Page:Federal Reporter, 1st Series, Volume 4.djvu/72

 68 FEDERAL REPORTER. �declared. Then, did this give the power to mortgage the es- tate? Not in terms. It must be borne in mind that in In- 4iana a mortgage does not convey the land, but is only a Becority. I do not say that under no circumstances could Mrs. Downie mortgage any portion of this property. It •eems to me that under certain circumstances the court might hold, for the purpose of giving eflfect to the language of this will, that she might have power to do so. Even conceding that the language of the will restricted her to the sale of the property, and did not expressly give the power to mortgage, on the prinoiple that the general will of the testator should prevail ratherthan the partioulàr will, — that the main object he had in view, which was to provide for the support of his mother, should be carried into effect, — a court of equity might Bo hold. But, acoording to the view which I take of the true construction of this will, the bill as it now stands is demurra- ble, and the demurrer must be sustained. It does not appear by the allegations of the bill that there was anything more than a mere loan of the money to Mrs. Downie, and a mort- gage taken for its security. I hold that the bald statement upon its face is not a proper execution of the power contained in this wiU, and therefore that the demurrer to the bill must be sustained. �There may be a question whether the bill is amenda ble under the facts, but that point may be reserved. In taking the view which I do of the meaning of this will, it seems to me I earry ont the prinoiple adopted by Lord St. Leonarda in the case of Stoughill v. Anstey, 1 De Gex, M. & G. 634. �It is said that in this bill it is alleged that the money wai advanced to Thomas Cottrell and Melissa E. Downie. This is so, I believe. Whether or not, consistently with that state- ment, the bill can be amended, may be questioned ; but I shall Bustain the demurrer, with leave to the plaintiff to amend, and it is desirable that the real facts which actually exist in the case may be presented upon the record, so that the court may paas upon them, under this clause of the will, and deter- mine whether or not Mrs. Downie had the right to make tha mortgage. ����