ambiguity; that there is a resulting trust for the benefit of the wife, or
for the benefit of the husband, according to the circumstances of the
case. But here, it seems to me that the operation of the deed as to
the mortgage term, and the operation of the deed as to the limitation
of the fee, are wholly distinct, and do not in any way depend on each
other. The question does not arise upon the interpretation of the
proviso for redemption; but it arises upon a distinct and subsequent
clause of the deed. The term and the fee are kept distinct in the
deed. The term is a security for the repayment of the money lent;
and when the mortgage should be discharged the intention of the
maker of the deed was, that the term should be completely at an end.
The way in which they proposed to effect this was, by declaring that,
upon payment of the money due, the term should cease.
If the money
had been paid at the day, the term ceasing, there would have remained
nothing of the mortgage operating upon the property. But there would
then have remained the declaration in the deed, directing what should
be done with the estate, subject to the term. The term being at an
end, the operation of the deed, so far as it declared the limitations of
the estate, subject to the term, remained perfectly distinct, and had no
connection whatsoever with the existence of a term, which then would
have ceased to exist. A Court of Equity will so deal with a declaration
that upon payment of a sum of money on a given day the term shall
cease, that although the term becomes absolute by nonpayment of
the money at the day, it is still subject to redemption. By whom it
may be redeemed must be discovered from the title, which by the
deed itself is declared to be in the husband and wife, for their respec-
tive lives, then to the heirs of their bodies, and then to the survivor in
fee. Upon the declarations, therefore, and the provisions of that deed,
the redemption would arise by implication, in case the money was not
paid at the day. The implication must be drawn from the deed itself
declaring who were the persons entitled to the estate.

In all the cases decided upon the general principle, the grounds of
the decision were,
"that the mode in which the redemption was
limited, was by mistake or improper contrivance introduced into the
deed." But in this case, there is no ground to raise such imputations.
For the deed is clear and express in its declarations and provisions.
The case is really in principle, if not in circumstances, the same as the
case of Rowell v. Whalley.

Upon these grounds it appears to me that the part of this decree which declares that the appellant was a trustee of the equity of

LORD REDES-
DALE'S RE-
MARKS IN
JACKSON v.

INNES.

WIFE'S EQUITY redemption is not according to law. I shall move simply to reverse this decree.

OF REDEMP

TION.

Lord Eldon's remarks.

The Lord Chancellor Eldon.-The circumstances of this case are certainly, in point of fact, much better understood than they were; and much greater research has been made into cases, so as to bring before the consideration of the House the true principle of decision. The Court below did not rightly apprehend the case, as it now appears. The judgment of this House will remove a difficulty, which I know is floating in the minds of many persons. I conceive it to have been the opinion of Lord Thurlow, that, in order to dispose of the equity of redemption of the wife in an estate, it was absolutely necessary there should be in the recitals of the instrument some expression that the parties meant it so that it was not enough to collect the intention from the limitations; but that there must be something more upon the face of the deed to lead the wife to understand what those limitations were. It does, however, occur to me, on looking into the cases which have been referred to, that such a proposition cannot be supported; and therefore I am of opinion that the decree must be reversed. Decree reversed accordingly (9).

(2) The case of Jackson v. Innes is remarkable as being the only instance in which a judgment of Lord Eldon's was reversed. Great as that lawyer unquestionably was, the preceding exposition will convince us that he did not enjoy without a rival, the eminence which was unquestionably his due. Lord Redesdale, after having discharged the judicial duties of the Great Seal in Ireland with consummate ability for a period of four years, retired on the appointment of the Whig ministry in 1806. There was nothing odd in this. But when his friends returned to power, in 1807, the odd thing was, that they kept Lord Redesdale at home without office, and sent Lord Manners in his stead to be Chancellor of Ireland.

The

subsequent years of his life (a very
long one) were, however, not lost to

the profession. He sat regularly in the House of Peers, advising their Lordships on all appeals and writs of error, and other judicial business. In learning, it is hard to say that he was not equal to Lord Eldon. He had powers of exposition

too

; and excelled as a legal writer. In the judgments of Lord Redesdale we see general rules luminously descanted upon; for this great master of equity had a just confidence in himself, and never frittered away his meaning by timid and dexterous qualifications. He committed himself generously and boldly to all his propositions, for he knew and felt that they had a foundation of granite. Herein lay his superiority over Lord Eldon, who scarcely ever tied himself down to anything beyond the decision of the particular case before him.

OF REDEMP-
TION.

Reeve v. Hicks.

In Reeve v. Hicks (r), Sir John Leach held that a widow WIFE'S EQUITY was entitled to redeem her copyholds which had been charged during the coverture; but with respect to her freeholds, which had been also charged on the same occasion, the circumstances were as follow, namely—that the husband and wife had mortgaged them for a thousand years, reserving the power to redeem to them or either of them; and they likewise covenanted to levy a fine to the mortgagee for the term, and, subject thereto, to the husband and his heirs and assigns for ever. A fine was duly levied pursuant to the covenant; and the husband subsequently released his equity of redemption to the mortgagee in fee, who entered into possession. His Honour observed that "the case was not distinguishable in principle from that of Jackson v. Innes. The limitation of the uses of the fine had no connexion with the purposes of the mortgage, or the proviso of redemption, but was altogether a new settlement." The widow, therefore, was not allowed to redeem, for she had by her own act, and in a legal manner, not merely mortgaged her estate for her husband's debt, but actually transferred the entire beneficial interest out and out from herself and her heirs to her husband and his heirs; a result which the Court will in general be reluctant to admit, but which it cannot in the face of strong acts and expressions exclude; for there is no reason in law or equity why a wife should not, if so minded, convey her estate to her husband.

exoneration.

The widow has also a right in equity to have her estate Wife's equity of exonerated out of her husband's assets. This equity is put upon the principle that she is considered, when mortgaging her property for her husband's debt, to stand in the attitude of a surety; from whence it follows that she must be

(") 2 Sim. & Stu, 403.

OF EXONERA

WIFE'S EQUITY invested with the usual privileges of that character,-the first of which is indemnity from the principal for whose benefit her security was interposed.

TION.

Treated as a surety.

She is entitled to stand in the place

Thus we have it laid down by Lord Hardwicke with his accustomed clearness, that

It is a common case for a wife to join in a mortgage of her inheritance for a debt of her husband. After his death she is entitled to have her real estate exonerated out of his personal and real assets; the Court considering her estate only as a surety for his debt (s).

The same great Judge, in Parteriche v. Powlet (t), says of the mortgagee. that the wife paying her husband's mortgage debt by a loan of money out of her separate estate, is as much entitled to stand in the place of the mortgagee as if she were a stranger; adding also, that if she joins with him in charging her estate, she is, in like manner, entitled to stand in the place of the mortgagee, and to be satisfied out of her husband's estate. Hence it follows, as indeed Lord Hardwicke declared in Robinson v. Gee (u), already cited, that the other creditors of the husband cannot stand in the place of the mortgagee against her (x). So that they are entitled to no preference over her in the administration of his assets.

Husband's other creditors have no preference over

her.

(s) Robinson v. Gee, 1 Ves. Sen. 252.
(t) 2 Atk. 384.

(u) Ubi supra.

(x) The words of Lord Hardwicke

are: "None of his (the husband's) creditors have a right to stand in the place of the mortgagee to come round on the wife's estate."

CHAPTER VI.

LIABILITIES ARISING FROM THE DISSOLU-
TION OF THE MARRIAGE BY THE DEATH
OF THE HUSBAND.

SECTION I.

WHETHER THE WIDOW IS BOUND TO BURY HER
DECEASED HUSBAND.

As a general rule it would rather appear that the widow is not subject to this obligation, which seems with more reason and justice to fall on the husband's representative (a).

In a late case (b), however, it was held by the Court of Exchequer that a widow, who was also an infant, might bind herself by contract for the expense of her husband's interment. This conclusion (arrived at by an exercise of judicial ingenuity, which may be thought not entirely to have overcome the difficulties of the subject) proceeded on the ground that the decent burial of the deceased husband should be construed to be a benefit and comfort to his surviving and sorrowing widow; and therefore that the case should be regarded as coming within the rule of law which makes the contract good where the infant is a gainer by it. After holding that an infant husband could contract for the burial of his deceased wife, she being

(a) See Tugwell v. Hayman, 3 Camp. 298; Rogers v. Price, 3 Y. & J. 28.

(b) Chapple v. Cooper, 13 Mee. & Wel. 259; 13 Law J. N. S. Exch. 286.

WHETHER THE

WIDOW IS BOUND TO BURY HER DECEASED HUSBAND.