Testamentary guardian mortgages: undisclosed will restrictions prevented enforcement against the minor's entire estate, with restitution required for avoidance.

A testamentary guardian's mortgaging powers remained subject to the restrictions in the will, and court sanctions obtained without disclosure of those restrictions could not validate an alienation of the minor's entire estate. A Guardians and Wards Act sanction does not remove a testamentary fetter unless the statutory basis for doing so is satisfied, and a fraud-induced sanction may be challenged in defence. The alienations were treated as voidable rather than void, so restitution was required before avoidance. The mortgages were therefore not enforceable as charges on the whole interest merely by reason of the sanctions obtained, though recovery of the debt with interest was allowed from the sale proceeds and as a charge in the manner ordered.

---

---

Issues: Whether the mortgages executed by a guardian appointed under a will, pursuant to court sanctions obtained without disclosure of the will and the restrictions on alienation, could be enforced against the entire interest in the minor's properties.

Analysis: The guardian's authority under the will was restricted, and the court granting permission to mortgage was not apprised of the will or the fetters on the guardian's powers. A sanction under the Guardians and Wards Act cannot be treated as validating an alienation where the statutory condition for removing the testamentary restriction was not satisfied. The orders of sanction, though obtained by fraud, were not treated as effective to support recovery against the whole estate, and the respondents were permitted in defence to challenge their validity while the appellants sought enlargement of the decree. At the same time, the alienations were held to be voidable rather than void, and restitution was required as a condition for avoidance.

Conclusion: The mortgages were not enforceable as charges on the entire interest merely on the basis of the sanctions obtained, but the appellants were entitled to recover the mortgage debt with interest out of the sale proceeds of one property and as a charge on the remaining property in the manner ordered by the Court.

---