Robert Stuart, C.J.
1. This is a regular appeal from the Court of the Subordinate Judge of Dehra Dun in a suit by the plaintiff, Vaughan, against the defendants, Heseltine and Hurst, to recover Rs. 19,427-8-0 principal and interest alleged to he due on a mortgage on certain property called the Ellenborough Hotel estate, under the following circumstances : The plaintiff, Mr. Charles Frederick Vaughan, sued as one of the executors of the late Mr. J.N. Heseltine, who died on the 8th March 1865, leaving a will, dated the 16th February 1864, and a codicil thereto bearing dated the 24th February 1865. By the will the testator disposed of his estate and effects, and various legacies were left to different parties, and among others two sums, both of Rs. 6,000--Rs. 12,000 in all--on certain conditions and contingencies, to the testator's grand-children, Joseph Hurst and Isabella Hurst, but in the event of their deaths, as therein explained, he directed the said two sums of Rs. 6,000 to be paid 'unto my daughter, Mrs. Charlotte Hurst, the mother of Joseph Hurst and Isabella Hurst, for her absolute use and benefit, and her receipt for the same, whether covert or sole, shall be a sufficient discharge for the same.' The will appointed the testator's son, Robert Henry, and his son-in-law, Joseph Hurst, one of the defendants, to be the executors thereof, and by a separate nomination he appointed the plaintiff 'and the Administrator-General of Bengal for the time being' to be trustees of the will for the carrying out the trust thereby declared, and by the 20th clause of the will the testator made the usual provision for the continuance of the trust in the event of death or failure. By Clause 9 of the will the testator specially devised the Ellenborough Hotel estate to the use of 'my said son Robert Henry, his heirs and assigns, upon condition that he or they do, upon being so requested by my trustees, execute and deliver to them a good and sufficient mortgage of the said Ellenborough Hotel estate for securing payment of the sum of Rs. 16,000, etc.' Such were the provisions of the will on these points; but the codicil, which is of considerable length, altered and. revoked the will in various particulars, and among other things it altered the will as to the trustees as follows: 'And whereas by the 19th clause of my said will I have nominated and appointed the said Charles Frederick Vaughan, in the said will styled Mr. Charles Vaughan, and the Administrator-General of Bengal for the time being, to be trustees of my said will, now I do hereby revoke such said appointment, and I do nominate and appoint the Official Trustee of Bengal for the time being to be sole trustee of my said will for the purpose of carrying out the trusts therein and herein declared, and I declare that my said will shall accordingly be so read and construed as if the said Official Trustee of Bengal for the time being had in my said will been named and mentioned instead of the said Mr. Charles Vaugham and the said Administrator-General of Bengal for the time being.' There was therefore to be but one trustee and that 'the Official Trustee of Bengal' in place of Mr. Vaughan and the Administrator-General of Bengal, as provided by the will. The codicil then goes on to revoke the said 20th clause of the will, and also the clauses providing for the legacies to the grand-children, 'and in lieu and instead thereof' the codicil provided as follows :--' I do hereby give and bequeath to my daughter Charlotte, wife of my said son-in-law, Joseph Hurst, and mother of my said grand-children, Joseph and Isabella Hurst, the sum of Rs. 12,000 absolutely, for her own sole use and benefit, free from the control, debts and liabilities of her present or of any future husband with whom she may hereafter intermarry; and I direct such said sum of Rs. 12,000 to be paid to my said daughter Charlotte on her sole and personal receipt from and out of the sum of Rs. 16,000 charged upon my Ellenborough Hotel estate, situate at Rajpur aforesaid, under the terms and conditions of the 9th clause of my said will, such said payment to my said daughter Charlotte to begin and commence from the receipt by the trustee of this my will of the second instalment of Rs. 3,000 provided for in the said 9th clause of my said will, and to continue until the said sum of Rs. 12,000 shall be fully paid and satisfied from and out of the said fund, and any balance that may remain due after payment of the last of such said instalments shall be paid and satisfied out of the general assets of my estate.' We may presume that the testator had good and sufficient reasons for this change in his testamentary arrangements, and the circumstances which gave rise to this suit may well suggest what these reasons were. They are at least intelligible. But it will be observed that, while the codicil revoked the appointment of trustees as made by the will, it contained no express revecation of the testator's direction to his son to execute and deliver the mortgage itself for Rs. 16,000, and in fact, on the 2nd March 1860, which was within a year from his father's death, the son did, with the apparent approval of all concerned, including the plaintiff himself execute a mortgage-deed of the Ellenborough Hotel estate in favour of Joseph Hurst and Mr. Vaughan and who, it will be recollected, were the trustees originally appointed. It is not disputed that the testator's estate was ample for all his testamentary purposes, and that there would be little or no difficulty in raising the Rs. 16,000 on the security of the Ellenborough Hotel estate. But some delay occurred, and it would appear that at the end of 1869 or beginning of 1870, Mr. Vaughan, the plaintiff, commenced negotiations with Mrs. Hurst for the purchase of her legacy, the result of which was that he, being an executor of the will, purchased for the price of Rs. 8,000 a legacy of Rs. 12,000. Vaughan himself states that he does not recollect by whom the proposal for the purchase was made, but in the opinion of the Subordinate Judge it came from himself. This was the crisis of the suit in the Court below, and the Subordinate Judge's decision was that such a transaction could not stand, and he dismissed the suit with costs. Without pronouncing any judicial opinion on the question, which, from what I am about to explain, we are not called upon to do, I may be permitted to say that such negotiations between the executor of a will and a legatee are very questionable and improper, and if this case had been argued before us on the basis of the lower Court's judgment, it is I think probable that we would not have found much fault with it. But at the hearing of the appeal before us, the counsel for the respondent disregarding the appellant's arguments on the merits of the Subordinate Judge's decision, took the objection that the mortgage-deed, which is the basis of the suit, is invalid, and affords no cause of action to the plaintiff, on the ground of its not being conformable with the true construction of the will and codicil, and I am of opinion that this objection is well founded. Although in the form of a suit to recover on a mortgage of a portion of the estate, it is really in the nature of one for the administration pro tanto of that estate, and it is more important to consider what were the testator's wishes and intentions. I observe that in the mortgage-deed itself the codicil is referred to by date, and is there described as 'in no way revoking that portion of the 9th clause of the will hereinbefore recited,' but whether this was the idea of the mortgagor himself or the opinion of his legal advisers or draughtsmen, it is in my judgment altogether erroneous. The direction to the son contained in the will was to execute and deliver a mortgage-deed to the trustees, that is to Mr. Vaughan and the Administrator-General of Bengal. The appointment, however, of these gentlemen was expressly revoked by the codicil, and a single trustee, in the person of 'the Official Trustee of Bengal,' was appointed in their stead. It is impossible, therefore, to contend that the mortgage, as actually made, was an administration pro tanto of the testator's estate according to his true intentions. The objection is indeed an obvious and substantial one, and it is extraordinary that the codicil to the will on which it is founded should have been overlooked, not only by the Subordinate Judge himself, but by all the parties before him.
2. Without prejudice, therefore, to any suit which may be instituted for carrying out the intentions of the testator with respect to the direction to mortgage, or generally for the proper administration of the estate, I would dismiss this appeal, and dismiss the present suit, but seeing that the objection allowed by this judgment was not taken in the Court below, without costs. The Mussoorie Bank, however, who are the holders of a mortgage by the testator himself, and who have been obliged to intervene as co-defendants and co-respondents, are entitled to their costs, and these the plaintiff, appellant, must pay.
3. The plaintiff in this suit, C.F. Vaughan, is one of the executors to the will of J.N. Heseltine. The defendant, R.H. Heseltine, is the son of J.N. Heseltine, and also one of the executors. The suit is to recover, as one of the executors, Rs. 19,427-8-0 principal and interest, on a mortgage-deed of the Ellenborough Hotel estate. It appears that, under the will and codicil of the late J.N. Heseltine, the estate known as the Ellenborough Hotel estate was devised to the use of his son, R.H. Heseltine, defendant, respondent, upon condition that he should execute and deliver to the trustees under the will a mortgage of the said estate for securing to the said trustees payment of Rs. 16,000, to be paid by equal yearly instalments of Rs. 3,000 each, the first to be paid at the expiration of one year after the death of the testator, a sum of Rs. 12,000 to be paid out of the above sum to testator's daughter, Charlotte Hurst, and the rest as otherwise devised. The will and codicil further made R.H. Heseltine, defendant, J. Hurst, and C.F. Vaughan, plaintiff, executors, and the Official Trustee of Bengal for the time being the sole trustee for the purpose of carrying out the trusts named in the will. After the death of the testator the mortgage-deed on which this suit is based was executed by R.H. Heseltine in favour of the other two executors, Hurst and Vaughan, and the latter now sues to recover under it.
4. The claim was dismissed by the lower Court on a preliminary objection, and the appeal rests on the same ground, which has been fully discussed in the judgment of the Chief Justice. It is unnecessary for me to notice this point, as I am of opinion that the appeal must be dismissed on a ground taken before us by the respondent's counsel, that the mortgage-deed is absolutely void, and the claim on it unmaintainable. The title of the parties to the mortgage-deed and to execute the mortgage rests solely on the will and codicil of J.N. Heseltine, and if these be examined, it will be found that they convey no power to execute such a mortgage. The will directed by the 9th paragraph that the Ellenborough Hotel estate was devised to 'R.H. Heseltine his heirs and assigns, upon the condition that he or they do, on being so requested by my trustees, execute and deliver to them a good and sufficient mortgage of the said Ellenborough Hotel estate for securing to the said trustees, their executors, and administrators, payment of the sum of Rs. 16,000 hereinbefore bequeathed to them upon trust, etc.,' and by the codicil the Official Trustee was appointed sole trustee, while R.H. Heseltine, Hurst, and Vaughan were appointed executors.
5. There has been no conformance with the terms of the will and codicil in the execution of the mortgage-deed the basis of the claim, which is executed, not in favour of the trustees, but of two out of three executors. The intention of the parties was to carry out the condition of the will and codicil, but these gave no power to execute such a mortgage-deed, which has been made contrary to the will and codicil and under a mistake as to the facts on the part of the parties to it, that they were thereby carrying out the condition of the will and codicil. Such a deed is invalid and can convey no right to the property to the plaintiff. The claim therefore must fail.
6. There is one plea raised in appeal which is to be noticed, whether the Manager of the Mussoorie Bank was properly made a party to the suit, and I consider he was, inasmuch as, holding an alleged prior mortgage on the property, he had an interest in asserting its priority in this suit, which included a claim to bring to sale the property.
7. I would, therefore, though on different grounds, affirm the decision of the lower Court, and dismiss the appeal, but without costs as regards all the defendants except the Manager of the Mussoorie Bank, who should get his costs.