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17 & 18 Vict.

c. 113, s. 1.

by a testator, with the option of retaining it in specie, or of having it converted, if the person elect to take without conversion, the act applies, but if he takes it as converted, the act does not apply (13 Eq. 227). The act only applies where a property is specifically charged (Dunlop v. Charge by Dunlop, 21 Ch. Div. 590; see Hepworth v, Hill. 30 Beav. 476). It would way of mortseem that a banker's general lien is not within the act (Dunlop v. Dunlop, gage within sup., 592). A general charge on real estate by a testator, in aid of his the acts. personal estate, is not within the act, until the amount 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). 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, 2 Eq. 803). Even without a memorandum such a mortgage is within the act (Davis v. Davis, 24 W. R. 962). In Ireland a judgment mortgage is within the act (Nesbitt v. Lawder, 17 L. R. Ir. 553). In the case of persons dying after 31st December, 1877, see the words in 40 & 41 Vict. c. 34 (post, p. 398), "or any other equitable charge." The charge under 1 & 2 Vict. c. 110, s. 13, arising by virtue of a delivery in execution under a judgment is within the words of 40 & 41 Vict. c. 34 (Re Anthony, Anthony v. Anthony, 1892, 1 Ch. 450). A Vendor's lien. lien for unpaid purchase-money was held not to be a charge by way of mortgage within the act (Hood v. Hood, 5 W. R. 74; Barnwell v. Ironmonger, 1 Dr. & Sm. 260; see Day v. Day, 14 W. R. 261). The word "mortgage" was afterwards 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, post, p. 397). But the last-mentioned section did not apply where the purchaser died intestate (Harding v. Harding, 13 Eq. 493). See now 40 & 41 Vict. c. 34, post, p. 398.

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 appointed executors, directed payment of his debts, and devised the mortgaged estate to his son. The mortgage debt was properly payable out of the Scotch estate, and the testator's general personalty was exonerated therefrom (Smith v. Moreton, 37 L. J. Ch. 6; 1867, W. N. 251).

Where the personalty goes to the crown for want of next of kin, it has Act applies been held, notwithstanding the words of the act, "as between the different in favour of persons claiming through or under the deceased person," that the statute crown. 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 tion until after that date, is, as between the claimants under it, "a will the act. already made," within the proviso, and republication at a time subsequent to the 1st January, 1855, does not deprive it of this character (Rolfe v. Perry, 3 D. J. & S. 481). The proviso was held not to apply to the case of an heir, where the intestate, before 1855, had executed a mortgage, reserving the equity of redemption to himself and his heirs (Piper v. Piper, 1 J. & H. 91). Nor where the personal estate had been bequeathed by a will made before 1855 (Power v. Power, 8 Ir. Ch. R. 340). The heir of a testator, taking by descent an estate which had been the subject of a lapsed devise in a will made prior to 1855, was held to take cum onere, inasmuch as he was not a person claiming "under or by virtue of a will" within the meaning of the proviso (Nelson v. Page, 7 Eq. 25). With regard to a contrary intention within the act, it was laid down Contrary inthat each case must rest on its own circumstances (Rolfe v. Perry, 3 D. J. tention within & S. 486). See Eno v. Tatham (3 D. J. & S. 443), where Turner, L. J., the act." disapproved of the dicta of Lord Campbell in Woolstencroft v. Woolstencroft (2 D. F. & J. 350); Mellish v. Vallins (2 J. & H. 199); Smith v. Smith (3 Giff. 263). Regard must be had, in the case of persons dying after 1867, to 30 & 31 Vict. c. 69 (post, p. 396), and in the case of persons dying after

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31st December, 1877, to 40 & 41 Vict. c. 34 (post, p. 398), in determin-
ing the question whether an intention has been expressed to exclude the
operation of the act.

In the case of persons dying before 1868, the following distinctions were
laid down. Where a testator directed his debts to be paid out of some par-
ticular fund or property, or description of property, out of which, accord-
ing to the rule established by the statute, they would not be primarily
payable, he was taken to signify an intention to exclude the statutory
rule but when he merely directed his debts to be paid, or to be paid out
of his estate generally, he did not signify an intention to exclude that
rule (Per Romilly, M. R., Brownson v. Lawrance, 6 Eq. 5). Whenever a
testator had mortgaged his estates, and by his will provided a fund, either
his residuary personal estate, or an estate devised for the purpose, or the
general personal estate and other property mixed up with it, or, in other
words, when he provided a fund of any description whatever for the pay-
ment of his debts; that was an indication of an intention that the land
was not to be the primary fund within the act; but that the personal
estate or the particular fund provided was to exonerate it from the mort-
gage debt (Maxwell v. Hyslop, 4 Eq. 413).

66

The following provisions were held not sufficient to exclude the act. A direction that all just debts be paid as soon as may be" (Pembroke v. Friend, 1 J. & H. 132). A direction that a testator's debts should be paid as soon as could be after his decease (Coote v. Lowndes, 10 Eq. 376). A direction that all a testator's just debts should be paid out of his estate (Brownson v. Lawrance, 6 Eq. 1). A direction that all the testator's just debts, funeral and testamentary charges and expenses should be paid and discharged by his executors, as soon as convenient after his decease, out of his estate (Woolstencroft v. Woolstencroft, 2 D. F. & J. 347). A direction by a testator that all his just debts and funeral and testamentary expenses should be paid and discharged out of his personal estate (Rowson v. Harrison, 31 Beav. 207).

The following provisions were sufficient to exclude the act. A bequest of all personal estate to trustees with a direction to pay debts, where one of the trustees was a devisee of the mortgaged property (Smith v. Smith, 3 Giff. 263). A bequest of a testator's personal estate to trustees upon trust to pay thereout all his debts, funeral and testamentary expenses, (Moore v. Moore, 1 D. J. & S. 602; Porcher v. Wilson, 12 W. R. 1001). A bequest of personalty, "subject to the payment thereout of all the testator's just debts" (Mellish v. Vallins, 2 J. & H. 194). A gift of all the testator's personal estate, “ subject to the payment of his debts, funeral and testamentary expenses," the real estate being devised in a mode not pointing in any way to the mortgage debt being paid out of the property (Eno v. Tatham, 3 D. J. & S. 443). A gift of residue of real and personal estate to trustees upon trust for sale, the moneys arising therefrom to be held upon trust in the first place to pay funeral and testamentary expenses, and debts (Newman v. Wilson, 31 Beav. 33). A gift of the residue of real and personal estate to trustees upon trust to convert and pay thereout all just debts, &c. (Maxwell v. Hyslop, 4 Eq. 407; L. R. 4 H. L. 506). A declaration that trustees should stand possessed of a testator's residuary real and personal estate, and the proceeds thereof, subject in the first place to the payment of his just debts, &c., and a power for the acting trustees and executors to pay and satisfy any debts owing or claimed to be owing by or from him, and any liabilities to which he or his estate might be subject (Stone v. Parker, 1 Dr. & Sm. 212). A bequest of residue of his real and personal estate "after paying mortgage and other debts" (Greated v. Greated, 26 Beav. 621). A devise of the mortgaged estate for sale and payment of legacies followed by a devise of residue of real and personal estate with a direction that any mortgages, debts or incumbrances, specifically affecting any parts of the testatrix's residuary real or personal estate, be exclusively borne by and paid out of the premises specifically charged therewith and subject thereto, that all her debts, &c., be paid out of her said residuary real and personal

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estate (Allen v. Allen, 30 Beav. 395). See, further, the notes, pp. 397, 398, post.

17 & 18 Vict.

c. 113, s. 1.

gage.

As between different portions of an estate comprised in one mortgage Incidence which are devised to different persons, the act, in the absence of a contrary of debt as intention, applies and compels the devisees to contribute rateably (New- between march v. Storr, 9 Ch. Div. 17; which see as to meaning of words" or any different proother real estate of such person"). It has been also held that as between perties in different freehold estates comprised in the same mortgage, the mortgage same mortdebt was borne rateably although one estate was specifically devised, and the other passed under a residuary devise (Gibbins v. Eyden, 7 Eq. 375; Sackville v. Smyth, 17 Eq. 153; see Re Smith, Hannington v. True, 33 Ch. D. 195). Where freeholds and leaseholds were mortgaged together, and the mortgagor died intestate, it was held, as between his heir and administrator, that the freeholds and leaseholds must bear the burden rateably (Evans v. Wyatt, 31 Beav. 217). And where freeholds and a policy were mortgaged together and the mortgagor's will declared different trusts of real and personal estate, the mortgage debt was borne rateably (Trestrail v. Mason, 7 Ch. D. 655; Leonino v. Leonino, 10 Ch. D. 460). An intention, however, may be expressed upon the mortgage documents that one property shall be the primary security (Bute v. Cunynghame, 2 Russ. 299; see 10 Ch. D. 465). Such an intention was found on the documents in Lipscombe v. Lipscombe (7 Eq. 501); De Rochfort v. Dawes (12 Eq. 540). The words "for further and better securing" were sufficient for the purpose (Stringer v. Harper, 26 Beav. 33); but not the words "collateral security" (Athill v. Athill, 16 Ch. Div. 211; Williams v. Early, 16 Ch. D. 214 n.)

As to the apportionment of a mortgage debt between several estates Contribution. comprised in the same mortgage, see Fisher on Mortgages, 659, 4th ed.;

Story, Eq. Jur. sects. 484, 1233 b.

As to the order in which funds are to be applied in payment of a mort- Order in gage debt, where the statutory rule has been excluded by the expression which funds of a contrary intention, see the observations of M. R., in Allen v. Allen, are applicable 30 Beav. 395; and the argument in Smith v. Moreton, 37 L. J. Ch. 6; see where statualso 2 Fisher on Mortgages, 659, 4th ed. It may be the result of a testator's tory rule words that a mortgaged estate is to be exonerated only so far as his personalty extends; and that there is no right to go upon the other real estate (Rodhouse v. Mold, 13 W. R. 854).

excluded.

Where the mortgage debts of a testator are (under a direction in his Marshalling. will) primarily payable out of his personal estate, the devisees of a mortgaged estate are not entitled to have the mortgage debt satisfied out of the personal estate until the pecuniary and specific legatees and annuitants are satisfied; the pecuniary legatees and annuitants being entitled to have the assets marshalled, so that any payments in respect of the mortgage debt out of the personal estate would have to be recouped by the mortgaged estate (Porcher v. Wilson, 14 W. R. 1011). And where annuities were charged on lands, out of which a mortgage debt was, under this act, held to be primarily payable, the act did not preclude the right of the annuitants to have the assets marshalled (Buckley v. Buckley, 19 L. R. Ir. 544).

c. 69, s. 1.

30 & 31 VICTORIÆ, CAP. 69.

An Act to explain the Operation of an Act passed in the
Seventeenth and Eighteenth Years of her present Ma-
jesty, Chapter One hundred and thirteen, intituled
"An Act to amend the Law relating to the Adminis-
tration of Deceased Persons." [25th July, 1867.]

30 & 31 Vict. WHEREAS by an act passed in the seventeenth and eighteenth years of her present Majesty it is enacted, among other things, when any person shall, after the thirty-first of December, 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 lands 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:

In construing wills, general

direction for payment of

And whereas doubts may exist upon the construction of the said act, and it is expedient that such doubts should for the future be removed:

Be it therefore enacted as follows:

1. In the construction of the will of any person who may die after the thirty-first day of December, one thousand eight hundred and sixty-seven, a general direction that the debts or debts out of that all the debts of the testator shall be paid out of his personalty not personal estate shall not be deemed to be a declaration of an mortgage intention contrary to or other than the rule established by the debts, unless said act, unless such contrary or other intention shall be such intention further declared by words expressly or by necessary implicaexpressly implied. tion referring to all or some of the testator's debts or debt

to include

charged by way of mortgage on any part of his real estate (a).

(a) Under this section it was laid down that a direction, to be a declaration of an intention contrary to the rule laid down by Mr. Locke King's Act, must be a direction applying to mortgage debts in such terms as distinctly and unmistakeably to refer to or describe them (per Giffard, V.-C., Nelson v. Page, 7 Eq. 28). And in accordance with this principle, the

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30 & 31 Vict.

the act.

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following provisions have been held not sufficient to exclude the act :A direction to executors "to pay all my just debts, funeral and testac. 69, s. 1. mentary expenses, out of my personal estate, in exoneration of my real Expressions estate" (Rossiter v. Rossiter, 13 Ch. D. 355). A direction to trustees to pay out of personal estate all debts, including specialty debts, in full not excluding exoneration of the real estate (Buckley v. Buckley, 19 L. R. Ir. 544). A. X devise and bequest of residue to trustees, on trust, subject to payment Seek thereout of all debts (Lewis v. Lewis, 13 Eq. 218)X A devise of real estate to a wife, "absolutely to do with as she think proper" (Re Smith, Hannington v. True, 33 Ch. D. 195). A charge on a portion of the real estate, of all just debts (not specifically referring to mortgage debts) in aid of personal estate, and in exoneration of other real estate (Newmurch v. Storr, 9 Ch. Div. 12). A devise of part of a mortgaged estate specifically, and the remainder as residue, with a charge of debts on residuary real estate in aid of personalty (Sackville v. Smyth, 17 Eq. 153; see Re Smith, Hannington v. True, 33 Ch. D. 195). And where a testator gave certain real estate to his wife during widowhood and gave his residuary real and personal estate to trustees to convert, and pay his debts, including mortgages on the property given to his wife during widowhood, and after her death or second marriage gave the pure personalty to charities and realty to widow absolutely, it was held that the mortgages on the residuary realty must be paid out of the proceeds of such realty (Elliott v. Dearsley, 16 Ch. Div. 322).

Where there was a direction to executors to apply the proceeds of Act excluded. certain policies to pay private debts, and a bequest of residue of personal estate, "subject to the payment of my trade debts (which I hereby declare shall be a charge upon my personal estate)," and the title deeds of the real estate had been deposited with a bank as security for a trade account, there was sufficient expression of "contrary intention" to exonerate the real estate from the trade debt (Re Fleck, Colston v. Roberts, 37 Ch. D. 677). The act was excluded in Re Nevill, Robinson v. Nevill), 62 L. T. 864).

For the previous cases as to a "contrary intention" within 17 & 18 Vict. c. 113, see ante, p. 398.

2. In the construction of the said act and of this act, the Interpretation word "mortgage" shall be deemed to extend to any lien for of word "mortgage." unpaid purchase-money upon any lands or hereditaments purchased by a testator (b).

(b) This section did not apply where the purchaser died intestate (Harding v. Harding, 13 Eq. 493), but did apply where the purchaser devised the land to trustees, but died intestate as to the beneficial interest (Dowdall v. McCartan, 5 L. R. Ir. 313). See now 40 & 41 Vict. c. 34 (post, p. 398).

3. This act shall not extend to Scotland.

Extent of act.

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