Scott against Sample, 5 Watts 53

Per Curiam. ‘The argument is, that the testator’s subsequent purchase of the equity of redemption was not a new acquisition, but the extinguishment of an equity which gave him, by relation, the whole at the date of the will. It is evident from the terms of the codicil that he had not so considered it himself. The executors were instructed to purchase the land on the contingency of its being obtainable for a sum no greater than the debt; but this instruction was superseded by the testator’s purchase of it in his lifetime. The question then is, simply, whether a debt secured by mortgage is real or personal estate.

However it may have been considered theoretically, it has long been treated, in practice, as a bare encumbrance or charge, the title passing no further, even at law, than to protect it from hazard; not to change its incidents by stamping it with the character of real estate. Accordingly it goes, in England, and elsewhere, to the executor as personal property, and not to the heir as land.

The purchase of the equity of redemption therefore did not merge it in the qualified legal title existing in the testator at the making of the will, so as to give him the estate by relation; and as he died intestate of it, his executor is consequently not the person to recover it. Judgment affirmed.