there was an existing mortgage of $40,000 in favor of the German Savings & Loan Society of San Francisco; lot 6, block 904, in the city of Tacoma, upon which there was a mortgage of $15,000 in favor of the New York Life Insurance Company; and the lots of land upon which the decedent resided. It was stipulated at the trial that the $15,000 mortgage held by the New York Life Insurance Company was foreclosed by the mortgagee on November 20, 1897, for the amount of the judgment, with interest and costs, amounting to $18,203.11, leaving no deficiency, and that no redemption was made. That lot is therefore eliminated from the case.

Gen. Sprague, having entered into an antenuptial contract with Abby W. Vance, whom he afterwards married, by which, upon his death, she should receive out of his estate the sum of $15,000, to be paid to her by the executors of his will within one year after his decease, and, in addition thereto, $200 a month until the $15,000 should be paid, ratified and confirmed that agreement in and by his will, and also devised and bequeathed to her, for and during such period of her natural life as she should continue to occupy the same as a home, the lots of land which constituted his residence, and certain articles of personal property; adding therein that:

"In the event my executors and trustees hereinafter named shall not deem it to the best interest of my estate to pay said sum of fifteen thousand dollars when it falls due, and my wife, Abby W. Sprague, shall consent to defer the payment thereof, then I do give and bequeath to my said wife, Abby W. Sprague, in lieu of interest on said sum of fifteen thousand dollars, the sum of two hundred dollars per month, payable monthly, from the date beginning one year after my decease and ending when my said executors and trustees shall pay my said wife the said sum of fifteen thousand dollars. And I do expressly charge the payment of the said sum of $15,000 upon the real estate [constituting their residence] described in this paragraph of my will and in which I have devised to my wife, Abby W. Sprague, an estate during such portion of her life as she shall occupy the same as a home, and I do expressly release and discharge all the remainder of my real estate from the lien of said sum of fifteen thousand dollars."

The will contained but two legacies-that of $1,000 to Lucy M. Skinner, a sister of the deceased, and the $30,000 (subsequently reduced by codicil to $15,000) devised to his daughter, Lucy L. Wickham, the payment of which latter legacy the testator expressly charged upon that part of the Sprague Block marked "A" upon the diagram, and expressly released and discharged all the remainder of his real estate from the lien of that legacy. All the rest, residue, and remainder of his estate, real, personal, and mixed, the testator bequeathed to his four sons, Otis, Winthrop Wright, Clark Woodard, and Charles Sprague, as tenants in common, and in equal parts.

The testator expressly conferred upon the executors and trustees appointed by him full power and authority to sell any or all of his real estate or personal property, except such of the latter as was specifically bequeathed by him, and excepting the parcel of real estate which he expressly charged with the payment of the legacy to his daughter, Mrs. Wickham, and the parcel expressly charged by him with the payment of the money due his wife under the marriage agreement, with or without notice, and upon such terms as

they should deem best, and free and discharged of any and all liens, expressed or implied, created by his will, and expressly declaring— "That the receipt for the purchase money of my executors and trustees, or the survivor of them, shall be a sufficient discharge of the purchase money, and that it shall not be necessary to obtain a confirmation by any officer or court of any sale or sales made as aforesaid by my executors and trustees or the survivor of them in order to vest in their or his grantees the fee simple of said real estate."

And also expressly directing that his estate should be settled in the manner therein provided, and that none of his executors or trustees should be required to take out letters testamentary, except to admit the will to probate in the manner required by existing laws, after which the estate should be settled without the intervention of the superior or any court or officer in any manner whatsoever.

The conclusion of the court below to the effect that the mortgages executed by Charles Sprague to the appellee were in fact, and should be held to be, the mortgages of the executors, cannot, in my opinion, be supported, in view of the facts or upon principle.

In the first place, the appellee, in its answers, in more than one place expressly alleged that it at all times refused to loan any money to the executors, or to take as security therefor a mortgage upon any part of the property of the estate. There is nothing to the contrary in the appellee's answers. And those averments are fortified by the further allegations thereof to the effect that the deeds from the executors to Charles Sprague were absolute conveyances, made in consideration of the payment by him to them of the expressed consideration thereof; that he thereby became the owner in fee of the property covered by the deeds, after which the appellee in good faith made the $55,000 and $30,000 loans, respectively, to Charles Sprague, taking from him as security for the repayment thereof his notes, secured by his mortgages upon the property. A party is and should be held bound by such statement of facts made in its pleadings. And on principle it is and should be so. Courts of equity cannot, any more than courts of iaw, make contracts for parties. In the case of Hunt v. Rousmaniere, 1 Pet. 1, 16, 7 L. Ed. 27, the Supreme Court held that where parties, "upon deliberation and advice, reject one species of security, and agree to select another, under a misapprehension of the law as to the nature of the security so selected, a court of equity will not, on the ground of such misapprehension and the insufficiency of such security, in consequence of a subsequent event, not foreseen, perhaps, or thought of, direct a new security of a different character to be given, or decree that to be done which the parties supposed would have been effected by the instrument which was finally agreed upon."

In Ferry v. Laible, 31 N. J. Eq. 566, which, in respect to the point now under consideration, was quite similar to the present case, the chancellor said:

"It was plausibly argued by the counsel for the complainant that the power to sell conferred by the will embraced also a power to mortgage, and that, if he was right in this contention, the mortgage should be upheld as within the power, for, although not executed by the executors themselves,

yet, having been executed by their grantee, to whom they conveyed the mortgaged premises for the purpose of having them mortgaged to the complainants, it should, in a court which deals mainly with the substance of transactions, regardless of mere questions of form, be treated as the deed of the executors. My judgment rejects both propositions as thoroughly unsound. The last is much too devious, and too strongly marked by false suggestions, if not actual falsehood, ever to be recognized as a fit foundation for a judicial conclusion."

See, also, Moore v. American L. & T. Co., 115 N. Y. 65, 21 N. E. 681.

But I am also of the opinion that under the terms of the will the executors had no power to borrow money, and to secure the same by mortgage upon property of the estate. A mortgage upon real property in the state of Washington does not convey to the mortgagee any title thereto, either before or after condition broken, but is only a lien, which is extinguished by the payment of the money for which it is given as security. Dane v. Daniel, 23 Wash. 379, 63 Pac. 268.

In Allen v. St. L. National Bank, 120 U. S. 32, 7 Sup Ct. 462, 30 L. Ed. 573, the Supreme Court said:

"The essential difference between a power to sell and a power to pledge is well brought out in a recent case in the House of Lords, by Lord Chancellor Selborne, who said: 'It is manifest that, when a man is dealing with other people's goods, the difference between an authority to sell and an authority to mortgage or pledge is one which may go to the root of all the motives and purposes of the transaction. The object of a person who has goods to sell is to turn them into money, but, when those goods are deposited by way of security for money borrowed, it is a transaction of a totally different character. If the owner of the goods does not get the money, his object and purpose are simply defeated; and if, on the other hand, he does get the money, a different object and different purpose are substituted for the first, namely, that of borrowing money and contracting the relation of debtor with a creditor, while retaining a redeemable title to the goods, instead of exchanging the title to the goods for a title, unaccompanied by any indebtedness, to their full and equivalent in money.""

In Ventress v. Smith, 10 Pet. 161, 9 L. Ed. 382, the same court said:

"Authority given to executors and administrators to sell is a personal trust, and must be strictly pursued. And if they transcend their authority in any essential particular, their act is void."

In the case of Bloomer v. Waldron, 3 Hill, 361, Judge Cowen, in holding that a power of sale conferred upon an executor did not authorize him to make a mortgage, said:

"When a man contracts a sale of his land, whether his object be to raise money or not, he means to put it in the market for what it will fetch at the time, and avoid the fluctuations of prices. An absolute title and delivery of possession will fetch more than a mere pledge. At any rate, there is a substantial difference between raising money upon mortgage and sale, and it is enough to say that a power to raise it by one of these methods puts a negative upon the other."

Not only is there nothing in the will here in question to indicate any intention on the part of the testator that his executors might mortgage and remortgage his property, but the whole frame of it indicates that he used the words "to sell" in their natural and or138 F.-24

dinary signification. He excluded from the power of sale the personal property specifically bequeathed, the parcel of land upon which he fixed a lien as security for the payment of his legacy to his daughter, and the lots constituting the residence, upon which he fixed a lien to secure the payment of the money due his widow under the provisions of the antenuptial contract as well as the will. Knowing that this money as well as his legacies and debts must be paid, he conferred upon his executors and trustees full power and authority to sell all of his other property; expressly declaring that their receipt for the "purchase money" should be a sufficient discharge of the "purchase money," and expressly declaring that "it shall not be necessary to obtain confirmation by any officer or court of any sale or sales made as aforesaid by my executors and trustees, or the survivor of them, in order to vest in their or his grantee the fee simple of said real estate." I am of the opinion that under such a will the power to borrow money and secure its repayment by mortgage upon the property of the estate does not exist in the executors and trustees. If they may exercise that power once, they may do so over and over again, and thus prolong the trust indefinitely. No such intention on the part of the testator can be discerned from the provisions of the will in question. See, also, Parkhurst v. Trumbull, 130 Mich. 408, 90 N. W. 25; Taylor v. Galloway, 1 Ohio, 232, 13 Am. Dec. 605; Hoyt v. Jaques, 129 Mass. 286; Allen v. Ruddell, 51 S. C. 366, 29 S. E. 198; Rutherford L. & I. Co. v. Sanntrock, 60 N. J. Eq. 471, 46 Atl. 648.

Nor am I able, in view of the facts disclosed by the record, to see how the appellee can be subrogated to the rights of the German Savings & Loan Society under its mortgage, notwithstanding the fact that that mortgage was paid with money loaned by the appellee to Charles Sprague. This court, as well as the Supreme Court of the state of Washington, has recently held fraudulent and void a similar manipulation of the real property of minor children. by the guardian and others interested in evading and circumventing the provisions of a state statute authorizing a guardian to sell the real property of his ward, under orders of the probate court, but making no provision for mortgaging it. Lombard v. La Dow, 126 Fed. 119, 60 C. C. A. 667; Dormitzer v. German Savings & Loan Society, 23 Wash. 132, 62 Pac. 862; German Savings & Loan Society v. Tull et al. (decided here March 6, 1905) 136 Fed. 1. The same principle, in my opinion, applies to fictitious dealings with the estate of a decedent, and it has been so held. Moore v. The American L. & T. Co., 115 N. Y. 65, 21 N. E. 681.

Subrogation, as was said in German Savings & Loan Society v. Tull et al., supra, is founded on the facts and circumstances of each particular case, and on the principles of natural justice. In general, it will be applied

“Whenever any person, other than a mere volunteer, pays a debt or demand which in equity or good conscience should have been satisfied by another, or where a liability of one person is discharged out of a fund belonging to another, or where one person is compelled, for his own protection, or that of some interest which he represents, to pay a debt for which another is prima

rily liable, or wherever the denial of the right would be contrary to equity and good conscience. Subrogation being the creature of equity, it will not be permitted where it would work injustice to the rights of those having equal or superior equities. Thus, it will not be enforced against a bona fide purchaser for value without notice, or in favor of a person guilty of fraud, or for the benefit of one who would thereby be enabled to derive an advantage from, or to establish his claim through, his own wrong or negligence or inequitable or illegal conduct. Nor will it be enforced at the expense of a legal right, or where resort to a usurious agreement or security would be necessary for its establishment." 27 Am. & Eng. Encyc. of Law (2d Ed.) 203, 204, and authorities there cited.

With full knowledge of the provisions of the will and of the powers of the executors, the appellee, through its agents, became a party to the wrongful manipulation of the property of the estate already detailed; and after the superior court of the state of Washington had overruled its demurrers to the answers of Mrs. Wickham to the complaints there filed for the foreclosure of the appellee's mortgages, in which she set up in defense the facts here relied upon by her and the cross-complainant, the appellee entered into the stipulation, to which neither Mrs. Wickham nor Mrs. Cox was a party, under which it received the quitclaim deed purporting to convey to it the property involved in those suits, and dismissed them. I am of the opinion that those proceedings, from their commencement to their end, whether so intended or not, were wrongful, and constituted a legal fraud upon all persons legally entitled to look to the property of the estate for the payment of money due them, for which reason, as well as because there is no foundation for it in the appellee's pleadings, I am of the opinion that the appellee is not entitled to be subrogated to anybody's rights. Authorities supra, and German Bank v. United States, 148 U. S. 573, 13 Sup. Ct. 702, 37 L. Ed. 564; Huse v. Den (Cal.) 24 Pac. 790, 20 Am. St. Rep. 232.

The appellee occupies the position of a mere volunteer who has parted with its money on worthless security, and is not relievable by a court of equity out of another's property. Railroad Company v. Soutter, 13 Wall. 517, 20 L. Ed. 543; Patterson v. Brown, 32 N. Y. 81. The case shows that the money due the widow was paid by the executors out of the $55,000 loaned by the appellee, and that the parcel of land charged by the testator with the lien to secure the payment of the legacy to Mrs. Wickham was sold by the executors and trustees and the residuary legatees, subject to certain taxes and assessments against it, for $8,866; such sale being made with Mrs. Wickham's consent; she receiving the purchase money, and releasing the property from the lien in her favor. The balance of her legacy has not been paid. If it continued, as I think it undoubtedly did, an obligation of the estate, I think there can be no doubt that she is entitled to have the trust property restored to the estate; to have an accounting by the executors, and the balance of her legacy paid, if there be sufficient money remaining in the estate to do so. Mollan v. Griffith, 3 Paige, 403; Boyer v. Robinson, 26 Wash. 121, 66 Pac. 119.

So, too, is the judgment creditor of the residuary legatees, Otis and Charles Sprague, entitled to like relief. Mrs. Cox's judgment