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So that upon an accurate consideration of this point, we shall perceive nothing in it which breaks in upon the maxim of equitas sequitur legem. The truth being that when an estate is charged or mort
aged, a Court of Equity, does not regard the estate as an way passed, modified, altered, or affected (4); and that court carries the same doctrine to a trust for payment of debts; so that a limitation of the beneficial interest upon a trust to pay debts is not in the view of that court a suspended or springing interest to arise upon a future event, but a present vested estate subject to such trust as a mere charge (5).
Difference be- (4) An equity of redemption imitates more closely the legal estate tween an Equity than a mere trust. See the notice taken of this distinction in Burgess of redemption and a mere trust. v. Wheate, 1 Blackst. 145, and see Sir Matthew Hale's definition of
a mortgage. Hard. 469, Pawlet's case. So Lord Nottingham, (M. S.) says, an equity of redemption charges the land and is not a trust. Blackst. 145. A mortgage is not a mere trust, but a title in equity. In a word, the equity of redemption is in equity the fee simple of the land, and by consequence, after foreclosure, the mortgagee is considered ás acquiring a new estate. But if it be a mortgage for a term of years only, if foreclosed, or the Equity be released after the will, the new interest may pass under the general words of the residuary clause ; and see 8 Vez. Jun. 276, Attorney General v. Vigor, mortgaged and trust estates pass by a will, if the words are sufficient in compass, and there is nothing in the purposes or limitations of the will, which, by their inapplicability to such estates, indicate a different
intention in the testator. See 8 Vez. Jun, 417, Lord Braybroke v. • Inskip. ;": (5). And there is no difference between a charge for a particular
debt, and a general charge for debts. And though the whole is directed by the subsequent conveyance to be sold to pay debts, yet
PARTITIONS stand upon a different foundation from mortgages or conveyances in trust to pay debts; but they are not more referible than mortgages to any supposed distinction between conveys ances for general and particular purposes. There could not be a more particular purpose than that in Luther v. Kidby", and had this been a sufficient ground, the Chancellor would not have sent it to a court of law.
In neither of the cases of Luther v. Kidby, or Risley v. Lady Ballinglass®, is any thing said of a
. 3 P. Wms. 170, Note to the first edition. 8 Vin. 148 pl. 30.
Sir Thomas Raymond, 240.
the surplus is to be paid to the devisee of the estate by the previous will. 2 Vern. 295. Ogle v. Cook, 1 Wils. 310, where Lord Hardwicke expressed his approbation of that decision, and see Lady Ver. non v. Jones, 2 Vern. 241. But where a man directs the surplus to be paid to his executors and administrators, this seems to be a converting of the land into personalty, and so the subject of the devise is specifically destroyed. Vide 2 Vez. Jun. 436. Where a man after making his will conveys in trust for himself, the will is revoked in law and equity. But a deed of trust made by a melancholic person by way of caution has been held no revocation, Coles v. Hancock, 2 Ch. Rep. 210.
special purpose. Whenever the point has come under consideration, it has been taken for established law, and has been said to stand on peculiar grounds, but those grounds have generally been left un explained. And though Mr. Justice Buller, in the case of Goodtitle v. Otway , observed that cases
upon partitions generally happen in equity, he was Established law compelled to admit that long previous to Luther v. that partition is Do revocation. Kidby, it was established at law that a partition was
not a revocation of a will,
It is not very easy to reconcile the cases upon partition to the principles which have usually governed in the cases of revocation (1). It may be a
€ 2 H. Blackst. 525.
Difference be- (1) Tenants in common after partition take the same estate as tween tenants in common, and before, though in another mode, Vid. post 346. But the partition to the effect of among joint-tenants has the effect of altering the estates of the partition. parties. In the case therefore of joint tenants, the points of enquiry reason for this doctrine, that the party is compellable by process of law to make partition; which partition so imposed upon a party, has upon such ground of compulsion been held not to disturb his previous dispositions by will. And it is remarked by Lord Hale, in his commentary on the writ de partitione facienda(2), that the writ is brought to ascertain the possession, and the legal estate is not affected. The courts seem to have been careful, where there is however, not to extend this allowance to any case pose declared bewhere any thing is done beyond the dry purpose purpose of the of partition, for where in Tickner v. Tickner, cited partition, the in Parsons v. Freeman", the deed gave the moiety in the first place to such uses as the testator should appoint, and in default of appointment to him in fee, Lord Chief Justice Lee, who had signed the certificate in Luther v. Kidby, held it a revocation.
are the reverse of those which come into question in the case of tenants in common. Where a tenant in common having devised his estatę makes a partition, the question it has given rise to has been, whether 'the devise was revoked by the partition. But where one of two joint-tenants has made a will devising his moiety, and a partition has afterwards taken place, the question has been whether the will has had effect given to it by the partition ; the affirmative side of which question could only be maintained on the notion that at the time of making his will the testator, as such joint-tenant, had an interest in its nature deviseable, but prevented from passing as such by being intercepted and supplanted by the jus accrescendi. But it has Mr. Justice Heath declared it to have been his
d 3 Atk. 742,
been determined that a joint-tenant is under an original incapacity to devise his moiety, being not comprehended within the statute of wills, which being an enabling statute, whatever is not included in it remains as at common law. Swift v. Roberts, 3 Burr. 1491.
(2) Fitz Abr. 142, and see a note of this case produced by Lord Loughborough, in 2 Vez, Jun. 432.
opinion that "the cases of Luther v. Kidby, and Tickner v. Tickner, were difficult to be reconciled with some of the other cases, and with each other. That the only difference between them was the power of appointment in the latter, and though the execution of the power would be a revocation of the will, yet the mere reservation of the power ought not to have that effect.” Buller, Justice, in the same case said, “ the case of partition was a case sui generis. If the partition was by writ against the wish of the testator it was no revocation, and it was but one step more to hold that the same thing by deed or fine should not have a different effect. The authority of Luther v. Kidby, as far as it is an authority, only goes to this, that there is no difference between a partition by fine in pursuance of a covenant and a writ of partition, but the court did not mean to lay down a rule applicable to any other case. Taking the whole together, it seems, said that learned Judge, as if it was thought that there was a difference between a fine for a partition and any other purpose. Ile agreed with Heath J. that there was no material difference between Luther v. Kidby, and Tickner v. Tickner, for notwithstanding the power of appointment the fee vested in the testator, and then the deed and fine were the sole ground of revocation in that case, and if so, it was in direct contradiction to Luther v. Kidby; and the report of Parsons 17. Free
e 3 Vez. jun. 656