younger child or children, whose shares are payable (a) unless the settlement authorize it (b). Although all the events have happened, and the portions have become payable, yet if the trust be to raise the portion out of the rents and profits, and the children be of tender years, the Court will not direct a sale or mortgage, but will order the rents to be applied as they arise (c). The like course will, it seems, be pursued, if the legatee dies under twenty-one, and unmarried, before the portion is raised (d). In case the portion is to be raised out of annual rents the portion will carry no interest; for the portion will not be due until the rents would have raised the portion; and as soon as it would have raised it, the land will have borne its burthen, and be discharged (e). And lastly—If the trust be expressly restricted to annual profits, the Court will in no case order a sale (ƒ). Where there is a limitation over, in the event of a younger son becoming an eldest, or only son, it will not, without more, be construed to mean a child becoming actually entitled under the limitations, but simply an eldest son (g). A gift over of this kind, as a general rule, takes effect at any time before the time of payment, though the portion be vested (h). But if the gift over be limited, in the event of a younger son becoming an elder before he attains twenty-one, or other period, any other event will be excluded, and he will not lose his portion by subsequently becoming an eldest son before the time of payment, and additional portions will follow the nature of the original portions, though the limitation is not so clearly expressed (i). An eldest son, however, who has died without coming into the possession of the estate, and without leaving issue, does not come within the meaning of the trust, so as to give his representatives a right to a share of the portion money (k). (a) Sheppard v. Wilson, 4 Hare, 392. Wynter v. Bold, 1 S. & S. 507. Cotton v. Cotton, cited 3 Y. & C., Exch. 149. (b) Gillibrand v. Gould, 5 Sim. 149. (c) Evelyn v. Evelyn, supra. (d) Earl Rivers v. Earl of Derby, supra. (e) Ivy v. Gilbert, supra. (f) Small . Wing, supra. (g) Peacocke v. Pares, 2 Keen, 689. Matthews v. Paul, 3 Swanst. 328; but vide Spencer v. Spencer, 8 Sim. 87. (h) Chadwick v. Doleman, 2 Vern. 528. Savage v. Carrol, 1 Ball & Beattie, 265. Teynham v. Webb, 2 Ves. sen. 198. Matthews v. Paul, supra. Gray v. Earl of Limerick, 17 L. J., Ch. 443, N. S. () Windham v. Graham, 1 Russ. 331. (k) Ibid. CHAPTER VIII. OF MORTGAGES BY EXECUTORS, BY TRUSTEES FOR SALE AND FOR PAYMENT OF DEBTS, AND UNDER POWERS OF CHARGING. BOTH at law and in equity the whole personal estate of the testator vests in the executor, who, from the duties of his office and the nature of his trusts, must necessarily have an absolute power over it (a), whether specifically bequeathed (b), or limited in trust (c), or not. The executor's first duty is to provide for payment of debts; and if the general undisposed of property or the fund expressly provided by the testator, is not sufficient for such purpose, the property specifically bequeathed or given in trust must be resorted to. Nor can a testator, by any testamentary disposition of his personal estate, frustrate or delay the claims of his creditors (d). We accordingly find the adjudged cases and text books, when speaking of the powers vested in the executors, using strong expressions: and we also find the Judges shewing great reluctance to fetter the executors in the exercise of their functions. Notwithstanding this great discretionary authority, numerous cases are to be found in the books, arising from the circumstances attending the disposition by executors of their testator's assets; and on some of the points a considerable difference of opinion has existed. The power of the executors to dispose of a specific legacy seems to have been formerly questioned. An early case (e) was considered as militating against this power; but it has been since observed (f) that was not in fact the case of a specific bequest, it being a charge on a particular part of the assets, and there was supposed to be strong circumstances of fraud in the conduct of the parties. Succeeding cases (g) have established this power of disposition by the executors beyond question (h). (a) Vide Nugent v. Gifford, 1 Atk. 463. M'Leod v. Drummond, 17 Ves. jun. 161. (b) Ewer v. Corbet, 2 P. Wms. 149. Burting v. Stonard, ibid. 150. Langley . Earl of Oxford, Amb. 17. Andrew v. Wrigley, 4 B. C. C. 125. (c) Vide M'Leod v. Drummond, supra. (d) Andrew v. Wrigley, supra. (e) Humble v. Bill, 2 Vern. 444. (f) 17 Ves. jun. 160; 3 Atk. 241. (g) Ewer v. Corbet; Burting v. Stonard; Langley v. Earl of Oxford, supra. (h) Sir Edward Sugden in his Treatise on Vendors and Purchasers, has raised a doubt whether it is safe to take an assignment of a specific legacy from the executor without the concurrence of the specific legatee, lest the executor should have assented to the bequest, and he cites Thomlinson v. Smith, Finch, 378. It is submitted this was a case of gross fraud, and is but a slender authority. In that case, a man bequeathed a leasehold estate to his wife for life, remainder As the executor may absolutely dispose of the testator's assets for the general purposes of the will, there seems no good reason why in the exercise of a sound discretion, and presuming the language of the will does not peremptorily require an absolute sale, the executor may not raise the money required by a partial sale or mortgage of the assets. Accordingly the proposition is broadly laid down by Lord Hardwicke in Mead v. Lord Orrery (i), and yet more broadly and expressly by Lord Thurlow in Scott v. Tyler (k), and has been since recognised by Lord Eldon in M'Leod v. Drummond (1). Lord Loughborough, indeed, is reported to have said, a mortgage is not a natural way of raising money, and that it may lead to an inquiry as to the circumstances of the testator's estate (m); but this observation, it is conceived, must be considered as applying to transactions attended with circumstances exciting suspicion of fraud. The mortgage may be either of legal or equitable assets (n), or of mere choses in action (o), and may be by actual assignment, or by deposit (p); and a dealing with one of many executors will be valid, for each is competent (q). The deed of mortgage need not state that the money is wanted for the purposes of the will, for in order to vitiate the security, it must be shewn the money was not for the payment of debts (r). Nor is the mortgagee bound to see to its application (s), although Lord Kenyon has expressed an opinion that a trust might be so framed as to call on a purchaser from an executor to see to the application of the money (t); but this observation must also, it is conceived, be supposed to apply to a sale made under very peculiar circumstances, and not for the purpose of the payment of debts generally. to A. for ten years, remainder to his children. The widow took out administration with the will annexed, and assented to the bequest, and enjoyed the property during her life. After her death, the defendant in the suit, (who had become the owner of the inheritance) purchased of A. his interest in the leasehold. After the expiration of the ten years, the children exhibited a bill for an account, and prayed the remainder of the term might be decreed to them. The defendant set up an assignment by the widow as administratrix, in consideration of 150l., the better to enable her to pay the debts of the testator, and insisted, that, as the plaintiffs charged that the administratrix assented to the bequest, they had their remedy at law notwithstanding the assignment, and ought not to have relief in equity. But the Court being satisfied that the testator left assets to pay his debts, and that the administratrix did assent to the said legacies, decreed to the plaintiffs the residue of the term. It is submitted that in this case the enjoyment of the leasehold by the administratrix for life, and the subsequent purchase of A.'s interest, were in direct contradiction to the alleged assignment by the administratrix; and it is conceived that if a purchaser or mortgagee shall bonâ fide deal with an executor, within a reasonable time after the testator's death, and obtain possession of the muniments of title, a specific legatee would never be permitted, at law or in equity, to set up the executor's assent against the sale or mortgage, for, by sale and delivery, the title of the purchaser or mortgagee is complete. Vide Scott v. Tyler, Dick. 725, and 17 Ves. jun. 166. (i) Mead v. Lord Orrery, 3 Atk. 239. (k) Scott v. Tyler, Dick. 724. () M'Leod v. Dummond, 17 Ves. jun. 154. In a late case, however, where an administrator mortgaged leaseholds with a power of sale to secure a sum advanced to the testator on a deposit of the title deeds, and a further sum advanced to the administrator for payment of debts, Sir J. Knight Bruce refused specific performance against a purchaser from the mortgagee, on the ground that he could not decide on the validity of the power of sale in the absence of the administrator and the cestui que trust (u). Fraud or covin, however, will vitiate any transaction, and turn it to a mere colour. If one concerts with an executor, by obtaining the testator's effects at a nominal price, or at a fraudulent undervalue, or by applying the real value to the purchase of other subjects for his own behoof, or in extinguishing the private debt of the executor, or in any other manner contrary to the duty of the office of executor, such concert will involve the seeming purchaser or pawnee, and make him liable to the full value (v). It was indeed held by Lord Mansfield (w), that such was the power of an executor, that although it was apparent on the face of the transaction that he was about to apply the assets to a purpose foreign to the will, yet a person with that knowledge was justified in dealing with him upon the supposition that all the debts were paid, or that the testator's estate was or might be indebted to the executor to that amount and in a recent case (x), under peculiar circumstances, the latter supposition was allowed to be urged on behalf of depositaries of bonds, to whom they had been pledged by executors for securing advances to themselves in another capacity. Lord Mansfield accordingly held, that where a creditor under a writ of fieri facias took in execution bona propria and bona testatoris vested in his debtor, knowing them to be such, the execution was valid on the ground that the executors joined in the bill of sale, which his lordship considered tantamount to a conveyance (y). This doctrine, to the full extent laid down by Lord Mansfield, Lord Chancellor Eldon expressed himself not prepared to follow (z). And in a case subsequent to Whale v. Booth, Lord Kenyon, and Ashhurst and Grose, Justices, against Buller, Justice, decided that bona testatoris could not be taken in execution under a fieri facias in satisfaction of the executor's private debt (a). In two leading cases also in equity (b), Lord Hardwicke supported assignments of the testator's assets, made by the executor in satisfaction of his own debt or for his private purposes. But it is to be observed, that in both these cases a considerable time had elapsed since the death of the testator, and in the first instance the executor was also sole residuary legatee, (the bill being filed by the testator's daughters as creditors under a marriage settlement); and in the second (u) Sanders v. Richards, 2 Coll. 568. () Scott v. Tyler, supra. (w) Whale v. Booth, 4T. R. 625, note; et vide Doe v. Fallows, 2 C. & J. 483; 2 Tyrwh. 462; Wms. Exors. 746; that at law an executor may make an effectual disposal of the assets in satisfaction of his own debt if there is no fraud on the part of the creditor. (x) M'Leod v. Drummond, supra. (y) Whale v. Booth, supra. (z) M'Leod v. Drummond, supra. (a) Farr v. Newman, 4 T. R. 621; et vide what is said of this case by Lord Eldon in M'Leod v. Drummond, supra. (b) Nugent v. Gifford, supra. Mead v. Lord Orrery, supra. instance, three executors concurred in the assignment of a mortgage as a collateral security for one of them in an appointment of receiver, who was also one of five residuary legatees, and to whom the deed stated the mortgage to belong. In this latter instance, the bill was filed by the other residuary legatees, being the first instance, it seems, in which residuary legatees had attempted to follow the assets into the hands of a purchaser, the former instances having been confined to creditors and specific legatees. These two cases depended on particular circumstances (c); the broad principles contained in Mead v. Lord Orrery were afterwards disapproved by Lord Kenyon in Bonney v. Ridgard (d); and in a prior case (e) relief had been actually granted to a creditor against a purchaser of part of the testator's assets from an executor, the purchaser having allowed the executor's private debt out of the purchase money, and having express notice that the creditor's debt was unpaid, than which Lord Alvanley remarks, there cannot be a stronger instance of devastavit (ƒ). In a modern case (g) relief was granted to a pecuniary legatee against bankers, with whom part of the assets had been deposited, to secure a private debt of the executor, within a month after the death of his testatrix, attended with circumstances of gross negligence in the bankers, but unaccompanied by fraud; which decision is in accordance with the known opinion of Lord Chancellor Thurlow on the second point in the case of Scott v. Tyler (h); in which latter case, however, the circumstances were stronger than in Hill v. Simpson, for in Scott v. Tyler the bonds were specifically bequeathed, and were handed over to the bankers to secure a debt already due from the executor, and not for advances then made, which, according to the opinion of the Master of the Rolls in M'Leod v. Drummond (i), is a material circumstance; and the bankers had also previous knowledge of the property. In the case of M'Leod v. Drummond (k), relief was refused on a bill filed by two co-executors in Scotland, who had never acted, but had permitted the other two executors in England to manage the property for a great length of time. The acting executors, many years after the testator's death, pledged some bonds belonging to him with their bankers, to secure advances made to them as army agents, representing that an account was kept between them and the estate, to which they were, or frequently might be, in advance. The Master of the Rolls dismissed the bill, and on appeal to the Lord Chancellor, the decree was affirmed under the peculiar circumstances of the case. Relief will also be refused if there has been great delay on the part of the legatees in making claim, even although they have but a contingent or expectant right, for such an interest will entitle them to' know what debts the testator owed, and what part of his estate has been applied to the payment of them (7). The result of the cases seems to be, that if a purchaser or mortgagee (c) Vide Taner v. Ivie, 2 Ves. 470. (e) Crane v. Drake, 2 Vern. 616. (g) Hill v. Simpson, 7 Ves. jun. 152. (h) Supra. (i) 14 Ves. jun. 353. (k) M'Leod v. Drummond, 14 Ves. jun. 353; et vide 17 Ves. jun. 170. (1) Andrew v. Wrigley, 4 B. C. C. 136. |