#### Jackson, *ex.*dem. Brockholst Livingston, and Others, Pla*intiff in Error. against*Ann Delancy and Abraham Russell, D*efendants in*Error.

a, in mo, being indebted to s. by three se»* veral hoods, order to secure ‘the payment of the same, executed to *3*a mortgage on all his lands, in the province of *Ifen-York,*part of which lands were referred'to by name, and part, comprising the premises in question, passing under a general clause, and covenanted, that on default, the mortgagee, his heirs, &c , might enter *3.*died, having directed by her will ali lier estate in certain patents, and *elsewhere, wheresoever, and whatsoever,*to be turned into money by her executors, end to be equally divided among her five children, who were to be *tenants in common in fee of the really,*until s uch sale and distribution. In 1771, before the death of *3 ,*the mortgage had become forfeited, and a judgment had also tbeen recovered by *B.*against *A. A.,*by bis will, executed in 1780, devised his estate to his wife, and in Case of he? sleatb without disposing of the same by grant or devise, he devised it over to hi3 daughter 2?, In 1788, the judgmenfi «gainst *A.*was revived by the executors of ¿?. ¿and a *seircfacias*was directed to the heirs of A.,who were summoned, but not to the wife of *A.,*the tenant for life, who was not summoned, and execution was issued thereon, and *he lands of *A*sold, and purchasedby *C.,*who bad married one of the daughters and devisees of *3.,*and conveyed to him, who took possession of the premises in question, unuer that deed: which, however, it was now admitted, d|d ¿ot pass the premises. C. procured conveyances from three of the other devisees of *A,,*and the tenants of the ;iand fa 1780 attorned to *C.*and surrendered their possession to him, and agreed to bold under him. The wife of *A.*having died, after devising her estate to trustees in trust for her daughter *D.\*it *was*held, in an action of gáectment on the demise of 2?. and her trustees, against persons claiming under ,C., that *C.*had a right of entry un* *3er the will of *3.,*es devisee of the mortgage, which passed by the general words of the will such appearing to bo She intention of the testatrix, and that the defendants could set it up as an outstanding title to defeat the plaintiff’s action.

A *scire*facias,• to revive a judgment, irregularly issued, or an execution issued after a yea? and a day, without *scire facias,*is voidable only, and cannot fee called in question in a collateral action, so as to defeat the title of $ purchaser under the execution; and it seems, that, after the lapse of twenty years, it cannot be avoided or & direct application for that purpose.

In a sheriff’s deed, nothing will pass under a general clause of, “ *all other, the lands, ofthedefendanL1**

In a sheriff’s deed, the land sold must he described with reasonable certainty, and he can sell nothing uqder a$ execution which the creditor cannot enable him so to describe.

In a devise of all the *real and personal estate*of the testator, and if the devisee should die without disposing of it. then to *1).,*this subsequent limitation is void; because the first devisee took a fee by virtue of the word erfafe, qfl.q because the- subsequent limitation was repugnant tp the power given to the first devisee.

Where a person enters upon land without title, and’the tenants surrender their possessions, and *attorn*to hitflj. this is not a disseisin or,ouster, and the attornment is void. Such entry and attornment are not the commencement of an adverse possession.

*Trust*estates, under which *h*included the interest or a mortgagee, Who, until forclosure, is á trustee for thd mortgagor, will pass under general words in the will relating to the realty, unless it can be collected from the esn pressions in the will, or the purposes and objects of the testator, that his intention was otherwise.

The 14th section of the *act concerning costs,*(1 JV. i?. *L,*346.) giving *double costs*on the affirmance of¿judgment Bü error, applies only where the writ of error is brought by the defendant io the court below. If the j$w brings a writ of error, and the judgment ifc affirmed, he is entitled tosipgle costs only.

THIS cause came before this court on a writ of error to the supreme court* |See *the case reported*11 Johns. *Rep9*365. 376.1 1 u * ** 4*

*538The action was for the recovery of certain lands in *Pláttekitt,*in the county of *Ulster.*The following facts were found by qle special verdict. *William Alexander,*commonly called *Lord Stirling,*in his lifetime, was seised of a tract of land, sup? posed to contain 1,000 -acres, situate,in *Plait thill,*of which the premises in question are a part; and, being so seised, he ex** ecuted to *Anne Waddell,*of the city of *JVtw~ York,*a mortgage,. dated the 2d of *December,*1770, reciting several debts due t@. her, &c., amounting to 5,043/. 16s,, for securing which he mortgaged certain lands in *Orange*county, *West-Chester*county, and in the counties of *Albany*and *Ulster,*“ and all other the lands* tenements, and hereditaments, belongin g to the said *William,*Earl of *Stirling,*within the province of *-Mew York?’*The tract of 1,000 acres, including the premises in-question, was not one of the parcels particularly described, but passed under the general description above mentioned, of all the other lands, &c, *Ann Waddell,*in *January*term, 1771, obtained a judgment .in the supreme court on two of the bonds recited in-the mortgage* which was signed and docketed the 21st of *March,*1771. *Ann Waddell*died some time in the year 1773, having made her will, dated the 2§th of *Marchi*• J77-3, in which she directs her-executors, among other things, to collect “ all outstanding debts of every kind, and-these, with all the rest of her’estate in the *Hardenburgh*patent, and elsewhere, whatsoever, and wheresoever,to be turned into money, and equally distributed among her five children, share and share alike, who were to be tenants in common, in fee of the realty* until such sale and distribution be made*” |n *April, 1115,*the executors *oí Ann Waddell*revived , the judgment by *scire facias,*in. the supreme court, against Lord *Stirling,*And, after the death of Lord *Stirling,in*the *October-.*vacation, in the year 1787, the executors *oí Ann Waddell*sued out a *scire facias*on the judgment against the heirs and terretenants of *Lord Stirling,*on which *Robert Watts,,*and *Mary*his wife, and *Catharine Duer,*the heirs of Lord *Stirling,*were summoned; and in *January*term, 1788, judgment passed against them on the *scire facias,*by default. This writ of *scire facias*wag directed to the sheriff of the city and county of *Jfevi-Ybrk,*■ and commanded him “ to give notice to the heirs of the said *William,*Earl *oí.Stirling,*and, also, to tenants of all the land?. and tenements in his bailiwick, which were of the said *William,*ISarl.of *Stirling,*on the gfith of *June,*1771$’* and the sheriff *539..Returned that he had “ made known unto *Robert*Waits, and *Mary*his wife, and *Catharine Duer,*which said *Mary*and *Catharine*are daughters and heiresses of the said William, Earl of Stirling, deceased, that they should.be,” &c,: and, further, “ that there were no other heir or heirs of the said *William,*Earl of *Stirling;*nor were there any other tenants, or tenant, of any lands or tenement which were of the said *William,*Earl of *Stirling,*o.n the day the said judgment was rendered,, or ever after, in his bailiwick,” &c.

A *testatum fieri facias*was issued on the judgment so revived* directed to the sheriff of the county of *Ulster,*returnable in *July*term, 1788. On the 10th of *June,*1788, the sheriff of *Ulster*executed a deed of conveyance to *John Taylor,*of the city of *New-York,*merchant, which recited that he, the sheriff, &c., had seized of the lands and tenements which were of the said *William,*Earl of *Stirling,*&c., in the hands *oí Robert Watts,*and *Mary*his wife, and *Catharine D¡uer,*as heirs, &c., within bis bailiwick, the several tracts, pieces, or parcels of lands, Scc. therein after mentioned and described, and the same lands and tenements, &c., he did separately expose to sale, and did sell and dispose of the same, to wit, *the first*of the said tracts, &c., for *501.,*and the second of the said tracts, &c., for the sum of 50L, to *John Taylor,*being the highest bidder, &c.; these two tracts were particularly described in the deed, which, among the property so conveyed, further stated, “ and, also, other the lands, tenements, and hereditaments, whereof the said *William,*Earl of *Stirling,*was seised, on the said 26 th of *June,*1771, or at any time afterwards, within the. said county of *Ulster,*whether held in severalty, or in common with others and under this general description was included the tract ef 1,000 acres, containing the premises in question, and which were not otherwise or particularly mentioned and described. Xiord *Stirling*died in the spring of 1793, leaving two daughters, *Catharine,*the wife of *William Duer,*and *Mary,*the wife of *Robert Watts,*his heirs at law, having, on the 29th of *January,*1780, made his will, by which he devised <c all his real and personal estate, whatsoever, to his wife *Sarah,*to hold the same to her, her executors, administrators, and assigns; but, in case of her death, without giving,- devising, and bequeathing, by will or otherwise, or assigning the said estate, or any part thereof, ijaert he devised ail such estate, ©r suc-h parts thereof as should *540remain'unsold, undevised, fee., unto- his daughter’ *Cdifiavme,*{’&. hold the samé to her, her executors, &c, ; and appointed ■ his -wife, and hisi¡daughter ■'CQthqtdne,:'and, her husband» *William Duer,*executors’ of his said will. *Sarah,*the wife of iuord *Stir. Mngr*'died to *March,*1805,-"having} on the 2.7th: of *MovtCinbet-,*1804-, made her will, by which, after geveralpecuniary legacies, she devised all the residue,oF her estate whatsoever,, real and personal,-in possession,, or action, to *Brockholst Livingsion,'md, Matthew Clarkson,*and the survivor, *in trust,*for the separate .use of her daughter *Catharine,*¡then the *míe oi,William Neilson,*‘during her life, and after her decease, to. be divided’ among /her children; and appointed the persons so named as trustees} her executors. .At the time of the .death of *l^ordStirlings*the tract oft,000-acres, of which the premises in question were part, were ■possessedby *Nathan Miller,*ándpersons.h.oíding.un'derhimpand Were so held and possessed until the entry of *John*Taylor} and the attornment to .him.by-.Millerand the persons holding-under-him.. *Miller*held the possession,, as tenant to Lord *Stirling*and hisrepres-enfatiyes.. *Ann ffladdell.leit*five-children, to wit, William, who resided in *England,*her eldest son and-heir at law, *Henry, Mary,*the. wife of the said *John Taylor, Ann,*the’ wife of *Ekazer'M'dlcr,*and *’Sarah,*the wife Of *Jpseph ■ Taylor.*Qa the 2d *oí.’Eébruáryi*17.88, *Flenry*W.addeUexecuted-a.-eon* VeyahCe, reciting the mortgage and, judgment aforesaid, .of all -his right, title, and interest in- the same, *'to, John Taylor*; and a similar conveyance was executed the. 19th of *December,*1809» by *Eleazer Miller,*and *Ann*his-wife» of all their right, fec,', ta the said *John Taylor,*and on the 25th of *December,-.*1809, *Jó. seph Taylor,*and *Sarah*his wife, executed a. similar conveyance, *-to John Taylor.*.. v

, . On the 12th of *February,.*1809, *Samuel Brewster,*as attorney ' -of *John Taylor, authorized'F chalad Williams,*to tafee, posses? sion of the tract of ÚGO0 adres, in *Ulster,*and to bring, actions, in the name Of Tayloragainst any person in ppssessipn» Oil the 17th of *June, if*9-1» *William Clark, Abraham Russell, and*others, tenants in. possession, of the land, by a writing, .under their hands and seals, attorned toTaylor, since- which time the said tract has been held under *John Taylor*and his heirs, ■On the-1st of *March,*1805» *Nathan Miller*-executed, a lease .of the premises in question. to *Andrew Qse,For ’%%*years,.1 who afte®? - *541Wards delivered the possession to the defendant, *Abraham, JRussell,*' '

. The court below gave judgment* for the defendants. The cause now coming on to be heard, the *Chief Justice*assigned the reasons for the judgment, which were the same as those.stated í,n the report of the case.. (Yol. XI. p. 373.)

J. *Duer,*for the plaintiff in error,

contended, 1. That *John Taylor*had- no right of entry at the time of the attornment of *Mussel-,*the- defendant, to. him; and that the attornment was., therefore, void, and did not affect the possession of the devisees of Lord *Stirling.**

2. That the proceedings by *sci. fa,*to revive the judgment against the heirs, &c., of Lord Stirling, were void, as the widow of Lord *Stirling,*and the tenant of the freehold, was not made á party, or summoned.†

3. Admitting even that the execution was regular^ the premiSes did not pass by the sheriff’s deed. The description was too general. The property sold and described mustbe identified by.a particular'description, or by metes and beunds.‡

4. *John Taylor*was not a mortgagee within the meaning of the statute. He had no right of entry as a mortgagee ;. for the legal estate in the premises was not passed by- the will of Mrs* *Waddell,*but had descended to *William Waddell,*her heir.at law, *John Taylor*could not recover the debt at law, nor foreclose the equity of redemption. §

5. The possession of *John Taylor*was hostile to. the heir at law, and to the rights of the executors of Mrs. *Waddell,*and Calculated to defeat the execution of. the trust created by the will. In equity,. a mortgage is: considered as mere personal property, or as a debt-which passes, to the executors* It will not pass under a devise of the real estate, if there are any other lands to feed the devise.ǁ Cases as to. trust estates,.passing under the general, words oí a devise, are not applicable to the present. The case of *Baybrooke*v. *Inskep,*******where that dóetrine is held, is contrary to former: decisions., and is, at -best;, a. doubtful authority, *Ji*mortgagee,.after-a forfeiture, is. not a trustee at law, but the legal owner. It is clear, that *John Taylor*had no right of entry as mortgagee; and unless hé had such right of entry, the attornment to him Was void.' Iffso,,the right «£ the. lessors to recover, against /. Taylor,* is as perfect as *542against' the tenant himself. He cannot set tap the mortgage, a& an outstanding title, for he has not the legal possession., *

6. *John Taylor*had not even an equitable interest. The interest in the mortgage-debt was wholly vested in the ex- • equtors of Mi's. *Wadddl,*who alone could sue for, and reed-* ver debts:* when the legal estate passed to* the heir, the interest passes to the executors. One or more of the" children* of the testator cannot seize and distribute the estate,; without the assent of the executor and the other children. John» *Taylor*cannot shield. himself under the will,, when his object,' is to defeat the will, by taking away the equitable interest of the * testators, and stripping the heir at law, *William Waddell,*of his rights. The assent of the executors or heir is not found by the special verdict, and it cannot be presumed or inferred.†

It will probably be contended, on the other side, that the attorn- • ment to *Taylor,*if void, was, notwithstanding, such a Commencement of an adyérse possession, as to bar this.action. But if the attornment were fraudulent and void, as certainly it was, he having no right of entry under the will of Mrs. *Wardell,*and no; as.sent to be presumed in his favour, it must be Void to every intent. A possession, under such circumstances, cannot be rendered good by any length of time; for the statute declares-' the attornment to be void, and *of no effeet.**‡*

But admitting the possession of *John Taylor*to have been ad-; verse, such adverse possession is not a bar to the -recovery of the plaintiff in this suit; *Catharine Jf eilson,. ono*of the lessors,* being entitled to the premises as executory devisee, * under the will of Lord *Stirling,*and twenty years hot having elapsed since her right of entry accrued. ' It may be urged that the executory devise to *Catharine Duer*was1* void as being repugnant to -the absolute .ownership previously given by the will to. Mrs. *Alex-,, ander,*according to the decision of the Supreme Court, in *Jackson,*ex dem. *Brewster,*v. *Bull;**§***but in that case the first devisee took an estate in fee, and the limitation over was on an indefinite failure .of issue here; a power was, given by the will tó: Mrs. *Alexander*in relation to the property, but on her dying,* without executing that power, the executory devise was to-vest: in possession. Mrs. *Neilson*cannot be said to derive her title Under the will of Mrs. *Alexander,*for the1 provisions of it did not vary from that of Lord *Stirling,*but were evidently only in-' tended to effectuate it in the most beneficial manner. The case *543of *Doe,*ex dem. Willis, v. *Martin******supports the doctrine eon tended for. In that case it was held, that in a deed to trustees, for the use of the grantors for life, a remainder to such children, and for such estates as the grantors should appoint, did net prevent a subsequent limitation to the children, in general,, of the grantors, in fee, from being a vested remainder. “A general power of appointing any estate or interest, *ad*libitumsays *Fearne**†***“ though enabling him to limit the fee, does not ascertain any estate to be limited; therefore, no limitation of the fee arises, until it be actually appointed under the power. The appointment, when executed, may not reach the fee; it may stop at an estate for life, for years, or in tail; and until the appointment be complete, the power amounts no more to a limitation of the fee than it does of an estate tail, or any other ascertainable interest, equally within the extent of the power, but in which the execution of it may terminate, without limiting the whole fee.” This reasoning applies as tvell to one kind of indefeasible future interest as to another; to an executory devise, as well as to a vested remainder. The appointment, in the present case, did not reach the fee, for no appointment at all was made. Thus the executory limitation to Mrs. *Jfeilson*was valid; her estate did not vest in possession until the death of Mrs. Alexander, and not until then did the statute of limitations begin to run against her.‡ Besides, the lease for 21 years, un- . der which *Russell*held, did not expire until 180G : until the lease had expired, the person entitled in remainder could not enter, and, where a forfeiture has been committed, he is hot obliged to enter until the end of the term.§

*Oakley*and *Van*Burén, contra.

Without pretending to assert the validity of the conveyance of the 10th of *June,*1788, from the sheriff of *Ulster,*they contended that the defendants had shown a sufficient title and estate, under the mortgage to *Ann*Waddell, to bar the action of the plaintiff; this mortgage being a subsisting outstanding title, which they might have set up as a bar, even if they could not have connected themselves in interest with it; still more, when, as in this case, they do connect themselves with it, and claim under it part of the land which it covers. It is true that it did not specify the premises in question, but the general clause, “ all other the lauds, &c., within the province of *New-York”*was amply sufficient to pass to *544the’ mórtgagée aUthe lands not described in the deed, which, at tbe time of its execution, *belonged*to the "mortgagor,**Mr si Waddell,*the mortgagee, being thus possessed of the.legal and-equitable estate in the mortgaged''premises,-on the mortgage becoming forfeited by non-payment, transmitted" hér*equitable to her children, by her will. • She directed her' *outstandin§ debts*to be- Collected and distributed among her five chili dren, and by this, assignment'of the debt, the mortgage followed as an incident, and vested in the devisees, in the samé manner, and in the like .proportions, as the debt which it was intended t° secure.†

But the legal estate under the mortgage, (which is a devisable interest,"†) passed by the general words in the will,, whereby the testatrix -devises *all the rest, of her estate; whatsoever, and wheresoever,*to her children. That this was the intent of the testatrix,Was apparent from her declaration in the preamble of the will, *that she disposed of the whole of her estate,, real and personal,*no part of which could she have meant should go to the heir at law,.with whom she’wa'S- at variance; and the expressions which she has used; are competent tp effectuate that purpose • the *debt*was given to her children, and', certainly, the testatrix must have intended that the *security*should follow it.; ' General words in a will, unless peculiarly or technically applicable, to real estate, are sufficient-to pass mortgage-lands,§ unless it be apparent, from the will itself,-that the intention- of ¡the testator was other-w^seo and.the .authorities show, that apy estate may;pasá underi general words in a will.JJ: If, ho.wever, the'mortgage lands did-not Pass by die will,ǁ they descended to the heir at law, as trustee y°r the-persons’entitled to the debt,** who,’as *cestuy .que trusts,*bad a beneficial .interest in the- land,, and cannot be turned out off p0ssessi0n by the title of their trustee ;†† and it is now admitted,. on the .other side, to'bé a valid subsisting mortgage. . •

The éstate, then', both equitable and légak in the premises. having passed, by the will, to the children of the testatrix, *Hcn-*.. c -* • - *r*, ■ ’ *-ry Waddell,*one of the executors, In conformity to the authority given them by the will, conveyed these premises to *John*Taylor, ■who was then in possession, under the deed from the sheriff of •Ulster. *Taylor*thus became, at least, beneficially interested, (tbc act of one executor, in relation to personal property, being «/binding upon all, ‡‡ and the .assent of the othér to be. presumed,• it"being in unisón .with his duty,) and might have used the name *545of the heir at law to bring an action of ejectment, or, by an application to chancery, have compelled a conveyance to himself; and he would be the person accountable for the rents and profits in chancery. The deed from *Henry Waddell,*being a general conveyance of all his interest, conveyed his right, as executor, although he did not execute it in that capacity.* But, at all events, *Taylor,*exclusive of the right of his wife, held the rights of three of the children of the mortgagee, and so possessed a legal estate under which the defendants can protect themselves in this action; for the legal estate must prevail at law,† and may be set up by the tenant as a bar to an action by the *cestuy que trust,*or person having the equitable title.' This doctrine is not shaken by the cases of *Hitchcock*v. *Harrington,**‡***and Col*lins*v. *Torry,**ǁ***for, in neither of those cases was the mortgage, produced by the defendant, a subsisting incumbrance, and the court has never said that even a stranger might not avail him.self of an unsatisfied mortgage. The entry of *Taylor*was not an ouster of the heir at law,- and, after this lapse of tíme, a conveyance from the heir to the party in possession ought to be presumed.**

It is not competent for the plaintiffs, who, in this respect, are strangers, to raise the question, to whom the legal estate passed, whether to the heir, the executor, or the devisees. It is perfectly immaterial to them, who is entitled to the possession. Whoever may be in possession will be held, by the court of chancery, a trustee for the mortgagor, and so accountable for the rents and profits : that court, on a bill to redeem, would not require the executor, or heir at law, to account. If, then, the court of chancery, as certainly it would, would make the person in possession account for the rents and profits, where was the propriety of instituting this suit ? The fact of attornment can make no difference; it is immaterial to the plaintiff, whether it was made to *Taylor,*or to the heir at law; in neither case can. his interest be affected; the party in possesion was still a trustee, and the plaintiff’s lessors ought to have vindicated their rights by a bill to redeem.

But if the plaintiff is authorized to raise the question of attornment, we deny that it was void, and contend that it came within the proviso of the act which saves an attornment “ made with the privity and consent of the landlord or lessor, or to any *546mortgagee after the mortgage is become , forfeited.’’*. : *Taylat-y*had ¿-right, at least, in part of the land; and as tenant in com-men- he held for all the devisees/ He had, an equitáblé interest in the mortgage debt, which, alone, was- sufficient to enable him to accept an attornment. An attornment to a *cestiiy que*use, is valid.†. And,, further,, as *Russel*took the land.from *Miller-,*as. his tenant, and *Millet*transferred the possession to *Taylor,. Taylor*had a legal possession. '• .After the ..lapse,, of ■ twenty-three/ years, the assent ,of the landlord-to the .tenant, to make attorn-ment, and of -the iieir at law to Taylor; to receive it, is to be presumed.

Though it is not.necessary to agitate the.'question of adverse-possession, it may be confidently asserted that the right of entry ■of the plaintiff’s lessors is barred by the statute, of 'limitations» *Taylor*entered andera claim of title—-^a claim of title Consisting of two branches; one good, that is the mortgage; the.Other bad,', the deed from the sheriff of *Ulster:*but, however'bad the latter may.be, it is sufficient for the present purpose; it determines the nature and character of his possession, and shows.it to have- . been hostile to the rights of the lessors of the plaintiff-- Theattornment to Tayfor -was available for, the same object,; that attornment, if fraudulent and void, as an1 attornment, yet decisively marks the intent of *Taylor*to, hold the land in Opposition' to.the former proprietor..

Nor are the excuses, which háve been-offered oft the other side, for their.peglect in entering,.sufficient. *Taylor*entered ih 1789, under claim Of title,-during the life of Mrs.'iáZeaJand'er, and the statute began to run from-that time,: without regard to the disability of Mrs. *Neilson;*she must be concluded by the -neglect.of the particular tenant..- The cases in; which the reversioner, Or remainderman, cannot be affected by the *inches,*of the tenant for life, are'where the tenant for life has no power to alienate or incumber. Here Mrs. *Jllexander*had authority to sell, or devisé, the land in fee. 'Such sale; or' dévisé, would, have been binding on the remainderman.. If. the remainder-man, or reversioner, be not bound by the. acts, he is not concluded by the tóete, of’tenant for life; but where the acts of ■the particular tenant are obligatory on him, he must, also, be barred by his, tóete.. Further, Mrs, *Meilson*has no other title than a *cesiuy que trusty*under the will of Mrs. *-Alexanderi*-had her estate being a continuation of that of her testatrix; can *547fee in no better plight- than it was when in the hands -of the person from whom she received it; she takes nothing under the will of Lord *Stirling,*for the limitation to her is void, as being repugnant to the antecedent devise.* The- possession of *Nathan Miller,*which was merely found by the jury *to*have existed at the time of the death of Lord *Stirling,*is altogether inoperat’ve ;† he was a mere tenant at will; a lease by the mortgagor, after a forfeiture of the mortgage, is a nullity,‡ and the lease from *Miller*to *Russel*could- not suspend the right of entry.

*Henry,*in reply,

said, that the points arising in this casé wei'e merely questions of law, and if *John Taylor*had no right of entry, either under the sheriff’s deed, or the will of *Ann*Waddell, the plaintiff had- pursued the proper course in bringing an action of ejectment,

' The defendants have, in fact, set up a title under, the sheriff’s deed; -else why did they produce, at the trial, the documents in relation to the sale under the execution ? This court, therefore, must pass upon that title, which was' void, as -well because there was no sufficient revival of the judgment, as because the premises in question were not described in the'deed; they were not known as being intended to pass by the sale, and, consequently, could not have entered into the contemplation of purchasers in calculating the price. *Taylor,*then, having rio right of entry under the sheriff’s deed, if he can show no other title, the at-torment to him must be void. An’ attornment to any other than the legal owner is void. ■ ' :

Having disposed of this question, he proceeded to inquire if *Taylor's entry*was protected by the will. This, he said; was the turning point of the case; and if *Taylor,*had a right of entry at law under the will, the plaintiff must fail. ' To understand this part of the subject, it became necessary to consider the nature of the respective, interests of mortgagor and mortgagee.

The mortgagor, eyen after forfeiture, .until foreclosüre, or entry by the mortgagee, is, to all‘intents, the owner, and in the seisin of the land,§ and may take the rents and profits without accounting to the mortgagee; his widow is -entitled to dower out of it;ǁ he may grant it, devise it, vote upon it; and an outstandihg mortgage, not foreclosed, is not a-breach of-the covenant of seisin in a deed ** But the interest of the mortgagee is merely a personal chattel,†† cannot, before foreclosure* be sold *548by his creditor under an execution ;* he cannot' incumber the equity-of redemption by a lease for the shortest term, even after, forfeiture ; if he takes possession of the land, he becomes á trustee to the Mortgagor, and must account to him for the rents and profits; and, after' his death, his estate goes not to his heir, but to his personal representatives.†

From a review- of the- eases in which the question has been discussed, how far general Words in the'will'of a mortgagee may include a mortgage, the following rule may be' laid down as the result:: *ce*that no general words applicable to the realty,, .will pass a mortgage interest,, (which has been shown tobe mere. >y a chattel,) where the equity of redemption has hot been fore-’ closed or released, or the mortgagor has, not procured the possession.”‡ '• There areno expressions in this will-that can take the Case out of the rule which is here stated. The testatrix directs her executors to sell all her estate, and distribute the proceeds among her five children, who are to be *tenants in common in fee, of the realty,*until such sale and' distribution. These are the only words, if any, that can have that effect, and surely they do not reach the mortgage. The *words,whatsoever,, and ‘wheresoever,*only apply to the power of the executors to sell, and had- the subsequent clause been omitted, all the lands of the’ testatrix would, in the mean'time, have gone to the heir at law. The power to the executors to sell could not - apply to the mortgage lands, until after foreclosure,-their authority only extended to such lands as the testatrix might have sold and conveyed in fee. The case- of *Hutchinson*v. Savage,§ -which has been cited on the other side to support the deed from *Henry, ¡Waddell*to ^.Taylor,-as a grant of his interest as executor, has no applicatiqn ; indeed, it makes against them ; for it show’s that a general grant will not pass an interest which the grantor possesses in a representative capacity, Unless he have no interest of his own upon which it can operate. ■ Since,'then, the legal right to the premises did not pass to the devisees under the will, it must have vested either in the heir at law, or the executors, and the defendants are! noW seeking to connect themselves with the. legal estate, in order, unjustly, to, oust the heir of. his rights : an object which no court will sanction.-

When-the attornment was first made to *.Taylor,*his interest,. if any, extended but to two-fifths of the land, so that there is no room, for presuming the- assent either .of the executors or the *549heir. But their assent is not found, and therefore cannot be presumed on a special verdict.*

Since, then, *Taylor*had no right of entry under the will of *Mrs. Waddell,*he cannot connect himself with the mortgage; he is a mere stranger, and a stranger cannot set up on outstanding mortgage in an action of ejectment by the mortgagor.? No person can avail himself of a mortgage but the mortgagee, and those who stand in his place. The defendant, *Russell,*entered as lessee under a title derived from Lord *Stirling,*and he can-not be allowed to contest the right which he has once recognised.‡

The possession acquired by *Taylor,*being under a fraudulent attornment, is not to pJaintin’s lessors; but admitting that it were, still, as Mrs. *Alexander*did not die until 1805, and Mrs. *Neilson*was then a feme covert, the statute has not yet begun to operate upon her rights.

*

 1 N. R. *L.*543. sess. 36. ch. 63. s 27, 28.

†

 Cartk. 167. *Com. Dig.*tit. Sci. Fa. (C. 5.) And. 161.

‡

*1 Johns. Cas. 284.*

§

**2 Fonbl. Eq. *225.*2 Equ. Cas. Ab. 192. 2 Vern. 56. Prac. in Civ. 15. Cruise's Dig. tit. Mortg. ch. 1. s. 17.

ǁ

 2 *Vern.*133. 625. 2 *Fonbl.*Eq. 284. 1 *Ch.*Cas. 283. 2 Ch. Cas. 51. 1 Bro. P. C. 228. Pon on Mortg. 633. 2 Fonbl. 279. note. 1 Atk. 605. Crs. Dig. tit. Device, ch. 10. s. 113.

**

 8 Vesey, 417.

*

*1 Ch. Cas. 51. 2 Ch. Cas. 29, 50. Powell on Mortg. 614. 1047.*

†

1 Caines' Rep. 63. 1 Burr. 126.

‡

 Sess. 36. c. 53. s. 28. 1 *R.L. 4*43.

§

*10 Johns. Rep. 13.*

*

*4 Term. Rep. 39 Fearne's C. R. & Ex Div. (Buller's Ed) 228.*

†

 P *230. Butter's Ed.*

†

4 Johns. *Rep.*390. *Burr.*Rep. 120.

§

*7 East's Rep. 320.*

*

 Plowd. 289. 4 Mod. 157 2 Rol. Abr. 49. 57. P. pl. 45.

†

*3 Johns. Cas. 322.*

†

**Pow. Morig. 438.

§

*2*P. Wms. 198. 201. Co. Litt b. 3. *note,*96. *Cru. Digtit. 38. c.*10. s. 113 *116, 117, 118. 2 Ch. Cas. 51. 3 Ves. 348. 714.*

ǁ

**Pow. Mortg. 4444. 692. n. 8. Term Rep. 122. 5 Ves. 340. 8 Ves. 41. 1 Vern. 4

**

**Pow. *Mortg. 688, 689.*

††

*Burr.*Rep. *1898. Cowp. 46. Doug.*721 777. 1 *Term Rep.*737. 758.

‡‡

*roll. i.*

*

*La. Raym. 1306.*

†

 Doug. 722. 777. 1 Term Rep. 735. 2 Term Rep 684. 7 Term Rep 46, 47. 8 Term Rep. 122. 5 East's Rep. 138. 2 Johns. Rep. 84. 226. 3 Johns. Rep. 423. 8 Johns. Rep. 488.

‡

6 Johns. Rep. 290.

ǁ

7 Johns. Rep. 278.

**

1 Caines' Rep. 90.

*

**Sess. 36 c

†

*Co. Litt.*310. *a.*

*

*10 Johns Rep. 19.*

†

*Gilg. Tenures 90.*

‡

**Doug. *21.*Pow. Mortg 226, 227 Cru Dig. tit. 15. c. 2. s. 5.

§

*2 Johns. Rep. 75.*

ǁ

7 *Johns. Rep. 278.*

**

*7*Johns. Rep. 376. 380.

††

*Pow. Mortg. 683. Prec Ch. 11 .1 P. Wms. 295*

*

*4 Johns. Rep. 41.*

†

*Pow.*Mortg. 689, 690. 2 Vern. 193.

‡

 1 *Vern.*4. n.

§

*Ld. Raym.*1306.

*

*Bac. Abr. Verdict, (R.)*

‡

6 *Johns. Rep.*294. 7 Johns. Rep. 282.

‡

*1 Caines'*Rep. 444. 2 Caines' Rep. 215. 3 *Johns. Rep.*223. 499. 6 *Johns. Rep. 35.*

The Chancellor.

The premises in question were originally owned by Lord *Stirling,*and the lessors of the plaintiff claim title under him. The defendants set up title under a mortgage which Lord *Stirling*executed to *Anne Waddell,*in 1771. A part of the debt secured by the mortgage, was prosecuted at law, to judgment and execution, and *John Taylor,*under whom the defendants held, took, as purchaser, a sheriff’s deed of the premises under the execution ; and he was, also, at the same time entitled, under the will of *Anne Waddell,*to two fifths of her estate.

If *Taylor*acquired a title under the sheriff’s deed, or was entitled to the land under the will, the lessors of the plaintiff cannot recover. There is nothing in the case to warrant an inference that the mortgage has been satisfied or discharged 5 and in respect to the questions arising under the special verdict, it is to be considered as a subsisting incumbrance.

I am induced to think that the title set up by the defendants Under the sheriff’s deed,' cannot avail them. Two objections are made to that title. 1. That the *scire facias*reviving the judgment was not duly directed and'served; and, 2. That the premises were not duly sold by the sheriff. Of these objections, one appears to be solid, and the other not.

1. The *scire facias*was directed to the heirs of Lord Stirling, and served on them; but that service was of no use, for they *550took nothing by descent. Lady Stirling■ was t'bé deyísee’,of the real estate; and she was, consequently, the tenant oj the • freehold, and ought to have been the party to the writ, ft'was the same thing, as to her rights, as if execution had issued, and the lands been sold on the dormant judgment against Lord Stirling, without any revival by *scire facias.*Still, I take the law .to fee ’ that even the omission .altogether of the *scire facias*will not, as of course, render void-a sale .undpr the execution. An execution issued on a judgment after á year and a day, without.revival, has been held to be., voidable only, and a. justification . to t-he .party under it, until set aside. (3 *Caines’ Rep,*2708 *Johns. Rep.. 365.)*The *Scire facias*is intended as .notice ton party to sfaóvr ' cause why execution-should not issue, aftd to give him 'an opportunity to plead payment, or other discharge ; and if it be omitted in a case requiring it, he-would, no do.ubt, be entitled to relief, on proper application,, But, in this case, the execution has been permitted to stand to this day without being regularly questioned by' Lady *Stir ling,*or her representatives.' She lived seventeen yeárs after the execution had been thus irregta larly issuedand it cannot but be presumed, that the service of the *scire facias*on her daughters came seasonably to her knowledge ; and even ten years have'elapsed since her death, and no attempt appears to have been made by her heirs'or devisees to set it aside. I presume that the supreme court would not now sustain a motion to set aside the execution for irregularity, after so great a -lapse of time. Tha t court has once said, (*Thompson*y. *Skinner, 7 Johns. Rep, 556. )*that after the lapse of 20 years, no judicial proceeding whatever ought to -be set aside for fir-regularity ; and it has been denie.d in other courts, (2 *Bay,*338.) even after 12 years. The objection is infinitely stronger when the attempt is made to question the regularity of the. execution, and to set aside the title Under it, in this collateral action. The regularity of the revival of the judgment.by the *sci, fa,*was not; the point in issue in this cause», ft was.held in the supreme court of *Pennsylvania,*in *Heister v. Fortner,*(2 *Binney,*40.,) -that a judgment revived by *sci. fa.*after a ypa-r and a day, upon one *nihil*only,, which is -the; same as no summons, may be set aside for. irregularity, or reversed'on error, but that, the irregularity cannot be noticed, collaterally, in another suit; and, that; even if the judgment should, for that cause, be reversed, or ¡set aside, a purchaser at a sheriff’s safo-would-hold the. land, ; A *551.Similar doctrine was laid down by Lord *Redesdale,*in *Bennet*v. *Hamill*2 *Scole & Lefroy,*566.,) where it was' held, that a purchaser under a decree should not be affected by error in the decree, in its not having given a day to an infant defendant to show cause.

This doctrine appears to me to be very reasonable, and con* ducive to the public good. It is intended to impose upon parties the necessity of looking into mistakes in, proceedings before they become stale and forgotten; and it tends to quiet pur* chasers, by giving security to judicial titles. The first objection, therefore, to *Taylor's*title under the execution, from the want of a regular revival of the judgment by *scire facias t*falls to . the ground.

2. The next objection is, that the premises did not pass by the sheriff’s deed; and here, i think, the objection is well taken*

The sheriff’s deed contains all the evidence we have of the sale 5 and it recites, that by virtue of the execution, the sheriff seized the tracts and parcels of land therein mentioned and described, and that he exposed the same separately to sale, and sold each of them to *John Taylor*for 50/., making in the whole 100/. It then states, that by virtue of the execution, and in consideration of the said 100/., he conveyed the said two tracts of land, by metes and bounds, to *John Taylor<,*The deed then adds, by a general clause, these words ; ■“ and also all other,the lands, tenements, and hereditaments, whereof the said *IVilliam,*earl *of Sliding,, was*seised.within the county of Ulster.” It was under this general clause' that the premises, were intended to be conveyed, whereas it would appear from the deed that the levy, and the exposure to sale, and the price bid, applied only to the pieces or parcels of land which were therein mentioned and described. It appears to me to be.altogether inadmissible, that the property of a defendant should be-swept away oh execution, in this loose undefined manner. It would operate as á great oppression on the debtor, and lead to the most odious and fraudulent speculations. Ño person attending a sheriff’s sale can know what price to bid, or how to regulate his judgment, if there be no specific or certain designation of the properly, In this case, the price was given for the-land described,and not for lands which, we are to presume, were them wholly and equally unknown to the sheriff and the purchaser* If was the same thing to the purchaser, gs if no such land e.x*552ístéd. Tb tolerate süéh judicial sales, Would.be a mockeryojf justice. It/búghi to be received as- a sound and settled principle,. that the sheriff cannot sell any land on execution but such as the creditor- cán enable him to describe.with reasonable certainty; so that the people whom the law invites to such áüc-.,; tioris, may be able to know where, arid what, is the property they are about to purchase: Perhaps the casé may be'different, if the description in the mortgage be general, and the mortgagee sells under a power,/arid this mortgagor wall not come forward at the sale, and!point out and identify ,the lands.The sale, inshch á case, depends upon the; contrac t of the parties 5 but sales by. process of law are under the protection of rules established for the common safety; and I see no possible ground to. hesitate; concerning the policy, or the justice of the‘rule in this case.. . The title, therefore, set up by the defendant's, under -the sheriff’s deed, totally-fails:

. *3.*There was another ground of defence mentioned and discussed upon the argument; and'that was the existence of an adverse possession of 20 years, sufficient to toll the plaintiff’s entry. -From the time that *Miller*and the other tenants, surrendered their possessions to *Taylor,*to the time' of bringing the suit, above 20 years had elapsed, arid if the statute of limitations had begun to run from the time of that surrender, the lessors of the -plaintiff would undoubtedlyhave been barred. But it didnot begin to run; for reasons which I shall presently mention. It has been urged that there was a suspension of the statute by reason of coverture, rights in remainder, &c- This, however, is a mistake. There was no disability on the part of Lady *.Stirling,*and she owned the whole estate, in fee, under her husband’s will, at. the time of *Taylors*entry. The- devise to' her ;was of “ all the. real, and personal estate, whatsoever, ¿kc..;’? the word *.estate,*here carried,a fee, and the further provision; in.the will, that if -she died “ without giving, devising, selling, or assigning it, &c.’? the estate should go to his daughter *Catherine Duer,*was not a good limitation by way. of executory devise, as such a limitabon was repugnant to the power to -sell,;ancl, consequently, void* This .was the decision of the supreme court in *Jaclcson v. Bull,*(10 *Johns. Rep.*19.,) and nothing has. been urged to show why that- decision is not to be regarded ás correct. Lady *Stirling*was then the owner of the equity of redemption, and *Miller*was her tenant, at the time of the surrender of the possession to *Taylor,**553But the reason why the statute of limitations did not then begin to run against her, is this, that the surrender was not, *of itself*and without reference to the title of *Taylor,*a disseisin or ouster sufficient to set the statute in motion. There is no *fact*found by the special verdict amounting to an ouster, unless it be, what is termed in the case the attornment of the tenants, in acknowledging to hold, or accepting leases, under Taylor, instead of Lady *Stirling.*But unless *Taylor*was lawfully entitled to the possession, this attornment could not, in any way, prejudice the rights of Lady *Stirling,*and it was, of itself, null and void. The statute on this subject declares, that *no attornment of a tenant to a stranger shall be construed in any wise to have changed, altered, or affected the possession of the landlord, except the same be made with the consent of the landlord, or in pursuance of a judgment, or made to a mortgagee,*&c. This brings us to the last and main question in the case, and that is, can *Taylor’s*entry be protected under the mortgage from Lord *Stirling*to Mrs. *WaddellP*Every other point of defence having failed, the whole cause turns upon the solution of this interesting question.

The will of Mrs. *Waddell*sets out with a declaration that she disposes of *her whole estate, real and personal,*and, after some specific legacies, she directs her executors to collect all her outstanding debts, and that all the *rest of her estate inHardenberg’s patent, and elsewhere, whatsoever, and wheresoever,*be turned by them into money, and be equally distributed among her five children, share and share alike,t£ who are to be tenants in common in fee of the realty, until such sale and distribution be made.” It is very clear to me, from this will, that Mrs. *Waddell*did not intend to die intestate, as to any part of her estate. She did not intend that her eldest son *William*(and whom she, evidently, in the same will, rebukes for his disobedience) should inherit any part of her estate, whatsoever, as heir at law, in preference or in exclusion of her other children. She meant that the mortgage debt of Lord *Stirling*should go as the rest of her estate .went. She probably knew nothing of the distinction between a beneficial interest in the mortgage debt, and a dry, technical, legal estate in the mortgaged premises. If the distinction was known to her, she never intended that her eldest son should avail himself of it. If the mortgage was- personal estate, she. meant that her executors should take and distribute it; and if it was real estate, capable of enjoyment, and of being devised as such, she meant *554it.to go, as part of the *realty,*to her five children equally, ¿s tenants in. common. There is no doubt in my mind .that ' th-isiis .the fair and obvious intentionof the,will ; for the language is.plain and unambiguous, and there is no provision inconsistent with this intention. 1

We are, however, here met with a difficulty' which is supposed to be insuperable, and on which the main stress of thé argument on the part of the-plaintiff was-laid... It is admitted that the -words of the will are sufficient to^.pass to . the five children all'the real estate which Mrs. *Waddell*held in her own right;. but. it is said to be '.a settled rule of law, in the construction of wills,,that general' words, such as *:-lands, tenements,*ancf hereditaments, the *realty,*or other-words particularly appropriated to real estate, will riot carry ah interest in land, which the., testator holds as, mortgagee or trustee; that unless the will specially réíérs to such an, interest,, it will not. pass by the usual -devise of the real cátate.and that though, strictly and technically speaking, the mortgagee has á legal, estate in fee in the mortgaged premises, yet that estate must descend, as undevised property, to the heir at law,.father than pass with the rest of,the-estate by such general-words. . ; • • -

If this be the rule of law, whatever'we may think of if, we are bound to obey ft. On this point I fully agree with the learned counsel for-the plaintiff.-. No man feels more strongly than,'I do, the duty'incumbent on every member of this court to declare the law, truly and strictly, in, all our judicial decisions, . Wesit herej not as a branch of the legislature,: but as a court of justice, and we must not, in any case, set up the authority of our own “right reason” as paramount to the law which we are sworn to administer. But it is unnecessary to press, these reflections. I have satisfied -myself, andj perhaps, I may be able to; satisfy others, that thé rule of law- is *not*as: was stated on the part of the plaintiff; but the rule is, that the same, words in a will which will carry any other estate will cárry, also, the legal.estate'held in trust under a mortgage.

This latter is, upon the whole, the most convenient rule* though I admit it cannot be very material, as it respects the interest of parties,-which way the rule is settled.; for, whoever takes a trust estate, whether it be the-heir, by descent, or the devisee, by will, he must take it as trustee merely, and is equally Responsible in the -one capacity ,a-s the other, ,Byt; if the public, interest is not mweb concerned in- settling the rule, there is. fe*555less reason for refusing to construe the words of a will according to their ordinary meaning. Lord *Rosslyn*has said (5 Vesey, 339., that it would be more convenient that trust estates should pass by general words, because it is more convenient for those who are concerned in the trust to find the devisee than the heir; and if this be the case in *England,*the • convenience, is vastly increased with us; because, in *England*the eldest male is, alone, the heir at law, but with us all the children, male and female, inherit together. And if the beneficial interest in the morigage debt is given to the devisee, the inducement is still stronger to give him the fegal estate; for why should the legal and the beneficial interest in the. mortgage premises be, unnecessarily, separated ? What possible use would there be in allowing the legal estate in the mortgage to descend in this case to *William Waddell,*the heir at law, when he would, as heir, be only a mere naked trustee for those who were entitled to the beneficial interest in the mortgage debt under the will ? It would be faT better, on the score of Convenience and simplicity, to let •the legal and equitable interests under the mortgage go together, as they in fact existed together in the person of Mrs. *Waddell*at the time of her death.

The rule, as-now settled, is this, that trust estates will pass by the usual general words in a will passing other estates, unless it is to be collected from the expressions in the will, or the pur-' poses and objects of the testator, that it was his intention they should not pass. This was the rule as declared by Lord Ch, . *Eldon,*in *Braybroke*v. *Inskip,*(8 *Vesey,*407.,) after much examination and reflection. In that case *A.*held land'in trust, and by will devised all his real and personal estates whatsoever, &c., to his wife, and it was held by the master of the rolls, and afterwards, by the Lord Chancellor, that the legal estate in the trustee passed by this general devise The Lord Chancellor said this was a question of intention of the testator, and the weight of convenience was in favour of the rule. The will was large enough, and there were no expressions in it authorizing a narrower construction,' and no purpose inconsistent with -an intention to pass the trust estate to the devisee. He said there was no case establishing a different rule; and that if there was any such case, he would abide by it. The rule, according to the old cases, unquestionably was, that a trust estate would pass by general words.

*556This is the final. decision in^the *English*courts, on. the very point which has been raised ánd discussed in this place ; and after the. decided opinion of so. laborious and able a lawyer as. Lord Eldon, we may well doubt whether the learned counsel for the .plaintiffs have not-been mistaken in their apprehensiori of the. rule of law. It is admitted, on all hands, that a mortgagee-holds the- mortgaged lands in trust; and when it is said that a devise of real property will, ordinarily, pass a trust estate, all the cases 'consider it' as applying as well to a mortgagee as, to any other trustee; and, indeed, it applies the Stronger to that case when we find that the devise does, actuallypass -the beneficial interest in the mortgage debt.

The case of *Roe, ex dem. Reade,*v. *Reade,*(8 *Term. Rep.*118.,) in the-K. B„ declares the same rale.,, *A.*having estates of ;his pWri, and having another éstate which he held as a mere naked trustee, Without any interest, devised all his estate whatsoever, and wheresoever, *after pay,merit of debts and legacies.*The question was here between the heir and devisee, which of them took the trust estáte, and the K. B. put it entirely on the ground: of intention, The genpfal words seem, both by the counsel and'the court,to have been admitted to be Sufficient to pass the trust estate; but as the testator had here charged all ¿is lands devised with the paymént of debts, and ílgacies, it- was decisive.evidence that he did not intend to pass the trust estate by that will, because he had no right to charge it with such payments; and as the intention in this case was manifest, for that reason, and that reason only, the trust estate was held not to pass. So, in another case, *(Ex parte Morgan,*10 *Vesey,*101.,) Lord *Eldon*held, .that where a mortgagee had devised all his real estate, charged with an- annuity, it could not be considered as His intention to pass the mortgage, éstate, because that estate wás riot his own. . He only held it in trust for a special purpose, and he had no right to charge it with an annuity.

, 'Here, then, we have the decisions of the courts of law and equity in England,.uniting in the rule as I have stated it; and if we go back, as Lord *Eldon*did, to the old cases prior-to the revolution, and which are to b,e received strictly as authority, we shall- find them containing and expounding the same doctrine,

I begin With the case of *Winn*v. *Littleton,*(1. *Vernon,*3. 2 *Ch. Cas.*51.,) decided as early as 1681, by Lord *Nottingham,*whom Sir *Wm. Biackstone*always mentions with the reverence *557'due to the father of the *English*system of equity jurisprudence. The testator, in that case, was seised of divers lands in his own right, and divers lands as mortgagee, and he devi-sed all those lands he held in his own right by specific designation, and adds, *or elsewhere within the kingdom of Wales,*and he charged his lands devised with a rent charge for life. The question was, whether the lands held in mortgage passed by the will, and it was held that they did not, because it appeared not, to be the testator’s intention, as he made special mention of his qwn lands, and not of the other. But another and a stronger reason was assigned by the court; and this was, that the testator had charged the lands that passed by the devise with a rent charge for life, and he could not be thought so improvident as to grant a rent for so great an estate, and of so long a .continuanee as for life, out of mortgage lands which were every day redeemable.

This decision places the question, whether a trust estate will pass by general words, on the same ground that it was placed by Lord *Eldon,*120 years afterwards. It is a question altogether of intention, and to be gathered from the scope and design of the whole will. If the intention be not otherwise pretty clearly expressed, and it be not inconsistent with the nature of the other provisions in the will, the understanding is that the trust estate will pass.

The case of *Marlow*v. *Smith*was the next decision on *the*point. (2 *P. Wms.*198.). It was decided in the time of Lord *Macclesfield,*in 1723. The testator devised part of his estate to *A.*and *all the rest and residue of his estate*to *B.*It was held by the master of the rolls .tha t the land which he held as a bare trustee, passed by these latter words, for the legal estate was *his*estate in the eye of the law; and there was, it was said, no inconvenience in this construction, for the devisee would be equally a trustee. So, again, in the modern case *Ex parte Sergison3*(4 *Vesey,*147.) the master of the rolls, afterwards Lord *Alvanly,*and Lord *Rosslyn,*were both inclined to the opinion, that a mortgage estate would pass by general words in a will, such as *all the*rest, *residue, and remainder of my estate, real and personal, of what nature or hind soever.*

In addition to this weight of authority, I might add the opinions of Mr. *Butler,*in one of his notes to *Coke on Littleton, (Co. Litt. 203. b. n.*96.,) and of Mr. Sanders, in his note t© *558*1*Atk. 605. and both these writers bestow some páins on .tlid question, and each:cites a.case; to the same' effect, and not eise; where .reported.

Then, what-áre the authorities on which the counsel for the plaintifl have relied? We may well ask this question after;thé pases which have been mentioned, and after- Lord *Eldon*has said that he knew of no case against the general rule which has been stated* They rely, in the first place, On a loose Observation in the case of Strode v. *Russel,*in 1708, (2 *Vern.*621.) ia which it is stated' to have been agreed by the. chancellor, assisted by the master oí the rolls: and two judges, that-mortgages in -fee, though- forfeited when the will was made,, did not pass by the general words. There is nothing, in- the, case to the-point but this single observation, and Mr. *- Sanders,*in the note to- which 1 have alluded, says, that this case affords no argument on either side, as the decree takes no notice of any mortgages, ex* cep.t those whereof the testator hád, after the making, of the will, purchased the equity. The next, authority* inore confidently relied on., is an observation of Lord *Hardwicke,*in *'Cas borne*v„ *Scarfe,*(1 *Atk. 6*05.) in which he says, that by a devise of *all lands, tenements, and*Hereditaments*-á mortgage in- fee will, not pass, unless the equity, of redemption be foreclosed. This does1 not appear to have been the point in the causé, and it is rather to be considered as an extrajudicial-dicíwm;1 and.Lord *Eldon*declared (8 *Vesey,*436, 437.) that he did not believe Lord *H,*ever said so. And When this *dictum*was cited in another case, (4 *Vesey, 149.,)*the then Solichor General. *Sir JohnMitford,*told the court ■ that Lord *Nórthington*and Lord *Thurlpvi*had overruled that opinion. ' ' ,

Another cas.e relied on by the plaintiff’s counsel, is that qf the *Duke of Leeds*v. *Munday, (3*Vesey, 348oncur :in opinion’ with *hord Hardwicke.*We find,, however, that he. afterwards'declared (S' *Vesey, 341. note,)*that the Opinion imputed to him in this case was not correct; and that he.did not mean to decide the-qiiestion, but made a conditional decree, on account ot his doubts*The last case mentioned is that of the *Attorney General v Buller, (5 Vesey,*339.) in which Lord *Rosslyn*seemsv to intimate that a p-ust estate will not pass by general words in a will, and yet, strange as it may appear* he afterwards said, (8 *Vesey,*437.,) that he was Overborne in that ease'by some observations *559of the . attorney-general, and that his opinion was rather with Lord *Eldon.*

_ On reading these latter cases, we are almost involuntarily led to pause, and wonder at the extraordinary and very unaccountable perplexity, doubt, and alternation of opinion, which they discover on this point. The learned men referred to in these cases, do not appear to me, with ali proper humility be it spoken,- to have examined this question with the diligence or the talent worthy of the eminent reputation they bear. If, indeed, they did, the reports have done them great injustice. Lord *Eldon*had studied the question with profound attention, and he showed it to be perfectly clear and settled; but in the other modern chancery cases on this point, we find nothing but what tends to expose the inefficacy of legal learning, and the weakness of human reason.

I have thus finished a review of all the material cases on the subject; and if the court have had the patience to attend to this dry detail, I presume they must be satisfied that there is no technical rule of law to withstand the intention of the will. And when Mrs. *Waddell*directed, that *all the rest of her estate in Iiardenbergh’s*patent, *and*elsewhere, *whatsoever, and*where*soever, should be turned into money, and distributed among her five children, who should be tenants in common, in fee of the realty,until such sale and distribution be made,*she intended that her legal and beneficial interest in the mortgage debt, and premises, should pass with the rest of her estate. It follows, then, of course, that *John Taylor*was authorized to enter under the mortgage, in right of his wife, and of Mrs. *Miller,*two of the daughters of *Anne Waddell,*and that the notion of an illegal and fraudulent attornment to *Taylor*is totally without foundation. We may consider his possession as the possession of all the claimants under the will.

Even if the technical legal estate in the mortgage had descended to the heir, he would have been but a mere trustee for all the children to whom the beneficial interest was devised, and they would have been entitled to use his name to recover the money, or to foreclose the ’ mortgage, or to gain possession. This was so declared by Sir *John Strange,*in the case of *Attorney General*v. *Meyrick,*(2 *Ves.*44.) And though it is not now necessary to give any opinion on that point, I should incline to think, that even in that case, the children of Mrs. *Waddell**560CouId protect themselves in the entry and possession, under the mortgage. . •

_ But I need not pursue the subject further. I have examined the case on every point, and am of opinion that the judgment of the supreme court ought to be affirmed.

This being the unanimous opinion of the court, it was thereupon. ordered and adjudged,- that the judgment given in this, cause be affirmed, and the record remitted, &c. And that the plaintiffs in error pay to the defendants in error their costs, to: be taxed, &c. . .

*Per.totam Curiam..*Judgment affirmed.

A motion was made, on the part of the plaintiffs in error, for double costs.

The Chancellor. The 14th section of the *act concerning costs,,*applies only where the writ of error is sued out by the de» fendant below. That section is a transcript of the statute of 13-Car. ÍL and such has always been the construction of it. *(Hullock on Costs,*280, 281 ) The decision of the supremé court, in *Peters*& *Gedney*v. *Henry,*(6 *Johns, Rep,*278.,) is to this point. The 14-th section gives doable costs, for *delay of execution,*and that is understood io apply only when the plaintiff below recovers.- The defendants are entitled to *single costs*only, under the 12th section of the act, .

*Per tot. Qur.*Single costs only awarded.