and other creditors, he will often be compelled to do so in relief of other funds; but as between the mortgagor and his representatives, his mortgage is evidence of indebtedness; and where there is nothing in the will to control their action, it is their plain duty to pay it. And to excuse them there must be a clear declaration of intention that the devisee of the mortgaged premises is to take them cum onere. Thus it is settled, says Powell, on the authority of a great number of cases (see his work on Devises, vol. 11, page 671), that a devise of mortgaged lands, subject to the mortgage thereon, does not throw the charge on the estate so as to exempt the funds which by law are antecedently liable, as the testator is considered to use the terms merely as descriptive of the encumbered situation of the property, and not for the purpose of subjecting his devisee to the burden.

But how is it where the estate comes to the devisor encumbered by a mortgage made by a former owner? If it come by descent or devise, and the testator has done no act to make the debt his own, his devisee will take the estate cum onere, and the executors are not chargeable with the mortgage; and the rule is the same even where the testator has purchased the estate, if he have had no connection, or contract, or communication with the mortgagee, and have done no act to show an intention to transfer the debt from the estate to himself. What dealings will have the effect to make the mortgage his own debt, have been debated in a great variety of cases, several of which counsel have cited in their paper-books. It seems that paying the mortgagee a higher rate of interest, and indemnifying the vendor against the mortgage, both which occurred in this case, are not such acts on the part of the purchaser as make him personally liable for the mortgage-debt. Shafto v. Shafto, 2 Cox's P. W. 664; Woods v. Huntingford, 3 Ves. 128.

The court below ruled the question on this ground. The learned judge said, it must appear that he (the testator) has done some act by which he has made himself directly liable to the owner of the encumbrance; and then he ruled that the evidence submitted to the auditor was insufficient to shift the obligation from the real to the personal fund. We agree that some act must be shown, indicative of an intention to take the mortgage upon himself, and the court were, perhaps, right in setting aside the evidence of payment of an increased rate of interest, and certainly right in disregarding the declarations of the testator, made to persons having no interest in the subject; but they overlooked one important and decisive fact, which was in full proof before the auditor, to wit, that Hoff purchased not merely the equity of redemption in this house and lot, but the entire interest, and that the mortgage formed part of the price of the estate. The proof was that he bought of William Reynolds and wife for $13,900; that he paid $5,500, which, with this mortgage of Elmes to Harvey of $8,400, was VOL. IV. - - 53