Mortgage by deposit. Lien for purchasemoney. Direction to pay debts. WHAT MORTGAGES ARE WITHIN THE ORIGINAL ACT. Mortgages by deposit of title deeds, with or without a memorandum of agreement to execute a legal mortgage, are within the Act. Pembroke v. Friend, 1 J. & H. 132; Davis v. Davis, 24 W. R. 962. So is a deposit of deeds, with a memorandum, though expressed to be only a collateral security. Coleby v. Coleby, L. R. 2 Eq. 803. But a mere general charge by a testator on real estate in aid of his personalty is not within the Act. Hepworth v. Hill, 30 B. 476; see the Act of 1877, supra. Nor is a covenant to pay off a mortgage on land not belonging to the covenantor. Day v. Day, 14 W. R. 261. A lien for unpaid purchase money upon lands purchased by a testator is, by 30 & 31 Vict. c. 69, s. 2, declared to be within the original Act. The lien for unpaid purchase money must be borne by the land, though the testator devises only the legal estate without disposing of the beneficial interest. Dowdall v. M'Cartan, 5 L. R. Ir. 313, 642. The heir of an intestate dying before the 31st December, 1877, is entitled to have a lien for unpaid purchase money upon lands of the intestate discharged out of the personal estate, the case not being provided for by the Act of 1867. Harding v. Harding, 13 Eq. 493. The heir of an intestate dying after the 31st December, 1877, is not entitled to have a lien for unpaid purchase money discharged. See the Act of 1877, supra, p. 128. WHAT IS A CONTRARY INTENTION WITHIN THE ACT. It was decided that a general direction to pay debts, or to pay debts out of the estate, did not show the contrary intention required by Locke King's Act. Pembroke v. Friend, 1 J. & H. 132; Brownson v. Lawrance, 6 Eq. 1; Whether the fact that mortgaged lands are devised in strict settlement would make any difference seems doubtful, at any rate it would not where the testator himself contemplates the mortgages as subsisting from generation to generation. Coote v. Lowndes, 10 Eq. 376. to pay But a direction, that the debts are to be paid out of Direction the personal estate or out of any particular fund, was debts out held to show a contrary intention. Moore v. Moore, 1 D. of the personal J. & S. 602; Eno v. Tatham, 3 D. J. & S. 443; 32 L. J. estate or a particular Ch. 311; Mellish v. Vallins, 2 J. & H. 194; Newman v. fund. Wilson, 31 B. 33; Maxwell v. Hyslop, L. R. 4 Eq. 407; ib. 4 H. L. 506. See Allen v. Allen, 30 B. 395; Porcher v. Wilson, 12 W. R. 1001. Amend By the 30 & 31 Vict. c. 69, however, it is enacted that The in the wills of testators dying after the 31st December, 1867, ment Act, a declaration that debts are to be paid out of the personal 30 & 31 Vict. estate is not to be deemed a declaration of intention to cap. 69. exonerate mortgaged lands. Under this Act, "if a testator wishes to give a direction which shall be deemed a declaration of an intention contrary to the rule laid down by Locke King's Act, it must be a direction applying to his mortgage debts in such terms as distinctly and unmistakably to refer to them;" per Giffard, V.-C., in Nelson v. Page, 7 Eq. 25, p. 28. See Allen v. Allen, 30 B. 395; Greated v. Greated, 26 B. 621. to pay In cases governed by the Act of 1867, a direction to pay Direction debts out of a mixed fund of realty and personalty, or a debts. direction to pay debts out of the personal estate in exoneration of the real estate, or a charge of debts on certain real estate in aid of the personal estate and in exoneration of the other real estate, will not entitle the devisee of mortgaged lands to have the mortgage discharged. Gael or Gall v. Fenwick, 22 W. R. 211; 43 L. J. Ch. 178; In Specific devisee of part of land sub ject to a mortgage is not entitled to exonera tion. Direction to pay re Rossiter; Rossiter v. Rossiter, 13 Ch. D. 355; In re Newmarch; Newmarch v. Storr, 9 Ch. D. 12; Elliott v. Dearsley, 16 Ch. D. 322; and see the Act of 1877, supra, p. 128. Where part of lands subject to a mortgage is specifically devised and the rest given to the residuary devisee, or where a life interest is given and the remainder is given to the residuary devisee, there is no evidence of an intention, that the mortgage is to be borne by the residuary devisee. Gibbins v. Eyden, 7 Eq. 371; Sackville v. Smith, 17 Eq. 153, overruling Brownson v. Lawrance, 6 Eq. 1. The further question may arise whether, supposing the mortgages testator directs the mortgages to be paid out of a specific sufficient fund, the devisees will be entitled to exoneration if that fund is insufficient. out of in fund. It would seem, where the fund is a fund of personalty, the devisees will not be entitled to exoneration beyond the value of the fund. Rodhouse v. Mold, 13 W. R. 854; 35 L. J. Ch. 67. On the other hand, it is laid down by Lord Romilly in Allen v. Allen, 30 B. 403, that where a mortgage on Whiteacre is directed to be paid out of Blackacre the mortgagee is entitled to exoneration out of the personal estate in the first place, as the Act only directs that the mortgaged land shall be primarily liable, and does not alter the ordinary rules of administration, where there is an intention that it should not be so liable. But quære whether the decision above cited and this dictum are reconcilable; and see Smith v. Moreton, 37 L. J. Ch. 6. How far It would seem, that where mortgages are directed to be mortgaged lands ap- paid and the personalty is insufficient to pay them, the plicable in several lands bear only the mortgages secured upon them, payment of mortand not a proportionate share of all the mortgages. Wisgages. den v. Wisden, 5 Jur. N. S. 455. Mortgaged Where different portions of an estate subject to a mort estate different gage are devised to different persons, the devisees must devised to contribute rateably to pay the mortgage according to the persons. value of the portions devised to them. In re Newmarch; Newmarch v. Storr, 9 Ch. D. 12. The same rule applies if the mortgage comprises real Realty and personalty and personal property. The devisees of the land and the mortgaged legatees of the personalty contribute rateably. Trestrail together. v. Mason, 7 Ch. D. 655. Where several properties are mortgaged contempo- Collateral mortgage. raneously by different deeds, the fact that one of the mortgages is called a collateral security will not throw the mortgage debt primarily on the property comprised in the other mortgage. Early v. Early, 16 Ch. D. 214; In re Athill, 16 Ch. D. 211. Where a testator mortgages certain land and then Successivo mortgages other land for the same debt and further mortgages. advances, the whole amount due will, as between the devisees of the different lands, be treated as one debt, and must be borne rateably by the various properties unless it is shown that the land first charged was intended. to be the primary security for the amount advanced prior to the second mortgage. Leonino v. Leonino, 10 Ch. D. 460, where the cases of Lipscomb v. Lipscomb, 7 Eq. 501, and De Rochefort v. Dawes, 12 Eq. 540, are discussed; and see Stringer v. Harper, 26 B. 33; Evans v. Wyatt, 31 B. 217. Where a portion of lands subject to a charge is conveyed by a voluntary deed, containing only a covenant for further assurance, and the rest is devised, the lands conveyed and devised must bear the charge rateably. Ker v. Ker, I. R. 4 Eq. 15. VI. RENTS, PROFITS, AND INCOME. 1. A present devise of lands being specific carries the Devisee is rents and profits from the death of the testator. entitled to rents from the testator's death. Specific bequest. What are profits. Bonus on shares. Partner ship profits. Debts. Apportionment Act. But a devise of all the testator's interest in an estate when recovered will not carry rents accrued due prior to his death. Scott v. Best, 6 L. R. Ir. 7. Where the devise is of rents due prior to the testator's death, derived from property of which the testator is tenant for life, interest upon charges must be deducted, unless the charges are vested in the testator. Lindsay v. Earl of Wicklow, I. R. 6 Eq. 72. 2. A specific bequest, if vested, carries all the income and profits which may accrue upon it after the testator's death. Clive v. Clive, Kay, 600; Maclaren v. Stainton, 3 D. F. & J. 202; and see Carron Company v. Hunter, L. R. 1 H. L. Sc. 362. The question sometimes arises what are profits accruing after the death of the testator. A bonus or dividend on shares declared before the testator's death, but not payable till afterwards, will not pass with the shares. Lock v. Venables, 27 B. 598; De Gendre v. Kent, L. R. 4 Eq. 283. Nor will the profits of a partnership, declared after the testator's death, for a period ending in his lifetime. Ibbotson v. Elam, L. R. 1 Eq. 188; Browne v. Collins, 12 Eq. 586. On the other hand, a debt is to be considered as the profits of the year in which it is paid. Maclaren v. Stainton, 3 D. F. & J. 202. 3. Since the Apportionment Act, 33 & 34 Vict. c. 35, rents, annuities, dividends and other periodical payments in the nature of income are to be considered as accruing from day to day, and are apportionable where the testator dies between two rent days. The 5th section defines dividends as including all payments made by the name of dividend, bonus, or otherwise out of the revenue of trading or other public companies, whether such payments shall be usually made or declared |