Feb. 6, 1818. MOL GAGE. - HU BAND AND WII E. So it will come to this; an estate mortgaged for two sums is devised to the wife: she marries Bruford; and they acknowledged that they are indebted, which they could not be unless they had assets of the former husband, and make another mortgage deed, consolidating the two former mortgages, and reciting that the purpose is to give a higher rate of interest; and there is nothing to show that she meant to give her husband the benefit of her estate, except the equity of redemption reserved in this way. Whether that is sufficient to give the equity of redemption to the husband is now to be determined. I do not press for your decision on that point at present; but merely throw out these considerations generally. On the 16th Feb. 1818, the Lord Chancellor stated the concurrence of Lord Redesdale in the opinion that the decree ought to be affirmed. June 5, 1818. Lord Eldon (C.) The decree in this case was right, in so far as it declared that the heir at law of the wife, whose estate had been mortgaged, was entitled to redeem, although the equity of redemption had been reserved to the husband and his heirs. Here there is no recital, no special circumstance from which it can be concluded that the real intention was to make a new settlement of the estate-nothing to take it out of the rule that where the husband is seized of the legal estate Rule of law. jure uxoris, and husband and wife join in a mortgage of the estate-reserving the equity of redemption to the husband and his heirs, the husband MORTGAGE. has the equity of redemption, as he before had the June 5, 1818 legal estate, jure uxoris; nor any such special circumstances as those in the case of Jackson v. Innes, HUSBAND AND the name of which in the Court of Chancery is Cooth v. Jackson. WIFE. Innes (Cooth) v. Jackson. terms of the But on looking at the record it appears that there 16 Ves. 356. are some errors in the terms of the decree which ought to be corrected. There was one mortgage for Errors in the 800/., and another for 4507. by the former husband; decree. and these were in 1766 consolidated into one by the wife and her second husband, at a different rate of interest. The decree has directed the account to be taken on both the mortgages, as if existing separately, instead of being consolidated into one at a different rate of interest. This is a mistake; the account ought clearly to be taken on the consolidated mortgage. The wife died in 1794, and the husband in 1799; and the decree directed that the interest should be computed from the death of the husband. While both the wife and husband lived they were not bound to keep down the interest; but when the wife died the husband became tenant for life by the courtesy; and, as tenant for life, was bound to keep down the interest from that time. But the decree directs no account of the interest till the death of the husband. Another consideration is, that as they were not bound to keep down the interest on the mortgage of 1766, how is that to be provided for? The arrear of interest at the death of the wife must be converted into principal, and considered as a charge on the estate, and the estate must answer it. So that the arrear of interest is to be converted into June 5, 1818. principal at the death of the wife, and to be considered as a charge on the estate; and from that HUSBAND AND time the husband was bound to keep down the interest. MORTGAGE.- WIFE. Another mistake is that Ruscombe is ordered to reconvey the estate free from all incumbrances. It ought to be free from all incumbrances created by himself. Decree affirmed, with alterations as above. July 8, 1817; June 3, 5, 1818. DEVISE. IRELAND. ERROR FROM THE COURT OF EXCHEQUER CHAMBER. SHULDHAM-Plaintiff in Error. SMITH (Lessee of Mathews)-Defendant in Error. AND SMITH-Plaintiff in Error. April 25, 28, DEVISE of real estate in trust to pay the clear rents, issues, and profits, and in certain proportions, to certain persons in the will mentioned, for life: and then testator proceeds to devise as follows:-" And from and after the death of "the survivor of them the said L. S." &c. (naming the several persons to whom the above life interests were given) then I give and devise all and singular the "said manor, messuages, lands, &c. unto all and every "the children of my late sister E. C. by her three se"veral husbands" (naming them), " that shall be then "living, and their heirs and assigns for ever, equally to 1818. DEVISE. "be divided between them as tenants in common, and April 25, 28, "not as joint tenants; and if there should be but one July 8, 1817; "such child, and no issue of any of the other children June 3, 5, "then living, then, and in that case, I give and devise "all my said real estates in Ireland unto such surviving "child, his or her heirs and assigns for ever." The event which happened was that, at the death of the surviving annuitant, there was only one child of the sister E. C. then living, but that there was issue of several of the other children then living. Held by the House of Lords, in concurrence with the unanimous opinion of the Judges attending, that there was an intestacy, from the death of the surviving annuitant; the event which happened not having been provided for. of Elizabeth THIS was an ejectment on the title, brought in or Ejectment, as of Hilary Term, 1811, in the Court of Exche- Hilary Term, 1811, by John quer, in Ireland, by Elizabeth Mathews, widow, by Smith, lessee John Smith, her feigned lessee upon her own Mathews, demise only, for the recovery of all that and those against John Brady Shuldthe town and lands of Balleymulvey, and other ham. lands in the declaration in ejectment particularly mentioned, situate in the County of Longford, in Ireland, to which ejectment defence was taken generally by the Plaintiff in error in Hilary Term, 1811; and at the Summer Assizes, 1811, the same came on to be tried by a special jury of the county of Longford, at Longford, when the said jury found a special verdict to the substance and effect following; that is to say, dict. "That Pooley Molyneux was seized of the lands, Special ver"tenements, and hereditaments mentioned in the "declaration within-written, in his demesne as of "fee, and being so thereof seized on the 12th day "of April, in the year of our Lord 1767, duly April 25, 28, "made his last will and testament, signed by him July 8, 1817; in the presence of three credible subscribing wit June 3, 5, 1818. DEVISE. tates to Lemuel nesses, and subscribed by the said three credible "witnesses in his presence, and thereby gave and Will of Pooley "devised in the words following:-'As touching and Molineux, 66 6 concerning my temporal estate and effects, I deApril 12,1767. Devise of all "vise all and singular my manors, messuages, lands, testator's es- 66 6 tenements, hereditaments, and real estate whatShuldham, in "soever in the kingdom of Ireland, which I shall "" be seized or possessed of, interested in or en"titled unto at the time of my death, unto my nephew, Lemuel Shuldham, Esquire, and his "heirs and assigns for ever; upon the trusts, ne66 6 vertheless, and to and for the several intents and "purposes hereinafter mentioned, expressed, and declared, of and concerning the same; that is to fee, upon trusts. To divide 66 6 say, in trust, after deducting all taxes, repairs, "receiver's or bailiff's salaries, and all outgoings "incident to the said estate, to divide the clear rents and profits into twen-"residue of the yearly rents, issues, and profits ty shares, and "thereof into twenty equal parts or shares, and "to pay the same unto the several persons herein"after mentioned, to wit, six twentieth parts or "shares of the said clear residue of the yearly "'rents, issues, and profits of my said real estates "unto himself the said Lemuel Shuldham, or his pay same to certain persons for life. 66 6 66 6 66 6 assigns, for and during the term of his natural life, by equal half-yearly payments; six other "twentieth parts or shares thereof to my sister, Dorothy Molyneux, or her assigns, for and during the term of her natural life, by equal halfyearly payments: two other twentieth parts or "shares thereof to Mrs. Rebecca Shuldham, or 66 6 66 6 |