gage for years;

during the life of the said [owner], Upon trust for the said [owner] and his assigns, with remainder to the use of the said [owner], his heirs and assigns for ever; AND WHEREAS, by an of first mortindenture of appointment and demise, bearing date the day of in the year and made between the said [owner], of the one part, and the said [first mortgagee], of the other part, the said hereditaments were appointed to the use of (86) and demised unto the said [mortgagee], his executors, administrators, and assigns, for the term of 500 years from the day of the date thereof; subject to a proviso for making void the said term on payment by the said [owner], his heirs, appointees, executors, administrators, or assigns, unto the said [first mortgagee], his executors, administrators, or assigns, of the sum of £- with interest for the same after the rate of £5 per cent. per annum, at the time and in manner therein mentioned; but in which payment default was made (87); AND -of second WHEREAS, by another indenture of appointment and demise, mortgage for bearing date the day of, in the year —, and made between the said [owner], of the one part, and [second mortgagee], of the other part, the said hereditaments were appointed to the use of, and demised unto, the said [second mortgagee], his executors, administrators, and assigns, for the term of 1,000 years from the day of the date thereof; subject to the mortgage made by the lastly hereinbefore recited indenture, and subject also to a proviso for making void the same term of 1,000 years, on payment by the said [owner], his heirs, appointees, executors, administrators, or assigns, to the said [second mortgagee], his executors, administrators, or assigns, of the sum of £, with interest after the rate of £5 per cent. per annum, at the time and in manner therein mentioned, but in which payment default was made; AND WHEREAS the said [second mortgagee] died on or about the

day of

in

(86) The appointment and demise are often blended in the same testatum, thus:-"The said doth direct, limit and appoint, grant, bargain, sell and demise unto" &c. Still the effect (and the recital in the text assumes to state the effect, and not to exhibit the form of the instrument) is an appointment of the use, and a demise of the land.

(87) The verbose recital, "And whereas the said sum of £— was not paid at the time appointed by the said recited indenture for payment thereof, by means of which the said term of years became absolute at law, nevertheless redeemable in equity," is nearly exploded.

years;

of death of second mortgagee-his will -probate;

Recital of appointment and

demise.

Recital that mortgage be

came absolute.

the year, having made and published his last will and testament in writing, bearing date the day of in the year and appointed the said [executors of second mortgagee], executors thereof, who proved the same on the

-of mortgagee of in fee;

-of death of mortgagee in fee-his willprobate;

in the

Court of

day

; AND

,

in

in the year WHEREAS, by indentures of lease and appointment and release, bearing date respectively the and days of the year the indenture of appointment and release being made between the said [owner], of the one part, and the said [mortgagee in fee], of the other part, The said hereditaments were assured and limited by the said [owner] unto or to the use of the said [mortgagee in fee], his heirs and assigns; subject to the mortgages made thereof by the hereinbefore recited indentures of appointment and demise, and also subject to a proviso for redemption and reconveyance on payment by the said [owner], his heirs, appointees, executors, administrators, or assigns, to the said [mortgagee in fee], his executors, administrators, or assigns, of the sum of £, with interest after the rate of £5 per cent. per annum, at the time and in manner therein mentioned, but in payment whereof default was made; AND WHEREAS the said [mortgagee in fee] died on the day of, in the year, having made and published his last will and testament in writing, bearing date the day of, in the year, and appointed the said [executors of mortgagee in fee], executors thereof, who proved the same on the day of in the year in the Court of ; but the said [mortgagee in fee] died intestate as to the legal estate (88) vested in him by

Devises of mortgage and trust estates.

(88) It would be well to insert in every will a devise of mortgage and trust estates. A short clause to this effect is sufficient:-"I devise all estates, as well real as personal, of which I am seised or possessed as mortgagee or trustee, unto and to the use of the said [executors], their heirs, executors, administrators, and assigns respectively, subject to the equities and trusts affecting the same respectively, and to be disposed of, so far as I am beneficially interested, as part of my personal estate for the purposes of my will." As a general rule, mortgage and trust estates will not pass where the nature of the disposition is inconsistent with the supposition, that the testator intended to include property not beneficially his own. (Lord Braybroke v. Inskip, 8 Ves. 417). Thus, limitations in strict settlement, a trust for sale, a charge of legacies or debts, &c., will exclude mortgage and trust estates, however general and comprehensive the terms of the devise

virtue of the lastly hereinbefore recited indentures, and left the said [heir], his heir-at-law, surviving him; AND WHEREAS, of conveyby indentures of lease and appointment and release, bearing pointment, and date respectively the and -days of

in the

year

ance, by ap

lease and release of the

equity of redemption in fee, trust to sell;

to trustees upon

the indenture of appointment and release being made between the said [owner], of the first part; the said [trustees for sale], of the second part; and &c., [creditors or others for whose benefit the reciting conveyance is made], of the third part; the said hereditaments were assured and limited (together with other hereditaments) by the said [owner] unto and to the use of the said [trustees for sale], their heirs and assigns, (subject to the mortgages made thereof by the several hereinbefore recited indentures), Upon trust with all convenient speed to sell the same, either together or in parcels, by public auction or private contract, for such price or prices as could be reasonably obtained for the same; and to receive the money to arise from the sale thereof, and stand possessed of such money upon the trusts in the said indenture of appointment and release now in recital expressed; And the same indenture contains a declaration constituting the receipt of the said [trustees for sale] for money paid to them by a purchaser under the said trust for sale, a discharge from all responsibility in respect of the application thereof; AND WHEREAS the said [trustees of sale by for sale], in execution of the trust for sale reposed in them by suant to the the hereinbefore lastly recited indenture, caused the heredita- last deed;

may be, unless such estates be expressly included. These are indicia which cannot be mistaken. But other circumstances of a less decisive character often give rise to questions of great nicety. The rule, though established by a very high authority after much balancing of inconveniences, is unsatisfactory. In Ex parte Brettel, (6 Ves. 577), Lord Eldon held, that a general devise of the testator's estate to A., his heirs, &c., to and for his and their own proper use and behoof, did not pass trust estates; but he afterwards disclaimed (8 Ves. 434) any reliance upon the words "to and for his and their own proper use and behoof:" yet it does not appear that there was any other ingredient in the case. As to the effect of a general devise and bequest to trustees for sale and conversion in passing mortgage estates, see Ex parte Barber, in re Tyas, 5 Sim. 451. It is clear that a mortgagee or trustee may, from malice or caprice, put the legal estate into the fetters of a strict settlement, or disperse it in a thousand fractions among as many devisees. To such an intention, clearly expressed, the Courts could not refuse effect. Would equity mulct the estate of the testator with the costs of the reconveyance?

-with power to purchasers; give receipts to

auction pur

-of monies due on first,

-second,

-and third mortgages.

TESTATUM.

ments comprised in the same indenture to be put up for sale by public auction in

lots, at

in

aforesaid, on the day of last, at which sale the said [purchaser] became the purchaser of lot 1, consisting of the hereditaments hereinafter described, at the price of £; AND WHEREAS the said sum of £ remains owing to the said [first mortgagee] upon his said recited mortgage security, but all interest for the same has been paid to him up to the day of the date of these presents, as he hereby acknowledges; AND WHEREAS the said sum of £- remains owing to the said [executors of second mortgagee], upon the said recited mortgage security of their said testator [second mortgagee], deceased, but all interest for the same has been paid to them up to the day of the date of these presents, as they hereby acknowledge; AND WHEREAS the said sum of £ remains owing to the said [executors of mortgagee in fee], upon the said recited mortgage security of their said testator [mortgagee in fee], deceased, but all interest for the same has been paid to them up to the day of the date of these presents, as they hereby acknowledge: NOW THIS INDENTURE WITNESSETH, that, in completion of the Consideration. purchase aforesaid, and in consideration of the sum of £ of lawful British money paid by the said [purchaser], with the approbation of the said [owner], on the execution of these presents, in manner following: (namely), first, the sum of £part thereof, to the said [first mortgagee], in satisfaction of all monies now owing to him upon his said recited mortgage security, the receipt of which sum the said [first mortgagee] hereby acknowledges, and therefrom releases and discharges the said [purchaser], and also the said [owner] respectively, and their respective heirs, executors, administrators, and assigns; secondly, the sum of £—, further part thereof, to the said [executors of second mortgagee], in full satisfaction of all monies now owing to them upon the said recited mortgage security of their said testator [second mortgagee], deceased, the receipt of which sum the said [executors of second mortgagee] hereby acknowledge and therefrom release and discharge the said [purchaser], and also the said [owner] respectively, and their respective heirs, executors, administrators, and assigns; thirdly, the sum of £, further part thereof, to the said [executors of mortgagee in fee], in satisfaction of all monies now owing to them on the said recited mortgage security of

their said testator, [mortgagee in fee], deceased, the receipt of which sum the said [executors of mortgagee in fee] hereby acknowledge, and therefrom release and discharge the said [puchaser], and also the said [owner] respectively, and their respective heirs, executors, administrators, and assigns; and fourthly, the sum of £, the residue thereof, to the said [trustees for sale], as trustees of the said recited indenture of the day of The payment in manner aforesaid of which said sum of £- being in full for the purchase of the fee-simple in possession of the said hereditaments, the said [trustees for sale], and also the said [owner], hereby admit, and therefrom hereby respectively release and discharge the said [purchaser], his heirs, appointees, executors, administrators, and assigns; and in consideration of 10s. at the same time paid by the said [purchaser] to the said [heir], the receipt whereof is hereby acknowledged, The said [heir], in respect only of his legal estate as heir-at-law of the said [mortgagee in fee], deceased,-And the said [trustees for sale], in respect only of their estate and interest (89) as trustees of the said recited

(89) In fact, a trustee for sale of an equitable ownership has no estate or Trustee of an interest,—no estate, because that supposes a legal property in the subject,― equity. no interest, because that supposes a beneficial right to enjoy the profits. He has merely an office or a duty to discharge in respect of the land, with a right, as ancillary to its discharge, to call for a conveyance of the legal estate, on satisfaction of the purposes for which it has been departed with. Although, in strictness, therefore, he has in him nothing descendible or devisable, yet it is conceived that the office would pursue the same course of devolution as if it were annexed to the legal fee, and consequently that the heir or devisee, on whom that fee, if vested in the trustee, would devolve, is the proper person to execute the trust. But this difficulty presents itself the office may devolve upon an infant or other incapacitated person. As there is clearly no legal estate to be conveyed, the case is entirely Devolution of without the 8th section of the act of 1 Will. 4, c. 60, and it should seem the office of that cases which are without that section cannot generally be brought within the 22nd section of the same act, enabling the Court to appoint new trustees upon petition. (Ante, Vol. 1, Illustrations, III., s. 1). In this dilemma, there is no other course open than to file a bill. It should be added, that if an equitable owner convey to A., simply in trust for B., A. is a mere cipher, having neither estate, interest, nor office, and he may, therefore, be laid out of the title.

The distinction between the legal and equitable ownership, with reference to the mode of transfer, has been insisted upon in previous passages of this work. (Ante, Vol. 1, Chap. iii., iv.). An application of the doc

trustee.