and that the holder of the legal estate is a trustee for him. (Lewin on Trusts, 346, 5th ed.) See the remarks of Lord Cranworth in Colyer v. Finch, 5 H. L. C. 922, ante, p. 485. Where real estate was being sold for payment of debts, and the legal estate was in the heir, who was out of the jurisdiction, and the charge of debts was not clear, the court declared the heir to be a trustee for the purposes of the will, and made a vesting order under 13 & 14 Vict. c. 60, s. 9. (Hooper v. Strutton, 12 W. R. 367.) Where an estate charged with debts under a will since this act is not devised but descends to the heir, the case seems to fall within sect. 16, under which the executors have power to sell or mortgage. 22 & 23 Vict. c. 35, s. 14. Where in a will since the act a testator charges his debts, and devises Lapse. his real estate beneficially, and the devisee dies in the testator's lifetime, so that the estate lapses, Mr. Lewin considers that the case falls within sect. 16. (Lewin on Trusts, 347, 5th ed.) A testator, who died in 1853, devised real estate to A. in trust to sell, Disclaimer. with power to give discharges; A. was to pay the debts and hold the surplus on certain trusts, and was also appointed sole executor; A. having renounced and disclaimed, it was held, that the heir at law who had taken out administration could sell the estate and give valid receipts. (Austin v. Martin, 29 Beav. 523; but see Robson v. Flight, 13 W. R. 393.) In the case of wills before this act, it seems that the implied power of Executor's power sale which executors take under a charge of debts, is merely an equitable legal or equitable. power; and that the concurrence of the heir or devisee is necessary to pass the legal estate. (Dart. V. & P. 567, 4th ed.; Lewin on Trusts, 346, 5th ed.) In the case of wills since the act, the power of sale taken by executors under sect. 16, seems to be a legal power. The power implied under a charge of debts in wills before this act has been held to exist notwithstanding the lapse of a considerable time. Thus, in Greetham v. Colton (34 Beav. 615), thirteen years; in Forbes v. Peacock (1 Phill. 717), twenty-five years; in Sabin v. Heape (27 Beav. 353), twentyseven years; and in Wrigley v. Sykes (21 Beav. 337), thirty-three years, had elapsed between the testator's death and the sale. It was said, however, by Lord Romilly, M. R., " In all probability there must be some limit in these cases, and some period at which the court will say that the debts must have been paid, and when it would be very difficult to make a good title upon a sale made to satisfy a charge on real estate contained in a will." (Sabin v. Heape, 27 Beav. 560.) of sale, whether Effect of lapse of time upon execu tor's power of sale. As to whether a power to sell implies a power to mortgage, see 2 David- Power to mortson, Conv. 985, 986, 3rd ed. It was formerly held that, in the absence of any special direction, an express power to mortgage did not authorize a mortgage with a power of sale. (Clarke v. Royal Panopticon, 4 Drew. 26. See Russell v. Plaice, 18 Beav. 21.) But a power to raise money by sale or mortgage was held to authorize a mortgage with a power of sale. (Bridges v. Longman, 24 Beav. 27.) It has been since held, that under a direction in a will to trustees to raise a sum of money by mortgage of a trust estate, in such manner as they should think fit, the trustees could create a mortgage with a power of sale. (Re Chawner's Will, L. R., 8 Eq. 569. See Cruikshank v. Duffin, L. R., 13 Eq. 555.) A mere power to mortgage does not create an additional power to sell. (Cook v. Dawson, 29 Beav. 128.) By 23 & 24 Vict. c. 145, ss. 11-16, 34 (post), where mortgages are created by deed since 28th August, 1860, and there is no provision to the contrary, any mortgagee, although the deed contains no power of sale, may, when the principal sum has been in arrear for twelve months, or the interest for six months, or there has been any default by the mortgagor in insuring, proceed to a sale after six months' notice, and sign a valid receipt for the purchase-money. 15. The powers conferred by the last section shall extend to all and every person or persons in whom the estate devised shall for the time being be vested by survivorship, descent or devise, gage. c. 35, s. 15. 22 & 23 Vict. or to any person or persons who may be appointed under any power in the will, or by the Court of Chancery, to succeed to the trusteeship vested in such devisee or devisees in trust as aforesaid (c). Executors to have power of raising money, &c where there is no sufficient devise. Purchasers, &c. not bound to in (c) See the questions which have been raised as to how far the devisee of a trust estate can execute the trust. (Braybrooke v. Inskip, Tudor's L. C., Conv. 892, 2nd ed.) 16. If any testator who shall have created such a charge as is described in the fourteenth section shall not have devised the hereditaments charged as aforesaid in such terms as that his whole estate and interest therein shall become vested in any trustee or trustees, the executor or executors for the time being named in such will (if any), shall have the same or the like power of raising the said monies as is hereinbefore vested in the devisee or devisees in trust of the said hereditaments, and such power shall from time to time devolve to and become vested in the person or persons (if any) in whom the executorship shall for the time being be vested; but any sale or mortgage under this act shall operate only on the estate and interest, whether legal or equitable, of the testator, and shall not render it unnecessary to get in any outstanding subsisting legal estate (d). (d) See note to sect. 14, ante. 17. Purchasers or mortgagees shall not be bound to inquire quire as to powers. Whether the powers conferred by sections fourteen, fifteen and sixteen of this act, or either of them, shall have been duly and correctly exercised by the person or persons acting in virtue thereof. Sections 14, 15 and 16 not to affect certain extend to devises in fee or in tail. 18. The provisions contained in sections fourteen, fifteen and sixteen shall not in any way prejudice or affect any sale or sales, &c, nor to mortgage already made or hereafter to be made, under or in pursuance of any will coming into operation before the passing of this act, but the validity of any such sale or mortgage shall be ascertained and determined in all respects as if this act had not passed; and the said several sections shall not extend to a devise to any person or persons in fee or in tail, or for the testator's whole estate and interest charged with debts or legacies, nor shall they affect the power of any such devisee or devisees to sell or mortgage as he or they may by law now do (e). (e) See note to sect. 14, ante. Not to be bound to see to the application of purchase-money. Previous law as to purchaser's obligation in case of 23. The bonâ fide payment to and the receipt of any person to whom any purchase or mortgage money shall be payable upon any express or implied trust, shall effectually discharge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary shall be expressly declared by the instrument creating the trust or security (f). (f) See also 23 & 24 Vict. c. 145, s. 29, post, as to the present law. Before these statutes, where a will contained no express trust or charge for payment of debts, a purchaser of the testator's land sold for payment c. 35, s. 23. sale for payment of debts or lega cies: Where express trust or charge for payment of debts generally; of debts, was not bound to see to the application of the purchase-money, 22 & 23 Vict. where the land was made assets, either by 11 Geo. 4 & 1 Will. 4, c. 47 (see ante, p. 468); or by 3 & 4 Will. 4, c. 104 (see ante, p. 477). Where a will contained an express trust or charge for payment of debts generally, a purchaser was not bound to see to the application of the purchase-money (Williams, Real Assets, 51, 62): even where a testator charged the land with a specified debt, and also with his other debts generally. (Robinson v. Lowater, 17 Beav. 592; 5 De G., M. & G. 272.) The rule which relieved a purchaser from seeing to the application of the purchase-money, when the estate was subject to a primary general charge of debts, had reference to the time of the testator's death, and did not cease to be applicable, though the debts were subsequently paid; and, therefore, where an estate so charged was sold by the trustee, it was held, that the cestui que trusts were not necessary parties to the conveyance, though the sale did not take place till twenty-five years after the testator's death, and the vendor, on being asked by the purchaser, whether all the debts were not paid, had refused to answer the question. (Forbes v. Peacock, 1 Phill. C. C. 717. See Stroughill v. Anstey, 1 De G., M. & G. 653.) Where a testator, "in case his personal estate should be insufficient for the payment of his debts," charged the same upon his real estate, it was held that the executor could sell and give valid receipts for the purchasemoney, without showing the insufficiency of the personal estate. (Greetham v. Colton, 34 Beav. 615.) Where debts and legacies were charged generally, a purchaser was not For payment of bound to see to the application of the purchase-money. (Johnson v. debts and legaKennett, 3 M. & K. 630.) Freehold and leasehold estate was devised to A., cies; subject to the payment of debts and annuities. A. sold the real estate. The purchaser, insisting that the annuitants ought to concur, filed a bill against the vendor for a specific performance. The vendor's answer admitted the sufficiency of the personal estate to pay the debts; that they had all been paid since the contract, and that the sale had not been made for the specific purpose of satisfying the debts. It was held, that these circumstances did not vary the rule as to the liability of the purchaser to see to the application of the purchase-money, and that he was bound to complete. (Page v. Adam, 4 Beav. 269. See Jones v. Price, 11 Sim. 557; Sugd. V. & P. 840, 841, 11th ed.) It was a general rule, that where debts are charged generally, the purchaser or mortgagee was not bound to see to the application of the money. But where real estate was devised subject to debts and legacies, and the devisee was also executor, a purchaser or mortgagee from him of the real estate was held liable to the charge, where the circumstances of the transaction afforded intrinsic evidence of a breach of trust, and that the mortgage or purchase-money was not to be applied for payment of the debts and legacies. (Watkins v. Cheek, 2 Sim. & Stu. 199. See Eland v. Eland, 4 My. & Cr. 420.) or legacies. Where the trust was for payment of specified debts, or of legacies only. For payment of the purchaser was bound to see to the application of the purchase-money. particular debts (Lewin on Trusts, 336, 5th ed.) And it was decided, that where a person who was a trader at his death devised his real estates, subject to the payment of legacies, the purchaser of the estate from the devisee was bound to see to the application of his purchase-money in satisfaction of the legacies charged on the land, notwithstanding their liability under 47 Geo. 3, sess. 2, c. 74, to the payment of the simple contract debts. (Horn v. Horn, 2 Sim. & Stu. 448.) It seems to be doubtful whether this section is retrospective. (See Lewin on Trusts, 332, 5th ed., and Bennett v. Lytton, 2 J. & H. 158.) See, further, as to the liability of a purchaser to see to the application of the purchase-money, Elliot v. Merryman, 1 White & Tudor's L. C., Eq. 59 et seq., and the note to 23 & 24 Vict. c. 145, s. 29, post. 17 & 18 Vict. c. 113, 8. 1. Heir or devisee of claim payment of mortgage out of personal assets. PAYMENT OF MORTGAGE DEBTS. 17 & 18 VICTORIA, C. 113. An Act to amend the Law relating to the Administration of the Estates of Deceased Persons. [11th August, 1854.] WHEREAS it is expedient that the law whereunder the real and personal assets of deceased persons are administered should be amended: be it enacted as follows: 1. When any person shall, after the thirty-first day of Dereal estate not to cember, one thousand eight hundred and fifty-four, die seised of or entitled to any estate or interest in any land or other hereditaments which shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, and such person shall not, by his will or deed or other document, have signified any contrary or other intention, the heir or devisee to whom such land or hereditaments shall descend or be devised shall not be entitled to have the mortgage debt discharged or satisfied out of the personal estate or any other real estate of such person, but the land or hereditaments so charged shall, as between the different persons claiming through or under the deceased person, be primarily liable to the payment of all mortgage debts with which the same shall be charged, every part thereof, according to its value, bearing a proportionate part of the mortgage debts charged on the whole thereof: provided always, that nothing herein contained shall affect or diminish any right of the mortgagee on such lands or hereditaments to obtain full payment or satisfaction of his mortgage debt either out of the personal estate of the person so dying as aforesaid or otherwise provided also, that nothing herein contained shall affect the rights of any person claiming under or by virtue of any will, deed or document already made or to be made before the first day of January, one thousand eight hundred and fifty-five (a). Not to affect rights claimed under any will, &c. before 1st January, 1855. Extent of act. Previous law as to the payment of mortgage debts. 2. This act shall not extend to Scotland. (a) Before this act it followed from the known rules, both of law and equity, that as between the real and personal representatives of the debtor, the personal estate was primarily liable to the payment of the mortgage debt, and must indemnify the real estate against it. All instances to the contrary were mere exceptions to that general rule, and whether the lands in mortgage devolved on the heir at law as hæres natus, or on a general devisee as hæres factus, or on a particular devisee, in either case the personal estate was liable, in the absence of evidence of intention to the contrary, as the primary fund, to exonerate the real estate descended or devised from the debt. (See Coote on Mortgages, p. 452, 3rd ed.; 2 Jarm. Wills, The 597.) The rule previous to this act was, that the personal estate of the For the previous law as to the exoneration of estates from mortgage debts contracted, or adopted, by the owner, and also as to the acts which amounted to an adoption of a mortgage debt, see further, Duke of Ancaster v. Mayer, 1 White & Tudor, L. C., Eq. 656 et seq. 17 & 18 Vict. c. 113, s. 1. The act applies to copyholds (Piper v. Piper, 1 J. & H. 91), but not to Land, &c. within leaseholds. (Solomon v. Solomon, 12 W. R. 540.) Where freeholds were the act. settled by deed upon trusts for conversion, a share in the produce, which was under the terms of the deed taken as personal estate, was held not to be an "interest in land" within the act. (Lewis v. Lewis, L. R., 13 Eq. 218.) It seems that where an interest in land is given by a testator, with the option of retaining it in specie, or of having it converted, a person, electing to take without conversion, must under the act, in the absence of a contrary intention on the part of the testator, take cum onere; but in case he takes it as converted, the act does not apply. (Ib.) As to when a legatee of an incumbered chattel is entitled to claim exoneration, see 2 Jarm. Wills, 595 et seq. An equitable mortgage by deposit and memorandum is within the act (Pembroke v. Friend, 1 J. & H. 132), even where the memorandum expressed that the deposit was made as collateral security for the repayment of a sum borrowed upon a promissory note. (Coleby v. Coleby, L. R., 2 Eq. 803.) The act only applies where there is a defined and specified charge upon a specific estate, and to the extent of that charge. A general charge on real estate by a testator, in aid of his personal estate, does not come within the definition of such a mortgage as spoken of in the act, unless and until the amount of it has, in the administration of the estate, been accurately defined, and the devisee has expressly taken the estate, subject to such ascertained charge. (Hepworth v. Hill, 30 Beav. 476.) Where A. conveyed estate (No. 1) to B,, on B. covenanting to pay off a mortgage debt, due from A. on estate (No. 2), it was held, that as between the real and personal representatives of B. his personal estate was primarily liable to the mortgage debt. (Day v. Day, 14 W. R. 261.) A. granted a Scotch estate to his son under the burden of the payment of a mortgage debt, secured upon another estate belonging to A. in England. A. died, domiciled in England, and by his will he appointed executors, directed payment of his just debts as soon as conveniently might be after his death; and devised the mortgaged estate to the grantee of the Scotch estate. It was held, that the mortgage debt was properly payable out of the Scotch estate, and that the testator's general personalty was exonerated therefrom. (Smith v. Moreton, 37 L. J., Ch. 6; W. N. 1867, p. 251.) Charge by way of mortgage within the act. A lien for unpaid purchase money was held not to be a charge by way Vendor's lien. of mortgage within the act. (Hood v. Hood, 5 W. R. 74; Barnwell v. Ironmonger, 1 Dr. & Sm. 260.) The word "mortgage" has since been extended so as to include a lien for unpaid purchase-money upon lands or hereditaments purchased by a testator. (30 & 31 Vict. c. 69, s. 2.) But where the purchaser dies intestate, the last-mentioned section does not apply. (Harding v. Harding, L. R., 13 Eq. 493.) Where the personalty goes to the crown for want of next of kin, it has Act applies in been held, notwithstanding the words of the act, "as between the different favour of crown. persons claiming through or under the deceased person," that the statute applies, and the crown takes exonerated from mortgage debts. (Dacre v. Patrickson, 1 Dr. & Sm. 186.) A will, executed by the testator before 1855, but not coming into opera- Proviso in the tion until after that date, is, as between the claimants under it, " a will act. already made," within the proviso, and republication at a time subsequent to the 1st January, 1855, does not deprive it of this character. |