DEVOLUTION OF REAL ESTATE ON DEATH UHDEB PAET L OF THE LAP TRANSFER ACT 1897 L, G< G. ROBBINS I c.KS A*gS&* \\ V^ *&&!fci Legal Practices v v r.^ ; ',_ ot »o°<. if -The Subscription List closes on September 15th, /row «>A&A (ftife a. 1897 Redman's Law of Arbitrations and Awards. A Concise Treatise on the Law of Arbitrations and Awards, with an Appendix of Precedents and Statutes. Third Edition. By Joseph Haworth Redman, Esq., of the Middle Temple, Barrister-at-Law. Demy 8vo. Price 18s. ; for Cash with order, post free, 15*. 1897 De Colyar's Law of Guarantees. A Treatise on the Law of Guarantees and of Principal and Surety. Third Edit ion. By Henry A. de Colyar, Esq., of the Middle Temple, Barrister-at-Law. Demy Svo. Price 17s. Gd. ; for Cash with order, post free, 14s. Gd. 1897 Scriven on Copyholds. A Treatise on the Law of Copyholds, and of the other Tenures (Customary and Free- hold) of Lands within Manors, with the Law of Manors and of Manorial Customs generally, and the Rules of Evidence applicable thereto, including the Law of Commons or Waste Lauds, and also the Jurisdiction of the various Manorial Courts. By John Scriven. Seventh Edition. Much enlarged, thoroughly revised, and brought clown to the presenttime, by Archibald Brown, Esq., B.C.L., &c, Barrister-at-Law. Roy. Svo. Price 32s. Gd. ; for Cash with order, carriage paid, 26s. Sd. ; calf, 5s. extra. 1896 " We cordially commend our old friend Scriven to the members of the profession."— Law Times. THE DEVOLUTION OF REAL ESTATE OX DEATH, UNDER PART I. OF THE LAND TRANSFER ACT, 1897. THE jjcwrluta 0f Ileal Estate ON DEATH, IP _A_ R T I. OF THE LAND TRANSFER ACT, 1897. WITH THE ACT AND RULES. BY LEOPOLD GEORGE GORDON ROBBINS, Of Lincoln's Inn. Barrister-at-Law; Reader in Equity to the Tuns of Qpurt, BUTTERWORTH & CO., 7, FLEET STREET, E.G. Xaw ipubltebers. 1898, LON DON : PRINTED BY SHAW AND SONS, FETTER LANE AND CRANE COURT, E.G. T PBEFACE. PART I. of the Land Transfer Act, 1897 (GO & Gl -*- Vict. c. G5), consisting of five sections only, seems to affect as many important changes in the law of real property. No doubt, it was hopeless at the end of the last Session of Parliament, having regard to the pressure of other business, to attempt to pass an Act altering the law relating to the devolution of real estate on death, and containing well considered and clearly expressed provisions dealing specifically and positively with the many questions of doubt and difficulty which must otherwise necessarily arise by reason of such material alteration of an ancient and complicated system. Such provisions must have called attention to the important character of the proposed alterations, and would in all probability have aroused such serious opposition, perhaps to the principle, or, at all events, to matters of detail, so as to destroy all chance of passing the Act, at all events except by the sacrifice of Part I. The prospect of carrying into effect a legal reform of great importance and usefulness, in the opinion of many jurists and politicians, no doubt fully justified, in the eyes of the supporters of that reform, the tacking of these few and concisely worded sections to an Act with which they have no essential or very apparent connection. a 3 74958" VI PEEFACE. The qualities of brevity and simplicity which characterize these five sections, however, are obtained as an inevitable sacrifice of completeness and clearness ; and, accordingly, an attentive perusal of this Part of the Act raises in the mind of any reader acquainted with the law of real property numerous questions, to the solution of which the language of the Act affords little or no guidance, and which he must accordingly solve to the best of his ability and judgment, at some risk to his clients, or submit to the decision of the Court. The principal changes which this Part of the Act effects, or seems to effect, are as follows : — (1.) "Real estate" of a deceased owner is made to vest on the death in his personal representatives, instead of, as heretofore, in the devisee or heir ; but this Act contains no definition of "real estate " (other than an exception of copyholds and customary lands), and it is thus far from clear what kinds of real property are intended so to vest, or what quality or quantity of estate the personal representatives are intended to take. (2.) The same or the like powers, rights, duties, and liabilities are conferred and imposed on personal representatives in respect of real estate as they now have in respect of personal estate ; they may thus obtain probate or administration of real estate, deal with real estate before probate or administration, sell or mortgage real estate for purposes of administration, and manage the property while retained by them for such purposes ; but these powers, etc., are stated not specifically and in detail, but only generally and by Preface. vn reference, and subject to the qualifications that they are to apply to real estate " so far as the same are applicable," and that personal representatives are to hold such property as " trustees " ; judicial decision can alone solve the questions which must arise as to the import and extent of these qualifications. (3.) Real estate is rendered legal assets for payment of debts in the hands of personal representatives LHrtute officii independently of any charge thereon of debts contained in a will, instead of as heretofore merely equitable assets in the hands of the devisee or heir. (4.) Real estate is to be administered li with the same incidents, as if it were personal estate," without qualification. The effect of these words, coupled with other incidental provisions of the Act, is apparently to render real estate liable to payment of legacies* ; but this change in the law, if effected, is left to inference, and not positively and distinctly enacted. Moreover, there is no express saving of the rights of an heir in case of intestacy, and it is also left to inference that the intention and effect of the Act is not to disturb those rights, except so far as the real estate is required for purposes of administration ; but, as distribution of residue not so required is one of the " incidents " of personal estate, it might have been better if all doubt on this point had been dispelled by positive enactment. Since the remarks in the text (pp. 92, 93), were through the press an objection was made to the views there expressed, on the ground that the last clause of section 2 (3) of the Act of 1897 negatives the liability of real estate to debts by virtue of this Act. But the writer submits that this is not the effect of the clause, which merely preserves the right of a testator to charge legacies on land generally or specifically, so as to render the land so charged liable to legacies primarily, or out of the order in which it otherwise would be liable by virtue of the Act. a i Vlll PREFACE. (5.) Real estate, on completion of the administration, or if and so far as not required for purposes of administration, is to be transferred to the persons entitled thereto by assent or conveyance. No form of assent is prescribed by the Act (except for the purpose of obtaining registration), and accordingly the beneficial interest m realty, if not the legal estate, may in some cases pass from one party to another without deed or any written instrument, or any formality such as the old livery of seisin, but by mere parol, or even without a word spoken between the parties, by some act of the personal representatives from which an assent may be implied. This short statement of what the Act does, and omits to do, makes it obvious that many questions of doubt and difficulty will arise as to the construction and effect of the Act. In the following pages an attempt has been made to point out some of these questions, and, as far as possible, to solve or explain them, in the hope that the observations therein con- tained may be of service to the legal profession, when they have to consider the provisions of Part I. of the Act of 1897 (as many of them will very soon be called upon to do), and the changes thereby effected in the law as to the devolution of real estate on death, changes the nature and extent of which do not seem, so far, to have excited the attention which their importance deserves and must inevitably demand. L. G. GORDON ROBBING Lincoln s Inn, January 6th, 1898. TABLE OF CONTENTS. CHAPTER I. Introductory Chapter. PAG] 1. Of the law as to devolution of real estate and statutory modifi- cations thereof ... ... ... ... ... ... ... 1 2. Of the Land Transfer Act, 1897, generally 5 3. General effect of Part I. of the Land Transfer Act, 1897 ... 7 CHAPTER II. Establishment of Real Representatives. 1. General remarks ... ... ... ... ... ... ... 9 2. Real estate of testator vests in his executors ... ... ... 10 3. Real estate, if executors are not appointed or renounced, or in case of intestacy, vests in administrators ... ... ... 14 4. At what time real estate vests in executors or administrators 18 CHAPTER III. What Estates and Interests in Realty vest in Real Representatives. 1. Legal and equitable "real estates" vest in personal repre- sentatives ... ... ... ... ... ... ... 20 2. Exception where right to take by survivorship ... ... ... 23 3. Exception of copyholds and customary freeholds ... ... 24 4. What estates and interests are real property vesting in executors and administrators ... ... ... ... ... 25 5. Appointment of real estates under general powers ... ... 35 6. What " real estate " will pass to executors or administrators... 37 7. As to shifting uses, executory devises, and contingent remainders 49 CHAPTER IV. Of the Nature and Extent of the Interest in Real Estate taken by executors and administrators. 1. Nature of the interest 52 2. Duration of the interest in realty taken by personal represen- tatives ... ... ... ... ... ... ... ... 59 X TABLE OF CONTENTS. CHAPTER V. Of the Powers of Executors and Administrators in relation to Real Estate. page 1. General enactment as to powers, etc., of personal representatives 60 2. Dealings with real estate before probate or grant of adminis- tration ... ... ... ... ... ... ... ... 61 3. Powers of executors and administrators to sell or mortgage real estate ... ... ... ... ... ... ... 64 4. Powers of executors and administrators as to leasing and management of real estate during period of administration 75 CHAPTER VI. Rights, Duties, and Liabilities of Personal Representatives in respect of Real Estate. 1. Duty of personal representatives is to pay debts and deliver property so far as not required for such payment to the persons entitled thereto ... ... ... ... ... 82 2. Liability of personal representatives for their acts and defaults in administering real estate ... ... ... ... ... 86 CHAPTER VII. Application of Estate in the Administration of the Assets of a Deceased Person. 1. General statutory rule as to administration of real estate ... 90 2. Payment of legacies out of real estate ... ... ... ... 92 3. Order of a2Jplication of assets in administration ... ... 93 4. Effect of the Act on the distinction between legal and equitable assets ... ... ... ... ... ... ... .•• 94 CHAPTER VIII. Transfer to Devisee or Heir. 1. Assent to devises ... ... ... ... ... ... ... 99 2. Right of devisees and heirs to compel conveyance ... ... 109 CHAPTER IX. Appropriation of Real Estate to Legacies, etc 112 CHAPTER X. Miscellaneous Matters. 1. Registration of proprietorship of real estate 116 2. Stamp duties 118 3. Liability to succession and estate duties 119 APPENDIX. Land Transfer Act, 1897 (60 & 61 Vict. c. 65) 121 Provisional Land Transfer Rules ... ... ... ... ... 129 TABLE OF CASES. PAGE PAGE Adair v. Shaw ... 59 Butler, Be . 94 Adams v. Pierce... ibi, Buttonshaw v. Martin ... . Ill Andrews v. Wingley 65 Buxton p. Buxton . 87 Angier v. Stannard 111 Byrchall v. Bradford ... . 114 Auon 87 Att. -Gen. v. C4eary 79 Att.-Gen. v. Owen 77 Caldecott '". Brown 79 Austin v. Beddoe 102 Chaffe p. Kelland . Ill Ayres, Be 104 Chamberlain v. Chamberlain .. . 102 Charitable Corporation r. Sutton 87 Cholmley p. Paxton 72 Bacon v. Simpson 63 Clay and Tetley's Contract, Be 67 Bailey v. Appleyard 46 Clay v. Willis 97 Bailey v. Ekins ... 97 Claydon '•. Green . 21 Bailey v. Stevens 46 Clegg p. Rowland . 77 Bain v. Sadler ... 96 Clitheroe, Be . 56 Balfour v. Cooper 65 Cochrane p. Robinson ... . 84 Ball p. Hains 69 Cole p. Miles ... 101, 103, Ball v. Harris 65 Colyer v. Finch ... . 65 Barber, Be 87 Conro p. Conro ... . 65 Barker v. Barker 80 Const '". Harris ... . 100 Barker p. Devonshire (. Juke of) 74 Constable p. Nicholson... 46 Barker p. May ... 97 Cook r. Gregson ... 94, 97 Barnard p. Pomfret 107 Cooke p. Loxley ... 77 Barrett p. Hartley 87 Coombs r. Coombs . 17 Bastard r. Stukeley 101 Cooper, Be . 65 Bate, Be ... 93 Coppin p. Coppin . 106 Bath (Earl of) p. Bradfc >rd (Ear 1 Corsellis, Be . 87 of) 68 Cowin, Be . 88 Becket r. Bradley 77 Cowley v. Wellesley . 80 Bedingfield, Be ... 87 Cray p. Willis 109 Blackborough p. Davis 59 Cull, Be 111 Bleazard p. Whalley 79 Cuthbertson r. Irving ... 77 Bolles r. Nyseham 100 Booth p. Booth ... 86 Bos worth, Be 89 Davey V. Durrant 72 Brackenbury, Be 17 Davey p. Thornton 111 Braithwaite, Be 113 Davies p. Nicholson 82 Brazier v. Hudson '.'. 6 2,104 Davis p. Davis ... 106 Bridge r. Brown... 79 Davis r. Dysart ... 88 Brocksopp r. Barnes 87 Davis r. Harforde 77 Bromley v. Wright 113 Dean v. Allen 84 Buckeridge p. Ingram 45 Delancy /•. Fox ... 77 Buckley v. Howell 72 Devon (Duke of) v. Atkins 105 Burgess p. Robinson 115 Doe '■. Glen 63 XI 1 TABLE OF CASES. Doe v. Guy Doe r. Hunt ngton Doe '". Hughes ... Doe r. Maberley Doe v. Shotter ... Doe r. Sturgess ... Doe r. Tatchell Dover, Ex parte ... Downs r. Grazebrook ... Drake v. Trefusis Drybutter v. Bartholomew Duke v. Ricks ... Dunman, Ex parte Easton /•. Pratt ... Eglin v. Sanderson Elias v. Snowdon Slate Co. Elliot v. Dewsley Elliot r. Merryman Elwell v. Quast Elwood r. Christy England v. Tredegar ... Fairland v. Percy Fell v. Lutwidge Fenton v. Clegg . . . Fitzpatrick v. Waring Flanders v. Clark Fleming v. Buchanan Fleming v. Richardson Frazer v. Murdock Freeman v. Fairlie Fry r. Tapson Garland, Ex parte Gaskin v. Rogers Gawler r. Standerwick George v. Hillbanke Gerrard v. Gerrard Godfrey v. Watson Goodson v. Ellison Green v. Pigott . . . Gresham w. Cotton Greville v. Browne Grey v. Mannock Hall v. Carter Hallet, Re Hampshire v. Bradley Harley, Ex parte Hart v. Middlehurst Hawker v. Saunders Hawkins v. Day... Henderson v. Mclver PAGE PAGE .. 101 Henry /•. Macdonald ... 88 41 Hickling v. Boyer ... 84 65 Hill v. Gomme ... ... 83 .. 107 Hill 17. Simpson ... ... 74 04 Holdensby v. Spoffoitli... ... 66 .. 103 Holder r. Preston ... 70 .. 107 Holford v. Phipps ... Ill .. 114 Holkirk /•. Holkirk ... 103 72 Holmes r. Coghier ... 37 79 Holt r. Winchester ... 44 .. 45 Honeywood v. Honcywood ... 80 66 Hooper '•. Clark ... ... 46 .. 72 Hodgkinson '•. Quinn ... ... 65 Horner v. Horner ... 63 Hudson c. Bell ... ... 73 77 Hughes c. Williams ... 87 .. 88 Humphreys '". Ingledon ... 63 80 Hunt '". Stephens ... 62 64 Hyde v. Dallaway ... 73 .. 64 .. Ill 62 Ithell v. Beane ... ... 74 .. 84 Jeffcock, Re ... 77 Jenney v. Andrews ... 36 81 Johnson r. Mills ... ... 113 63 Jones, Re... ... 56 62, 104 Jones ' - . Lewis ... ... 110 76 13, 103 Keating '•. Lloyd ... 76 68 Kendall v. Russell 115 36 Kenrick v. Beauclerk (Lord; ... 65 115 Kilmurry (Lord) '•. Geary ... 74 88 Kimberley v. Tew ... 115 73 Kirkman v. Booth ... 80 Knatchbull v. Fearnehead 83 80, 81 .. 113 Lambert's Estate, Re ... ... 16 .. 113 Lampot's Case ... 100 37 Lang, Re ... ... 95 46 Langford v. Selmes ... 77 .. 87 Lewis /■. Freke ... ... 74 .. Ill Lingard v. Derby ( Earl of) ... 68 13, 115 Littleton v. Hibbins ... 98 66 Livesey v. Livesey ... 106 64 Longstaffe -v. Fenwick ... ... 87 34 Macartney v. Blundell . . . ... 77 74 Maclaren v. Stainton ... ... 79 .. 106 M'Leod /■. Drummond ... ... 65 .. 110 Maggi, Re ... 95 72 Mannox v. Greener ... 65 .. 37 Marsden, Re 59, 86 .. 107 Marsh r. Russell ... 106 83 Martin v. Fuller ... 63 88 Mason, Re ... 88 TABLE OF CASES. Xlll Mason/-. Farnell Massingberd's Settlement, Be... Mead p. Lord Ossery ... tin. Metcalf r. Hutchinson ... Metters '•. Brown Mills p. Banks ... Moore p. Frowd ... Morgan, Re Morgan p. Thomas Morley p. Cook ... Mucklow p. Fuller Moses r. Lew Nairn p. Majoribanks ... Naylor '•. Arnett New p. Jones Newton, Re Newton v. Askew Newton p. Metropolitan Rail... Noel p. Robinson Norman p. Baldry Northey p. Northev Oceanic Steam Co. Orr r. Kaimes Owen r. Delamere Sutherburv Cooper ... Passmore '•. Yardley Payne v. Barker Pears p. Lacy Pearse p. Green ... Pearson p. Archdeaken . . Peirce p. Scott ... Pennell p. Deffell Penny r. Penny ... Pharmaceutical Society p. Lond etc., Supply Association Phillips p. Hartley Phillips p. Munnings Phipps '•. Annesley Pilling's Trusts, Re Pinchon's case Pinney v. Pinney Postlethwaite, Re Powys '•. Blagrave Prince's Case Pullen r. Smith ... Rakestraw v. Brewer Rector /•. Gennet Rex or Reg. p. Shingle ... Rex p. Stone ,., ... 62. AGE 109 114 106 63 65 87 56 63 73 86 63 79 76 ss 17 68 62 106 83 ion 106 si 107 110 46 88 83 66 106 9S 63 114 113 19 53 104 88 SS 104 113 19 83 44 104 PAGE Rex v. Tolpuddle 38 Rex v. Wade 97 Rhodes v. Brown ... ... 83 Richards v. Brown ... ... 103 Richardson, Ex parte ... ... 81 Richardson p. Gifford ... ... 109 Ripley p. Waterworth ... ... 2 Robinson p. Lowater ... ... 64 Robinson r. Pett ... ... 87 Rock p. Hardman ... 115 Roe p. Summersett ... ... 62 Rowley p. Adams ... ... 87 Ryder v. Bickerton 88 Salaman v. Sopwith ... ... 77 Salt, Re 94 Saunder's Case ... ... ... 100 Scott v. Tyler 69 Sevin v. Okeley 97 Sharp p. Lush' 9S Shaw, Re 76 Shaw p. Bonner ... ... ... (;.". Sherwood p. Winchcombe ... 44 Sibley p. Perry 113 Sitwell v. Bemhard ... ... 115 Smith v. Day 83 Smith p. Morgan ... ... 95 Speight p. Gaunt ... ... 87 Spode v. Smith 82 Spon v. Smith 106 Stevenson ?•. Mayor of Liverpool 102 Stokes, Re 94 Stronghill v. Austen 64 Stott v. Milne ... ... Ill Stubb's Estate, R^ 95 Sutton p. Sutton... ... ... 21 Talbot p. Marshfield 88 Tanqueray-Willaume and Landau, Re ... ... ...74,91 Tarn v. Commercial Bank of Sydney 62 Thirby P. Yeats Ill Thompson p. Hardinge 24 Townson v. Tickell 1<)4 Tremere p. Morrison ... ... 79 Turner, Re 89 Truscott r. Diamond Rock Boring Co. ... ... ... 77 Underwood v. Trower ... ... 89 Van Hagan, Re 68 Venn and Furze's Contract, Re 91 Vilk p. Brime ... ... ... 97 XIV TABLE OF CASES. PAGE Whiteley, Be, Whiteley V. PAGE Wade v. Marsh ... .. 78 Learoyd .. 87 Waldo v.Waldo .. 80 Williams v. Lomas .. 36 Walker, Be .. 114 Williams v. Nixon 86 Wankford v. Wankford... ..18,(32 Williams v. Williams ... .. 27 Ward v. Grey .. 113 Williams' Estate, Be .. 95 Waters, Be .. 115 Williams' Trusts ... .. 19 Watkins r. Check .. 74 Willis r. Hiscox ... .. 110 Weall, Be .. 87 Wilson v. Fielding .. 95 Webb v. Adkins... .. 62 Wood v. Patteson ..76,77 Webb v. Jones ... .. 114 Wood v. Richardson 72 Webb v. Needham 17 Wooldridge v. Bishop ... .. 63 Webber v. Lee ... .. 46 Wragg v. Denham .. 87 Webber v. Webber .. 113 Wroe v. Seed .. 88 Westwick v. Wyers . . '. .. 106 Wynne v. Hnmberston . . . 88 Whistler, Be .. 91 White r. Cuddon .. 72 Whitehead v. Taylor ... 62 Young r. Holmes .. 103 TABLE OF STATUTES. PAGE 13 Edw. 1, c. 1 (Fines and Recoveries : Land (entail)) ... ... 34 21 Hen. 8, c. 4 (Administration of Estates) ?'• 27 Hen. 8, c. 10 (Statute of Uses) 1,4'.) 32 Hen. 8, c. 1 (Will) 1 c. 7 (Tithes) 44 34 Hen. 8, c. 5 (Wills) 1 22 & 23 Car. 2,c. 10 (Statute of Distribution) 16 29 Car. 2, c. 3 (Statute of Frauds) 1,34,3.") 3 Will. & M. 14 (Fraudulent Devises) 67 14 Geo. 2, c. 20 (Common Recoveries, etc. ) ... ... ... ... 34 17 Geo. 2, c. 38 (Poor Relief Act, 1743), s. 3 98 57 Geo. 3, c. 29 (Trade, America, etc.), s. 51 98 lWill. 4, c. 47 (Debts Recovery) 67 3&4 Will. 4, e. 42 (Civil Procedure Act, 1833) 78 c. 74 (Fines and Recoveries Act, 1833) 32 c. 104 (Administration of Estates Act, 1833) 6S 1 Vict. c. 26 (Wills Act, 1837) 1, 2, 34, 36, 48 12 & 13 Vict, c. 106 (Bankruptcy) 43 16 & 17 Vict. c. 51 (Succession Duty Act, 1853) 118 20 & 21 Vict. c. 77 (Court of Probate Act, 1857) 14 22 & 23 Vict, c. 35 (Law of Property Amendment Act, 1859) ... 66, 72, 83 32 & 33 Vict, c. 46 (Administration of Estates Act, 1869) ... 69, 95, 98 36 & 37 Vict, c. 66 (Supreme Court of Judicature Act, 1873) 14 37 & 38 Vict, c. 78 (Vendor and Purchaser Act, 1874) 3 35 & 39 Vict, c. 60 (Friendly .Societies Act 1875), s. 15 98 c. 77 (Supreme Court of Judicature Act, 1875) ... 69, 95 c. 87 (Land Transfer Act, 1875) 3 ss. 4, 11 117 40 & 41 Vict. c. 33 (Contingent Remainders Act, 1877) 50 44 & 45 Vict. c. 41 (Conveyancing and Law of Propertv Act, 1881) 3, 10, 18, 24, 33, 45, 72, 73 15 & 46 Vict. c. 38 (Settled Land Act, 1882) 28, 29, 56, 57 c. 75 (Married Women's Property Act, 1882) 104 46 & 47 Vict. c. 52 (Bankruptcy Act, 1883) 30 52 & 53 Vict, c. 7 (Customs and Revenue Act, 1889) 118 c. 53 (Paymaster General Act, 1889) 38 53 & 54 Vict. c. 69 (Settled Land Act, 1890) 28 54 & 55 Vict. c. 39 (Stamp Act, 1891) (Sched.) 117 56 & 57 Vict, c. 53 (Trustee Act, 1893) 70,71 57 & 58 Vict. c. 30 (Finance Act, 1894) 119 59 & 60 Vict, c. 35 (Judicial Trustees Act, 1896) 89 CO & 61 Viet. c. 6.') (Land Transfer Act, 1897), s. 3 (1) ... 116, 117. IIS §1 evolution of |lcal €state UNDER PART I. OF THE LAND TRANSFEB ACT, 1897. CHAPTER I. INTRODUCTORY CHAPTER. 1. Of the Law as to Devolution of Real Estate and Statutory Modifications thereof. By- the common law of England, upon the death of an Devolution of owner of an estate of inheritance in fee simple his lands on heir by devolved upon his heir-at-law, and no testamentary common law. disposition of the land was allowed (a). The land might, however, have been conveyed by the owner in his lifetime to another person to the uses of his will, and, in equity, the use of the land might have been disposed of by will, and in case of such devise the feoffee was deemed to hold the land to the use of the devisee, who was thus enabled to enjoy the beneficial interest in the land (b). The Statute of Uses (c) for a time destroyed this Statutes power of testamentary alienation ; but, this being found Revises of inconvenient, by successive enabling statutes (d), and real estate, ultimately by the Wills Act (e), owners of real estate were enabled to devise the same at their free will and pleasure. Personal estate, including chattels real, however, has Devolution of always devolved, and still does devolve, upon the death estate. (a) Co. Litt. 111C. (d) 32 Hen. 8, c. 1 ; 33 Hen. 8, ib) 1 Saund. Uses 64. See c. 5 ; 29 Car. II. c. 3. Wright's Tenures, 172, 174. (e) 1 Vict. c. 26, s. 3. (c) 27 Hen. 8, g. 10. 2 INTRODtTCTOftY CHAJ>TE&. Chap. I. f jt s owner, upon the executors named in his will, or, if there be none such, or if the executors so named renounce probate, or if the owner died without leaving any will, then upon his administrators duly constituted by letters of administration (/). Statutory It has long been the desire of many law reformers to ontw C of 10nS assimilate the devolution of real and personal estate, devolution of It is not here intended to discuss the question of policy whether, and if so, how far such assimilation is desirable, but it may be useful and interesting to trace shortly the history of the gradual taking away from the heir and giving to personal representatives of a deceased person particular kinds of real estate by successive enactments. Estate pur In an early case (g), where an estate pur autre vie devolves on m freeholds was limited to his executors, administrators personal re- and assigns, it was contended on behalf of the heir-at- m^erLrin"* e8 law that the estate ought to be considered as realty and cases by devolve accordingly ; but it was held that where an Wills Act. " . . „ .... estate pur autre vie m freeholds (h) was limited to the grantee and his executors or administrators, it was taken by his executors or administrators, according as he died testate or intestate, and was applicable and distributable as part of his personal estate. And by the Wills Act (i) (repealing previous enactments respecting pur autre vie) testamentary power was given over such estates of any tenure, whether corporeal or incorporeal ; and it was provided that if no such disposition should be made, any such estate should be assets in the hands of the heir, if it should come to him by reason of special occupancy ; but if there should be no special occupant, such estates should go to the executor or administrator of (/) Williams' Executors. estates pur autre vie are within (g) Ripley v. Watenvorth, 7 the operation of the Land Transfei Ves. 425. * Act, 1897. (h) See post p. 33, as to whether («) 1 Vict, c.26, ss. 3, 6. DEVOLUTION OF REAL ESTATE. * the grantee, and should be assets in his hands, and be Chap. I. applied and distributed as personal estate. By the Vendor and Purchaser Act, 1874 (k), the Vendor and personal representatives of the mortgagee of real estate ^c^ 1874. might on payment of the mortgage moneys convey the legal estate of the mortgage property (I) ; and by the same Act, upon the death of a bare trustee seised in fee simple his estate was made to vest like a chattel real in his executor or administrator (m) ; but this last enact- ment has been since repealed by the next mentioned Act. By the Land Transfer Act, 1875 (>&), upon the death Land of the proprietor of a charge registered under that Act, jg^ 8 e ' his executor or administrator is entitled to be registered as proprietor in his place, thereby vesting in him the power of dealing with the mortgage by way of transfer or reconveyance by entry on the register without any need for the concurrence of the devisee or heir to pass the legal estate. By the same Act, section 5 of the Vendor and Purchaser Act is repealed, and in lieu thereof it is enacted that upon the death of a bare trustee intestate, as to any corporeal or incorporeal hereditaments of which such trustee was seised in fee simple, such hereditaments not being land registered under this Act should vest like a chattel real in the legal personal representative from time to time of such trustee (0). A more extended and important alteration in the law Conveyancing as to the devolution of real property was effected by \^ s c 30 section 30 of the Conveyancing and Law of Property Act, 1881 (p), which enacts as follows : — (1.) Where an estate or interest of inheritance, or Devolution of limited to the heir as special occupant, in any tene- trust and ...;.. ...'.. .'... - mortgage estates on (A) 37 & 38 Vict. c. 78. . (n) 38 & 39 Vict. c. 87, s. 42. death [I) lb. s. 4. (0) lb. s. 48. {m) lb. s. 5. (p) 44 & 45 Vict, 0. 41. E 2 , INTRODUCTORY CHAPTER. Chap. I. nients or hereditaments, corporeal or incorporeal, is vested on any trust, or by way of mortgage, in any person solely, the same shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time, in like manner as if the same were a chattel real vesting in them or him ; and accordingly all the like powers, for one only of several joint personal representatives, as well as for a single personal repre- sentative, and for all the personal representatives together, to dispose of and otherwise deal with the same, shall belong to the deceased's personal repre- sentatives or representative from time to time, with all the like incidents, but subject to all the like rights, equities and obligations, as if the same were a chattel real vesting in them or him ; and, for the purposes of this section, the personal representatives for the time being of the deceased shall be deemed in law his heirs and assigns, within the meaning of all trusts and powers. (2.) Section 4 of the Vendor and Purchaser Act, 1874, and section forty-eight of the Land Transfer Act, 1875, are hereby repealed. (3.) This section, including the repeals therein, applies only in cases of death after the commencement of this Act. The effect of this enactment, which applies only in cases of death of a trustee or mortgagee since December 31st, 1881, is to vest the legal estate in realty subject to a trust or mortgage in the personal representatives of a deceased sole trustee or mortgagee, whether he died testate or intestate, and to render any devise of trust or mortgage estates unnecessary and inoperative. The beneficial interest in trust or mortgaged estates may, of course, still be bequeathed, but the legal estate in the mortgage property will pass to the personal representatives of the mortgagee notwithstanding such bequest. OF THE LAND TRANSFER ACT, 1897. GENERALLY. 5 A still greater advance towards the assimilation of the • C,IAP - '• law of real and personal property has been introduced by Part I. of the Land Transfer Act, 1897, whereby, as will Transfer Act, be seen hereafter, all the real estate (with certain excep- 189 7- tions) of a deceased person, whether testate or intestate, and notwithstanding any contrary disposition or direction in his will, is made to vest on his death in his executors or administrators for the purposes of the administration of his estate in like manner, and with the like powers of dealing with the same, as if it were a chattel real. In the Land Transfer Bill, 1888, were contained Act does not ..... ., -, i ,• • , x . alter ultimate provisions assimilating the devolution on intestacy ot devolution of the beneficial interest in real estate with that of beneficial i interest in personal estate, by making the real estate distributable real estate. in such a case among the next-of-kin of the intestate. But by the Act of 1897 real estate of a deceased person, whether testate or intestate, is vested, together with ancillary powers, in his executors or administrators for purposes of administration, and subject thereto as trustee for the devisee or (as it is conceived) the heir- at-law, or those claiming under them respectively, whose ultimate beneficial interest, subject to the requirements of administration, is thus, as it would seem, intended to be preserved. 2. Of the Land Transfer Act, 1897, Generally. The objects of the Land Transfer Act, 1897, as General scope indicated by the title and preamble of the Act, are "to of 1 the Land establish a Eeal Eepresentative, and to amend the Land Transfer Act, Transfer Act, 1875," therein referredto as " the principal Act." These two objects of the Act, carried into effect by the provisions therein contained, are both of great importance, but it is not obvious at first sight what connection they have with each other. The first object, that of creating a real representative, is the INTRODUCTORY CHAPTER. Chap. I. Connection between the the several parts of the Act, Commence- ment of Act Short title. professed purpose of Part I. of the Act, containing five sections, which are the main subject for consideration in these notes. The remaining three parts of the Act, containing twenty-one sections, are devoted to the amendment and extension of the provisions of the Act of 1875 relating to the registration of title to land and dealings with lands so registered. The provisions of Parts II., III., and IV. of this Act appear to have been those to which the attention of the framers of the Act was especially directed, and to which primary importance was attached by the Legislature. But the establishment of a real repre- sentative must, no doubt, have been regarded as eminently desirable as ancillary to such primary object, in order to facilitate dealings with registered land. Hceres nascitur non Jit; and it is obvious that the continuity of registration of land under the Land Transfer Acts might be seriously interfered with in cases of intestacy, if the heir-at-law should happen to be under disability, or out of the jurisdiction, or not to be found. Similar difficulties might, though no doubt less frequently, arise where real estate is devised. It is therefore, perhaps, not to be wondered at that the establishment of a real representive, at all events so far as relates to registered lands, should have been thought advisable in an Act to amend the Land Transfer Act, 1875, as forming part of and ancillary to the main provisions of such an Act. The Land Transfer Act, 1897, comes into operation on January 1st, 1898 (q). This Act may be cited as the Land Transfer Act, 1897, and is to be construed as one with the principal Act, and that Act and this Act may be cited together as the Land Transfer Acts, 1875 and 1897. (q) Section 25. KFFECT OF PART I. OF LAND TRANSFER ACT, 1897. 7 3. General Effect of Part I. of the Land cSa£ i. Transfer Act, 1897. Part I. of this Act (sections 1, 5) purports to deal with the establishment of a real representative. Real estate within the meaning of the Act belonging Vesting of to a person dying after the commencement of the Act real estate in ........ . personal re- is to vest on his death in his personal representatives presentatives. or representative, as if it were a chattel, and probate or letters of administration may be granted accordingly (r). Personal representatives in whom real estate is Powers, etc., vested are to hold the estate as trustees for the person of P ersonal t j* • • • ii- representa- beneficially entitled thereto, with the same or the like tives as to powers and other powers generally, and subject to the real estate - same or the like obligations and liabilities, as are vested in or attached to the office of an executor or administrator of a chattel real (s). Personal representatives may at any time assent to Assent and the taking by a devisee, or convey to a devisee or heir, b^^ersonal any land of a deceased owner which is not required for representa- the general administration of his estate, and at the ne9 ' expiration of the year from the death of the owner, the devisee or heir may apply to the court to compel the personal representatives to convey the land to him, or, in the case of registered land, to cause him to be registered as proprietor of the land. No fees are to be chargeable on any transfer of registered land by personal representatives, unless for valuable considera- tion. On production of an assent in the prescribed form the registrar may register the person named therein as the proprietor of the land (t) . The personal representatives of a deceased person Appropria- may, after giving the prescribed notices, appropriate tl( ? n of . real his real estate or any part thereof in or towards legacies, etc. (r) Section 1. (*) Section 2. (t) Section 3. « INTRODUCTORY CHAPTER. Chak I. satisfaction of a legacy or share in his residuary estate. A conveyance of real estate to the person to whom it is appropriated is to be liable to the same stamp duty as is payable on a like purpose. On production of the prescribed evidence of an appropriation the registrar may register the person to whom the property is appropriated as the proprietor of the land (d). Liability of No higher or other duty is to be payable in respect real estate to . duty. of real estate than is now payable in respect thereof (e). General It will be observed that Part I. of the Act of 1897 is PartToTAct n °t confined in its operation to lands registered under of 1897. the Act of 1875, or under that Act as amended by this Act, but is of general application, and introduces a complete change in the law as to the devolution of real estate within the meaning of the Act, belonging to any person who shall die on or after January 1st, 1898. The provisions of this part of the Act will receive a fuller and more detailed consideration in the following chapters. (u) Section 4. (x) Section 5. ( 9 ) CHAPTER II. ESTABLISHMENT OF KEAL REPRESENTATIVES. 1. General Eemarks. The full title of the Land Transfer Act, 1897, is Title and "An Act to establish a Keal Eepresentative, and to P 1 ^^ amend the Land Transfer Act, 1875; " the preamble recites that "it is expedient to establish a real repre- sentative ; " and at the commencement of Part I. of the Act appears a head-note in the words " Establishment of a Eeal Eepresentative." But the expressions " real representative" or "real representatives" never occur elsewhere in this Part of the Act. This Act, in fact, strictly speaking, does not establish Act does not a real representative at all. It does not authorize a create "f eal r ... representa- testator to appoint a real representative by his will ; tivea " as and indeed, if a testator were to appoint one, not being 9UC " a person appointed executor, as if a will were to say "I appoint A. and B. executors of this my will, and C. my real representative," it is conceived that the latter appointment would be nugatory, as being a testamentary disposition contravening the provision of the Act that real estate shall vest on death in the "personal representatives," i.e. the executors, and purporting to vest it in somebody else. Moreover, the Act does -not give to the court any power to appoint a real representative as such, though the court is thereby empowered to grant probate or letters of administration to the personal representatives of a deceased person in respect of his real estate. . What this Act does enact is that (with certain Act vests real exceptions to be hereinafter noticed) the real estate of a pergonal person dying on or after January 1st, 1898, shall vest in represent* 10 ESTABLISHMENT OF REAL REPRESENTATIVES. Chap. II. his personal representatives or representative as if it were a chattel real. The personal representatives take, in their character as such, the real estate by virtue of the Act, as well as the personalty (if any) as heretofore by the general law. Power to By section 1 (3) of the Act, it is enacted that " probate etc. n ask) a & an< ^ lexers of administration may be granted in respect realty, where of real estate only, although there is no personal estate." Cases where there is absolutely no personal estate are not likely to be of frequent occurrence ; but, in any such case, the person to whom probate or letters of adminis- tration are granted must apparently, by virtue of the grant, become a "personal representative," even though he has no personal estate to administer; otherwise nothing will vest in him by virtue of this Act. If, then, a person so appointed conveys by way of sale or mortgage, he will be able, by conveying " as personal representative," to give the statutory covenant against incumbrances implied by virtue of the Conveyancing and Law of Property Act, 1881 (y). Indeed, if he is to effectually give such a covenant, he must be expressed to convey "as personal representative," for the expres- sion "real representative" does not occur either in the last-mentioned Act, or in the body of the Act of 1897, so that conveyance as such would be of no efficacy as importing any covenant for title. 2. Eeal Estate of Testator vests in his Executors. If, then, a person dying on or after the 1st day of January, 1888, makes a will, and thereby appoints executors, his real estate must devolve by virtue of the Act on the executors so appointed, and on no other (y) 44 & 45 Vict. c. 41. s. 1, REAL ESTATE OF TESTATOR VESTS IN HIS EXECUTORS. 11 person, notwithstanding any disputation or direction to C hap - n - the contrary continued in the will. It seems very doubtful whether it will be competent Whether for a testator to appoint one set of executors in respect executors of his personal estate and another set of executors in may be respect of his real estate. Such separate appointments c re ai and would, as it is conceived, amount to a testamentary P ers onal ' - J estate. disposition contrary to the Act. No doubt a testator may appoint special executors of a particular fund, and appoint general executors in respect of the remainder of his personal estate. But the power of appointing executors by will is founded upon principles of the Civil Law as recognised and adopted by the laws of England, andis not negatived or restricted, as regards the appointments of separate sets of executors by any statute, either expressly or by implication. The Act of 1897, however, says that the real estate of a deceased person is to vest " in his personal representatives or representative," which must apparently mean in all his representatives, if more than one. It is submitted that the appointment of separate "personal representatives " in respect of the real estate is impliedly prohibited by the Act, and that such separate appointment, if allowed, might be made the means of evading the provisions of the Act by the colourable use of the expression "personal representa- tives" in respect of the real estate as a description of the persons so appointed. Such persons would in effect be really "real representatives" independent of the personal representatives, strictly so called, or in other words, trustees with powers of sale, etc., either for the period of administration, if simply appointed executors in respect of the real estate, or permanently, if also made devisees in trust. - Such separate executors or trustees of the real estate Result if only would, assuming their appointments valid, have powers execu tor3 by virtue of this Act to sell or mortgage it for purposes ma .v . be 12 ESTABLISHMENT OF REAL REPRESENTATIVES. Chap. II. f administration, if they think fit to do so, and the real estate would be assets in their hands for payment of debts, etc. But if they should refuse to sell or mortgage on the ground that the personal estate primarily applicable for that purpose was not exhausted or otherwise, they could not be compelled by the execu- tors of the personal estate to do so except by recourse to the court in an administration action as heretofore. The result of holding that separate executors of real estate may be appointed under this Act would thus seem to be to destroy the unity of administration apparently contemplated by this Act, and to leave matters in some cases pretty much as they were before ; but it may be expected that this question will soon require and receive judicial determination. The difficulty of advising, until a judicial decision on the point is obtained, as to how real estate devolves where separate sets of executors are appointed by will, will be much increased in cases where a testator appoints one set of executors of part of his personal estate, and another set of executors of the residue of his personal estate and of his real estate. In such a case it seems open to question whether the real estate must not vest by virtue of the Act in all the executors, special as well as general. If this is so, then the special executors will have cast upon them duties and responsi- bilities which the testator intended should not concern them. If otherwise, then it will be open to a testator by appointing executors of the bulk of his personal estate, and other special executors of a small and even illusory part of his personal estate and of his real estate, virtually to withdraw his real estate from the operation of the Act. Result if If the view above expressed is correct, that the appoint- ed e^ec^ors ment of separate sets of executors of personal estate and may be f rea i es tate respectively is impliedly prohibited by the REAL ESTATE OF TESTATOR VESTS IN HIS EXECUTORS. 13 Act, then the provision of the Act now under considera- ^ UAP - lo- tion may be productive in some cases of considerable inconvenience. If a testator desires to bequeath all his personalty to A., and to devise his real estate to B. absolutely, or to B. and C. upon trust for sale or upon other trusts, he must appoint A. and B., or A. B. and C. (as the case may be) general executors of his will, whereby the real estate and personal estate will alike vest in all of them ; otherwise, if he appoints A. only executor, B., or B. and C, will take nothing until the administration of the general estate is completed, or until A. sooner assents to the devise ; but the real estate will meanwhile vest in A., whose responsibility will be greatly increased beyond what the testator intended him to bear, by imposing upon him the duty of seeing that the real estate, with which he has pre- sumably no beneficial concern, and with which he was intended to have no concern whatever, is properly administered. Conversely, if he makes B., or B. and C, executors as well as A., the personalty as well as the realty will vest in all the executors, and impose on B., or B. and C, the responsibility of seeing to the due administration of the personalty. Where several executors are appointed they are all Survival of regarded in law as forming one person, and on the death office o f of one of them, the office survives to the others or other (z) . Upon the death of a sole executor, or of the survivor Executor of of several executors, in whom the real estate of testator is vested by virtue of this Act, such real estate will vest like a chattel real in the executor of the will, if any, of the executors so dying (a) without having fully distributed the estate of his testator. (z) Williams on Executors (9th (a) Wentw. Off. Ex., pp. 462, ed.) Vol. I., pp. 816, 821 ; see 463; Williams on Executors (9th Flanders v. Clarice, 3 Atk. 509. ed.) Vol. I., p. 204. 14 Establishment of real representatives. Chap. IL jf^ however, the executor should die intestate, his administrator cannot administer the estate of the original testator ; accordingly, administration de bonis no?i, or whatever may be the corresponding form of administration prescribed in the case of real estate, must be granted to some person in order that the administration and distribution of the estate of the testator according to his will may be completed (b) . Application for letters of administra- tion to real estate. 3. Keal Estate, if Executors are not appointed, or renounce, or in case of intestacy, vests in Administrators. If an owner of real estate dies not having appointed any executors of his will, or if all his executors renounce probate, or if he dies intestate, it will be necessary for some person or persons to apply to the court for letters of administration to the real estate cum testame7ito annexo or generally, as the case may require. The application for letters of administration must be made in Principal Eegistry, or one of the District Registries, of the Probate Division of the High Court of Justice, which exercises, as successor of the old Court of Probate, "the voluntary and contentious jurisdiction and authority in relation to the granting or revoking probate of wills and letters of administration of the effects of deceased persons" (c). By the Judica- ture Act, 1873 (d), all causes and matters which would have been within the exclusive cognizance of the Court of Probate are assigned to the Probate Division. By the Land Transfer Act, 1897, the court is empowered to grant letters of administration in respect of real estate, although there is no personal estate (e) . (/>) Shep. Touchstone 465 ; Williams on Executors (9th ed.), Vol. I. p. 204. (c) See 20 & 21 Vict. c. 77, s. 4. (d) 36 & 37 Vict. c. 66, s. 34. (e) Section 1 (3) of this Act. VESTING OF HEAL ESTATE tN ADMINISTRATORS. 15 With regard to the persons who are entitled to apply Chap. II. for a grant of administration to the real estate of a deceased person, the Act of 1897, by section 2, sub- to claim ad- section (4), enacts as follows : — "Where a person dies ™\ n, M rat !?u possessed of real estate, the court shall, in granting next-of-kin. letters of administration, have regard to the rights and interests of persons interested in his real estate, and his heir-at-law, if not one of the next-of-kin, shall be equally entitled to the grant with the next-of-kin, and provision shall be made by rules of court for adapting the procedure and practice in the grant of letters of administration to the case of real estate." This enactment, and the rules to be made pursuant Cases to thereto, will operate in cases where a person dies Enactment possessed of real estate, either intestate, or without applies, having appointed any executors of his will, where the executors named in the will refuse to prove it. With regard to personal estate, the statute 31 Rules as to Ed. 3, statute 1, c. 11, provides that, in cases of whom ad- intestacy, "the ordinary shall depute the next and ministration , , . „ . .., . of personal most lawful friends of the dead person intestate to estate is administer the goods." And by the statute 21 Hen. 8, S rauted c. 5, s. 3, it is provided that letters of adminis- tration may be granted to the widow of the deceased, or to the next of his kin, or to both, as by the discretion of the ordinary shall be thought good, and that, in case of claims made by several next-of-kin of equal degree, the ordinary is "to be at his election and liberty to accept any one or more making request." These statutes are still in force, and regulate the procedure and practice of the Probate Division of the High Court of Justice in granting letters of administration to personal estate. It is further settled beyond question that a surviving Paramount husband has a paramount and exclusive right to husband, administer the personal estate of his wife, either on m ESTABLISHMENT OF REAL REPRESENTATIVES. Chap. II. Next-of-kin, creditor, etc. Nature of heir's claim to adminis- tration. the ground that he is her "next and most lawful friend " within the meaning of the statute 31 Ed. 3, or by virtue of his marital rights at common law independently of statute (/) ; and this right is expressly confirmed by the statute 29 Car. 2, c. 3, which enacts that the Statute of Distributions (g) "shall not extend to the estates of femes covert that shall die intestate, but that their husbands may demand and have administra- tion of their rights, credits, and other personal estates, and recover and enjoy the same as they might have done before the making of the said Act." The right is not taken away or in any way affected by the provisions of the Married Women's Property Act, 1882 (h). With regard to the claim of a husband to claim administra- tion as to his wife's real estate, his rights as tenant by the curtesy must be borne in mind. Subject to the rights of the husband to administra- tion of the personal estate of his deceased wife, where a grant of administration is made cum testamento annexo, a legatee, or, if all decline, then a creditor or some other person is appointed administrator ; administra- tion under an intestacy is granted to one or more of the next-of-kin according to the nearness of their retationship to the deceased, or, if all decline, to a creditor or other nominee of the court. It does not seem quite clear whether the provision in the Act of 1897 above set out that the " heir-at-law, if not one of the next-of-kin, shall be equally entitled to the grant with the next-of-kin," means that the heir is to be entitled as of right to a grant along with the next-of-kin, or with the surviving husband or widow, as the case may be ; or whether it merely gives the heir a right to have his claims to administration of the (/') Williams on Executors (9th ed.)347. (;/) 22 & 23 Car. 2, c. 10. (h) Re Lambert's Ch. D. 626. Estate, 39 VESTING OF HEAL ESTATE IX ADMINISTRATORS. J 7 assets generally, real and personal, considered by the Chap. II. court on an equal footing with the claims of the next- of-kin, husband, or widow, thus leaving to the court the " election and liberty to accept " any one or more of the claimants as sole administrator of all the assets, to the exclusion of the heir, or of the next-of-kin, etc., if the court should so think fit. As regards personal estates, the court has full power Whether the to make a grant to several persons either jointly over ^ wer to the whole assets, or separately by granting to them grant ,-! , -, . . , , ■ £ ! p separate ad- respectively several administrations of several parts of ministrations the estate (i). The court, as a general rule, leans as to person- . . . , . alt v to a strongly against joint administrations, unless with the next-of-kin, consent of the persons claiming the grant (A;)- As au(, lt as 1 t ( ' > l i regards real estates it would, no doubt, in many cases, heir, be convenient if where an heir puts in a claim to administration along with the next-of-kin, the court should commit the administration of the real estate to the former, and that of the personal estate to the latter. But it may be doubted, on the grounds already stated, tending to negative the power of a testator to appoint a separate executor of his real estate, whether the court has jurisdiction under this Act to grant separate adminis- trations as to the personalty to one person, and as to the realty to another person. A mortgagee or other creditor cannot obtain a grant Right of of administration to personalty unless the next-of-kin aliininistra- refuses it (/) . With regard to the administration of tion - real estate, inasmuch as the heir is equally entitled to the grant with the next-of-kin, it is believed that a mortgagee or creditor will not be entitled to the grant unless both the heir and the next-of-kin refuse it. (») Roll. Abr. tit. Executor (D.) 49-t; see 2 Blackst. Comm. 505. pi. 1, p. 908. See further as to grants of admin- (k) Be Newton, L. R. 1 P. & D. istration to creditor, Coomb* v. 285. Coombs, L. R, 1 P. & D. 272 ; Re (I) Webb v. Needham, 1 Add. Brackenbury , 2 P. D. 272. 18 ESTABLISHMENT OF REAL REPRESENTATIVES. Chap. II. Survival of office. Determina- tion of office by death of sole adminis- trator. When administration is granted to several, and one dies, the office, with its incident duties and powers, survives to the others or other. The rights of an administrator cannot be transmitted, but are determined by his death. Accordingly, on the death of an administrator before he has completed the administration, and distributed the assets, a new administrator must be appointed (m) . 4. At what Time Keal Estate vests in Executors or Administrators. Real estate Where a testator appoints executors of his will, his executor from rea, l estate will devolve on them immediately on his death of death and before grant of probate, as has been and is the case as regards chattels real and other personalty. Real estate Where, however, this is not the case, then inasmuch administrator as an administrator takes only by virtue of the grant of from grant of administration, and can do nothing as administrator administra- . tion. before such grant (>i), a question would seem to arise as to what becomes of the legal estate in the interval before the grant is made. A similar question arose on the construction of section 30 of the Conveyancing Act, 1831 (o), upon the death intestate of a sole surviving trustee. Pearson, J., after pointing out that this Act provides that the legal estate in a trustee or mortgagee shall, on his death, devolve to and become vested in his personal representatives or representative from time to time, observed as follows : — " The question is, what happens w r hen there is no personal representative ? (m) Shep.Touehst. 465; Williams on Executors, Part I., Bk. III.. •:. 4. (//) Wanlcford v. Wavkford, 1 Salk. 310. See Williams' Exe cutors (9th ed.), Vol. 1, p. 342. (o) 44 & 45 Vict. c. 41. WHEN REAL ESTATE VESTS IN REPRESENTATIVES. 10 If the legal estate does not vest in the heir, where is Chap. II. it? On the other hand, the wording of the section seems to evince an intention to exclude the heir." But his lordship did not determine the question (/>). It is obvious, however, that, even if the legal estate does vest in the heir pending the grant of letters of administration, no purchaser, mortgagee, or lessee could safely take from him a conveyance in fee or lease for a term, for the heir could only convey such estate as he has himself, which is determinable on the appointment of an administrator, upon whom not only the legal estate, but also the beneficial interest in the land, will devolve under this Act, with full powers of dealing therewith, in accordance with this Act, for purposes of administration. (p) Rt PUling's Trusts, 20 Ch. D. Be Williams Trust*, 36 Ch. 1>. 432. See Rakestraw v. Brewer, 231. W. N. (1885), 73 ; 33 W. R. 559 ; ( '20 ) CHAPTER III. WHAT ESTATES AND INTEEESTS IN REALTY VEST IN REAL REPRESENTATIVES. 1. Legal and Equitable "Real Estates" vest in Personal Representatives. Devolution of It will be convenient in this place to set out verbatim in real estate the enactment whereby real estate within the meaning on death. f tj ie Act j s ma( j e to devolve upon the executors or administrators of a deceased person. This enactment is as follows : — Section 1. — (1.) Where real estate is vested in any person without a right in any other person to take by survivorship it shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time as if it were a chattel real vesting in them or him. Legal estates It is clear that the effect of the above section as deceased regards all cases coming within it, is to vest in the persons personal representatives of a deceased person all real their personal estate within the meaning of the section to which he representa- was beneficially entitled at law at the time of his death tives. , J . m like manner as a real chattel would hitherto have devolved, and still would devolve, on his executors or administrators. Thus, the estate of a man seised in fee simple of land free from incumbrances will now pass to his personal representatives ; and if an owner of real estate within the meaning of the sub-section above set out, gives an equitable mortgage by agreement or deposit of deeds, but without parting with the legal estate to the mortgagee, such legal estate and also the beneficial LEGAL AND EQUITABLE ESTATES. 21 interest subject to the mortgagee will, on the death of Chap. hi. the mortgagor, devolve on his personal representatives, whether he dies intestate or purports to devise his estate immediately upon his death to any other person. It will be observed that the marginal note to the Marginal above section mentions only the devolution of legal of Parlia interest; but it is now settled, after some conflict of ""'"'' opinion, that the marginal notes to an Act of Parliament are not to be deemed part of the Act (q) . There appears, on an examination of the text of the Whether , . -, ..... equitable statute, to be nothing which necessarily limits the interests in application of Part I. to cases where the legal estate is ^ a jtK- ar tif lsc vested in an owner of land at his death ; and it is Act. submitted that such restricted construction is incon- sistent with the policy and spirit of the Act, which is evidently to assimilate for purposes of administration in cases falling within it, the law as to the devolution of real estate to that which has hitherto prevailed as regards personal estate. It is therefore conceived that the operation of the statute is not intended, and ought not to be regarded, as limited to cases where a deceased person had the legal estate in land vested in him at his death, but must be extended to cases where such estate was then outstanding in a trustee or mortgagee. It may then be assumed with some confidence that Legal estate equitable, no less than legal estates in real estate, will by °," trustees for virtue of this Act pass, on the death of the owner, to persons his executors or administrators. And this being so, if entitled. the legal estate was outstanding in trustees upon trust for a person beneficially entitled in fee, as, for instance, if land was settled and all the particular estates having determined, the ultimate equitable remainder in fee vested in that person, he would have been entitled (q) Sutton v. Sutton, 32 Cb. D. 511. See Claydon v. Orem, L. R. 3C. P. 511. outstanding in a mort 2'2 WHAT REAL ESTATES VEST IX REPRESENTATIVES. Chap. hi. { n hi s lifetime to call upon the trustees to convey the legal estate vested in them to him at any time. And, upon his death on or after January 1st, 1898, without having had the legal estate conveyed to him, the equitable estate or interest in the land and the right to compel conveyance by the trustees in whom it is vested will devolve upon the personal representatives of the deceased equitable owner. Legal estate Where an estate of inheritance in land is mortgaged, the equity of redemption is, until foreclosure, not merely a right of entry on payment of the mortgage moneys, but an estate vested in the mortgagor as owner of the land ; and accordingly all incidents of ownership, including devolution and the right of devise, attached prior to the Act now under consideration to the mortgagor's estate, subject and without prejudice to the mortgage, but otherwise in like manner as if the land had not been in mortgage. It is conceived that this estate must now, on the mortgagor's intestacy or notwithstanding any contrary direction in his will, devolve by virtue of the present Act, in the first instance, upon his personal representatives, who will be entitled to retain it so long as is necessary for purposes of administration, and then will be compellable to vest it by assent or conveyance in the devisee named by the will, or in the heir-at-law, as the case may be. The result then appears to be that, in the case of any person on or after January 1st, 1898, all his freehold estate of inheritance in any lands, no less than his chattels, both real and personal, will pass to his execu- tors or administrators ; and that no devise or testamentary direction to the contrary will be sufficient to oust their right ; so that even a specific devisee will not be entitled to claim the land devised until the executors have assented to the devise. exception of rights by survivorship. 28 2. Exception where Eight to take by Survivor- Chap. hi. ship. Section 1, sub-section (1), of the Act of 1897, excludes from the operation of the Act real estate vested in persons where there is a right in any other person to take by survivorship. The class of cases which most obviously falls within Joint tenants. this exception is that of estates in joint tenancy. Where an estate is given by deed or will to several persons, and their heirs or heirs and assigns, a joint tenancy is created, the legal effect of which is that the donees are collectively regarded as a single person ; on the death of one or more of the component individuals making up that person, the others or other surviving take the whole of the estate between them or solely, as the case may be (/•) ; and it is not till the death of the last survivor that this Act will come into operation and divert into the hands of the personal representatives of such survivor the property which, but for the Act, would have passed to his heir-at-law or devisee. If the joint tenancy is severed by the disposal of his interest by a joint tenant, which he has full power to do by alienation inter vivos, but not by will, the unity of title will be destroyed, and a tenancy in common will be created, which will let in the operation of the Act (s). The above remarks will apply equally to parceners, Co-parceners, each of whom takes by right of survivorship on death of a co-parcener, and whose estates and interests are generally the same as those of joint tenants, except that as between co-parceners there is no unity of seisin, and that independently of statute, any one of (/■) Bae. Abr. tit. Joint Tenants (s) Co. Litt. 186 a. A.); Co. Litt. 184 a. 24 WHAT REAL ESTATES VEST IN REPRESENTATIVES. Chap. III. Trustees of settlements and wills. them has always had the right to compel his co-owners to make partition (t) . Where by a settlement created by deed or will, real estates are vested in trustees, the limitation is to them as joint tenants, and accordingly, upon the death of one of several trustees of real estate, the property will vest not in his personal representatives, but in the surviving trustees or trustee if any. Upon the death of a sole or last surviving trustee, the settled real estate will vest in his personal representatives by virtue of section 30 of the Conveyancing and Eeal Property Act, 1881 (u). Exception of copyhold and customary lands. Meaning of this sub- section. 3. Exception of Copyholds and Customary Freeholders. By section 1 of the Act it is enacted as follows : — (4.) The expression " real estate " in this part of this Act, shall not be deemed to include land of copy- hold tenure or customary freehold in any case in which an admission or any act by the lord of the manor is necessary to perfect the title of a purchaser from the customary tenant. This sub-section does not seem to be very happily worded ; it seems to contemplate some classes of cases where admission, or some act of the lord, is not necessary to perfect the title of a purchaser from a customary tenant. But none such are to be found ; "the great criterion of a customary estate is, that all alienations of it must be transacted, in part at least, in the lord's court "(x). The words after "customary freeholds " therefore appear to be surplusage, and might well have been omitted, as tending to make the (t) Bac. Abr. tit. Co-parceners. (u) 44 & 45 Vict. c. 41, set out ante, p. 3. (a?) Thompson v. ffardinge, 1 C. B. 940, and cases there cited ; see Litt. 74, 75 ; see also Ddach&rois v. Delacheroi*, 11 H. L. C. at p. 83. QUANTITY OF ESTATE. 25 reader suppose that some lands of copyhold tenure or Chap. III. customary freehold are excluded, which seems not to be the case. This exception from the operation of the Act of lands Saving of copyhold or customary freehold tenure has the effect, mortgagee's in cases where such lands are in mortgage, of preserving ri ? h * to ad - 00 *■ . " mission on the right of a mortgagee, who has not been admitted death of during the life of his mortgagor, to claim admission on mort g a g° r - the death of the mortgagor as against his customary heir or real representatives or any other person ; and on the death of the mortgagee the right to admission vests in his personal representatives under section 30 of the Conveyancing and Eeal Property Act, 1881. Subject to the right of the mortgagee or his representatives to admission, the right vests in the devisee or customary heir of the mortgagor. 4. What Estates and Interests are Eeal Property vesting in Executors and Administrators. The wording of section 1, sub-section (1), of the Act Quantity of of 1897, does not seem to indicate the nature and extent ^f personal^ of the estates and interests in real property, which are presentatives. intended, on the death of the person in whom such property was vested, to vest in his executors and administrators, with sufficient distinctness to prevent questions of some doubt and difficulty from arising on this point. Eeal estate may be vested in a man in fee, in tail, or for life only ; and it might have been expected that the section would either have been worded after the more elaborately framed model furnished by section 30 of the Conveyancing and Law of Property Act, 1881, with necessary modifications; or else, that it should have been expressed that the real estate should pass only to the extent of the estate or interest which was vested in the owner at his death. •2C) WHAT REAL ESTATES VEST IX REPBE SENT ATI VES. Chap. I1T. What the sub-section says (omitting words not , material to the present purpose), is, that real estate on the word- vested in any person without a right in any other mgo s. ( ). p erson t take by survivorship, shall on his death vest in his personal representatives. No qualification is annexed to the expression " real estate," which expression prima facie is open to the meaning that the whole real estate, i.e., the fee simple in the property (whether the owner was seised of the real estate for an estate of inheritance or not), the w T hole fee would by virtue of the Act pass to his executors or administrators. This cannot possibly have been the intention, as, where real estate is limited to A. for life, with remainder to B., the result of vesting the fee in A.'s personal representatives on his death with powers of dealing with it, would be to take B.'s property away from him for the payment of A.'s debts. Such a construction is too manifestly absurd to be maintainable, and it must be taken that only estates of inheritance, viz., estates in fee and in tail, or only the former, are to be deemed to come within the operation of Part I. of the Act of 1897. It is now proposed to consider what estates and interests are presumably intended and will probably be held to be included in this sub-section. As to estates Estates of inheritance in realty may be limited in fee deceaWa' Dv snc ^ words as " to A. and his heirs," or "to A. for owner in life, and after his death to his heirs" (//). The word ee simpe ,« j ie j rs> " j n e jther case, is a word of limitation, and the effect is to vest in A. himself the estate of inheritance, which he may freely alienate inter vivos, or devise by his w T ill, so as to disappoint the heir, who accordingly takes, not as purchaser or by any right of survivorship, but takes, or would have taken but for the passing of this Act, as real representative of the deceased owner, only such real property as was not disposed of at his (y) Shelley's case, 1 Rep. 94. See Jarman on Wills (5th ed.) Vol. II., pp. 1177, et seq. QUANTITY or ESTATE. 27 death. Therefore, whether a man is seised in fee Chap. III. simple in possession, or by way of vested remainder, such estate of inheritance will at his death vest in his personal representatives. The question of contingent remainders will be considered later. The estate tail is also an estate of inheritance in the As to estates owner himself ; so that the heir in tail does not take tail, by right of survivorship, but takes under the limitation, and not as purchaser. This is so whether the estate tail is limited to a man and the heirs of his body generally, or to him and the heirs of his body by a particular wife (z). In the latter case, however, an estate in tail special is created, so that upon the death of the particular wife without issue of their two bodies living, the husband becomes tenant in tail after possibility of issue extinct, and has, in effect, nothing more than an estate for his life (a) . It would therefore seem that the real estate of the Devolution deceased tenant in tail will on his death pass to his of estate personal representatives to the full extent of the estate tail. If then, the estate of a deceased tenant in tail in possession vests in his personal representatives, on his death, such representatives will become and con- tinue to be entitled to such estate, until they convey the same to the next heir in tail, who, but for the passing of this Act, would be entitled to the immediate possession of such estate. The result would be the same on the falling into possession during their tenure of an estate tail in remainder vested in a deceased owner. The representatives will therefore, during the period of administration, be entitled to receive the rents and profits and apply the same towards pay- ment of the debts, etc., of a deceased tenant in tail. The (z) The rule in Shelley's case 22 b ; Manderille's case, Co. Litt. applies no less to estates tail as to 26 b. estates in fee simple, Co. Litt. (a) William* v. William*, 12 East, 209. 28 WHAT EEAL ESTATES VEST IN REPRESENTATIVES. Chap. III. effect of this enactment would thus seem to be to substitute temporarily the representatives for the heir in tail and to constitute them his involuntary assigns, holding a position in some respects analogous to that of a trustee in bankruptcy. Devolution of Similarly, if a person has died entitled to an estate base fee. ^ a ji m rem ainder, which has been barred in his lifetime without the consent of the protector of the settlement and so converted into a base fee, then that estate will pass to the extent of the base fee, so as to enable the personal representatives to deal with the reversionary estate so vested by way of sale or mortgage for the purpose of administration. But unless the consent of the protector of the settlement can be obtained, or unless he dies during the period of administration, the disentailing assurance cannot be perfected, nor can the land be conveyed by anyone to a purchaser or mortgagee so as to bar the persons entitled under the entail other than the direct issue of the tenant in tail. Powers of Assuming the views above indicated to be correct, it sale, etc., would seem to follow that the executors or adminis- under the Settled Land trators of a deceased tenant in tail (other than tenant in tail after possibility of issue extinct), or a person entitled to a base fee, provided that the estate is in possession, or falls into possession during their tenure, will have the powers of sale and mortgage given to tenants for life by the Settled Land Acts (b), and will accordingly be able to sell and convey the fee in the settled land or any part thereof, or any easement, right, or privilege of any kind over or in relation to the same ; and that they will also be able to mortgage the fee of the settled land or any part thereof for the purpose of discharging incumbrances thereon and other purposes mentioned in the Settled Land Acts. (h) 45 & 46 Vict. c. 38, s. 18 ; 53 & 54 Vict. c. 69, s. 11, Acts. QUANTITY OF ESTATE. 29 But, if so, the moneys thus raised by sale or mortgage Chap - iil of settled land of which the last owner was tenant in A lication tail, or for a base fee, will be capital money arising of moneys under these Acts (c), and accordingly the money must gales, eta, be paid not to the executors or administrators, but to under the the trustees of the settlement (d) , and must be applied poW ers. by the latter strictly in accordance with the provisions of the Acts (e), and, so far as not so applied, must " be held for and go to the same persons successively in the same manner and for and on the same estates, interests, and trusts as the land wherefrom the money arises would, if not disposed of, have been held and have gone under the settlement " (/). This being so, it is obvious that money raised by sale or mortgage of the settled lands cannot be applied by the executors or adminis- trators of a deceased tenant in tail, or owner of a base fee, in payment of his debts, or other expenditure of or incident to the administration of his general estate. In order, then, to render the corpus of settled land Whether available for payment of debts, etc., of a deceased sen tatives can tenant in tail or owner of a base fee, it would be necessary bar an entail, for his executors or administrators to bar the entail or enlarge the base fee, as the case may require ; other- wise, they will not be able to convey the fee simple to a purchaser or mortgagee so as to bind the persons entitled under the entail. The question is, have the executors or administrators power to do this ? With the exception of certain estates tail granted Estates tail by the Crown by way of reward for public services, and barrable: some such estates which have been created by particular Acts of Parliament, it has long been settled that the right to bar the entail is an essential and inseparable incident to an estate tail, and that any attempt to (c) 45 & 46 Vict. c. 38, s. 2 (9). (e) lb. s. 21. (d) P). e. 22 (1). (/) lb. e. 22 (5). 30 WHAT HEAL ESTATES VEST IX REPRESENTATIVES. Chap. hi. restrain this right is void (g). A doubt might, therefore, possibly suggest itself whether the executors or adminis- trators of a deceased tenant in tail, as being themselves for the time being tenants in tail of the settled lands, might not at any time until they convey the estates to the person next in succession under the entail, bar the estate tail if in possession, or if it falls into possession during their tenure, or if in remainder, then with the consent of the protector of the settlement ; and that, having so barred the entail, they might not be able to make a good title and convey the fee simple in the settled land free from the entail to a purchaser or a mortgagee. General it is, however, conceived that there are no sufficient grounds for such a contention. It must be borne in mind that the above observations only express the writer's views of the effect of the enactment under consideration as regards the vesting of ' ' real estates ' ' on the death of a tenant in tail ; and, even if those views are correct, the statute does not give to the personal representatives any express power to bar the entail (h). It would be a curious and startling result of this Act, if, in the absence of any express provision, it were to be held that persons in possession of the land temporarily and for a limited purpose, have the power to alter the nature of the estate of an actual tenant in tail even for his presumable benefit, without his consent, and, perhaps, without his knowledge, or even against his wishes. Moreover, even if, as above suggested, the personal representatives of a deceased tenant in tail are to be regarded as the involuntary assigns of the person next entitled under the entail, yet they cannot, as such {(/) TaltarunCs case, Year Book, powered to "deal with any pro- 12 Edw. 4, 19 ; Mary Partington's perty to which the bankrupt is case, 10 Rep. 36 ; see Co. Litt. beneficially entitled as tenant in •224 a ; Fearne C. R. 260. tail in the same manner as the (A) By the Bankruptcy Act, bankrupt might have dealt with 1 883 (46 & 47 Vict, c. 52), s. 56 (5), it, " trustees in bankruptcy are em- QUANTITY OB 1 ESTATE. 3l be in a better position than a purchaser for value or Chap. III. mortgagee, who, as is well known, has no power to bar the entail. In the absence of any statutory provisions specifically dealing with the point, all that can be done is to draw inferences from settled rules of law, and to endeavour to apply those rules to an entirely novel situation created by a statute which certainly does not err in the direction of prolixity or elaboration of detail. It may therefore be considered as clear that a purchaser or mortgagee cannot safely accept a title purporting to be made under a deed of disentailer or enlargement executed by the executors or administra- tors of a deceased tenant in tail or owner of a base fee, unless indeed the power of executors or administrators to make such a title should be affirmed by judicial decision. Tenants in tail in possession of freeholds may Destination generally, by means of a deed duly enrolled, sell and con- ^ mortage vey to a purchaser the fee simple in the lands completely moneys, discharged from the entail ; and, of course, the lands being so discharged, the money representing the lands is also discharged in like manner as if the tenant in tail had first executed and enrolled a disentailing assurance of the land, and then conveyed it by a separate deed. Assuming, therefore, that contrary to the view above expressed, the executors or administrators are for the time being tenants in tail of the settled lands, each competent to bar the entail for the purpose of conveying the lands to a purchaser, it is conceived that the effect of a conveyance by them duly enrolled would have the effect of rendering the surplus moneys not required for purposes of administration the absolute property of the person who, but for the conveyance, would have been next entitled to the lands under the entail. On the same assumption, the case of a mortgage of the fee by the executors or administrators of a tenant in tail would seem to be governed by section 21 of 32 WHAT REAL ESTATES VEST IN REPRESENTATIVES. C hap. I ll the Fines and ^Recoveries Act (i), whereby a disposition under this Act by a tenant in tail, by way of mortgage of the fee, is to be " an absolute bar in equity as well as at law to all persons as against whom such disposition is by this Act authorized to be made;" the effect of which appears to be, that if the executors or adminis- trators can and do make a valid mortgage in fee with a provision for redemption in the common form, they would thenceforth be owners in fee simple subject to the mortgage, and will be absolutely entitled to the surplus proceeds (if any), but would hold the lands and moneys as trustees for the person entitled thereto, being the person who, but for the mortgage, would be the next tenant in tail under the settlement. As to obtain- It is, however, conceived, notwithstanding the doubts currence of above suggested, as to whether the executors or the next administrators of a deceased tenant in tail may not tenant in tail. . J have power to make a good title to the fee on a sale or mortgage, that the power of barring the entail during the possession of the executors or administrators remains vested in the person who, but for this Act, would be entitled as next tenant in tail in possession. By the Fines and Kecoveries Act (k), section 15, it is enacted " that every actual tenant in tail whether in possession, remainder, contingency, or otherwise, shall have full power to dispose of for an estate in fee simple absolute, or for any less estate, the lands entailed," as against all persons claiming in remainder under the settlement. And by section 22 of the same Act, it is enacted that " if at the time when there shall be a tenant in tail of lands under a settlement, there shall be subsisting in the same lands or any of them under the same settlement, any estate for years deter- minable on the dropping of a life or lives, or any greater estate, not being an estate for years prior to the estate (i) 3 & 4 Will. 4, c. 74. to the power to enlarge base fee (Jc) 3 & 4 Will. 4, c. 74. As see s. 39 of the same Act. QUANTITY OF ESTATE. 33 tail," then the owner of such prior estates, or of the Chap. III. first of such prior estates, if more than one, shall be the protector of the settlement ; and by section 34, where there is a protector, his consent is made requisite to enable an "actual tenant in tail to create a larger estate than a base fee." If, therefore, the executors or administrators are to be regarded as owners of the prior estate "under the settlement," the next tenant in tail can effectually bar the entail with their consent ; if they are not such owners, he can do so independently of their consent. Where a fee simple in real estate is settled upon As to estates i • • p ■ * ■ , i for life vested several persons in succession, as, lor instance, it it be m a deceased limited to the use of A. for life, with remainder to B. person. in fee, then upon the death of A., B. does not take by right of survivorship, so as to come within the meaning of section 1, sub-section (1) of the Act of 1897, but by virtue of the settlement itself, under which he had a vested remainder during A.'s lifetime. Although upon a strict construction the sub-section seems to say that the real estate, which was vested in A. during his life, is to vest by virtue of the Act in his personal representatives, so as to enable them to deal with the fee as they please under the Act for the purposes of administration, as has been already seen (I), yet this cannot possibly have been the intention of the Act. It may, therefore, be safely assumed that upon the death of a tenant for life under a settlement, the settled real estate will not come within the operation of the Act, but will pass imme- diately to the remainderman, as if the Act had not passed. Estates pur mitre vie, limited to the heir as special As to estates occupant, are specially mentioned in section 30 of the pm Conveyancing and Law of Property Act, 1881 (in), and (/) See ante, p. 26. {m) 44 & 45 Vict. c. 41. R.R. D 14 WHAT REAL ESTATES VEST TN REPRESENTATIVES. Chap. III. are thereby, if vested on any trust or by way of mortgage, in any person solely, expressly made to pass to his personal representatives. The Act of 1897 does not mention such estates, and it seems open to doubt whether they pass on the death of the owner by virtue of the Act to his personal representatives, or whether they will not devolve immediately on the heir as heretofore. Estates pur autre vie limited to a man and his heirs, being freehold tenements, would seem to be " real estates," and so prima facie to devolve by virtue of the Act of 1897 on personal representatives. But an estate pur autre vie so limited, though a tenement, is not a hereditament or estate of inheritance, and therefore not entailable within the statute De Donis (n), so that no common recovery would formerly have been suffered of it (o) . Such estates have long been alienable inter vivos by the owner (p), and are devisable by his will (q), whereby his heir may be disappointed ; but if not so disposed of, the estate (apart from this Act) will devolve on the heir not as such but as special occu- pant^), that is to say, not by virtue of the words of limitation in the grant of the estate, nor as taking by way of representative a quasi fee simple vested in the deceased owner himself, but as a persona designata speci- fically described in the grant and taking by way of purchase. In other words, the grantee of an estate for life limited to him and his heirs, unless he disposes of the whole estate by deed or will as he has power to do, is virtually a mere tenant for life, and the heir takes as re- mainderman an independent interest . It may be said that the grantee had power to dispose of the whole estate in his lifetime or by his will if he had chosen to do so, and (n) 13 Edw. I.e. 1. abolished by the statute, 29 Car. 2, (o) Grey v. Mannock, 2 Eden. c. 3, s. 12 ; and estates pur autre 339. vie, where there is no special occu- (p) Challis, R. P. 290. pant, devolve and are applicable (q) 1 Vict. c. 26, s. 3. as personalty. See statute 14 (r) Ripley v. Waterworth, 7 Ves. Geo. 2. c. 20, s. 9. at p. 438. (General occupancy is APPOINTMENTS UNDER GENERAL POWERS. 35 that therefore the property which was so absolutely at Chap. hi. his disposal ought to be made available to satisfy his creditors if required. It may be quite reasonable that this should be so, but the Legislature has not said so. The property not having been disposed of by the grantee, his interest therein is absolutely determined by his death, and the property has become the property of the heirs by way of remainder. The same reasoning, which goes to show that it cannot have been the meaning of the Act of 1887, that on the death of a tenant for life of settled lands the whole fee should vest in his personal representatives and be available for payment of his debts, seems to apply, though not so manifestly byway of reductio ad absurdum, to the case of an estate pur autre vie limited to the grantee and his heirs, and which the grantee has not disposed of. Anyhow, it will not do to blow hot and cold in construing the same enactment. Estates pur autre vie coming into the hands of the Estates pur heir by reason of a special occupancy are chargeable assets!^ arG in his hands as assets by descent (s). 5. Appointment of Real Estates under General Powers. Section 1 of the Act of 1897 further enacts that : — Application (2.) This section shall apply to any real estate over appoint- which a person executes by will a general power of ments. appointment as if it were real estate vested in him. A general power as distinguished from a particular General and or limited power is thus defined by Lord St. Leonards (t) : fo^^f"" " By a general power we understand a right to appoint- appoint to whomsoever the donee pleases. By a Anguished. (s) 29 Car. 2, c. 3, s. 12. (t) Sugd. Powers (Sth ed.) 394. P 2 36 WHAT REAL ESTATES VEST IN REPRESENTATIVES. Chap. III. particular power it is meant that the donee is re- stricted to some objects designated in the deed creating the power, as to his own children. A general power is, in regard to the estates which may be created by force of it, tantamount to a limitation in fee, not merely because it enables the donee to limit a fee, which a particular power may also do, but because it enables him to give the fee to whom he pleases; he has an absolute disposing power over the estate, and may bring it into the market whenever his necessities or wishes may lead him to do so." A general By section 27 of the Wills Act (u) it is enacted that fnclude 11 " a g enera l devise of the real estate of the testator in any estates over place or in the occupation of any person mentioned or testator ^has a otherwise described in a general manner, shall be general power construed to include any real estate or any real estate ment. which such description shall extend, as the case may be, which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power unless a contrary intention shall appear by the will." The rule in administration which has hitherto pre- vailed with regard to general powers of appointment is thus stated by Mr. Farwell{v): — " Both real and personal estate, subject to general powers of appointment, become assets for payment of the appointor's debts if the power is actually exercised in favour cf volunteers ; and it makes no difference whether the power is exerciseable by deed or by will, or by will only (x)." Effect of this The effect of the above sub-section therefore appears enactment. ^ Q ^ tQ ^- ye i e gi s i a tive confirmation to this rule as regards realty, actually appointed by will. But to render such realty assets in the hands of the real («) 1 Vict, c. 26. Madd. 2M', Fleming y. Richardson, (/•) Farwell, Powers, 254. 3 De. G. M. & G. i»7<5 : WillicmsY. {x) See Jenney v, Andrews, 6 Lomas, 16 Beav, 1, MEANING OF " REAL ESTATE." 37 representatives of the deceased instead of as heretofore Chap. III. in the hands of the appointee. In order, however, to render real estate over which a Appointment person has power to appoint, by will, assets in thet^ enma d| i hands of his real representatives, the power must have been actually executed, for equity will not aid the non- execution of a power (//). Under the former law, although property appointed Appointee by will under a general power was assets for payment ^od°title till of debts, so that the claims of creditors prevailed over assent, volunteers, yet the equity of a bund fide purchaser for value from a person taking under a voluntary deed of appointment was preferred to that of general creditors having no specific charge. This rule would appear still to prevail as regards personalty, but the present Act, by expressly enacting that real estate appointed by will, like real estate vested in the deceased person, shall pass to his personal representatives on his death, seems to • deprive the appointee of any estate or interest in the property, so that he cannot make a good title to it or effectually convey it to a purchaser, until the personal representatives have assented to the appointment or conveyed the property to the appointee (z). 6. What " Eeal Estate" will pass to Executoks or Administrators. With the exceptions above noticed, the Act of 1897 No statutory enacts that "real estate" of a deceased person shall riven f vest in his personal representatives. But it is to be " real ^ observed that the Act nowhere contains any definition of the term "real estate." It can only be presumed, though no doubt with some confidence, that the intention of the Act is to include and bring within its (y) Holmes v. Coqhill, 7 Ves. 4U'.). 17i»; Hart v. MidcUehvrst, 3 Atk. (z) Georgi v. Hillbanke, !> Yes. 937; 3 Sugd. Powers 2& (6th ed.) 38 WHAT REAL ESTATES VEST IN REPRESENTATIVES. Chap. III. Ordinary meaning of "real estate. Meaning of " land " in Acts of Parliament. Meaning of ' ' real estate " in Act of 1897. operation all kinds of property which are generally recognized among lawyers as being real estate. "Real estate " in the sense commonly accepted by lawyers is equivalent to " tenements," which latter expression includes not only "lands" in the narrower sense of that term, but also all rights of an incorporeal nature incident to or concerning land which have a substantive though invisible being, whether the estate of the owner devolves, or would, but for this Act devolve, on his heir or not (a) . It is curious to observe that after section 1 the expression " real estate " is generally dropped, and the expression " land " frequently occurs, with presumably the same signification ; that expression is defined to include "all hereditaments corporeal and incorporeal" (b). By the Interpretation Act, 1889 (c), in the construction of an Act of Parliament, unless the contrary intention appears, the expression " lands " is to include messuages, lands, tenements, and hereditaments, houses and buildings of any tenure. In the Act of 1897 sufficient indications of contrary intention appear to exclude from its operation copyholds, customary freeholds, and leaseholds, and to confine its application to freehold " lands " as thus defined. The term " hereditaments " is of very wide significa- cation, and includes all real estate, corporeal and incorporeal, which on the death of the owner intestate would, on the common law, devolve on his heir (d). It may therefore be inferred that the Act of 1897 vests in the real representatives of a deceased owner all his "real estate" or "land" whatsoever, with the exception of copyholds, customary freeholds and leaseholds, including not only his land in the (a) Co. Litt. 4a, 19b, 20a ; see B. v. Tolpuddlt (Inhabitants of), 4 T. R. 671 ; see also Burton's Compendium, 1, 3. 91. (b) See s. 24 of the Act. (c) 52 & 53 Vict. c. 53, s. 3. (d) Co. Litt. 6a ; Shep. Touchst. LAND. 39 common acceptation of the term, with all houses, Chap. III. buildings, timber, and growing produce erected or being thereon, and mines thereunder (e) , but also all his real property of an incorporeal nature such as manors, advowsons, tithes, easements, profits a prendre, rent charges, and fee farm and other rents and franchises and offices annexed to lands, and other rights. As regards land in the narrowest sense of the word, Some effects with the houses, etc., thereon, the result of the Act °f "Hmda"* may in some cases be to cause considerable and some- in executors what unpleasant surprise in the minds of devisees and trators. expectant heirs, and other persons. The widow or eldest son of a deceased owner in fee will find them- selves liable, certainly for a year from the death, and perhaps for a much longer period, to be excluded from the marital or paternal home ; and if they do remain in occupation of the same, it will only be by the permission or acquiescence of the real representatives, who would have it in their power, and indeed would be bound, so long as there is any risk of the personalty proving insufficient for payment of the debts of the deceased, or any legacies given by his will or any codicil thereto, to charge the devisee or heir with a rent in respect of such occupation, and to accumulate such rent to meet the contingent risk. This enactment may also in some cases operate so as to interrupt the continuity of the management of the estate ; as for instance, if a father has carried on a freehold farm with the assistance of his eldest son, to whom he devises the farm, but does not appoint him executor. On the father's death, the son will be liable to be excluded from all control and management of the farm, unless the executors, as real representatives of the father, see fit to employ him as manager ; and he would also be liable to be charged an occupation rent for the farm during the period of (e) Co. Litt. 4a, b, Shep. Touchst. 92 ; 2 Black. Com. 218. 40 WHAT REAL ESTATES VEST IN REPRESENTATIVES. Chap. 111. administration, or to hand over the net rents and profits to the real representatives, though prohably as against such payments, wholly or in part, he would be entitled to set off a claim for his salary as manager. Such cases will, however, probably not be of frequent occurrence. Leaving out for the present the question of settled lands, which will be hereafter considered, testators who are owners of real estates of inheritance will probably be careful to appoint the devisee of such estates as one of the executors, and in cases of intestacy it may be expected that the heir-at-law will be appointed by the court to be administrator of the real estate of the deceased, and so that he will be entitled solely or jointly with others to the possession and control of the property. Or it may happen that the real representatives may without risk to themselves let the devisee or heir-at-law into possession shortly after the owner's death, either because there is no reasonable prospect of the real estate being required in due course of administration for payment of debts, etc., or because a sufficient sum to meet the liabilities has been raised by mortgage or sale of part of the land. Incorporeal It has been seen above that the expression " land " ments vest in m ^ cts °* Parliament generally, and in the Act of executors or 1&97 includes incorporeal hereditaments, which will trators. accordingly by virtue of this Act vest in the executors or administrators of a deceased person in whom such hereditaments were vested at his death. Manors and Copyholds are holden of a manor and are parcels rights/ thereof. A manor is constituted by the union, by virtue of an ancient grant of the Crown, of the freehold estate in the lands (commonly called the demesnes) of the manor, with the seignory over all lands within the manor (/). (,/') Co. Cop. s. 31. MANORS. 41 The seignory includes the freehold estate in all Chap. III. copyholds, parcels of the manor, waste lands within the , manor, generally the right to mines, minerals, and seignory. timber ; the right to hold courts ; to grant licences to copyholders to lease their lands ; to demand heriots on deaths of tenants ; to demand fines on admittances, rents, suits and services according to the custom of the manor ; to enforce forfeiture on alienation and other acts contrary to the customary tenure ; and last, but not least, the right of escheat, whereby on the death of a tenant in customary fee simple without leaving a customary heir, and without having incurred forfeiture to the Crown, as by treason {g), the lord may enter on and recover possession of the land. The lord so entering is not strictly a purchaser, but the land acquired by escheat is united to and devolves with the seignory to which the right of entry is attached (//). A seignory also includes the true freehold of what Customary are usually termed "customary freeholds," but their essential characteristics are the same as those of copyholds, inasmuch as the existence, nature and incidents of the tenure depend on custom and not on the common law, and admittance by the lord is necessary to complete the title of the tenant whether he takes by devise, descent, or purchase for value (/). The rents and services issuing out of such lands will pass by grant of a manor (j) . A manor being an incorporeal hereditament of a Devolution of freehold nature, will devolve, on the death of the lord ™£££™ on or after January 1st, 1898, on his executors or or adminis- admmistrators, who will be the proper persons to demand and recover heriots, fines, and rents, to hold (gf) Forfeiture for treason, etc., (») Burton's Compendium, 12S3; is now abolished. Challis on Real Property, 26 ; see (A) Co. Litt. 18 b, Hargreaves' Doe v. Huntington, i East, 271. note. (./) Co. Litt, 58 a : Bl, Gomni, 53. 42 WHAT REAL ESTATES VEST IN REPRESENTATIVES. ('map. III. Advowsons. Right of nomination to benefice during period of administra- tion. Analogies of rules as to mortgages and bank- ruptcy. Mortgagor's right to nominate. courts, to grant licences to tenants of the manor to lease their lands, and to exercise and enforce all other manorial rights, powers, and privileges. An advowson or right of presentation to an eccle- siastical benefice is also an incorporeal hereditament, and therefore " real estate " within the meaning of the Act of 1897, and will vest accordingly in the executors or administrators of a deceased patron, who may sell or mortgage it for the purposes of administration. It is clear that the legal right of presentation resides during the period of administration in these repre- sentatives as owners of the advowson, but it does not seem clear in whom the right to nominate is vested in case of a vacancy occurring during that period. Should this question require judicial determination it will be one of first impression, and can only be decided upon reasonings from analogy or general principles. The two classes of cases which alone appear to furnish analogies available for this purpose are those of mortgagees and of trustees in bankruptcy. Where an advowson is in mortgage, the right to present is at law in the mortgagee as having the legal estate (k) ; but he is in equity compelled to present the nominee of the mortgagor, for the mortgagee can make no profit by presenting to the church to sink or lessen his debt, and the mortgagee therefore in that case until the foreclosure is but in the nature of a trustee for the mortgagor (I) . By the Act of 1897 (m) it is expressly enacted that the real representative is to be a trustee for the person beneficially entitled, and it would therefore seem that the analogy of the case of a mortgagee is pertinent, and that on the same principle a real representative may be held to be compellable to present the nominee of the devisee or heir. (it) Dyer v. Craven, 2 Dick. 662. (I) Jory v. Cox, Prei. Ch. 71.. (m) See s. 2, sub-s. (1), post, p. 52. ADVOWSONS. 43 The analogy of the relations between a trustee in Chap. III. bankruptcy and the debtor appears to be even closer _ , for the purposes of this question than those between right to mortgagor and mortgagee, inasmuch as a trustee in nonunate - bankruptcy is trustee first for the creditors, and, subject to the satisfaction of their claims, for the debtor. It has long been settled under the former bankruptcy law that if a bankrupt was the patron of an advowson, it would pass to his assignees who might sell it at any time, except when vacant, in the ordinary way, but that if a vacancy occurred before the advowson was sold, the bankrupt, and not the assignee, should present, because the void turn of a church is not valuable («). This rule has since been affirmed by statute (o). Bearing in mind that the main object of Part I. of Consideration the Act of 1897 appears to vest the real estate as well question on as the personal estate of a deceased person in his general representatives for the purpose of more convenient prmcip c realization of administration, that the representatives are not to remain in possession longer than is necessary for such purpose, and that while they are in possession, they are apparently trustees for the devisee or heir, and so bound to consider his interests, and that a vacant benefice is unsaleable, and therefore of no material value in increasing the assets for payment of debts, etc., it is on general principles submitted that the right of nomination to a vacancy occurring during the period of administration will be in the devisee or heir and not in the real representatives. On the other hand, it must be remembered that the Right of allowance to executors of a right to nominate and presentThdr present to a vacant benefice any person whom they may own nominee select, is not unknown to the law. If one be seised of caS es. (») Burns, Eccl. Law, Vol. I., Maymont, 1 Atk. 196. tit. Benefice (I., 4); see Exp. (o) 12 & 13 Vict, c. 106, s. 147. u WHAT BKAL ESTATES VEST IX REPRESENTATIVES. Chap. III. all advowson in fee, and the church doth become void, the void turn is a chattel ; and if the patron dieth before he doth present, the avoidance doth not go to his heir, but to his executors ; and if the testator do present, and (his clerk not being admitted) then his executors do present their clerk, the ordinary is at his election which clerk he will receive (p) . But hitherto, where the vacancy has been occasioned by the death of a patron, he being incumbent, the right of the heir or devisee to present his own nominee has prevailed (q). Tithes. Tithes are incorporeal hereditaments of ecclesiastical origin, which at common law could not be held by a layman (r) , but which by virtue of the confiscating statutes of Henry VIII. have in many instances ceased to be the property of the church (s) . Tithes in the hands of lay improprietors are included in the expres- sion "tenements" in its wider sense (t), and are expressly made "hereditaments" by statute (u), accordingly come within the definition of "land" in the Interpretation Act, 1889 (a;), and consequently within the operation of the Act of 1897, so as to devolve on the executor or administrator of a tithe owner dying on or after January 1st, 1897 (//). Kent-charges. Rent-charges and other freehold rents are also incor- poreal hereditaments, and will pass by virtue of the Act of 1897, in cases to which that Act applies, on the death of a person entitled thereto, for an estate of inheritance, to his executors or administrators as " real estate." If a man seised of lands grant a yearly rent, (p) Watson, Eccl. Law, c. 9; (t) B. v. Shingle, 1 Stra. 100; Burn, Eccl. Law, Vol. I., tit. B. v. Ellin, 3 Cri. 323. Benefice (3, 5). (u) 32 Hen. 8, c. 7. (q) Holt v. Winchester, 3 Sw. (a;) Ante, p. 38. 47 ; see 7 B. & Cr. 147. iy) Tithes have been very gener- (/•) Sherwood v. Winchcombe, ally commuted for statutory rent- Cro. Eliz. 293. charges under several Acts of Par- ts) 27 Hen. 8, c. 28 ; 31 Hen. liament which need not he here 8, c. 13 ; and see as to Ireland, referred to. 32 & 33 Vict. c. 42. RENT-CHARGES, ETC, ± to be issuing out of the land, to another in fee or in tail, ( ' MAI - pi. or for term of life, with a clause of distress, then it is a rent-charge ; but if the grant be without a clause of distress, it is a rent seek, or a dry rent, to which at common law no distress was incident (z). It is not uncommon, especially in the north of England, for land to be conveyed in fee, with a reserva- tion to the grantor and his heirs of a perpetual rent- charge issuing thereout, commonly called a fee-farm rent. Formerly express powers of distress and entry were usually inserted in deeds of grant of rent-charges, but now their insertion is rendered unnecessary by the Conveyancing and Law of Property Act, 1881 (a), which enables the grantee of a rent-charge under instruments coming into operation after December 31st, 1881, to exercise such powers, though not expressly given by the instruments of grant, and also, if thought advisable, to limit a term of years to secure the rent- charge. These statutory powers being given " to the person entitled to receive the annual sum," will under the Act of 1897 be exerciseable by the executors or administrators of a grantor dying on or after January 1st, 1898, as being the persons so entitled during the period of administration. Like rent-charges, New Kiver shares (6) and Eiver New River Avon shares (c) are real estate, and accordingly such s iares ' shares, or fractional parts thereof, will devolve, under the Act of 1897, upon the personal representatives of a deceased owner. In the ordinary acceptation of the term " real Easements, estate" also includes easements, which are incorporeal (z) Co. Litt. 144a ; Gilbert, (a) 44 & 45 Vict. c. 41, s. 44. Rents, 38 ; Hoy's Maxims, 132. (h) Dryhutter v. Bartholomew, 2 The statute 4 Geo. 2, c. 28, s. 5, P. Wins. 127. extended powers of distress to (<•) Bvckeridge v. Ingram, 2 Ves, rents seek. Sen. 052, 46 WHAT REAL ESTATES VEST IN REPRESENTATIVES. Chap. III. hereditaments (d). Easements have been thus denned : "An easement is a privilege, without profit, which the owner of one tenement has a right to enjoy in respect of that tenement, in or over the tenement of another person, by reason whereof the latter is obliged to suffer, or refrain from doing, something on his own tenement for the benefit of the former (e) . Profits a prendre. Profits a prendre are also incorporeal hereditaments, and therefore " real estate," so as to pass, by virtue of the Act of 1897, to the personal representatives of a deceased person entitled thereto for an estate of inherit- ance. Profits a prendre differ from easements in that the former give to the grantee a right to appropriate or participate in the profits of land (/). The term includes rights of fowling or fishing (g), rights to enter on land of another for the purpose of felling trees (h) , or of getting stones, gravel, or sand (I), and rights to pasture cattle on the lands of another (Jc). The rights of shooting over the covers, moors, or fields, or fishing the streams or lakes of an estate will, by virtue of this Act, be taken away from the devisee or heirs, and vested in the executors or administrators until they assent to the devise or execute a conveyance of the rights to the devise or heirs. Titles of honour. Titles of honour or dignities having been originally annexed to land(/), are considered as real estate, and are incorporeal hereditaments wherein persons may have a freehold. A peerage or baronetcy, however, is not alienable by the holder of the title during his (d) Hewlins v. Shippam, 5 B. & Cr., at p. 229. (e) Goddard on Easements, 2. (f) Gale on Easements, 1, 8. (g) Pears v. Lacy, 4 Mod. 355 ; see Hooper v. Clark, L. R. 2 Q. B. 200; Webber v. Lee, Q. B. D. 315. (h) Bailey v. Stevens, 12 C. B. (N.S.)91. (i) Constable v. Nicholson, 14 C. B. (N.s.)230. (k) Bailey v. Appleyard, 8 A. & E. 161. (I) 1 Inst. 20a. See Gerrard v.
  • ) CHAPTER V. OF THE POWEES OF EXECUTORS AND ADMINISTRATORS IN RELATION TO REAL ESTATE. 1. General Enactment as to Powers, etc., of Personal Representatives. The Act of 1897 contains no provisions specifically defining the powers, rights, duties of real representa- tives during or on the determination of the period of administration, but it merely applies to real estate by reference all the existing statute and case law with regard to personal estate generally, and chattels real in particular so far as applicable to real estate, with an exception which will be noticed in due course. By section 2 of the Act it is enacted as follows : — (2.) All enactments and rules of law relating to the effect of probate or letters of administration as respects chattels real, and as respects the dealing with chattels real before probate or administration, and as respects the payment of costs of administration and other matters in relation to the administration of personal estate, and the powers, rights, duties and liabilities of personal representatives in respect of personal estate, shall apply to real estate so far as the same are applicable, as if that real estate were a chattel real vesting in them or him, save that it shall not be lawful for some or one only of several joint personal repre- sentatives, without the authority of the court, to sell or transfer real estate. Remarks on It is to be regretted that (no doubt owing to want of this enact- time at the end of last session) it was not found possible ment. L Referential ° application of rules of law as to chattels real to real estate. DEALINGS WITH REAL ESTATE BEFORE PROBATE, ETC. 61 to enact Part I. of this Act in a somewhat fuller form, Chav. v. containing, among other things, well considered and carefully drafted provisions for the guidance of personal representatives as regards their management of and dealings with the real estate of testators or intestate persons. As it is, such guidance must be sought from various and scattered sources, that is to say, from statutes and decisions which were never intended to be applicable to real estate ; and, if any question arises as to whether or not a particular statute is applicable to real estate under particular circumstances, personal representatives are left either to decide the question for themselves, and to act accordingly on their own responsibility, or to subject themselves to the trouble, the administration to the delay, and the estate to the expense, of an application to the court for directions as to how to act. 2. Dealings with Eeal Estate before Probate or Grant of Administration. It has been seen that an executor derives his authority What acts an under the will, and that the estate vests in him as such ^before™ 8 * as from the date of the testator's death (o). It follows probate. that he can exercise all powers and do all acts before probate which he would be entitled to do after probate, with certain exceptions as regards actions and suits relating to the estate. Inasmuch, then, as by the Act of 1897 an executor may deal with the real estate of his testator as if such estate were a chattel real, it would seem that the executor may, immediately upon the testator's death, enter upon and take possession of the real estate (p). So also he will apparently be able before probate to sell or otherwise dispose of the real (o) See ante, p. 18. (p) See as to chattels, Wentw Off. Ex. 81, 82. 62 POWERS OF REPRESENTATIVES OVER REAL ESTATE. Death of executor before probate. Chap. V. estate, and to give a good title and effectually convey the property to a purchaser or mortgagee (y) , and give a receipt for the purchase or mortgage money ; to assent to the taking of the property by or to convey the same to the devisee or heir-at-law (r) ; and such assent will be good even though it be to a devise to the executor himself (s) . Production of the probate will, however, be necessary to give a valid title to a purchaser or devisee (t) . An executor may, before probate, make a valid demise of the lands of his testator (u), and may distrain for rent due from a tenant of such lands (x) . If an executor should die without proving the will, any of such acts done by him will be valid (y) . So where the executor of a tenant for a term of years died before probate, it was held that the term was legally vested in him, and passed, on his death, to his executor. So also, an assent given is not invalidated by the death of the executor before probate (z) . An executor cannot in his representative character maintain an action before probate (a) ; and even as regards actions brought by him in reliance on his con- structive possession as executor, but not naming himself as such, he may be compelled to produce the probate at the hearing in order to prove his title (b) . What acts an Inasmuch as an administrator derives his estate and mayd^before authority entirely from his appointment by the court (c), grant of ad- the powers of an administrator over the real estate of a ministration. Actions before probate. (q) Brazier v. Hudson, 8 Sim. 67. See Comber's case, 1 P. Wms. 768 ; El wood v. Christy, 17 C. B. (n.s.) 754. (r) Warikford v. Wardford, 1 Salk. 306. (a) Dyer, 367a. Bex v. Stone, 6 T. R. 298 ; Fenton v. Clegg, 9 Exch. 680. (t) Newton v. Metropolitan Bail, Co., 1 Dr. & Sm. 583. («) Boe v. Summersett, 2 W. Blackst. 692. (x) Whitehead v. Taylor, 10 A. & E. 210. (y) Wentw. Off. Ex. 82 ; Brazier v. Hudson, supra. (2) See cases in text in notes (d) and (e). (a) Webb v. Adkins, 14 C. B. 401 ; Tarn v. Commercial Bank of Sydney, 12 Q. B. D. 294. (6) Hunt v. Stevens, 2 Taunt. 113. (c) See ante, p. 18. DEALINGS WITH REAL ESTATE BEFORE PROBATE, ETC. 63 deceased person by virtue of the Act of 1897 will be Chap. v. more restricted than those of an executor as regards dealings with the estate before administration ; and it would make no difference in this respect whether he is an administrator of an intestate or administrator with the will annexed (d) . Thus he will apparently be unable effectually to sell and convey any part of the real estate (e) . So also it was held that a mortgage of a term of years made by an administrator before letters did not bind the property (/). So also, generally speaking, an agreement with relation to the estate, entered into before grant of administration, is not specifically enforceable against the administrator (g) . Again, it would seem that, notwithstanding the rule Actions laid down by the Judicature Act, 1875 (h) , in case of migration. conflict between law and equity, the latter should prevail, an administrator will not be able to commence an action to maintain a legal right with regard to the real estate of the deceased unless he has previously obtained a grant of administration, for he has no right of action at law until he has obtained it (i). If, however, his rights are equitable only, it would seem that he may commence his action, provided he obtains letters of administration before the hearing (k) . (d) Phillips v. Hartley, 3 C. &. (h) 36 & 37 Vict. c. 56, s. 25 (11). P. 121. (i) Martin v. Fuller, Comb. (e) Preston Abstr. Vol. 3, p. 371 ; Wooldridge v. Bishop, 7 B. 146. See Bacon v. Simpson, 3 M. & Cr. 406. & W. 87; Morgan v. Thomas, 8 (k) Felix. Lutwidge, Barnd. Ch. Exch. 302. Ca. 320 ; Humphreys v. Ingledon, (f) Metters v. Brown, 1 H. & C. IP. Wms. 743 ; Moses v. Levy, 686. 3 Y. & C. 356 ; Horner v. Homer, (g) Doe v. Glen, 1 A. & E. 49. 23 L. J. Ch. 10. 6 1 POWBBS OF REPRESENTATIVES OVEB REAL ESTATE. Cir.u>. v. 3 Powers of Executors and Administrators to Sell or Mortgage Real Estate. The Act of 1897, by enacting that all enactments and rules of law relating to the powers of personal repre- sentatives in respect of personal estate shall apply to real estate so far as applicable, introduces an important alteration in the law as to the powers of executors or administrators to raise money for purposes of adminis- tration by the sale or mortgage of the land of a deceased person. It will be convenient in this place briefly to state in what cases executors and administrators have hitherto been able effectually to convey freehold lands of a testator or intestate by way of sale or mortgage. Express The powers of executors to sell real estate arose either real Trusts for un ^ er common law powers in wills, or under powers sale. attached to an interest given to them by wills ; thus a direction that the executors should sell, or that the land should be sold by the executors, gave them only a common law power ; but a devise to the executors in trust to sell, vested the estate in them with the powers of dealing with the same necessary for the performance of their trust (1). Implied Executors could also sell and give a good dis- saLe by ° charge for the purchase money where the real estate charge of was charged by the will expressly or by implication with payment of the testator's debts or legacies, or both (m). And a gift of real and personal estate, with a direction for payment of debts and legacies, charges them on the realty in aid of the personalty (n). This power of sale was, however, merely equitable, so that, (I) Sugd. Pow. Ill, 115. See G. M. & G. 635; Robinson v. Co. Litt. 113a; Doe v. Shotter, Lowater, 5 De G. M. & G. 272. 8 A. & E. 905; R. v. Wilson, 9 n) Grevilhx. Browne, 7H.L.C. Jur. (n.s.) 439. 682 ; see Elliot v. Dewdey, 16 Ch. (m) Elliott v. Merryman, 2 D. 322. Atk, 4 ; Stronghill v. Anstey, 1 De POWERS OF SALE AND MORTGAGE. 65 independently of statutory enactment, executors selling ( '" AI '- v - thereunder could not pass the legal estate to a pur- chaser (o) ; but it seems that the executors could compel the persons in whom the legal estate was vested to join in the conveyance for the purpose of passing such estate (p). A charge of debts and legacies extended to lands specifically devised (7), but a charge of legacies only was restricted to residue (>•)• Where real estate was devised to trustees subject to a Devise to charge of debts, the power of the executors to sell was cimreeof" ousted, and the trustees were the proper persons to sell debts, and convey, and also to receive and give receipts for the purchase money (s). With regard to personalty, including chattels real, it Power of seems consistent with sound principle, and has been mortgage ° repeatedly affirmed by judicial decision, notwithstanding lan(1 - some expressions of contrary opinion (t) , that executors and administrators having full and absolute power of disposal by way of sale over the assets might raise money required for purposes of administration by mortgaging the assets (it) . And on the same principle where executors had an implied power of sale over real estate by virtue of a trust or charge for payment of debts or otherwise, it was held that such a power included a power to mortgage, a mortgage being a conditional sale (v) ; unless, indeed, there was a direction (0) Doe v. Hughes, 6 Exch. 223 ; (t) Andrews v. Wingley, 4 Bro. Kenriclcx. Lord Beauclerk, 3B.&P. C. C. 138. 175, 6 R. R. 746 ; Shaw v. Bonner, («) Mead v. Lord Ossery, 3 Atk. 1 Keen, 576. 239 ; ScoU r. Tyler, 2 Dick. 72.") ; [p) Hodgkinson v. Quinn, 1 J. & M Leod v. Drummond, 17 Ves. H. 303. 154 ; Re Cooper, 20 Ch. D. 611. (q) Mannox v. Greener, L. R. (r) Mills v. Banks, 3 P. Wins. 14 Eq. 456. 9 ; Ball v. Hains, 4 My. & O. 276 ; (r) Conron v. Conron, 7 H. L. C. Page v. Cooper, 16 Beav. 396; 168. Metcalf v. Hutchinson, 1 Ch. D. (a) Shawv. Bonner, 1 Keen, 599 ; 591 ; Balfour v. Cooper, 23 Ch. 1). Stronghill v. Anstey, 1 De G. M. 472. & G. 647 ; Colyer v. Finch, 5 H. L. C. 905. E.R. i 66 POWEES OF REPRESENTATIVES OVER REAL ESTATE. Chap. V. f,o sell so worded as to show that the testator's intention was to create a complete conversion (./•) . Restrictions A trust, power, or direction to sell or mortgage for sell P or Vei payment of debts or legacies might formerly have been mortgage. imposed or given subject to restrictions, as that the recourse should not be had to the real estate unless the personalty should prove insufficient for such payments, in which case, if the personal estate was sufficient, the purchaser or mortgagee took nothing (y) ; or that estates devised for payment of debts, etc., should be sold or mortgaged in a particular order (z) . Powers of In order to obviate difficulties which arose as to the executors „ . . n . under Lord power ot trustees or executors to sell or mortgage St. Leonard's re alty by virtue of a charge of debts, etc., it was in substance enacted by section 14 of Lord St. Leonard's Act that where there is a charge of debts, or of a legacy, or of any specific sum of money, on real estate, and the estate so charged is devised to a trustee or trustees for the whole of the testator's estate or interest therein, and there is an express provision made for raising the charge, the trustee or trustees may, notwithstanding any express trusts, raise the money required for pay- ment of the debts, legacy, or specific sum by sale or mortgage of the estate so charged (a). By section 16, the same powers are given to executors, where there is no devise in trust. And the same section seems impliedly to enable executors selling to convey the legal estate if vested in the testator at his death by enacting that a sale under the 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 (x)Holdenbyv.Spoforth,lBen\\ (z) Pierce v. Scott, 1 S. & C. 390. Ex. 257. (y) Duke v. Ricks, Cro. Car. 335 ; (a) 22 & 23 Vict. c. 35. see Orentham v. Cotton, 34 Beav. 615. POWERS OF SALE AJtfD MORTGAGE. »>7 outstanding legal estate " (b). This statutory power of C " AI ' v - sale is not exerciseable by an administrator (c). In cases where the executors had no power to sell Sale by court real estate, express or implied, it could only be made ™ Q £™ "f° available for payment of the debts of a deceased owner sale in by invoking the aid of the court in an administrative action. By the feudal law, creditors were not allowed to take Real estate in execution the real estates of their debtors which were H a bie to not transferable except by the lord's consent, on the deDts « ground that such transfer would be indirectly effected. Later on the lands of a debtor were rendered liable to be taken in execution during his lifetime at the suit of his creditors. But though, as has been seen (d), a person might devise his real estate for payment of his debts or charge it therewith, so as impliedly to give to his executors a power of sale over it, yet if he died intestate, or if he made no such provision by his will, the heir or devisee was entitled to take the real estate free from the claims of the creditors. The Statute of Fraudulent Devises gave to the Statute of specialty creditors of a deceased person a right of action Devises, against the devisee and heir jointly where the will contained no provision for payment of debts (e). The statute 47 Geo. 3, c. 74, s. 2, rendered the real estates of deceased traders liable to their simple contract creditors. This provision was re-enacted by 1 Will. 4, c. 47, which also provided remedies in cases of debts by covenant, and in cases where there was a devisee and no heir, and the last-mentioned statute, as amended by the statute 2 & 3 Vict. c. 60, empowered the court to decree the debtor's real estates to be sold or mortgaged for pay- ment of his debts, and provided that any surplus (b) See Lewin on Trusts, 9th ed. , 16 Ch. D. 3. p. 517. (d) Ante, p. 64. (c) Rt Clay and Tetley's Con&ruct, (0 3 Wm. & M. e. 14. 68 POWERS OF REPRESENTATIVES OVER REAL ESTATE. Chap. v. moneys so raised should devolve to the same person and belonged to the same persons who would have been entitled to the lands, if not so sold or mortgaged. Under these statutes the specialty creditors and the simple contract creditors entitled to come in thereunder, were held to claim under the will, and were, therefore, entitled to payment pari passu, without any preference of the specialty creditors ; and they were further held to come in as the will directed, so that if the will declared that the debts should be paid out of the yearly rents, there could be no sale or mortgage (/). Statute 3 & 4 fp reme( jy the defects in the foregoing Acts, the W ill. 4, c. 104 J ° ° statute 3 & 4 Will. 4, c. 104, was passed, whereby the lands of a debtor, whether a trader or not, are made liable in the hands of his heir or devisee as assets in an administration action for the payment of his simple contract debts as well as his specialty debts ; and the heir or devisee was rendered liable to all such pro- ceedings at the suit of simple contract creditors as he would have been liable to before the passing of the Act in respect of the lands at the hands of specialty creditors. The Act provided that specialty creditors, where the heir was bound, should be entitled to payment in full before other specialty creditors, and before simple contract creditors should receive any payment in respect of their claims. This statute did not apply to lands which a testator had charged by will or devised subject to payment of his debts. Freehold estates over which testator has a general power of appointment, and which he appoints by his will, are assets within this statute for payment of his simple contract debts, but are only applicable for that purpose after all the testator's own property, whether real or personal, has been previously so applied (g). (J) Lingard v. Earl of Derby, (g) Fleming v. Buchanan, 3 De 1 Bro. C. C. 311 ; Earl of Bath v. G. M. & G. 976; Be Van Hagan, Earl of Bradford, 2 Ves.'Sen. 589. 16 Ch. D. 30. POWERS OF SALE AND MORTGAGE. 00 The priority or preference of specialty creditors over Chap. v. simple contract creditors is taken away by the statute ,. r . . "° priority 32 & 33 Vict. c. 46; and by section 10 of the Judicature of specialty Act, 1875 (h), in the administration by the court of an creditors - insolvent estate, the rules as to proof for debts in force for the time being under the law of bankruptcy are to prevail and be observed. The Act of 1897, by vesting in the personal repre- Statutory sentatives of a deceased person dying in or after pergonal January 1st, 1898, all his real estate, except copyholds representa- and customary freeholds, and by giving to them similar or mortgage powers of disposal over such real estate as they have real estate - hitherto had over chattels real, will enable them, with- out any application to the court by themselves, or by creditors, in their absolute discretion to sell such real estate, or any part thereof, and to effectually convey the legal estate, if vested in the deceased owner at the time of his death, without the concurrence of the devisee or heir, or to mortgage the estate either by way of legal mortgage (i) or equitable charge, and that either by actual conveyance or by deposit of deeds (k). And it will make no difference in the exercise of the powers of personal representatives to sell or mortgage real estate, as between themselves and a purchaser or mortgagee, whether or not there is a trust or direction for payment of debts or legacies out of the real estate, or a charge of debts or legacies thereon, or in what terms any such trust, direction, or power may be expressed ; and any attempt to impose restrictions or conditions on such discretion will be nugatory. Inasmuch as copyholds and customary lands, a As to copy- perfect legal title to which cannot be obtained without customary admission, are excepted from the operation of the Act lands - (h) 39 & 39 Vict. c. 77. [k) Scoff v. Tyler, 2 Dick. 724. (*') Ball v. Harris, 4 My. & Cr. 276. 70 TOWERS QE REPRESENTATIVES OVER REAL ESTATE. Chap. v. f 1&97 (^ it follows that the powers of the executors or administrators of a deceased owner of such lands to sell or mortgage the same will depend upon the former rules of law as laid down by judicial decision or statutory enactment with regard to such powers. And where there is no such power express or implied, an administration action must be brought in order to raise money for payment of debts by sale or mortgage of copyhold or customary lands. Where a testator authorizes or directs his executors to sell copyholds, the proper mode of conveyance by them is by deed of bargain and sale, and the appointee under such a deed may claim thereunder to be admitted, and one fine only is payable upon the admission ; for the appointee takes immediately under the will (m), and if the sale is made in good time before the lord is entitled to seize quousque, he cannot refuse to admit as tenant the appointee of the executors (ri). The legal estate, until sale by the executors in such a case, vests in the customary heir, and if he chooses to be admitted, he must pay his own fine. Sale of real The effect then of the Act of 1897 is to empower personafre- the executors or administrators of a deceased person to presentatives. se ll hi s freehold real estate, although specifically devised, unless they have assented to the devise ; but in case they should have so assented, the purchasers should require the concurrence of the devisee (o). Where some of several executors renounce, the other executors may sell (p) ; and if one or more die, the statutory power of sale given by the Act of 1897 may be exercised by the survivors or survivor of them for the time being (q). {I) Ante, p. 24. («) Holder v. Preston^ supra (m) Holder v. Preston, 2 Wils. (o) Dart V. & P. 400 ; see Watk. Cop. 105, 127, 334, (p) 21 Hen. 8, c. 4. 353. (?) 56 & 57 Vict. c. 53, s. 22. POWERS OF SALE AND MOttTGAGvE. 71 Personal representatives being by this Act constituted Chap. v. trustees with a power of sale over the real estate, will have in the exercise of such powers the auxiliary powers given by the Trustee Act, 1893 (/•), which are as follows : — Section 13. — (1.) Where a trust for sale or a power of Power of sale of property is vested in a trustee, he may sell or S a"c tcfsell bv concur with any other person in selling all or any part of auction, etc. the property, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, subject to any such conditions respecting title or evidence of title or other matter as the trustee thinks fit, with power to vary any contract for sale, and to buy in at any auction , or to rescind any contract for sale and to re-sell, without being answerable for any loss. (2.) This section applies only if and as far as a contrary intention is not expressed in the instrument creating the trust or power, and shall have effect subject to the terms of that instrument and to the provisions therein contained. By the concluding clause of section 2, sub-section (2), of the Act of 1897 (which is the instrument creating the power of sale of personal representatives over real estate) it is enacted that "it shall not be lawful for some or one only of several joint personal representa- tives, without the authority of the court, to sell or transfer real estate." It would obviously be beyond the scope of these notes Exercise of to discuss in detail the principles which should guide statutory personal representatives, as trustees of real estate vested in them, in the exercise of their statutory power of sale (s) ; but some of the leading rules on this point may be here briefly noticed. (r) 56 & 57 Vict. c. 53. (a) See as to this, Lewin on Trusts (,9th ed.) ch. xviii. 72 POWERS OF REPRESENTATIVES OVER REAL ESTATE. Chap. V. The personal representatives, in exercising their power of sale, must pay due regard to the purposes of their trust and the interests of the persons interested there- under. The court will not enforce specific performance of a contract which, on the face of it, shows that those interests are being prejudiced, thereby involving a breach of trust (t) . Sale of land Although section 13 of the Trustee Act, 1893, autho- separateiy! nzes a sale of "all or any part of the property," the estate and the timber thereon cannot be sold sepa- rately (u) except with the sanction of the court (x) . Sale of mines The same rule applies to a sale of the surface of land and surface . . -i/\i separately, apart from the mines and minerals thereunder {y) ; but by section 44 of the Trustee Act, 1893, the court has power to sanction a sale by trustees of land or mines and minerals separately from each other. Sale free from By section 5 of the Conveyancing and Law of in-ances. Property Act, 1881 (z), where the real estate is subject to prior charges, the real representatives desiring to sell the same may apply to the court for an order directing payment out of the general estate of such a sum as, when invested in Government securities, will be sufficient to provide for the charges and the contingency of further expenses and the conveyance of the land free from such charges. Mode of sale. Personal representatives as trustees should use their discretion as to the mode of sale, whether by public auction or private contract, so as to endeavour to sell to the best advantage (a) . They should cause a valuation (t) Wood v. Richardson, 4 Beav. (y) Buckley v. Howell, 29 Beav. 176; White v. Cuddon, 8 CI. & F. 546. 788 ; see also cases cited Blyth & (z) 44 & 45 Vict. c. 41. Jam. Conv. (4th ed. ) Vol. II. (a) Doivnes v. Grazebrook, 3 p. 729. Mer. 208 ; 17 R. R. 62 ; see Exp. (u) Cholmley v. Paxton, 3 Bing. Dunman, 2 Rose, 66; Exp. Harly, 207, 5 Bing. 48. 2 1). & E. 631 ; Daveyv. Durrani, (,-•) See 22 &23 Vict. c. 35, s. 13. 1 De C. & J. 535. POWKKS OF SALE AND MORTGAGE. 73 to be made by a competent surveyor or valuer so as to Chap. v. guide them as to what is a proper price for them to accept (b) . As regards sales under depreciatory conditions, trustees '^ ales u . nder f , 11 j e ■ j- depreciatory have always been allowed a lair discretion, even as conditions, against their cestuis que trusts, and it has been held, independently of statutory enactments, conditions that even of a special character are not lightly to be deemed to be of such a depreciatory character as to render personal representatives selling under such conditions liable to the persons entitled for breach of trust or an objection to title (c) . And as regards such conditions amounting to a breach of trust as between a trustee and his cestuis que trust, or an objection to title so as to entitle a cestuis que trust or purchaser to set aside the sale, section 14 of the Trustee Act, 1893, enacts as follows : — (1.) No sale made by a trustee shall be impeached by Power to sell anv beneficiary upon the ground that any of the con- subject to t- i-T-Ti i -, , depreciatory cations subject to which the sale was made may have conditions. been unnecessarily depreciatory, unless it also appears that the consideration for the sale was thereby rendered inadequate. (2.) No sale made by a trustee shall, after the execution of the conveyance, be impeached as against the purchaser upon the ground that any of the con- ditions subject to which the sale was made may have been unnecessarily depreciatory, unless it appears that the purchaser was acting in collusion with the trustee at the time when the contract for sale was made. (3.) No purchaser, upon any sale made by a trustee, shall be at liberty to make any objection against the title upon the ground aforesaid. It is now settled that personal representatives or Personal re- trustees, having power to mortgage such estate, are mortgaging" (/>) Fry v. Tapson, 28 Ch. D. Hudson v. Btll, 2 Beav. 17 ; Hydt 068. v. Dallavay, 4 Beav. 60b" ; Moiiti/ (c Sugd. V. & P. b3 ; see v. Cook, 2 Ha. 106. 74 POWEES OF REPRESENTATIVES OVER REAL ESTATE. Chap. V. may give power of sale. Rate of interest. Purchaser or mortgagee not liable to see to appli- cation of money. authorized to give to the mortgagee a power of sale (d) ; a power of sale is now implied in every mortgage made by deed, unless expressly excluded (e). The personal representatives having power to mort- gage the real estate of their testator or intestate, will have power to charge the property with interest on the money advanced until repayment, at any rate which may be agreed upon, not necessarily restricted to the rate of interest usually allowed by the court (/). It seems clear that the rule, which has hitherto prevailed where real estate is subject to a charge of debts, will apply to sales and mortgages of real estates by personal representatives in due course of administra- tion under the Act of 1897 ; that is to say, that purchasers and mortgagees will not be bound to see to the appli- cation of the money, but will be discharged from any such liability by the receipt of the personal representa- tives, on the ground that, in the absence of evidence to the contrary, they must be presumed to have raised the money by sale or mortgage for purposes of administra- tion (g). If, however, the circumstances of the transaction are such as to affect the purchaser or mortgagee with actual or constructive notice that the money is required, not for purposes of administration, but for the personal representatives' own purposes, the sale or mortgage will be liable to be set aside at the instance of the beneficiaries (h). Inasmuch as it is pre- sumed that executors or administrators selling the property are doing so for payment of debts, a purchaser is not concerned or entitled to inquire whether any debts remain unpaid, unless twenty years have elapsed since the death (i). (d) Lewis v. Freke, 2 Ves. Jun. 507 ; 2 R. R. 301. See Lord Kil- inurry v. Geary, 2 Salk. 538 ; Boycott v. Cotton, 1 Atk. 552; Hall v. Carter, 2 Atk. 358. (e) Russell v. Plaice, 18 Beav. 21 ; Re Chawners' Will, L. R. 8 Eq. 569 ; Cruikshank v. Dutjin, L. R. 13 Eq. 555. (/) 44 & 45 Vict c. 41, s. 19. (g) Ithell v. Beam, 1 Ves. Sen. 215 ; Barker v. Duke of Devonshire , 3 Mer. 310. .(h) Hill v. Simpson, 7 Ves. 152; Watkins v. Check, 2 S. & St. 205. (i) Re Tanqueray-}Villaumeand Landau, 20 Ch. D. 465. POWERS OF LEASING. <5 4. Powers of Executors and Administrators as Chap. v. to Leasing and Management of Eeal Estate during the period of administration. Although, as will be seen hereafter (k), the court may, after the expiration of a year from the death of a testator or intestate, on the application of a person beneficially entitled, order the real representatives to convey the real estate, or so much thereof as shall not have been disposed of in course of administration, to such person, yet it may happen that, owing to the complication of the affairs of the deceased, or for other reasons, it may be found impossible to complete the administration within that period. It therefore becomes natural to consider what will be the powers of personal representatives as to management of the property, and application of the rents and profits, while they retain possession, and before they assent to the devise or convey the property to the devisee or heir. In this connection, it is important to bear in mind that by section 2, sub-section (1), of the Act of 1897, the personal representatives are expressly declared to be trustees for the persons by law entitled thereto (I) . In like manner as executors or administrators, where Powers of the circumstances of the case render it necessary or leasin 8- expedient in the interests of the estate and of the persons entitled thereto, may grant underleases of leaseholds forming part of the estate of a deceased person (m) , it seems clear that real representatives may now, by virtue of the Act of 1897, under similar circumstances, grant leases of his freeholds, and that the rents reserved by such leases will be assets in their hands to be applied in due course of administration. But on this point, (k) Post, p. 110. (m) Bac. Abr., tit. Leases (I) 7; {I) Ante, p. 52. Williams, Executors, Vol. I., p. SOS. 7lj POWERS OF REPRESENTATIVES OVER REAL ESTATE. Ohap. V. Jessel, M.R., observed as follows (n) : — "An adminis- trator is considered in a court of equity as a trustee, and his primary duty is to sell the intestate's estate for pay- ment of his debts. It is quite true that, having the legal estate in the leaseholds, he may in some cases underlet them, and the underlease will be supported in equity as well as at law. But that is an exceptional mode of dealing with the assets, and those who accept the title must take it subject to the question whether it was the best way of administering the assets." As the Act of 1897 does not contain any express exemption of persons taking leases from personal representatives from such liability, it would seem that this rule will apply in such cases, so that leases by personal representatives will require justification, if challenged. It is, however, obvious that it may often happen that a lease of real estate, and application of the rents towards the payment of the debts of the deceased owner, may be a better mode of administering the estate than a sale, as being more advantageous to the interests of the beneficiary (o) . What demises Inasmuch as the Act of 1897 expressly declares that by personal 16 personal representatives shall be trustees for the persons representa- entitled (p) , it seems clear that they may continue existing tenancies or grant fresh tenancies of vacant lands from year to year (q), as otherwise the estate might be rendered unproductive in their hands ; but it seems doubtful whether they can, in the absence of express powers, grant in their character of trustees leases for longer than a year (r), unless under excep- tional circumstances (s) ; and, if they grant a lease for a term of years, the onus would apparently rest on them and on the lessee taking under them of showing that (») Oceanic Steam Navigation {q) Fitzpatrick v. Waring, 11 Co. v. Sutherberry, 16 Ch. D. 236, L. R. Ir. 35. at p. 243. (>') fie Shaw, L. R. 12 Eq. 124. (o) See Keating v. Lloyd, 1 LI. (s) Xaylor v. Arnett, 1 Russ. & & G. 133. My- 501. See Wood v. Pattesou, (p) Ante, p. 52. 10 Beav. 541. POWERS OF LEASING. 77 the act was reasonable, and done in the fair manage- Chat. V. ment of the estate (t). The court has refused to sanction a mining lease by trustees for sixty years (u), or a lease by them of unopened mines (x). Trustees having a general power to lease may grant Lease to a lease to a corporation or limited company (y) . A lease granted by a personal representative must Op tlon of . D . . . purchase, not contain any unusual provisions detrimental to the inheritance, as for instance, a proviso giving an option of purchase to the lessee (. v. incur serious responsibility, for he will not be allowed to derive any personal benefit, if the venture proves profitable ; but in case of loss he will be personally liable for debts contracted in carrying on the business as from the testator's death to the extent of all his own property. He may be made a bankrupt in respect of his liability for such losses, and both the creditors and the legatees may prove in such bankruptcy against his own estate, leaving the remainder of the assets of the deceased trader free and unaffected by the bankruptcy to be distributed amongst the legatees or next-of-kin unaffected by such bankruptcy (t). It may be suggested that, having regard to the form Advisability in which this part of the Act is passed, it will testamentary be advisable that land owners, in all cases where it is provisions as likely that recourse may be had to their real estate ment. for purposes of administration, should by their wills give express directions to their executors as regards the control, management, and dealings generally with the real estate. It need hardly be said that the drafting of provisions conferring such powers and authorities, or giving such directions, will in many cases require much care and consideration of the circumstances of the particular case, and clearness and nicety of expression. Forms of similar provisions giving similar powers and directions to executors as regards chattels real, and to trustees as regards real estate generally, will be found in various text books, and may be adapted for use in the case of real representatives (u) . (t) Exp. Garland, supra ; Exp. 919, 920 (management generally), Richardson, 1 Buck. 209 ; Oiren v. 921 — 923 (mining and building Delamere, L. R. 15 Eq. 134 ; Fair- leases), 1010, 1011 (management land v. Percy, L. R. 3 P. & 1). of farm); King & Elph. Coin. 217. See Williams on Executors (4th ed.) Vol. II., pp. S41, 842 (9th ed.) Vol. II., p. 1682. (management generally), 053, G83, (n) Byth. &Jarm. Conv. (4th ed.) (leases), 843 (management of Vol. Vll., pp. 777, 778 (business), farm). 82 ) CHAPTER VI. EIGHTS, DUTIES, AND LIABILITIES OF PEESONAL EEPEESENTATIVES IN EESPECT OF EEAL ESTATE. 1. Duty of Personal Eepresentatives is to Pay Debts and Deliver Property so far as not required for such payment, to the persons entitled thereto. Vayment of In the administration of assets, whether real or primary duty personal, all the debts or liabilities of the deceased of personal person must first be paid or provided for, before an tives. executor is justified in paying or transferring any legacy or devise whether general or specific. If, therefore, an executor acting bond fide and under a conviction that the assets are amply sufficient for payment of the the testator's debts, permits specific legatees to retain or possess themselves of the property bequeathed to them, he will be answerable for the value of that property, with interest at 4 percent., if there ultimately be a deficiency in the assets, although the deficiency should be occasioned by subsequent events which the executor or administrator had no reason to anticipate ; and the court will direct an account of the value of the property so possessed by the legatees, and interest to be computed unless it is certain that the assets will be ultimately sufficient to satisfy the creditors (x) . As to con- The liability of an executor paying a legacy or share and liabilL S °f residue extends to cases where he has notice of a ties. (a;) Spode v. Smith, 4 Russ. 511. .See Davies v. Nicholson, 2 I)e G. k J. 693, PAYMENT OF DEBTS. 83 contingent or possible legacy which may ripen into a Ohap. vi. contingent claim (y), and even if the testator's estate is subject to any debt or claim of which the executor has no notice, he will continue liable to satisfy such debt or claim to the extent of the assets originally in his hands if he has paid or transferred them to the persons entitled thereto under the will (z), unless, indeed, on the ground of laches, the creditor should be held to be precluded from prosecuting his claim (a). Executors are to some extent relieved from this Statutory liability by the statute 22 & 23 Vict. c. 35, s. 29, which ere ditors in effect provides that after giving such notices as protects • -i pi • • • personal re- would be given by an order ot the court m an admmis- preservatives. tration action to creditors and others to send in their claims, an executor shall not be liable in respect of such claim of which he had not then notice, but may proceed to a distribution of the assets without prejudice to the right of creditors to follow the assets after distribution. The rules of law above stated which have prevailed Personal re- with regard to bequests of personalty will now apply to shall not devises, whether specific or general, of real estate, so as ^e^se till to render it unsafe for the personal representatives of debts are a deceased to assent to a devise contained in his will, provided for. or to convey the property to the devisee, until they are satisfied that all claims and debts against the estate are paid or fully provided for. Corresponding to the duty of personal representatives Ri g ht 0I in the first place to pay all the debts of the deceased, presentatrves and to their liability if they fail in such duty, they have to indemnitv ° J J ' ■ " . on assentmg to a devise. (y) Rector v. Gennet, Cro. Eliz. 3 My. & Cr. 122 ; Hill v. Gomme, 466 ; Hawkins v. Day, Anibl. 160 ; 1 Beav. 540. Pearson v. Archdeaken, L. R. 10 (a) Davisv.Blackwdl,9~Bmg.5. Eq. 477. See Rhodes v. Brown, 2 Bing. N. S. (z) Norman v. Baldry, 6 Sim. 493. See also Williams on Exe- 621 ; Smith v. Day, 2 M. & W. cutors (9th ed.), Vol. II., p. 1206. (iS4 ; Knatchbull v. Fearnehead, G 2 84 RIGHTS, DUTIES, AND LIABILITIES OF RE PEE SENT ATI VES. Chap. VI. Transfer of real estate not required for adminis- tration to devisee. Whether on intestacy, real estate not required for adminis- tration must be transferred to heir, or goes among next-of-kin. the right, where such liability exists or if there are reasonable grounds for supposing that it may exist, to refuse to part with the assets, i.e., in the case of real estate, to assent to a devise, specific or general, or to convey the property to the heir-at-law, without a sufficient indemnity, either personal or by way of adequate security charged upon the property (b). In cases of doubt, it is always prudent for a personal representative, before parting with the property, to apply for an order of the court directing him how to act, which will effectually protect him from all liability in the matter (c) . The executors of a will devising real estate, having provided for the payment of debts and liabilities of a deceased owner of real estate, and, if and so far as necessary for that purpose, sold or mortgaged the land or appropriated the rents and profits accruing during the period of administration, and having also (as it would seem) paid or provided for legacies, if any (d), must next transfer the property by assent or con- veyance to the devisee under the will. In the case of an intestacy of an owner of freehold real estate, it is conceived, and has been assumed throughout these notes, that the administrators, after providing for the debts and liabilities, will hold the property in trust for the heir-at-law as being the person "by law beneficially entitled thereto." But that this is so is not rendered by the Act of 1897 as clear as might have been desired ; indeed, upon a strict con- struction of the Act in such case, the real estate, so far as not applied in due course of administration, would go to the next-of-kin, inasmuch as by section '2, sub- (b) Simmondsv. Botland, 3AIer. 547 ; Cochrane v. Robinson, 1 1 Sim. 378 ; HicMing v. Boyer, 3 Mac. & Y. 635; Dean v. Allen, 20 Beav. 1. (c) Dean v. Allen, supra : England v. Tredegar, L. R. 1 Eq. 344. (. 60. 86 RIGHTS, DUTIES, AND LIABILITIES OF REPRESENTATIVES. Chap. VI. aiK ] positively interfered with or suspended by the Act. The question cannot, however, be regarded as absolutely free from doubt. Liability for breach of trust. Personal re- presentatives must manage estate for benefit of persons entitled. 2. Liability of Personal Eepresentatives for their Acts and Defaults in Administering Real Estate. This subject must here be treated very briefly, and only with special reference to the administration of real estate (h) . An executor or administrator accepting his office as such is personally liable in equity for all breaches of any trusts which are incident to his office (i) ; and where an executor is also devisee in trust under a will, his acceptance of the executorship, either by proving the will, or by intermeddling with the estate, will be deemed to be an acceptance of all trusts conveyed to the devisee, and render him liable for breach of any of such special trusts (k) . Personal representatives being expressly declared to be trustees, as regards the real estate, for the persons beneficially entitled thereto, will be bound to manage the estate, so far as their powers will admit of their doing so, to the best possible advantage for the benefit of those persons. Personal re- They will not be allowed to make any profit for not^Sowed 68 themselves out of their trust ; and, accordingly, how- any remuner. eV er onerous the duties of management of the estate trouble. may be, they will not be entitled to any remuneration (h) See as to devastavit or mis- conduct of personal representat ives generally, Williams on Executors (9th ed.), Vol. II, pp. 1690 et seq. (i) Re Marsden, 26 Ch. D. 783, 789. (k) Mucklow v. Fuller, Jac. 198; Booth v. Booth, 1 Beav. 125 ; Williams v. Nixon, 2 Beav. 472. LIABILITY FOR ACTS AND DEFAULTS. - s 7 for their trouble, or to any allowance beyond necessary Chap, vl and proper expenses actually paid by them, unless the will expressly provided for their remuneration (I) . A plea that they derive no benefit from their office, but that it is merely honorary, is no excuse for want of fidelity and diligence in carrying out the duties of their trust (m) . The fact that by their diligence and exertions the value of the estate has been preserved or increased, gives them no claim to remuneration (») ; and, if they retain out of the rents and profits any compensation or remuneration for their trouble and services, they will be compellable to refund it (o). Personal representatives may, however, employ Employment solicitors to do their legal business (p), and stewards or ° agen s bailiffs (q) , and agents to collect rents, if such collection be troublesome (r), at the expense of the estate ; but they must use their reasonable discretion as to the amount of remuneration to be allowed for such services (s) . It would seem that personal representatives, as Liability of regards real estate vested in them, will be liable, if, by preventatives reason of want of caution or diligence in their dealings, for waste, they cause the estate to be wasted (t) ; as, for instance, if they grossly misconduct the cultivation of the land, or refuse or remove a solvent and respectable tenant (w) , (l) Robinson v. Rett, 3 P. Wms. (q) Re Whiteley, Whiteley v. 132; 2 Wh. & Tud. L. C. Eq. 214; Serroyal, 12 App. Cas. 727. Brochsopp v. Barnes, 5 Marshl. (r) Godfrey v. Watson, 3 Atk. 90. See Moore v. Frowd, 2 My. 518 (mortgagee in possession). & Cr. 45 ; Re Barber, 34 Ch. D. (s) Re Wea/l, supra, at p. 678. 77, 81 ; Re Corsellis, 34 Ch. D. See Speight v. Gaunt, 9 App. Cas. 675, 684. 1. (m) Charitable Corporation v. (0 See Roudey v. Adams, 2 H. Sutton, 2 Atk. 405. L. C. 725 ; Buxton v. Buxton, 1 (n) Robinson v. Pttt, supra; My. & Cr. 80. Longstaffe v. Fenwick, 10 Ves. (u) Wragg v. Denham, 2 Y. & C. 404, 8 R. R. 8.; Barrett v. Ex. 117; Anon, 1 Vern. 45; Hartley, L. R. 2 Eq. 789. Hughes v. Williams, 12 Ves. 493, (o) Re Bedingfield, 57 L. T. 8 R. R. 364 (cases of mortgagee in (n.s.)332. possession). (p) Re Weall, 42 Ch. D. 674, 677. 88 RIGHTS, DUTIES, AND LIABILITIES OF REPRESENTATIVES. .Chap. VI. L, u t that they will not be liable for mere permissive waste, as neglecting to keep buildings in proper repair (x). Personal re- Personal representatives being trustees of the real presentatives L ° bound to estate for the persons beneficially entitled thereto, will information ^ e b° un d to give to such persons full information as to their dealings with, and other matters relating to the estate (y), and to produce for the inspection of the beneficiaries all title deeds in their hands (z) , and com- munications with solicitors (a) , and cases and opinions of counsel (b) not made or taken after the commence- ment of an action. Liability of j t j s we u settled that it is the bounden duty of an personal re- . , J presentatives executor or administrator to keep clear and accurate o account, accounts of his administration of the property, and to be always ready to render such accounts when called upon to do so (c) . If an action is rendered necessary by reason of their refusal to render proper accounts, they may be liable in costs, even though they allege that nothing is due from them, which turns out to be the fact (cf). It will be no excuse for failure to keep and produce proper accounts that the personal repre- sentatives are charged with breach of trust (e) , nor that they are inexperienced in keeping accounts and therefore unable to do so, for in such a case it would be their right and duty to employ a competent accountant at the expense of the estate (/). They cannot attach to their compliance with a request to furnish accounts any condition, such as that they shall be allowed expenses (x) Powys v. Blagrave, 4 De. G. (c) Freeman v. Fairlie, 3 Mer. M. & G. 448. 29, at pp. 43, 44 ; Pearse v. Green, (y) Byderv.Bickerto7i,3Sw&nst. 135, 140. 81. (d) Newton v. Askew, 11 Beav. (z) Darin v. Dysart, 20 Beav. 145, 152 ; Eylin v. Sanderson, 3 414 ; Re Cowin, 33 Ch. D. 179. Giff. 434. (a) Be Mason, 22 Ch. D. 609 ; (e) Henry v. Macdonald, 15 W\ Be PostJethwaite, 35 Ch. D. 722. R. 165. (6) Wynne v. Hamberston, 27 (/) Wroe v. Seed, 4 Giff. 425, Beav. 421 ; Talbot v. Marshfield, 429. See New v. Jones, 1 Mac. & 2 Dr. & 8m. 285. G. 668 n ; Henderson v. Melver, 3 Madd. 275. Statutory protection. 89 not legally chargeable (g) ; but an executor, even Chap. VI. though a solicitor, has been held to be entitled to be guaranteed against the costs of taking the accounts before rendering them (//). Personal representatives must account for all rents Accounts of and profits accruing during the period of administration pro fits. from the real estate of the deceased (i) . So if they allow one of their number to occupy a house on the estate at less than a fair rent, they will be chargeable with the fair rent (k). Personal representatives who act in good faith and to Protection of .. . i • • . j- c personal re- the best of their judgment in the administration of preservatives real estate, of which they are by the Act of 1897 expressly a ^?| i ?j declared to be trustees (I) , will apparently be entitled as such trustees to claim the protection afforded by the Judicial Trustees Act (m), which enacts as follows : — Section 3.— (1.) If it appearstothe Court that a trustee, Jurisdiction whether appointed under this Act or not, is or may be cases f personally liable for any breach of trust, whether the breach of transaction alleged to be a breach of trust occurred before or after the passing of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust, and for omitting to obtain the directions of the Court in the matter in which he committed such breach, then the Court may relieve the trustee, either wholly or partly, from personal liability for the same. No general rules or principles can be laid down to be acted on in carrying out the provisions of this section, and each case must depend on its own circumstances ; but the court must be satisfied, before exercising the powers conferred on it, by sufficient evidence, that the trustees acted reasonably (n). (g) Underwood v. Trower, W. (k) JA Cordova v. De Cordora, N. (1867) 83. 9 App. Cas. 733. (h) Re Bosworth, 58 L. J. Ch. 432. (/) Ante p. 52. (») Codolphin, Part II., oh. 24, (m) 59 & 60 Vict. c. 35. s. 21. («) Be Turner, [1S97] 1 Ch, 536, ( i»0 ) CHAPTER VII. APPLICATION OF ESTATE IN THE ADMINIS- TEATION OF THE ASSETS OF A DECEASED PERSON. Administra- tion of real estate as personal estate. Purchasers need not inquire a s to necessity for sale. 1. General Statutory Rule as to Administration of Real Estate. Section 2, sub-section (3) of the Act of 1897 enacts that — " In the administration of the assets of a person dying after the commencement of this Act, his real estate shall be administered in the same manner, subject to the same liabilities for debt, costs, and expenses, and with the same incidents, as if it were personal estate ; provided that nothing herein contained shall alter or affect the order in which real and personal assets respectively are now applicable in or towards the payment of funeral and testamentary expenses, debts, or legacies, or the liability of real estate to be charged with the payment of legacies." A detailed examination of all the rules which have hitherto prevailed in the administration of assets with regard to personal estate, and which are now by this sub-section made applicable by real estate, would be beyond the scope and limits of the present treatise. It must therefore suffice in this place very briefly to notice the liabilities and incidents referred to in this sub-section. The effect of the above enactment, having regard to the proviso at the end, appears to be, that a purchaser, or mortgagee, or other person dealing in good faith, will not be concerned or entitled to question whether ADMINISTRATION OF REAL ESTATE, 91 the real estate is required for purposes of administration Ch ap. V II. so as to justify a sale or other dealing by the personal representatives, unless their powers are determined by assent or conveyance to the devisee or heir, or unless more than twenty years have elapsed since the death of the testator or intestate (o) ; indeed, it is doubtful whether the effect of the first clause of this sub-section is not to render applicable to a sale of real estate by executors or administrators the rule laid down as to sales of leaseholds and other personal estate, viz., that no lapse of time, even exceeding twenty years, puts an end to the power of an executor to deal with the assets so as to entitle purchasers, etc., to inquire as to the necessity for the sale or other dealing with the estate (p) . But though this rule would apply to dealings with Saving o real estate as between executors or administrators and devisee or bond fide purchasers, and others dealing with them, the heir to . , « , . prevent mi effect of the proviso at the end of the sub-section necessary appears to be to give the devisee or heir a right to sales ' etc# require that recourse shall not be had to the real estate for purposes of administration except if and so far as the personalty primarily applicable for those purposes proves to be insufficient ; and in the event of an executor or administrator applying the real estate out of due course, it is conceived that the devisee or heir might obtain an injunction to restrain such application or claim damages therefor. (o) Re Tanqueray- Willainneand {p) Re Whistler, 35 Ch. D. 561 ; Landau, 20 Ch. D. 465. Re Venn & Furze's Contract, [1894] 2 Ch. 101. «>2 ADMINISTRATION OF REAL ESTATE. CiiAi-.'Vii. 2. Payment of Legacies out of Eeal Estate. Question whether the Act of 1897 renders real estate liable to payment of legacies. Reasons for thinking real estate is so liable. It is to be observed that the proviso only qualifies the substantive enactment contained in the first clause of this sub-section so far as relates to the order of application of real and personal assets respectively, and the liability of real estate to be charged with legacies. By sub-section (2) of this section (q) all rules of law relating to the liabilities of personal representatives in respect of personal estate are to apply to real estate, so far as the same are applicable ; by the first clause of sub-section (3), real estate is to be administered with the same "incidents" as personal estate; and by section 4 (r) the personal representatives may, in the absence of any contrary provision in a will, with the consent of a person entitled to a legacy, appropriate any part of the residuary estate to satisfy the legacy. Now, liability to payment of legacies after the debts are paid is a settled and well-known incident of personal estate, and it would hardly seem that the Act of 1897 would have empowered personal representatives to appropriate real estate to payment of legacies, unless it was intended that the real estate should be liable to such payments. It would, therefore, seem that the result of this Act is to render the real estate of a testator liable to payment of legacies as if the testator had by his will charged the legacies thereon, but so that by virtue of the proviso at the end of section 2, sub- section (3), the recourse must not be had to the real estate for the payment of legacies except and so far as the personal estate is primarily insufficient for the purposes of such payments ; and that a testator may, if he thinks fit, charge his real estate with payment of legacies either pari passu with or in exoneration of his personal estate. If, however, such was, as on the whole it (q) Ante, p. Maggi, 20 Executors (9th ed.), Vol. L, pp. Ch. D. Mo; Re Leng, [1895] 1 Ch. 852 ei seq. Where an estate is 652. insolvent, specialty and simple (h) Wilson v. Fu Iding, 2 Vern. contract creditors are now paid 763. paripassv, see ante, p. 98. 96 ADMINISTRATION OF KKAL ESTATE. CitAr. VII. preferential payment out of legal assets has been considerably circumscribed by the rule as to hotchpot laid down by courts of equity, by which no creditor whose debt has been partially satisfied out of legal assets in priority to other creditors having no right to preferential payment, is allowed to prove for the balance of his debt, in competition with the other creditors, against equitable assets, unless he first brings into hotchpot the amount preferentially received by him (c). It is thus a matter of extreme importance to a creditor having a preferential right to payment, that there should be sufficient legal assets in the hands of the representative of a deceased person to satisfy his debt in full. Effect of charge of debts, etc., under former law. In regard to realty in connection with the question of assets, which is the matter now specially under consideration, where realty was devised to executors for the payment of debts, or where executors were given a mere power of sale over realty devised to another, it was for some time considered that the proceeds of the sale of the realty became legal assets in the hands of the executors (d). Lands devised to other persons than the executors, charged with the payment of debts, or in trust to pay debts, were always con- sidered in the nature of trust property to be administered by a court of equity, and not to belong to the executor by virtue of his office. Such lands were therefore called equitable assets, and were from the first distributable pari passu according to equitable principles. Later, it was decided that the mere circumstance of the devise being to the persons who were also executors did not affect the nature of the assets, whether the devise was to the executors and their heirs or to the executors simply ; and that a power given to the executors to sell (c) Bain v. Sadler, L. R. 12 Eq. 570, (d) See Williams on Real Assets p. 2. LEGAL AND EQUITABLE ASSETS. 07 did not prevent the proceeds of sale from becoming Chap. vii. equitable assets (e) . The principle upon which the court acted in deter- Principle on mining that these classes of real assets which had ^eid that formerly been considered legal were in future to be "J* 1 estate considered equitable, and distributable as such, was debts was that these assets were not the property of the personal e< l ui * a " 1, *- *- <> J- asset-. representative virtute officii (/), and could not be rendered such by any devise or other direction of the testator (g). By parity of reasoning it would appear that all real Same property vesting under the Act of 1897 in the executor appears now or administrator for distribution by him as personal to render real estate representative in payment of debts so far as necessary, whether must be treated as legal assets notwithstanding any ch ? r fg a ° r devise in trust to pay debts, or charge for the payment assets. of debts, contained in the will. The result appears to be that the class of assets called Resul t as . afFectinc legal asset has impliedly been considerably enlarged by claims to the present Act ; that it has been enlarged indeed to preferential L ° . payment. such an extent as to render for the future any right to preferential payment out of legal assets which a creditor may be able to maintain, a real and substantial advan- tage in almost every case of administration. The order of priority of payment of debts by the personal representative of a deceased person may be shortly stated as follows : — (1.) Funeral expenses (li). (2.) Testamentary expenses including the costs of probate or taking out administration (/), and (e) Serin, v. Okeley, 2 Atk. 50; ( f) Cook v. Oregson, 3 Drew, Vilk v. Prime, 1 Bro. C. C. 138 ; 547. Bailey v. Ekins, 7 Ves. 31!); Clay (. viii. Inasmuch as by section 1 of the Act real estate on death vests in the personal representatives of the Assent or *- . * .... conveyance deceased, notwithstanding any contrary disposition in vest S reaf t0 ms will > ** follows tnat nothing vests in the devisee by estate in a devise, nor to the heir-at-law under an intestacy, heir. without the express or implied assent of the real representatives or a conveyance by them to him of the property. A like rule has always prevailed with regard to personalty (t) . Accordingly, it would seem that until assent to a devise, the devisee will not be a necessary party to an action respecting the real estate devised (u). Inchoate Until assent, however, the devisee will have an right before . ... assent or inchoate right to the property devised, which will be conveyance. ca p a ki e f conveyance inter vivos by the devisee, and in case of his death before assent, will apparently devolve on his personal representatives as part of his real estate (x). Relation back >T} ie assen t f ^} ie rea i representatives will relate of assent. L back to the death ol the testator, and so confirm any intermediate dealings with the property by the devisee (y) . The doctrine of assent has not hitherto extended to a devise of an estate in fee, nor to any estate carved out of the fee by the testator's will ; so, where an owner in fee devised the same in fee, in tail or for life, the devisee might have entered without the assent of the executors. By section 3, sub-section (1), the representatives are empowered either to assent to a devise or to convey the land devised to the person entitled thereto. (t) Lampet's case, 10 Rep. 52b ; («) See Const v. Harris, Turn. Bolles v. Nyseham, Dyer, 254b ; & R. 514. Northey v. Northey, 2 Atk. 77 ; (x) Wentw. Off. Ex. 69. see Co. Litt. Ilia; Wentw. Off. (y) Saunder's case, 5 Rep. 12b ; Ex. 69. Wentw. Off. Ex. 69, 445, 446; Toller, 311. ASSENT TO DEVISES. 101 Tn the case of personalty, no question of assent arises Chap. VIII. under an intestacy, there being no specific or pecuniary legacies ; but the administrator, after discharging the liabilities of the intestate, distributes the residue of the assets amongst the next-of-kin, which may be done either by payment of money, delivery of chattels, transfers of stock, etc., or assignment of leaseholds to the persons entitled, to answer whose shares such properties have been respectively appropriated. So, in the case of an intestacy of real estate, a convey- ance from the representatives should be taken by the heir-at-law, so as to effectually vest the property in the latter. Where, however, real estate is devised, it would seem that the assent of real representatives to the devise will effectually pass the property to the devisee without the necessity for any conveyance. It will, however, be generally advisable for a devisee, no less than an heir, to take a conveyance so as to obviate any question as to whether the personal representatives really assented to the devise. After the real representatives have given their assent Action for or conveyed the property, it is conceived that the legal possession title to the property will vest in the devisee or heir-at- after assent - law, as has hitherto been, and is still the rule with regard to a term of years bequeathed on any specific legacy (z) ; and, accordingly, that the devisee or heir- at-law will be entitled to maintain an action against any persons, including the personal representatives, to recover possession of the property (a) . It has been held that if after an assent to a bequest of a term of years, the property is sold by the legatee (z) Adams v. Pierce, 3 P. Wms. 209; Williams v. Atkins, 223 ; 12. Doe v. Guy, 3 East. 120. Sec Cole (a) Bastard v. Stukeley, 2 Lev. v. Mile?, 10 Hare, 179. 102 TRANSFER TO DEVISEE OR HEIR. Chap. VIII. { Q a Jj 0) ia fide purchaser, it will no longer be liable in the hands of the purchaser to the claims of creditors of the testator (b) . Assent to devise of particular estate is assent to remainders and vice versa. Assent to gifts of residue. Assent to devise is assent to annexed condition. If a testator devises real estate in strict settlement, or to several persons by way of remainders, the assent of the real representatives to the entry on the property of the first tenant for life will be deemed to be impliedly an assent to the devise as regards the estates in remainder. And, conversely, their assent to the devise of any one estate in remainder will entitle the first tenant for life to enter on the land, and enure to the benefit of all other persons entitled in remainder for the several estates of the devisees, constituting the whole but one estate. So, where a testator bequeathed the clear rental of a leasehold house to his wife for life, and after her decease to his son, and after his decease to his children equally, with remainders over in default of issue, the executors proved the will and paid the rents to the widow during her life, and after her death to the son during his life, it was held that the assent of the executors to the life estates was an assent to the estates in remainder (c) . The doctrine of assent applies not only to specific bequests, but also to gifts of residue, and an executor may assent to part of a residuary gift, without assenting to the whole (d) . An assent to a bequest or devise is an assent to a condition, or a contingency annexed to the devise. So, where a term of years was bequeathed to an executor for his life, he paying to A. the sum of 50Z., with remainder to B., payment by the executor of the 50?. (b) Chamberlain v. Chamberlain, 1 Ch. Ca. 257. (c) Stevenson v. Mayor of Liver- pool, L. R. 10 Q. B. 81. See Adams v. Pierce, 3 P. Wms. 12; Com. Dig. "Administration," Ch.6, Wentw. Off. Ex. 426. (d) Austin v. Beddoe, 41 W. R. 619. A.SSENT TO DEVISES, L03 to A. will be a sufficient assent to the devise of the Chap. Vill. remainder to B (e) . Where, however, a personal representative enters Pantry by on land, he must have been taken to have entered as JJresentatiVe such, and not as devisee, unless there be other evidence on land not it- Ti i • j.i proof of of his assent to the devise ; and the rule is the same agse nt to whether the devisee is sole real representative or one j^™ e t0 of several such representatives. If, therefore, the repre- sentative having entered on the land, does only acts which are equally applicable or inapplicable to his title as devisee as to his character as representative, he will be presumed to have acted only in his character of representative. But if his dealings with the property are inconsistent with the duty of a real representative, his assent to the devise will be presumed (/). So, where a life interest in furniture was given to an executrix, her taking possession of the goods was held to be no assent to the gift in remainder (g) . Where there are several personal representatives, the Assent of one ,, i , n 1, representa- assent of one or more to a bequest of personalty is tive sufficient, sufficient (h) ; but inasmuch as an assent to a devise obviously operates as a transfer of real estate, it seems clear that the concurrence of all the personal repre- sentatives will be necessary unless the sanction of the court to an assent by one or some only of them is obtained (i) . On the death of one of them, the power to give assent to a devise will, as it is conceived, devolve on the survivors or survivor, in like manner as it does with respect to a bequest of personalty (k) . (e) Young v. Holmes, 1 Str. 70. (A) Holkirk v. Holkirk, 4 Madd. (/) Doe v. Sturgess, 7 Taunt. 51 ; Worthington v. Evans, 1 S. 217. & St. 165 ; Cole v. Miles, 10 (g) Richards v. Brown, 22 L. J. Hare, 179. Ch. 1082. See further as to what (i) See s. 2 (2) of the Act of acts of an executor will or will not 1897, set out ante, p. 60. be deemed to amount to an assent (k) Flanders v. Clark, 3 Atk. to his own legacy, Williams on 510. Executors (9th ed. ), Vol. II., pp. 1233 — 1239, and cases there cited. 104 TRANSFER TO DEVISEE OR HEIR. Chap. VEX If land be devised to one of several real repre- sentatives, he may assent to the devise without the assent or concurrence of the other real representatives and retain the land accordingly (I) ; and it would seem that he may give such assent before probate of the will or grant of administration (m) . Assent by j^ f s c l e ar that a personal representative who is a married . x L woman married woman may assent to a devise without the executrix. concurrence of her husband, inasmuch as by the Married Women's Property Act, 1882, she is rendered capable of entering into any contract, including the acceptance of the office of an executrix or adminis- tratrix (n) ; and it has been held that the concurrence of the husband is not necessary in the administration bond on grant to his wife of letters of administration (o) . Infant cannot a^ rea i representative who is an infant cannot, of assent. . course, assent to a devise until he attains full age ; but his administrators durante minore cetate may assent on his behalf (p) . Assent before it would seem that an executor may assent to a probate. J devise before probate (q) ; and that the death of a personal representative in the meantime will not affect the validity of such assent, although until probate or grant of letters of administration cum testamento annexo, the will is not admissible as evidence (r). It has sometimes been thought that, inasmuch as an executor may assent before probate, the vendor of lands which he has acquired by testamentary disposition can make a good title without probate, and that the purchaser (/) Townson v. TkMl, 3 B. & (q) Ante, p. 62. Aid. 40. (>•) R. v. Stone, 6 T. R. 298 (m) Perkins, s. 572. Pinney v. Pinney, 3 B. & Cr. 335 (n) 45 & 40 Vict. c. 75, ss. 1,24. Brazier v. Hudson, 8 Sim. 67 (o) ReAyres, 8 P. D. 168. Fenton v. Cleyrj, 9 Exch. 680. (p) Prince's case, 5 Rep. 29 b. ; Anon., 1 Freem. 288. ASSKNT TO DEVISKK. 105 is not entitled to require the will to be proved (s), but it is Chap. ^ In - submitted that such a proposition cannot be sustained. Unless the will is proved there will be a defect in Probate the title of the devisee which may prove inconvenient comp i et e when he desires to deal with the property. The title - assent or conveyance will be good so far as it goes for purposes of title, but there will be no legal evidence that the person purporting to give the assent or to make the conveyance had any power to do so (t) . As soon as the probate has been obtained, this defect in evidence will be supplied, and the claim of title will be perfected accordingly. The will may be proved at any time, even after the death of the executor; and, on this being done, a previous assent or conveyance will be admissible in evidence, so that the devisee will be enabled to make a good title to a purchaser or mortgagee, by deducing the same from the deceased owner through his personal representatives (u) . The above remarks do not, however, seem to apply to Conveyance a conveyance to the heir by an administrator before a g ran t f ad- grant of administration, which would apparently be ministration, ineffectual (v). A personal representative ought not to assent to a Liability of devise until he is satisfied that the assets of the testator ass^ntine are sufficient to pay the debts of the testator in full before debts without rendering the devisee liable to restore the paid. 1 5 property devised, wholly or in part, for the purpose of satisfying the claims of creditors (,r) . In such a case, the creditors may either sue the real representative personally for devastavit, and recover (*) See Dyer, 367 a. (v) See ante, pp. 62, 63. (f) Cm. Dig. 264, 532. (.r) Duke of Devon v. Atkins, 3 («) Prest. Abstr. Vol. III. p. 146. V. Wins. 383. See Shep. Tonchst. And see cases cited supra, note (>■). 455. 106 TRANSFER TO DEVISEE OR HEIR. Chap. VIII. Assent is irrevocable. Assent must be absolute and uncon- ditional. from him the value of the property, to the devise of which he has prematurely assented (y) ; or they may follow the assets into the hands of the devisee into whose possession they have come, however such property may have been changed or altered, and all profits or increments thereof, so long as the property claimed as assets is capable of being identified as in fact acquired with or shown to represent the original assets (z). But an assent once given is irrevocable, and will prevent the real representative from recovering posses- sion of the land from the devisee, unless a deficiency in the assets is subsequently created by the discovery of liabilities of the testator which were unknown at the time when the assent was given (a) ; or unless the assent was given under a misapprehension (b). An assent must be absolute and not clogged with any condition subsequent ; though it would seem that a representative may agree to give his assent upon the performance of a condition precedent. If an assent is given on the terms that the devisee shall thereafter do or abstain from any act, the condition will be rejected, and the assent will be deemed to have been given absolutely (c) . And it would seem that if an assent were to be given upon condition that the same should be void unless the devisee should do or abstain from a specified act, and if upon default the representative should obtain a reconveyance from the devisee, such reconveyance would be liable to be set aside (d) . (y) Spoil v. Smith, 3 Russ. 511. (z) Marsh v. Russell, 3 My. & Cr. 31 ; see Pennell v Deffell, 4 De G. M. & G. 372 ; Re Hallett, 13 Ch. D. 696. (a) Davis v. Davis, 8 Vin. Abr. 423, pi. 35; Noel v. Robinson. 2 Ventr. 358 : Orr v. Kaimes, 2 Ves. 194 ; Coppin v. Coppin, 2 P. Wms. 296. (b) Livesey v. Livesey, 3 Russ. 287. See Wentw. Off. Ex. 415; Mead v. Lord Ossery, 3 Atk. 238. (c) Wentw. Off. Ex. 429. (d) Westivick v. Wyers, 4 Rep. 28 b. ; see Com. Dig. ' 'Administra- tion," c. 8. ASSENT TO DEVISES. 107 In the absence of any conveyance or formal declara- Chap. VIII. tion, the assent of real representatives to a devise may Im lication be expressly given by parol or by writing however of assent from informal, or may be implied from any expression or expressions, act on their part which clearly indicates their con- currence in or agreement to the taking of the property by the devisee. Very slight and informal expressions, if sufficiently clear to indicate intention, have been construed as assents to the taking of legacies, as for instance the following : "I intend you to have your legacy according to the devise" (e) ; "The legacy is ready for you when- ever you will call for it (/). Where an executor allowed the legatee of a term to Implication receive the rents and profits, his assent to the bequest exeC utors. might be implied (g) ; so also, where the executor for several years paid the rent of leaseholds and charged the legatee with the payment in account (/*■) ; and where the executor applied the rents of leaseholds for the maintenance of the legatee during minority in accord- ance with a proviso in that behalf contained in the will, he was held to have assented to the bequest of the corpus (i) . An obvious result of the provisions of the Act of 1897, Purchasers , • , i i P i -i • i • etc. , entitled m vesting the real estate of a deceased person in his to evidence real representatives until they assent to a devise thereof of assent - or convey the property devised to the devisee, is to render it necessary, on any subsequent dealing with such property by the devisee, for a purchaser or mortgagee to require satisfactory evidence that the real (e) See Doe v. Tatchell, 3 B. & (g) Wentw. Off. Ex. 414. Ad. 675 ; Barnard v. Pom/ret, (h) Doe v. Mabedey, 6 C. & P. 5 My. & Cr. 70 ; see also Com. 126. Dig. "Administration," c. 6. (i) Passmorev. Yardley, Plowd. (f) Hawker v. Saunders, Cowp. 539. 293 : see Barnard v. Pomfret, supra. 108 TRANSFER TO DEVISEE OR HEIR. Chap. VIII. representatives of the testator have assented to the devise. In general, unless there is a conveyance to the devisee or an instrument expressly declaring assent to the devise, the real representatives should be required to testify their assent by concurring in the purchase deed or mortgage, and to confirm the same (k). It will therefore generally be advisable in practice for a devisee or heir to obtain from the real representatives of his testator or ancestor a conveyance to him of the real estate, or at all events a formal instrument expressly declaring assent to his taking the property. No particular Assent is only a perfecting act, for it is the will of form of J . r . ° assent the testator which gives the estate or interest to the necessary. devisee or legatee, and therefore generally the law does not prescribe any particular form in which an assent must be given (I) . And the Act of 1897 does not pre- scribe any form, except for the purpose of obtaining registration (m), or even require an assent to a devise to be in writing. Presumption A title depending upon a conveyance by a devisee at after lapse of a remote period may, no doubt, be safely accepted by tlnie - a purchaser without requiring strict evidence of the assent of the personal representatives to the devise ; for, in transactions which have happened at a remote date, the rule obtains that " ex diuturnitate temporis omnia presumuntur solemniter esse facta" (n) ; and, accordingly, it would be presumed that the real repre- sentatives had done that which it was their duty to do(o). So also if a devisee entered into possession and retains the same for several years without interruption, it (k) Prest. Abstr., Vol. III., Provisional Land Transfer Rules p. 145. (Form 15). See post Appendix. (/) Byth. & Jarm. Conv. Vol. I., (») Co. Litt. 6 a. ; 2 Inst. 118, p. 176. 362. (m) Sees. 3(3) of the Act. This (o) Williams, Executors (9th prescribed form is given in the ed. ), Vol. II., p. 1230. schedule to the recently issued MIGHT TO CONVEYANCE. 100 would be presumed, in the absence of evidence to the Ghap. viti. contrary, that the personal representatives had assented to the devise (p) . And after the death of an executor, after the debts are paid, his assent may be presumed (q) . But where a legatee of leaseholds entered into possession without any express assent of the executors, and shortly afterwards quitted possession, it was left to the jury to say whether there was sufficient evidence of assent, and whether a contract by the legatee to grant an underlease was to be presumed to have been entered into by him as owner of the term of years, or as agent of the executors (/•) . It would seem that the question whether or not there Assent or no is sufficient evidence of assent, in the absence of any q ues tion for express and clear declaration of assent, is one of fact i UI T- for the jury to determine, even though it depends on the lawful and somewhat critical comparison of the terms of a deed with other circumstances and facts of the case (s) . 2. Eight of Devisees and Heirs to Compel Conveyance. After the funeral and testamentary expenses and Rule as to debts of the testator have been fully paid, and a tefatees. sufficient fund has, if necessary, been set apart to meet contingent liabilities, the next duty of an executor is to pay the legacies and distribute the residue among the persons entitled thereto (t). And a specific legatee or his assignee or representatives can thereupon compel (p) Prest. Abstr., Vol. III., (r) Richardson v. Gifford, 1 Ad. p. 145. See Cole v. Miles, 10 & Ell. 52 ; 3 Nev. & M. 325. Hare, 179. (s) Per Alderson, B., in. Mason (q) Cray v, Willis, 2 P. Wms. v. Farnell, 12 M. & W. at p. 682. 531. (t) Williams, Executors (9th ed.), Vol. II., pp. 897 et seq. 110 TRANSFER TO DEVISEE OR HEIR. Chai\ VIIL the executor to give his assent if he refuse to do so without just cause (u) . This principle is applied to real estate, the right to recover which, subject to requirements for purposes of administration, is given to a devisee or heir, by section 3 of the Act of 1897, which enacts as follows : — Jurisdiction (2.) At any time after the expiration of one year orde^con irom tne death °f the owner of any land, if his personal veyances. representatives have failed on the request of the person entitled to the land to convey the land to that person, the court may, if it thinks fit, on the application of that person, and after notice to the personal represen- tatives, order that the conveyance be made, or, in the case of registered land, that the person so entitled be registered as proprietor of the land, either solely or jointly with the personal representatives. Liability of j^ has been seen that this Act expressly declares that tives refusing the personal representatives of a deceased owner of to convey. j an( j are £ ^ e d eeme d to be trustees for the persons entitled (x) . It is a well settled rule with regard to trustees, that, when they have no longer any active duty to perform because their trust has been fully performed, it is their duty to convey or transfer the trust property to the persons beneficially entitled thereto or as they direct, -and if they refuse to do so without good reason they will be liable to pay the costs of an action to compel conveyance or transfer (if). Where an action to compel assent or conveyance is brought against a personal representative, the indorse- ment must show that he is being sued in a representative capacity (z) . (u) Com. Dig. " Administra- v. Hiscox, 4 My. & Cr. 197; tion," c. 8. Hampshire v. Bradley, 2 Coll. 34. (x) Ante, p. 52. (z) R. S. C, Order IV. r. 4; (y) Payne v. Barker, Bridg. 24; App. A., Part III., s. 7. Jones v. Lewis, 1 Cox 199 ; Willi* RIGHT TO CONVEYANCE. Ill If the beneficiary has conveyed real estate to which Chap. VIII. he is entitled subject to the requirements of adminis- R . . f tration, before assent of the personal representatives or purchasers conveyance of the property by them to him, then, upon or °^i r eviBe< completion of the administration, the purchaser from before assent the beneficiary will be entitled to call upon the personal anc utm apart a sufficient part of the testator's personal estate to answer the legacy as and when it becomes due and payable (h) ; but the rule was different where the legacy was to be raised out of real estate (i) . And in some cases where there is no risk of loss to the fund, the court instead of ordering appropriation of part of personalty to answer contingent legacy has ordered the whole residue to be paid over to the residuary legatee upon his giving satisfactory security to pay the legacy if the contingency should occur (A - ) . As regards immediate legacies it has been generally considered in practice, where the will contains no express powers of appropriation, that the safest course to adopt is for the executors to sell, call in and convert into money such parts of the personal estate of the testator as do not consist of money, and to pay over the legacies to the persons entitled thereto in cash, so as to avoid any disputes in the future as to the propriety of the appropriation. And, accordingly, express powers are often given by will to the executors or trustees either with or without the consent of such beneficiaries as are of full age to appropriate property in or towards satisfaction of legacies or shares of residue (I). Now, however, in the case of any testator dying on Effect of the or after January 1st, 1898, it would seem that personal Act> (g) An annuity is a legacy ; see (i) Gawler v. Standerwick, 2 Sibley v. Perry, 7 Ves. 522 Bromley v. Wright, 7 Hare, 334 Ward v. Grey, 26 Beav. 485 Gaskin v. Rogers, L.R. 6 Eq. 284 (h) Phipps v. Annesley, 2 Atk 273 ; Johnson v. Mills, 1 Ves Sen. 282 ; Green v. Pigott, 1 Bro C. C. 103: Piiflni v. Smith, 5 Ves 21. Cox, 15. (k) See Webber v. Webber, 1 S. & St. 311. See Re Braithwaite, 21 Ch. D. 121. (/) Byth. & Jarm. Conv., 4th ed., Vol. VII., p. 881; Key & Elph. Conv., Vol. II., p. 700, 821. 114 APPROPRIATION OF PEAL ESTATE Chap. IX. representatives will have full power to appropriate any part of the residuary estate of a deceased person, whether real or personal, in or towards satisfaction of legacies given by his will or shares of residue, provided that no direction to the contrary is contained in the will, that the prescribed consents are obtained, and that no person interested in the residuary estate after due notice of the intended appropriation objects thereto (m). The question as to whether this enactment does or does not alter the law as to the ultimate devolution, on completion of the administration, of real estate on an intestacy has already been considered (n) . Duties of personal re- presentative after"appro- priation. Where a legacy is given in futuro and the executors appropriate any part of the testator's residuary estate to answer the same, they become trustees of the part so appropriated, with all the duties and liabilities of ordinary trustees (o). They are therefore bound to make and continue authorized investments of the appropriated fund and would not be justified in lending that fund with other parts of the residuary estate so as to render it undistinguishable from other parts of the estate, as, for instance, by lending it on a contributory mortgage (p) , but it would seem that an appropriation by personal representatives of part of the real or personal estates to answer more than one legacy or share of residue would be valid (g) . On the other hand, if an appropriation of residuary estate has once been made with the consent of the Appropria- tion once duly made is absolute, persons entitled to a legacy or share of a residue, or if by the terms of the will, the executors being (m) See ante, p. 112. (n) Ante, p. 84. (o) Byrchall v. Bradford, 6 Madd. 240 ; Phillips v. Munnings, 2 My. & Cr. 309 ; Ex parte Dover, 5 Sim. 500. (p) Webb v. Jones, 29 Ch. D. 660 ; see Massinyberd's Settlement, 63 L. T. 296. (q) See Be Walker, 62 L. T. 449. TO LEGACIES AND SHARES OF RESIDUE. 115 authorized to appropriate without consent bond fide Chap. r.\ exercise their discretion to the best of their judgment, the beneficiaries must take the appropriated fund, subject to any subsequent variations in value whether by way of increment (r) , or loss (s) ; provided that the appropriation was of an investment subsisting at the time of the testator's death, or authorized by law on the terms of his will (t). Where part of residuary estate of a deceased person Right of L . J . i.i tenant for is appropriated to answer a contingent legacy, the Hf e pending a tenant for life is entitled to the income of a fund until contin g enc y- the happening of the contingency. A form of appropriation of land in satisfaction of a instrument legacy or share in residuary estate is given in the t , on schedule to the Provisional Land Transfer Rules recently issued (u) . This form is, however, merely intended for production to the registrar, with other prescribed evidence of appropriation of land, to enable the person to whom the land is appropriated to be registered as proprietor of that land in place of the deceased proprietor (,r) . The appropriation in the pre- scribed form does not of itself operate as a conveyance of the land, and, except as regards registered land, a formal deed of conveyance will be required. (r) Green v. Pigott, 1 Bro. C. C. Cas. 855 at p. 864. See Kendall 105 ; Burgess v. Robinson, 3 Mer. v. Russell, 3 Sim. 424. 9. See Rockv. Hardman, 6 Madd. (0 Re Waters, W. N. (1889), 39. 254 ; Kimberley v. Tew, 4 Dr. & (m) See Form 16, Appendix, War. 139. But see contra, Sitire/t post, p. 150. v. Bernhard, 6 Ves. 543. (x) Rule 15, Appendix, post, (s) Frazer v. Murdoch, 6 App. p. 150. i 2 ( 116 ) CHAPTER X. MISCELLANEOUS MATTEKS. 1. Eegistration of Proprietorship of Keal Estate. The enactments contained in Part I. of the Act of 1897 with regard to registration of devisees and heirs under the Land Transfer Act, 1875 (u), as amended by this Act, are as follows : — Provisions in By section 3, sub-section (1), after the expiration of Part I., as to a year from the death of any owner of land, the court registration. m ay, in lieu of ordering a conveyance to the devisee or heir, order " in the case of registered land that the person so entitled be registered as proprietor of the land either solely or jointly with the personal represen- tatives." And the same section further enacts as follows : — (3.) Where the personal representatives of a deceased person are registered as proprietors of land on his death, a fee shall not be chargeable on any transfer of the land by them unless the transfer is for valuable consideration. (4.) The production of an assent in the prescribed form (v) by the personal representatives of a deceased proprietor of registered land shall authorize the registrar to register the person named in the assent as proprietor of the land. (u) 38 & 39 Vict. c. 87. assent, see Form 15 in Appendix, (c) For the prescribed form of post, p. 150, REGISTRATION. 117 And by suction 4 oi' the same Act, after empowering Chap. X. personal representatives to appropriate real estate to satisfy legacies and shares of residue, it is enacted that — (3.) In the case of registered land, the production of the prescribed evidence of an appropriation under this section shall authorize the registrar to register the person to whom the property is appropriated as pro- prietor of the land. The expression "prescribed" means in the Land Meaning of Transfer Act, 1875 (iv), and in this Act, prescribed "P rescribed -" by any general rules made in pursuance of these Acts (./•)• General Eules, under section 111 of the Land General Transfer Act, 1875, and section 2 of the Act of 1897, were issued on December 29th, 1897, intituled "Provisional Land Transfer Rules, 1897," and will be found set out in the Appendix to these notes. Transmissions of land on the death of a registered proprietor thereof are dealt with in rules 14 to 19 inclusive. They provide that on production of probate or letters of administration of a registered proprietor of land his executors or administrators shall be entitled to registration as such of the land in his place. They prescribe the evidence on production of which a person claiming under an assent or appropriation shall be entitled to be registered as proprietor of the land in the place of the deceased proprietor. They further provide, where a settlement is created by will, for the registra- tion of all proper restrictions and inhibitions ; and they relieve the registrar from all obligation to inquire into the terms of the will, the probate or copy or (w) 38 & 39 Vict. c. 87, see s. 4 (x) 38 & 39 Vict. c. 87, s. Ill ; of that Act. 60 & 61 Vict, c. 65, s. 22 (2). lib MISCELLANEOUS MATTERS. Chap. X. Compulsory registration in county of London. abstract of which may, if the parties desire it, be left with the registrar for safe custody. By a notice recently issued under section 20 of the Act of 1897 by the Office of Land Kegistry of a draft order, it appears that as respects the county of London on and after July 1st, 1898, it is proposed that registration of title to land is to be compulsory on sale. Assent. Conveyance to devisee or heir. 2. Stamp Duties. An assent to a devise, if given by deed, will require a stamp of 10s., as a deed not otherwise charged (y). But a deed is not generally necessary for the purpose of giving an assent, nor is an assent under the Act of 1897 required to be under seal or even in writing, except for the purpose of obtaining registration (z) ; if the assent is given under hand only, it will not require any stamp. A deed of conveyance by personal representatives to a devisee or heir will require a stamp of lO.s. Conveyance By section 4 of the Act of 1897, after empowering tion aPPr ° Pna P ersona l representatives to appropriate any residuary estate to satisfy legacies or shares of residue (a), it is enacted that — (2.) Where any property is so appropriated a con- veyance thereof by the personal representatives to the person to whom it is appropriated shall not, by reason only that the property so conveyed is accepted by the person to whom it is conveyed in or towards the satisfac- tion of a legacy or a share in residuary estate, be liable to any higher stamp duty than that payable on a transfer of personal property for a like purpose. (y) 54 & 55 Vict. c. 39, Sched. (z) Ante, p. 108. (a) Ante, p. 112. LIABILITY TO DUTY. 119 3. Liability to Succession and Estate Duty. c,1 ^j x - With regard to liability to duty, the Act of 1897 enacts as follows : — Section 5. Nothing in this part of this Act shall affect any duty payable in respect of real estate or impose on real estate any other duty than is now payable in respect thereof. By section 42 of the Succession Duty Act, 1853 (6), Succession succession duty is to be a first charge on the interest uty- of the successor, and of all persons claiming in his right, in all the real property in respect whereof such duty shall be assessed ; and by the Customs and Inland Eevenue Act, 1889 (c) , the liability attaches as against a purchaser for valuable consideration or mortgagee till the expiration of six years from the date of the notice to the commissioners of the succession, or of the first payment of any instalment or part of the duty, or till after two years from the payment of the last instalment or part, or in any other case for twelve years after the happening of the event giving rise to the claim to duty. It will not, therefore, be safe for a purchaser or mortgagee to take a conveyance from the personal representatives of a deceased owner of land without ascertaining that succession duty has been paid or provided for. The same precaution should be taken by a purchaser Estate duty or mortgagee as regards estate duty, unless the sale or mortgage is for the purpose of raising the duty. By section 9 of the Finance Act, 1894(d), it is enacted as follows : — (1.) A rateable part of the estate duty on an estate in proportion to the value of any property which does not pass to the executor as such, shall be a first charge (b) 16 & 17 Vict. c. 51. (d) 57 & 58 Vict. c. 30, ('•) 52 & 53 Vict. c. 7. 120 MISCELLANEOUS MATTERS. Chap. X. on the property in respect of which duty is leviable ; provided that, the property shall not be so chargeable as against a bona fide purchaser thereof for valuable consideration without notice. • # # * * (5.) A person authorized or required to pay the estate duty in respect of any property shall, for the purpose of paying the duty or raising the amount of the duty when already paid, have power, whether the property is or is not vested in him, to raise the amount of such duty and any interest and expenses properly paid or incurred by him in respect thereof by the sale or mortgage of or a terminable charge on that property or any part thereof. APPENDIX. LAND TRANSFER ACT, 1897. (60 & 61 Vict. Cap. 65.) An Ad to establish a Real Representative, and to amend the Land Transfer Ad, 1875. [6th August, 1897.] Whereas it is expedient to establish a real representative, and _ „ __ „. to amend the Land Transfer Act, 1875, in this Act referred to as c< g7_ " the principal Act :" Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : — Part I. Establishment of a Real Representative. 1. — (1.) Where real estate is vested in any person without a Devolution right in any other person to take by survivorship it shall, on his °* legal death, notwithstanding any testamentary disposition, devolve to rga j estate on and become vested in his personal representatives or representative death, from time to time as if it were a chattel real vesting in them or him. (2.) This section shall apply to any real estate over which a person executes by will a general power of appointment, as if it were real estate vested in him. (3.) Probate and letters of administration may be granted in respect of real estate only, although there is no personal estate. (4.) The expression " real estate," in this part of this Act, shall not be deemed to include land of copyhold tenure or customary freehold in any case in which an admission or any act by the lord of the manor is necessary to perfect the title of a purchaser from the customary tenant. (5.) This section applies only in cases of death after the com- mencement of this Act. 2. — (1.) Subject to the powers, rights, duties, and liabilities Provisions as hereinafter mentioned, the personal representatives of a deceased toadmmia- person shall hold the real estate as trustees for the persons by law beneficially entitled thereto, and those persons shall have the same power of requiring a transfer of real estate as persons beneficially entitled to personal estate have of requiring a transfer of such personal estate. i-2'2 LAND TK.WSFER ACT, JH ( JT Appendix. (2.) All enactments and rules of law relating to the effect of probate or letters of administration as respects chattels real, and as respects the dealing with chattels real before probate or administration, and as respects the payment of costs of adminis- tration anil other matters in relation to the administration of personal estate, and the powers, rights, duties, and liabilities of personal representatives in resjiect of personal estate, shall apply to real estate so far as the same are applicable, as if that real estate were a chattel real vesting in them or him, save that it shall not be lawful for some or one only of several joint personal representatives, without the authority of the court, to sell or transfer real estate. (3.) In the administration of the assets of a person dying after the commencement of this Act, his real estate shall be adminis- tered in the same manner, subject to the same liabilities for debt, costs, and expenses, and with the same incidents, as if it were personal estate ; provided that nothing herein contained shall alter or affect the order in which real and personal assets respec- tively are now applicable in or towards the payment of funeral and testamentary expenses, debts, or legacies, or the liability of real estate to be charged with the payment of legacies. (4.) Where a person dies possessed of real estate, the court shall, in granting letters of administration, have regard to the rights and interests of persons interested in his real estate, and his heir-at-law, if not one of the next-of-kin, shall be equally entitled to the grant with the next-of-kin, and provision shall be made by rules of court for adapting the procedure and practice in the grant of letters of administration to the case of real estate. Provision for transfer to heir or devisee. 3. — (1.) At any time after the death of the owner of any land, his personal representatives may assent to any devise contained in his will, or may convey the land to any person entitled thereto as heir, devisee, or otherwise, and may make the assent or conveyance, either subject to a charge for the payment of any money which the personal representatives are liable to pay, or without any such charge : and on such assent or conveyance, subject to a charge for all moneys (if any) which the personal representatives are liable to pay, all liabilities of the personal representatives in respect of the land shall cease, except as to any acts done or contracts entered into by them before such assent or conveyance. (2.) At any time after the expiration of one year from the death of the owner of any land, if his personal representatives have failed on the request of the person entitled to the land to convey the land to that person, the court may, if it thinks fit, on the applica- tion of that person, and after notice to the personal representatives, order that the conveyance be made, or, in the case of registered (60 & 61 Vict. cap. 05). 1£3 land, that the person so entitled be registered as proprietor of the Ai'im;m>ix. land, either solely or jointly with the personal representatives. (.3.) Where the personal representatives of a deceased parson are registered as proprietors of land on his death, a fee shall not be chargeable on any transfer of the land by them unless the transfer is for valuable consideration. (4.) The production of an assent in the prescribed form by the personal representatives of a deceased proprietor of registered land shall authorize the registrar to register the person named in the assent as proprietor of the land. 4.— (1.) The personal representatives of a deceased person may, Appropria- in the absence of any express provision to the contrary contained tionof land in in the will of such deceased person, with the consent of the person i egac y or entitled to any legacy given by the deceased person or to a share in share in his residuary estate, or, if the person entitled is a lunatic or an estate, infant, with the consent of his committee, trustee, or guardian, appropriate any part of the residuary estate of the deceased in or towards satisfaction of that legacy or share, and may for that purpose value in accordance with the prescribed provisions the whole or any part of the property of the deceased person in such manner as they think fit. Provided that before any such appro- priation is effectual, notice of such intended appropriation shall be given to all persons interested in the residuary estate, any of whom may thereupon within the prescribed time apply to the court, and such valuation and appropriation shall be conclusive save as other- wise directed by the court. (2.) Where any property is so appropriated a conveyance thereof by the personal representatives to the person to whom it is appro- priated shall not, by reason only that the property so conveyed is accepted by the person to whom it is conveyed in or towards the ■satisfaction of a legacy or a share in residuary estate, be liable to any higher stamp duty than that payable on a transfer of personal property for a like purpose. (3.) In the case of registered land, the production of the prescribed evidence of an appropriation under this section shall authorize the registrar to register the person to whom the property is appropriated as proprietor of the land. 5. Nothing in this part of this Act shall affect any duty payable Liability for in respect of real estate or impose on real estate any other duty duty, than is now payable in respect thereof. Pakt II. Amendments of the Land Transfer Act, 1875. 6. — (1.) Settled land may (at the option of the tenant for life) Settled land. be registered either in the name of the tenant for life, or, where 124 LAND TRANSFER ACT, 1897 Appendix, there ;ire trustees with powers of sale, in the names of those trustees, or, where there is an overriding power of appointment of the fee simple, in the names of the persons in whom that power is vested. (2.) There shall also be entered on the register such restrictions or inhibitions as may be prescribed, or may be expedient, for the protection of the rights of the persons beneficially interested in the land. (3.) Where land already registered is assured to the uses of a settlement, the instrument of transfer may be in a specially prescribed form, which shall operate as a conveyance to the uses of the settlement, and it shall be the duty of the trustees of the settlement (if any) to concur in the instrument, and to apply for the entry on the register of the proper restrictions or inhibitions under this section. If there are no such trustees, the registrar shall inquire into the terms of the settlement, and shall enter on the register such restrictions or inhibitions as may be prescribed, or as appear to him to be in accordance with this section. (4.) On the death of a tenant for life, registered as proprietor of settled land, it shall be the duty of the trustees of the settlement (if any) to apply for the registration of his successor or successors, with such restrictions or inhibitions (if any) as may be in accordance with this section. If the trustees neglect to apply or if there are no such trustees, the registrar shall proceed under the forty-first section of the principal Act in such manner as may be prescribed. (5.) Where a settlement is created by the will of, or otherwise arises in consequence of the death of, a sole registered proprietor of land or of an undivided share in land, it shall be the duty of his personal representatives to apply for the registration of the person entitled to be registered as proprietor, and for the entry on the register of proper restrictions or inhibitions in accordance with this section. (6.) The settlement, or an abstract or copy thereof, may be filed in the registry for reference in the prescribed manner, but such filing shall not affect a purchaser or mortgagee for value from the registered proprietor with notice of its provisions, or entitle him to call for production of the settlement, or for any information or evidence as to its contents. (7.) The registered proprietor of settled land and all other necessary parties (if any) shall, on the request, and at the expense, of any person entitled to an estate, interest, or charge conveyed or created for securing money actually raised at the date of such request, charge the land in the prescribed manner with the payment of the money so raised. (8.) Subject to the maintenance of the right of the registered proprietor to deal by registered disposition, or by way of mortgage (60 & 61 vict. cap. 65). 125 by deposit, with any land whereof he is registered as proprietor, Appendix. the estates, rights, and interests of the persons for the time being entitled under any settlement comprising the land shall be unaffected by the registration of that proprietor. (9.) A jjerson in a fiduciary position may apply for, or concur in, or assent to, any registration authorized by this section, and, if he is a registered proprietor, may execute an instrument of transfer or charge in the prescribed form in favour of any person whose registration is so authorized. (10.) In this section the expressions "tenant for life," "settled land," "settlement," and "trustees of the settlement," have the same meaning as in the Settled Land Acts, 1882 to 1890. 7. — (1.) Where any error or omission is made in the register, or Right to where any entry in the register is made or procured by or in indemnity pursuance of fraud or mistake, and the error, omission, or entry m cei ain is not capable of rectification under the principal Act, any person 3$ & 39 Vict, suffering loss thereby shall be entitled to be indemnified in the c. 87. manner in this Act provided. (2.) Provided that where a registered disposition would if unregistered be absolutely void, or where the effect of such error, omission, or entry, would be to deprive a person of land of which he is in possession, or in receipt of the rents and profits, the register shall be rectified and the person suffering loss by the rectification shall be entitled to the indemnity. (3.) A person shall not be entitled to indemnity for any loss where he has caused or substantially contributed to the loss by his act, neglect, or default, and the omission to register a sufficient caution, notice, inhibition, or other restriction to protect a mortgage by deposit or other equitable interest, or any estate or interest created under section forty-nine of the principal Act, shall be deemed neglect within the meaning of this sub-section. (4.) Where the register is rectified under the principal Act by reason of fraud or mistake which has occurred in a registered disposition for valuable consideration, and which the grantee was not aware of and could not by the exercise of reasonable care have discovered, the person suffering loss by the rectification shall like- wise be entitled to indemnity under this section. (5.) The registrar may, if the applicant desires it, and subject to an appeal to the court, determine whether a right to indemnity has arisen under this section, and, if so, award indemnity. In the event of an appeal to the court, the applicant shall not be required to pay any costs except his own, even if unsuccessful, unless the court shall consider that the appeal is unreasonable. (6.) Where indemnity is paid for a loss, the registrar, on behalf of the Crown, shall be entitled to recover the amount paid from 12ti LA3TD TEANSFBH ACT, 1897 Appendix. ail y p erson w i 1D ] ias caused or substantially contributed to the loss by his act, neglect, or default. (7.) A claim for indemnity under this section shall be deemed a l» ' ' simple contract debt, and for the purposes of the Limitation Act, 1623, the cause of action shall be deemed to arise at the time when the claimant knows, or but for his own default might know, of the existence of his claim. This section shall apply to the Crown in like manner as it applies to a private person. Land certifU 8. — (1.) So long as a land certificate, office copy of a registered cates, office lease, or certificate of charge, is outstanding, it shall be produced registered ^° ^' ie re gi s trar on every entry in the register of a disposition by leases, and the registered proprietor of the land or charge to which it relates, certificates of and on every registered transmission or rectification of the register, * ' and a note of every such entry, transmission, or rectification shall be officially endorsed on the certificate or office copy, and the registrar shall have the same powers of compelling the production of certificates and office copies as are conferred on him by sections one hundred and nine and one hundred and ten of the principal Act as to the production of maps, surveys, books, and other documents. (2.) Where a land certificate or office copy of a registered lease has been issued, the vendor shall deliver it to the purchaser on completion of the purchase, or, if only a part of the land com- prised in the certificate or office copy is sold, he shall, at his own expense, produce, or procure the production of, the certificate or office copy in accordance with this section for the completion of the purchaser's registration. Where the certificate or office copy has been lost or destroyed, the vendor shall pay the costs of the proceedings required to enable the registrar to proceed without it. (3.) A new land certificate, office copy of a registered lease or certificate of charge, shall not be granted by the registrar in place of a former certificate, or office copy, which has been lost or destroyed, unless the applicant has filed with the registrar a statutory declaration and such other evidence, if any, as the registrar may think necessary, stating the fact and circumstances of the loss or destruction of the former certificate or office copy, nor until at least one advertisement of the application in the London Gazette and three advertisements in a London daily morning newspaper shall have been published at intervals of not less than seven days, and three advertisements in a local newspaper circulating in the district in which the land is situate, and sucli indemnity (if any) given as the registrar shall think fit. (4. ) Where a transfer of land is made by the registered proprietor of a charge, in exercise of the power of sale conferred by the charge, it may be registered, and a new land certificate may be issued to (00 & 01 VICT. CAT. 65). 127 the purchaser, without production <>f the former land certificate, Ai'I'kndix. hut the certihcate of charge (if any) must he produced or accounted for in accordance with this section. Subject to any stipulation to the contrary the proprietor of a registered charge shall not be entitled to have custody of the Land Certificate, or to require a Land Certificate to be applied for : — (i.) On the first registration of freehold or leasehold land, and on the registration of a charge, a land certificate, office copy of the registered lease, or certificate of charge, as the case may be, shall be prepared, and shall either be delivered to the registered proprietor or deposited in the registry as the said proprietor may prefer ; (ii.) If so deposited in the registry it shall be officially endorsed from time to time, as in this section provided, with notes of all subsequent entries in the register affecting the land or charge to which it relates ; (iii.) The registered proprietor may at any time apply for the delivery of the certificate or office copy to himself or to such person as he may direct, and may at any time again deposit it in the land registry ; (iv.) The preparation, issue, endorsement, and deposit in the registry of the certificate or office cojyy shall be effected without cost to the proprietor. The registered proprietor of any freehold or leasehold land or of a charge may, subject to any registered estates, charges, or rights, create a lien on the land or charge by deposit of the land certificate or office copy of registered lease, or certificate of charge ; and such lien shall, subject as aforesaid, be equivalent to a lien created by the deposit of title deeds or of a mortgage deed of unregistered land by an owner entitled in fee simple or for the term or interest created by the lease for his own benefit, or by a mortgagee bene- ficially entitled to the mortgage. 9. — (1.) The provisions of section eight of the Conveyancing and Transfers and Law of Property Act, 1881, shall apply, so far as applicable charges, thereto, to transfers of registered land as though such transfers 44 & 45 Vict were made by deed, and a transfer of land made by the proprietor c> **■ of a registered charge with power of sale shall operate as a conveyance in professed exercise of the power of sale conferred by the said Act. (2.) The provisions of sections nineteen, twenty, twenty-one (except sub-sections one and four), twenty two, twenty-three, and twenty-four of the same Act, shall similarly apply to registered charges. (3.) Every registered proprietor of land may in the prescribed manner charge it with an annuity or other periodical payment, and 128 LAND TRANSFER ACT, 1897 Appendix, the provisions of the principal Act and this Act with regard to charges shall apply to any such charge. Every registered proprietor of land may charge it, in favour of a building society under the Building Societies Acts, by means of a mortgage made in pursuance of or consistent with the rules of that society, and the mortgage shall be deemed a charge made in the prescribed manner, and shall be registered accordingly. (4.) Nothing contained in any charge shall (i) take away from the registered proprietor thereof the power of transferring it by registered disposition or of requiring the cessation thereof to be noted on the register, or (ii) affect any registered dealing with land or a charge in respect of which the charge is not expressly registered or protected, in accordance with the principal Act and this Act. (5.) The registrar may, on the application, or with the consent, of the registered proprietor of the land, and of the proprietors of all registered charges (if any) of equal or inferior priority, alter the terms of a charge. (6.) Where a person on whom the right to be registered as proprietor of land or of a charge has devolved by reason of the death or bankruptcy of the registered proprietor, or has been conferred by an instrument of transfer or charge, in accordance with the principal Act and this Act, desires to transfer or charge the land or to deal with the charge before he is himself registered as proprietor, he may do so in the prescribed manner, and subject to the prescribed conditions. Subject to the provisions of the principal Act with regard to registered dealings for valuable consideration, a transfer or charge so made shall have the same effect as if the person making it were registered as proprietor. 10. Every person who (not being a barrister or a duly certificated solicitor, notary public, conveyancer, special pleader, or draftsman in equity) either directly or indirectly, for or in expectation of any fee, gain, or reward, draws or prepares any instrument of transfer or charge, or an application to register restrictive con- ditions, or to alter or discharge, or alter the priority of a registered charge, or any other prescribed instrument, shall incur a fine not exceeding fifty pounds, which shall be recoverable before a court of summary jurisdiction in manner provided by the Summary Juris- diction Acts. Provided that this section shall not extend to — (a) any public officer drawing or preparing instruments and applications in the course of his duty ; or (b) any person employed merely to engross any instrument or application. As to statute n Section two of the statute of the thirty-second year of the of 32 Hen. 8. rei g n Q f H enry the Eighth, chapter nine, which prohibits sales and Penalty for unqualified persons drawing in- struments. (60 & 61 vict. cap. 65); I 29 other dispositions of land of which the grantor or his predecessor Appendix in title has not been in possession for one whole year previously to the disposition being made, is hereby repealed. 12. A title to registered land adverse to or in derogation of the As to title by title of the registered proprietor shall not be acquired by any length possession, of possession, and the registered proprietor may at any time make an entry or bring an action to recover possession of the land accordingly. Provided that where a person would, but for the provisions of the principal Act or of this section, have obtained a title by possession to registered land, he may apply for an order for rectification of the register under section ninety-five of the principal Act, and on such application the court may, subject to any estates or rights acquired by registration for valuable con- sideration in pursuance of the principal Act or this Act, order the register to be rectified accordingly. And provided also, that this section shall not prejudice, as against any person registered as first proprietor of land with a possessory title only, any adverse claim in respect of length of possession of any other person who was in possession of such land at the time when the registration of such first proprietor took place. 13. — (1.) On every application to register land with an absolute As to succes- title, or to register a transmission of land, the registrar shall inquire slc | n t an i t as to Succession Duty and Estate Duty. (2.) If, on such application, it appears that there is, or is capable of arising, any such liability to Succession Duty or Estate Duty as would affect the purchaser from the person to be registered as proprietor if the land were unregistered, the registrar shall enter notice of the liability on the register in the prescribed manner. (3.) Succession Duty and Estate Duty shall not — (a) unless so noted on the register ; or (b) unless in the case of a possessory title the liability to the duty was, at the date of the original registration of the land, subsisting or capable of arising ; or (c) unless in the case of a qualified title the liability to the duty was included in 'the exceptions made on such original registration of the land ; affect a bona, fide registered purchaser for full consideration in money or money's worth, although he may have received extraneous notice of the liability in respect thereof. 14. — (1.) So much of section eighty-three of the principal Act Repeal in as prohibits the registration of undivided shares, and limits the part of number of co-proprietors, and relates to the description, boundaries, * a**'' and extent, and alteration of the description of registered land is repealed. R.R. K 130 LAND TRANSFER ACT, 1897 Appendix. (2.) Registered land shall be described in the prescribed manner by means of the ordnance map, together with such further verbal particulars (if any) as the applicant for registration may desire, and the registrar, or the court, if the applicant prefers, may approve, regard being had to ready identification of parcels, correct descrip- tion of boundaries, and, as far as may be, uniformity of practice. Provisions as 15. — (1.) Where the incumbent of a benefice and his successors to land held ftre the re gi s teree sub-sections shall apply only to rights created previously to the regis- tration of the land or the commencement of this Act. The power conferred on the registrar shall be exercised in all cases where the abstract of title on first registration or on registration as qualified or absolute discloses the existence of any such liabilities as are mentioned in sub- sections (4) and (5). Where an easement is registered as an incumbrance, the dominant and servient tenements shall be defined, if practicable and required by the parties. Notice of a power of re-entry and <>f a right of reverter may be entered ou the register under this paragraph.' 138 LAND TRANSFER ACT, 1897 Appendix. Section in Principal Act. 19 and 28, second paragraph. 30—33 and 35-38 44, 45, 83 (4) Subject Matter. Discharge of incum- brances created prior to the registration of the land, and of re- gistered charges. No acquisition of title by adverse posses- sion. Creation of charges - Effect of transfers of freehold and lease- hold land. Transfer of charges Transmission on bank- ruptcy. As to married women General powers of dis- position over land . Notice of leases - Registration of restric- tions. Notices to the Board of Trade and others on registration of foreshore. Title deeds to be marked with notice of registration. Extent of Repeal or Nature of Amendment shall apply to part dis- These sections charges . Repealed. Charges created under this section are subject to the provisions of the principal Act in respect of qualified or possessory titles. In the absence of anything to the contrary in the register, or in the transfer, or (in the case of leasehold land) in the lease, the word " land " in these sections includes the mines and minerals Lf parcel thereof. A registered transferee for value of a charge, and his successors in title, shall not be affected by any irregularity or invalidity in the original charge itself, of which the transferee was not aware when it was transferred to him. This section shall not apply until it is certified in the prescribed manner by the court having jurisdiction in bank- ruptcy that the land or charge is part of the property of the bankrupt divisible amongst his creditors. The official re- ceiver shall be entitled to be registered pending the appointment of a trustee. These sections shall not apply to the case of any woman married on or after January 1st, 1883, or to any property to which a married woman is entitled for her separate use. This section includes power to sever the mines and minerals from the surface. The words " made subsequently to the last transfer of the land on the register " are repealed. The words "for his own sake, or at the request of some person beneficially interested in such land " are repealed, and the section shall apply to charges as well as to land. This section shall not apply to registration with a possessory title. In the case of registration with a possessory title, the registrar may act on such reasonable evidence as may be prescribed as to the sufficiency of the documents produced, and as to dispensing with their production in special circumstances. (60 & 61 vict. cap. 65). 139 Section in Principal Act. Subject Matter. Appendix. Extent of Repeal or Nature of Amendment- 82, first paragraph. 83(1) 83 (2) 83 (3) 83 (h ami 6) Loss or destruction of land certificate. Effect of deposit of land certificate. Registration of ad vow- sons and other incor- poreal hereditaments Notices of trusts - Undivided shares and joint proprietors. Entry of no survivor- ship of joint proprie- tors . Description boundaries and extent of regis- tered land. Annexation of condi- tions to land. Transfer of titles from the 1862 register. Registered land to be exempt from Middle- sex and Yorkshire registries. Repealed. Repealed. The words " enjoyed in gross " are repealed. Repealed, and the following sub-section substituted : — Neither the registrar nor any person dealing with registered land or a charge shall be affected with notice of a trust, express, implied, or construc- tive ; and references to trusts shall, as far as possible, be excluded from the register. Repealed. The words "with their consent" are re- pealed, and the following words and further provision are added to this sub- section : — " or of the registrar, after " inquiry into title, subject to an appeal " to the court." "Subject to general rales, wherever registered land or a charge is to be entered in the names of two or more joint proprietors, the registrar shall make such entry tinder this sub-section as may be prescribed, unless it is shown to his satisfaction that the joint proprietors are entitled for their own benefit." Repealed. Conditions may be annexed to land at any time, and the section shall apply to any restrictive condition capable of affecting assigns by way of notice. The words "nevertheless it shall not be " obligatory on any person interested in " an estate registered under the said Land " Registry Act, 1862, to cause such estate " to be registered under this Act" are repealed. The section shall not apply to estates and interests excepted from the effect of registration under a possessory or quali- fied title, or to an unregistered reversion on a registered leasehold title, or to dealings with incumbrances created prior to the registration of the land. 140 LAND TRANSFER ACT, 1«97 (60 & 61 VICT. CAP. 65). Appendix. .Section 22. THE SECOND SCHEDULE. The following fees shall be paid in districts where registration of title is compulsory, and shall include all necessary surveying, mapping, and scrivenery, and the preparation, issue, endorsement, or deposit, as the case may be, of a land certificate, office copy, registered lease, or certificate of charge ; discharges of incumbrances, the registration of any necessary cautions, inhibitions or restrictions, the filing of auxiliary documents (if any), and all other necessary costs of and incidental to the completion of each registration or transaction, whether under one or under several titles. For possessory registration, and for transfers, chai'ges, and transfers of charges for valuable consideration : — Value. Fees. Not exceeding 1,000/. - Exceeding 1,000/. and not ex- ceeding 3,000/. Exceeding 3,000/. and not ex- ceeding 10,000/. Exceeding 10,000/. Is. 6d. for every 25/. or part of 25/. 3/. for the first 1,000/., and Is. for every 25/. or part of 25/. over 1,000/. II. for the first 3,000/. , and 1*. for everv 50/. or part of 50/. over 3,000/. 14/. for the first 10,000/., and Is. for everv 100/. or part of 100/., up to a maximum of 25/. for 32,000/. For transmissions and transfers not for value, notices of leases, ind rectification of the register, and land : — One quarter of the above fees, according to the capital value of the interest dealt with, with a minimum of Is. and a maximum of 51. No fees to be charged for inspection of the register. PROVISIONAL LAND TRANSFER RULES, 1897. 141 LAND TRANSFER ACTS, 1875 and 1897. Rcle 1. PROVISIONAL LAND TRANSFER RULES, 1897. Interpretation. 1. In these Rules "the Act of 1875" and "the Act of 1897" mean the Land Transfer Acts of those years respectively, and " the Acts " has a corresponding meaning. First Registration of Settled Land. 2. Application for registration of settled land may be made by any person capable of being registered as proprietor, with the consent of the other persons (if any) whose consent or concurrence is necessary to a sale by that person. 3. In the case of possessory title the proper restriction shall be left with the application, or the Registrar shall be furnished with the information necessary to enable him to draw the proper restriction. 4. In framing restrictions and inhibitions for the protection of settled land, it shall not be the duty of the trustees or of the Registrar to protect the interests of any person who would not have been a necessary party to a sale or mortgage thereof if the land had been unregistered ; but it shall be the duty of the trustees, or, if there are no trustees, of the Registrar, to give notice of the restric- tions and inhibitions to such of the beneficiaries (if any) as the Registrar shall direct ; and any such person can, if he wishes, lodge a caution or apply for an inhibition. 5. The restrictions and inhibitions given in Forms 1 to 5 in the Schedule hereto, shall apply respectively to the various cases in the Schedule set forth. 6. The settlement, whether consisting of one or of several documents, or a copy or abstract thereof, may be left in the Registry for reference and safe custody. It shall not be referred to on the Register, but shall be filed in a separate place under the number of the title to which it relates. Transfers of Land into Settlement. 7. An instrument of transfer of land to the uses of a settlement may be in one of the Forms 6 to 12 in the Schedule hereto, and shall contain the proper restrictions or inhibitions to be entered on the Register, according to the principles stated in Rule 4 of these Rules. The transfer shall be signed by the tenant for life (if any. 142 LAND TRANSFER ACTS, 1875 AND 1897. Rule 7 and if of full age), as well as by the transferor and transferee, and all signatures shall be verified. 8. On receipt of an instrument of transfer in such form as aforesaid, the Registrar shall register the transferee named therein as the proprietor of the land, and shall enter on the Register the inhibitions and restrictions contained in the transfer. 9. If it appears to the Registrar that any restriction or inhibition contained in the transfer thus applied for is unreasonable or contrary to the principle on which the Register is kept, or calculated to cause unnecessary inconvenience, he may require the production of the settlement and an abstract or copy thereof, and any further evidence that may be necessary for the purpose of determining, and he shall determine (subject to an appeal to the Court), what restrictions and inhibitions, if any, ought to be registered, and the form thereof. 10. It shall not otherwise be the duty of the Registrar to enquire into the terms of the settlement, but, if the parties desire it, the settlement, or a copy or abstract thereof, may be deposited in the Registry for safe custody and future reference. 11. Where registered land has been brought into settlement, and the existing registered proprietor is the tenant for life under the settlement, and he elects to remain the registered proprietor thereof, it will only be necessary for him to apply for the registra- tion of a restriction and inhibition in Form 1 in the Schedule hereto, or such other restriction or inhibition as may be required, having regard to the terms of the settlement and the Settled Land Acts. Charges. 12. A charge to secure an annuity may be in Form 13 in the Schedule hereto. 13. An application to alter the terms of a registered charge under section 9 (5) of the Act of 1897 may be in Form 14 in the Schedule hereto, and shall be signed by the registered proprietor of the charge, and by the registered proprietor of the land, and of every charge of equal or inferior priority prejudicially affected by it, and the signatures shall be verified. Transmissions of Land on Death. 14. On production of the probate or letters of administration of a sole (or sole surviving) registered proprietor of land, dying after 1897, the personal representative named therein shall be registered as proprietor in the place of the deceased proprietor, with the addition of the words, " Executor (or Administrator) of deceased." PROVISIONAL LAND TRANSFER RULES, 1897. 143 15. On production of the probate or letters of administration Rule 15. with will annexed, and of an assent or appropriation in either of the Forms 15 or 16 in the Schedule hereto, or of an instrument of transfer by the personal representative in the usual prescribed Form, and of the probate or letters of administration, the devisee or legatee named in the assent or appropriation or the transferee named in the instrument of transfer shall be registered as proprietor of the land in place of the deceased proprietor. The signatures of the executor or administrator to the assent, appropriation, or transfer shall be verified. 16. Where a settlement is created by the will, or otherwise arises in consequence of the death, of a sole registered proprietor, the personal representative shall, at the proper time, and with the consent of the tenant for life (if of full age) leave in the Registry, together with the probate or letters of administration, a written application for the registration of a proprietor, with the proper restrictions and inhibitions, according to the principles stated in section 6 of the Act of 1897 and Rule 4 of these Rules. 17. On receipt of such an application, the Registrar shall register the proprietor and the inhibitions and restrictions therein named and applied for. 18. If it appears to the Registrar that any restriction or inhibition contained in the application is unreasonable or contrary to the principle on which the Register is kept, or calculated to cause unnecessary inconvenience, he may require the production of the probate (if any) or an abstract or copy thereof, and any further evidence that may be necessary for the purpose of determining, and he shall determine (subject to an appeal to the Court), what restrictions and inhibitions, if any, ought to be registered, and the form thereof. 19. It shall not otherwise be the duty of the Registrar to enquire into the terms of the will, but, if the parties desire it, the probate, or a copy or abstract thereof, may be deposited, in the Registry for safe custody and future reference. 20. Where the trustees of a settlement apply, on the death of a tenant for life, for the registration of a successor under the settle- ment, they and their solicitor shall make a statutory declaration to the effect that the deceased proprietor was tenant for life, and that they are the trustees of the settlement, and that the person for whose registration they are applying is the successor under the settlement, and that the restrictions and inhibitions (if any) applied for are the proper ones to be entered, or that no restrictions or inhibitions are required. In any case in which the Registrar may deem it desirable that the declaration shall be accompanied by a 144 LAND TRANSFER ACTS, 1875 AND 1897. Rule 20. certificate of counsel to the like effect, a certificate to his satis- faction shall be produced. 21. Where such a declaration (and certificate, if required) are produced, the Registrar need not require production of the settle- ment or any further evidence, but where not produced he shall enquire into the terms of the settlement, and shall satisfy himself that the proper entries are made on the Register. 22. If, on the death of a tenant for life, registered as proprietor of land, the trustees of the settlement neglect to apply for the registration of the new proprietor in his place, or if there are no such trustees, any person interested under the settlement may apply for the registration of a new proprietor. The Registrar shall there- upon enquire into the terms of the settlement, and shall settle draft entries for the Register on the principles stated in section 6 of the Act of 1897 and Rule 4 of these Rules in regard to settled land, and shall give notice thereof to the trustees of the settlement (if any) and to the new tenant for life, and to such other persons (if any) as he may think fit ; and if no valid objection is made thereto shall enter the new proprietor or proprietors accordingly. Transmissions on Bankruptcy. 23. On production to the Registrar of an order of a Court having jurisdiction in bankruptcy declaring a proprietor a bank- rupt, together with a certificate signed by the official receiver that any registered land or charge is part of the property of the bankrupt, divisible amongst his creditors, the official receiver may be registered as projjrietor in his place. 24. On production of such an order as last mentioned and of an order appointing a trustee, the trustee may be registered as proprietor. 25. If the official receiver has not been registered as proprietor, the order appointing the trustee, with a certificate signed by the trustee that the land or charge is part of the property of the bankrupt, divisible amongst his creditors, shall be produced to the Registrar. 26. In the liquidation of a company, any resolution or order appointing a liquidator may be filed and referred to on the Register, and, when so registered, shall be deemed to be in force until it is cancelled or superseded on the Register. Instruments under Section 9 (6) of the Act of 1897. 27. An instrument executed under the 6th sub-section of the 9th section of the Act of 1897 by a person entitled to be registered PROVISIONAL LAND TRANSFER RULES, 1897. 145 as proprietor of land, or of a charge, before ho has been registered Rxtle 27. as such, shall be in the same form as is prescribed for registered dispositions by the registered proprietor. 28. Such an instrument shall not be registered until the person executing it has been registered as proprietor, or his right to be so registered has been shown to the satisfaction of the Registrar. 29. When such an instrument deals with a portion of the land comprised in a title or with a charge not yet entered on the Register, the form may be varied so far as may be necessary to identify the land or charge dealt with. Notices as to Death Duties. 30. Where, upon an examination of title made on the first registration of land, the Registrar finds that there is, or may arise, any liability to death duties of the kind mentioned in section 13 of the Act of 1897, he shall enter notice thereof in the Register according to Form 17 in the Schedule hereto. 31. Where, on the death of a registered proprietor of land, his personal representatives are registered as such under Rule 14 of these Rules, notice of liability to duty shall not be entered. 32. If the personal representatives of a deceased proprietor of land assent to a devise or appropriation, or transfer land to any person otherwise than by sale, notice of the liability to duty shall be entered unless there is produced either : («.) Proof to the satisfaction of the Registrar that all duty payable in respect of the land by reason of the death of the proprietor has been paid or satisfied, or (b.) A certificate from the Commissioners of Inland Revenue in Form 18 in the Schedule hereto, or to that effect, or (c.) Proof to the satisfaction of the Registrar that the aj^plicant is entitled to the land in such a capacity that any liability to duty would not affect a purchaser from him if the land were unregistered. 33. Where a notice of liability to duty has been entered on the Register, it may be cancelled on production of any such evidence as is mentioned in the preceding rule. Entry of No Surrivorshij) of Joint Proprietors. 34. Where two or more persons apply to be entered as joint proprietors of land or of a charge, notice shall be given them that, by virtue of section 83 of the Act of 1875, as amended by the First Schedule of the Act of 1897, it is intended to make an entry in the Register in Form 19 in the Schedule hereto. 146 LAND TRANSFER ACTS, 1875 AND 1897. Rule 35. 35, If satisfactory evidence is produced to the Registrar that the proprietors are entitled to the land or charge for their own benefit, or that under the trust upon which they hold the land or charge a sole surviving trustee has power to dispose of the trust property, the entry shall not be made, If such evidence accompanies the application, the notice mentioned in the preceding rule need not be given. 36. An entry in the said Form 19 may at any time be made at the equest, or with the consent, of the joint proprietors. 37. When such an entry has been made, and the joint proprietors have been reduced to the number specified in it, the Registrar shall, before registering any disposition by the registered proprietor, require the production of the equitable title to the property, and may give such notices to the persons equitably entitled, or any of them, as he may deem expedient. Notice of Deposit of Land Certificate. 38. Any person with whom a land certificate, office copy registered lease, or certificate of charge is deposited as security for money may, by writing, give notice to the Registrar of the fact, and on receipt of such notice the Registrar shall enter the same in the Register. 39. So long as a notice of such a deposit is on the Register, no new certificate shall be issued under section 8 (3) of the Act of 1897 without notice to the person with whom the deposit was made. 40. The notice of deposit may be removed on the written request, signed and verified, of the person who placed it on the Register, or his successor in title ; or, with his consent in writing, on the like request of the registered proprietor of the land ; accompanied in each case by the land certificate. Forms. 41. The forms in the Schedule hereto shall be adopted so far as practicable, but with such modifications as the parties may desire, and the Registrar approve. Commencement, Mode of Citation, etc. 42. These Rules shall come into operation on the 1st day of January, 1898, and shall be construed as one with the Land Registry Rules of 1875 and 1889, and may be cited as the Provisional Land Transfer Rules, 1897, and in case of any discrepancy between these Rules and the said Rules of 1875 and 1889, these Rules shall prevail. Dated the 29th day of December, 1897. FORMS. 147 THE SCHEDULE. Form 1. Form 1. Restriction and Inhibition where Tenant for Life is registered as Proprietor, and there are Trustees of the Settlement, and powers of charging for special purposes. Restriction. — Until further order no transfer of the land is to be made except on sale or exchange, and the purchase moneys on sale are to be paid to A.B. of etc., and CD. of etc. [the trustees of the settle- ment], or into court : no sale of the house and land shown and edged red on the plan attached hereto is to be made without the consent of the said A. B. and G. D. or of the Court, and no charge is to be created without the consent of the said A. B. and G. D. (Or, where, the tenant for life has power to raise a definite sum for his own use, if and when the land has been charged to the extent of £ no further charge shall be created without the consent of the said A . B. and G. D. ) Inhibition. — On the death of E. F. of etc. [the registered proprietor] no entry is to be made until further order. Form 2. Restriction where the Tenant for Life is registered as Proprietor, and has incumbered his beneficial interest, without reserving the right to exercise his statutory powers. Until further order no transfer or charge shall be registered without the consent of A. B. of etc. [the mortgagee of the life interest}. Form 3. Restriction where the Trustees of the Settlement are registered as Proprietors. Until further order no transfer or charge is to be made without the consent of A. B. of etc. [tenant for life]. Form 4. Inhibition where there are no Trustees of the Settlement, and the Tenant for Life is registered as Proprietor. No transfer is to be made, and no charge is to be created, till further order. Form 5. Inhibition where land is settled to such uses as Two Persons, entered as Proprietors, shall jointly appoint, and subject thereto in Settlement. After the death of either of the joint proprietors no transfer shall be made or charge created till further order. Form 6. Instrument of Transfer to give effect to a settlement, under which the existing Registered Proprietor is the Tenant for Life, but the Trustees of the Settlement are to be registered as Proprietors. Land Registry. Land Transfer Acts, 1875 and 1897. No. of title (Date.) In pursuance of the provisions of the settlement dated etc., and made between etc. (or created by the will of etc.) under which I, L 2 148 LAND TRANSFER ACTS, 1875 AND 1897, Form 6 A. B. of etc. am (or have the powers of) tenant for life under the ' Settled Land Acts, 1882 to 1890, and G. D. of etc. and E. F. of etc. are the trustees for the purposes of the same Acts, I, the said A. B. hcrehy transfer to the said G. D. and E. F. all the land comprised in the title above referred to, and apply for the registration of the following restriction ( fill in Form 3). Form 7. Instrument of Transfer to give effect to a Settlement under which the existing Registered Proprietor is the Tenant for Life, but the donees of an overriding power of appointment vested in him and another are to be registered as Proprietors. (Head and begin as in Form 6 down to ''under which") the land comprised in the title above referred to is limited to such uses as I, A. B. of etc., and C. D. of etc., shall jointly appoint, and subject thereto to various uses by virtue of which I am (or have the powers of) tenant for life under the Settled Land Acts, 1882 to 1890, I hereby transfer to myself and the said G. D. all the said land, and apply for the entry on the Register of the following inhibition (fill in Form 5). Form 8. Instrument of Transfer by the representative of a deceased settlor, transferring the land to the Tenant for Life or to the Trustees. (Head and begin as in Form 6 down to " under which ") A. B. of etc. is (or has the powers of) tenant for life under the Settled Land Acts, 1882 to 1890, and G. D. of etc., and E. F. of etc., are the trustees for the purposes of the same Acts, I, G. H. of etc., with the consent of the said A. B. as tenant for life, hereby transfer to him (or to the said C. D. and E. F. ) the land comprised in the title above referred to, and apply for the registration of the following restriction and inhibition (fill in Form 1 or 3, as the case may be). Form 9. The like, where there is an overriding power of appointment. (Head and begin as in Form 6 down to "wider which") the land comprised in the title above referred to is limited to such uses as A. B. of etc., and G. D. of etc., shall jointly appoint, and subject thereto to various uses, by virtue of which the said A. B. is (or has the powers of) tenant for life under the Settled Land Acts, 1882 to 1890, I, E. F. of etc. , with the consent of the said A. B. as tenant for life, hereby transfer to him and the said C. D. all the said land, and hereby apply for the entry on the Register of the following inhibition (fill in Form 5). Form 10. Instrument of Transfer where registered land is purchased with capital moneys liable to be laid out in the purchase of land to be settled to the uses of a Settlement, the Tenant for life being registered as Proprietor. (Heading as in Form 6.) (Date) In consideration of £ paid out of capital moneys arising under a settlement (etc, as in Form 6 down to " under ivhich ") A. B. of FORMS. 149 etc. is (or has the powers of) tenant for life under the Settled Land FOBJU 10 Acts, 1882 to 1890, and ('. I), of etc. and K. F. of etc. are the trustees for the purposes of the same Acts, 1, <•'. 11. of etc [the vendor], with the consent of the said A. B., hereby transfer to him all the land comprised in the title above referred to, and we, the said ('. 1). and E. F. hereby apply for the registration of the following restriction and inhibition (Jill in Form 1). Form 11. The like — Trustees being registered as Proprietors. (Heading as in Form 6.) (Date) In consideration (etc. as in last form down to and including consent of A. B. ) hereby transfer to the said C. D. and E. F. all the land (etc., as in last Form, substituting restriction as in Form 3). Form 12. The like, where there is an overriding power of Appointment. (Heading as in Form 6.) (Date) In consideration (etc., as in Form 10 down to "under which" and continue as in Form 9). Form 13. Instrument of Charge by way of Annuity. (Heading as in'Form 6.) (Date) I, A.B., of etc., hereby charge the land (a) comprised in the title above referred to with the payment to C. D. , of etc. , of an annuity of £ for years (or during his life, etc.) payable (half-yearly, quarterly, etc.), on the of etc., in every year. Note. — If there is any consideration, it can be stated at the com- mencement, as: — "To secure £ part of the purchase money of the land comprised in the title above referred to," or " In consideration of an instrument of transfer of even date herewith of the land comprised in the title above referred to," etc., etc. (a.) If only part of the land comprised in the title is charged, add here " shown and edged with red in the accompanying plan, signed by me, being part of the land." Form 14. Application to alter the terms of a Charge under Section 9 (5) of the Act of 1897. (Heading as in Form 6.) (Date) We, A. B., of etc. [registered proprietor of the land], C. D., of etc. [registered proprietor of the charge], and E. F., of etc. [registered proprietor of a charge oj equal or inf rior priority prejudicially affi cted], hereby apply to the Registrar to alter the terms of the charge dated of 18 , registered of 18 , against title No. , as follows : — (Fill in proposed alteration.) Note. — The application will be signed by A. B., C. D., and E. F. 150 LAND TRANSFER ACTS, 1875 AND 1897. Form 15. Form 15. Assent to a devise of land under Section 3 of the Act of 1897. (Heading as in Form 6.) (Date) I, A. B., of etc., as executor of the late G. D., of etc., hereby assent to the devise contained in the Will of the said C. D. to E. F. of the land comprised in the title above referred to. (To be signed by A. B. and verified.) Note. — If the assent is to be subject to a charge for payment of money which the executor is liable to pay, the form may be varied accordingly. See also Note (a) to Form 13. Form 16. Appropriation of Land in satisfaction of a Legacy or share in Residuary Estate under Section 4 of the Act of 1897. Heading and commencement as in last Form down to " hereby," and then : — With the consent of E. F. of etc., who is entitled to a legacy (or share in residuary estate) under the will of the said C. D., appropriate to the said E. F. the land comprised in the title above referred to, and certify that all proper notices under the 4th section of the Land Transfer Act, 1897, have been given and the requirements of the rules of the Court in respect of the matter duly complied with. (To be signed by A. B. and E. F. and verified.) See also Note (a) to Form 13. Form 17. Notice of Liability to Death Duty. The land is liable to such death duties as may be payable or arise by reason of the death of A. B. of etc., who died on the of , 18 , or by reason of a settlement created by deed dated, etc., or by reason of the determination of a lease dated, etc., or as the case may be. Form 18. Certificate of Non-liability to Death Duty. This is to certify that the land (or, if so, shown and edged with red on the accompanying plan marked , being part of the land) comprised in the title No. , may be registered without notice of any liability to death duty by reason of the death of A. B., of etc., and that any such notice already registered may be cancelled. Form 19. Entry of no Survivorship of Joint Proprietors. When the number of joint proprietors has been reduced to (one, two, etc.,) no registered disposition of the land (or charge) shall be made except under an order of the Court or an order of the Registrar, after an inquiry into title, subject to an appeal to the Court. Note. — Copies of the Rules may be obtained at the Land Registry, Lincoln's Inn Fields. INDEX Account, liability of personal representatives to, 88. Act of Parliament, definition of " land " in, 38. marginal notes are not part of, 21. Actions by Personal Representatives, before probate, 62, 63. Administration, actions before, 63. agreement before, not enforceable, 63. creditors may claim, when, 17. heir, right of, to, 15, 16. separate, to real estate, court has power to grant, whether, 17. Administrator, actions by, before grant, 63. assent by, of infant durante minore estate, 104. executor of, cannot administer original estate, 18. heir, claim of, to be, 15, 16. interest of, equal to that of executor, 59. of administrator cannot administer original estate, 14, 18. of executor, sole or surviving, cannot administer original estate, 14. real estate of intestate vests in, 14. survival of office of, 18. time when real estate vests in, 18, 19. Agents, employment of, by personal representatives, 87. Appointment, Act of 1897, application of, to, 35. assent necessary to complete title under, 37. assets, when, 36, 37. general and particular powers of, distinguished, 35 general gift, effect of, as to, 36. Appropriation of Real Estate, Act of 1897, power to make, under, 112 — 115. registration of proprietor claiming under, 117. former rule as to, 113. stamp duty on conveyance, 118. tenant for life, rights' of, 115. INDEX. Assent, appointee of real estate cannot make good title before, 37. before probate, 62, 104. by whom, may be given, 103. by administrator durante minorc estate, 104. by married women, 104. by one of several executors, 103. conditional, 106. compellable after year from death, 109, 110. entry by executor on estate devised to him, effect of, 103. evidence of, what, may be required by purchasers, 107, 117. form of, none, prescribed except for registration, 108, 116, 117. implication of, from acts of executor, 107. from informal expressions, 107. jury, question is for, as to, 109. liability of executor giving, where debts unpaid, 105. necessity of, to complete title of appointee, 37. of devisee, 100. parol, 108. presumption of, after lapse of time, 108. recovery of possession, action for, after, 101. registration of devisee after, 116, 117. relation of, back to death of testator, 100. retraction of, 106. stamp duty on, 117. to devise, is assent to annexed condition, 102. of particular estate is assent to remainders, 102 to residuary devise, 102. transmissible interest of devisee before, 100. Assets, application of, order of, 93, 94, appointments under general powers, 36, 37. autre vie, estates pur, 2, 3, 35. charge of debts, effect of, under former law, 96, 97. under present law, 97. legal and equitable, distinction between, 94, 95. real estate is, in hands of personal representatives, 97. priority of payment of debts out of, 97, 98. proof, rules as to, 95. Base Fee, enlargement of, 28, Benefice, nomination to, during period of administration, 42 — 44. Breach of -Trust, jurisdiction to protect in case of innocent, 89. liability of personal representatives for, 86. INDUS. Commission, personal representatives not allowed, 86. Common Law, devolution of real estate by, 1. Condition, assent to devise is assent to annexed, 102. upon, 106. Contingent Remainder, application of Act of 1897 to real estate devised by way of, 50, 51. Conveyance to Heir or Devisee, assent to devise, rights of purchasers before, to, 111. whether sufficient substitute for, 101. appropriation of real estate does not dispense with necessity fur, 115. jurisdiction to compel, 110. married women may compel, 111. refusal to convev, grounds for, 111. liability for, 110. stamp duty on, 118. Coparceners, exception of, from Act of 189 7... 23. Copyholds, admission to, saving of mortgagee's right to, 25. exception of, from Act of 1897, 24, 25. manor includes, 40. sale of, by executors, etc., for payment of debts, 69, 70. seignory includes freehold estates in, and rights over, 41. Creditors, administration can be claimed by, whether, 17. priority of, as to payment out of assets, 97, 98. of specialty, abolished, 69. Customary Freeholds, exception of, from Act of 189 7... 24, 25. seignory includes freehold of, 41. Debts, charge of, effect of, under former law, 96. payment of, assent before, 83, 84. contingent, provision for, 82, 83. liability of personal representatives to see to, 82. priority of, out of assets, 97, 98. See Assets. real estate formerly not liable to, 67. Devise, assent to, 99, et seq. And see Assent, settlement created by, effect of, 55 — 58. Statute of Uses, 1. Wills Act, 2. INDEX. Distress, before probate, 62. power of personal representatives to levy, 78. Duty, liability of real estate to, 118, 119. Easements, vesting of, in personal representatives, 45, 46. Entry, assent to devise not implied by, of executors on land devised to hi 103. before probate, 61. rights of, devolve on personal representatives, whether, 47, 48. Equitable Interests in Land, devolution of, on personal representatives, 21, 22. Estate Duty, provisions of Act of 1897, as to, 118, 119. Estate for Life, determination of, by death, lets in remainderman, 33. tenant for life, powers of, under Settled Land Acts, 55 — 58. rights of, under appropriation, 115. Estate in Fee Simple, devolution of, on personal representatives, 26, 27. Estate, pur autre vie, assets in hands of heir, when, 2, 3, 35. devolution of, by Wills Act, where no special occupant, 2. on heir as special occupant not affected, 33 — 35. Estate Tail, barrable by actual tenant in tail, 31. by personal representatives, whether, 31, 32. by trustee of bankrupt tenant in tail, 30 n. concurrence of tenant in tail renders, 32. base fee, enlargement of, 28. devolution of, on personal representatives of deceased tenant in tail, 27, 28. nature and incidents of, 27. Settled Land Acts, powers of sale, etc., under, 28, 29. surplus proceeds of sale, etc., of, destination of, 31, 32. Evidence, of appropriation of real estate to legacies, etc., 117. of assent to devise, 107, 117. Executor, administrator, interest of , equal to that of, 59. of sole or surviving, cannot administer original estate, 14. assent by, 99 et seq. And see Assent. INDEX. Executors, of administrator cannot administer original estate, 18. of sole or surviving, vesting of real estate in, 13. separate, of real and personal estate, 11 — 13. survival of oince of, 13. time when real estate devolves on, 18. Executory Devise, application of Act of 1897 to real estate devised by way of, 50. Fee Farm Rent, vesting of, in personal representatives, 44. Fraudulent Devises Acts, actions against heirs and devisees for ancestor's debts under, 67,68. Heir, administration to real estate, claims to, of, 15, 16. devolution by common law of real estate on, 1. under Act of 1897 considered, 84—86. Husband, claim of, to administration of wife's personal estate, 15 — 16. Incorporeal Hereditaments, vesting of, in personal representatives, 40—46. Infant, assent cannot be given by, 104. Settled Land Acts, exercise of powers of, on behalf of, 57. Joint Tenancy, exception of, from Act of 1897... 23. severance of, 23. Jury, assent is question for, 109. Land, definition of, in Act of 1897... 38. in Acts of Parliament generally, 38. vesting of, in personal representatives, 38, 39. Land Transfer Act, 1875, personal representative of bare trustee intestate, vesting of registered lands in, 3. personal representative of proprietor of registered charge, power of to transfer or reconvey mortgage, 3. INDEl. Land Transfer Act, 1897, application of Part I., general, 8. commencement of, 6. coparceners, 23. effect of, general, 5, 6. particular. See Table of Contents. interpretation of terms in joint tenants, 23. preamble to, 9. title of, 5, 9. And see Appendix, pp. 121 el seq. Leases by Personal Representatives, before probate, 62. concurrence of devisee or heir in, advisable, 77, 78. contract by deceased owner for, 77. demise for term of years whether allowable, 76, 77. from year to year allowable, 76. option to purchase must not be given, 77. repairing leases, 77. to corporation, 77. Legacies, annuities are, 113, n. appropriation of real estate to, 112 — 115. real estate whether subject to, under Act of 1897... 92 93. And see Note to Preface, p. vii. Legal Estate, devolution of, on personal representatives, 20. outstanding in mortgagee, 22. in trustees, 21. Management of Eeal Estate, distress for rent, 78. duty as to, for benefit of persons entitled, 86. express provisions as to, advisability of, 81. leases, 75 — 77. See Leases. mines and minerals, working, 79. repairs and improvements, 79. liability under lessor's covenant for, 79. timber, felling, 80. trade or business, employment of real estate in, 80, 81. Manor, Act of 1897, devolution of, on personal representatives of, 40—42. copyholds, included in, 40. Married Woman, assent by, 104. conveyance by personal representatives compellable by, 111. husband's right to administration of personal estate of, 15, 16. Mines, sale: of, apart from surface, 72. working of, by personal representatives, 79, 80. INDEX. Mortgage by Personal Representative, application of mortgage moneys, liability to see to, 74. before probate, 61, 62. interest, rate of, 74. power of, implied from power to sell, 65. under Lord St. Leonard's Act, 66. power of sale may be given to mortgagee, 73, 74. under charge of debts, 64, 65. express powers, 64. Land Transfer Act, 1897... 69, 73, 74. Lord St. Leonard's Act, 66. Mortgage Estates, devolution of, on death, 3, 4. Mortgagee, admission of, to copyholds, 25. legal estate outstanding in, 22. Next-of-Kin, right of, to administration, 16, 17. New River Shares, vesting of, in personal representatives, 45. Personal Estate, administration to, right of creditor to, 17. husband to, 15, 16. next-of-kin to, 16. devolution of, on death, 1, 2. Personal Representatives, account, liability to, of, 88. actions by, before probate or administration, 62, 63. adwnvson vests in, 42 — 44. See Advowson. agents, employment of, by, 87. appropriation of real estate to legacies, etc., 112 — 115. assent to devises, 99 et seq. See Assent. assets, order of application of, by, 93, 94. real estate is legal, in hands of, 97. breach of trust, liability for, of, 86. statutory protection in respect of, 89. commission for trouble not allowed to, 86. conveyance to devisee or heir by, 110, 111. devolution on, of base fee, 28. of easements, 45, 46. of fee farm rents, 45. of equitable interests in land, 21, 22. of estate in fee, 27. pur autre vie, 2, 33 — 35, tail, 27, 28. of rights of entry, 47, 48. distress by, 62, 78. duration of interest of, 59. leases by, 75 — 77. legal estate vests in, 20. INDEX. Personal Representatives — continued. management of estate by, 78 et seq. See Management. manor vests in, 40 — 42. mines, working of, by, 79, 80. mortgages by, 61, 62, 74. mortgage estates vest in, 3, 4. nature of interest of, 52 — 59. personal estate vests in, 1, 2. probate or administration, dealings before by, 60 — 63. pi'ofits d prendre vest in, 46. quantity of estate vesting in, 25 — 35. real estate of deceased owner vests in, 14. time of vesting of, 18, 19. registration of, 117. rentcharges vest in, 44, 45. repairs by, 79. sales by, 61, 62, 71 — 74. And see Sale. survival of office of, 13, 14, 18. timber, felling of, by, 80. time when real estate vests in, 18, 19. tithes vest in, 44. trade, carrying on, by, 80, 81. trust estates vest in, 3, 4. vesting of personal estate in, 2, 3. of real estate in, 9. waste, liability for, of, 87. Powers, of appointment, distinction between general and special, 35. of appropriation under Act of 1897.. .112 — 117. Probate, dealings with real estate before, 60 — 62. actions by personal representatives, 62, 63. distress, 62. entry, 61. death of executor before, 62. of real estate, where no personal estate, 10. Profits a prendre, vesting of, in personal representatives, 46. Real Estate, administration to, separate, 17. appropriation of, to legacies, etc., 112 — 115. common law, devolution by, of, 1. contingent remainders, 50, 51. debts of ancestor formerly not payable out of, 67. definition of, in Act of 1897, now given, 37. devises of, statutes enabling, 1. devolution of, by common law, 1. duty, liability to, of, 118, 119. probate of, where no personal estates, 10. registration of, 116, 117. sale of, under powers, express, 64. implied by charge of debts, etc., 64, 65. INDEX. Real Estate— continued. vesting of, in personal representatives, 14. what, will devolve by Act of 1897 — advowsons, 42 — 44. easements, 45, 46. fee farm rents, 45. land, 39, 40. manors, 40, 42. New River shares, 45. profits d prendre, 46. renteharges, 44, 45. what, will not devolve by Act of 1897 — rights of entry, 47, 48. titles of honour, 46, 47. Real Representatives, establishment of, Act of 1897, affirms desirability of, 9. does not effect, 9. court has no power to order, 9. testamentary, would contravene the Act, 9. Registration, by personal representatives, 117. form prescribed for, of appropriation, 117. of assent, 108, 116, 117. Remainder, assent to, is assent to particular devise and viceversd, 102. contingent, 50, 51. Rentcharge, vesting of, in personal representatives, 44. Repairs, application of rents, etc., for, 79. covenants by lessee for, leases in consideration of, 77. by lessor for, liability under, 79. Rights of Entry, devolution of, 47, 48, Sale, application of purchase money, liability to see to, 74. before probate, 61, 62. benefit of persons entitled should be considered, 72. by auction or private contract, 71. by court, where no power in executors, 67. depreciatory conditions, 73. incumbrances, provision for discharge of, on, 72. necessity for, purchaser need not inquire into, 90. rights of heir or devisee where no, 91. of copyholds by executors, etc., for payment of debts, 69, 70 of mines and surface separately, 72. of timber and land separately, 72. powers of, express, 64. implied by charges of debts, etc., 64 — 66. under Lord St. Leonard's Act, 66, 67. under Act of 1897.. 69-74. valuation should be made before, 72, 73. INDEX. Seignory, incidents of, 41. Settled Land Acts, powers of tenant for life, by whom exerciseable during period ot administration under, 55 — 58. Shifting Uses, application of Act of 1897 to real estate devised by way of, 49. Stamp Duty, appropriation of real estate to legacies, etc., 118. assent, 117. Succession Duty, liability under Act of 1897 as to, 119. Timber, power of personal representatives to cut, 80. sale of, apart from land, 72. Time, assent presumed after lapse of, 108. real estate vests in personal representatives, at what, 18. Tithes, devolution of, on personal representatives, 44. Title, assent necessary to complete, of appointee, 37. of devisee, 100. of honour, devolution of, 46. Trader, carrying on business of, by personal representatives, 80, 81. Trust Estates, devolution of, under Conveyancing Act, 1881. ..3, 4. exception of, from Act of 1897... 24. Trustees, legal estate outstanding in, 21. personal representatives are, 52, 58. Vendor and Purchaser Act, 1874, mortgagee, personal representatives might convey legal estate under, 3. Waste, liability of personal representatives for, 87. Will, appointments by, of real estate, 35 — 37. devisability of real estate by, 1. LONDON : FRINTED BY SHAW AND SONS, FETTER LANE AND CRANE COURT, E.C. Seaborne's Vendors and Purchasers of Real Property. Being a Concise Manual of the Law relating to Vendors and Purchasers of Ileal Pro- perty. By Henry Seaborne, Solicitor. Fourth Edition. Re-arranged and partly re-written by W. Arnold Jolly, Esq., M.A., of Lincoln's Inn, Barrister- at-Law. Price 10*. Gd. ; for Cash, post free, 9s. 1897 Underbill's Law of Torts. A Summary of the Law of Torts, or Wrongs Independent of Contract. Sixth Edition. By A. Underiiill, Esq., M.A.,LL.D., of Lincoln's Inn, Barrister-at-Law. Post8vo. Price 10s. Gd. ; for Cash with order, post free, 9s. 1894 Underbill's Law of Trusts and Trustees. A concise Manual of the Law relating to Private Trusts and Trustees. Fourth Edition. By A. Underbill, Esq., M.A., LL.D., of Lincoln's Inn, Barrister-at-Law. Post 8vo. Price 21s. ; for Cash with order, post free, 17s. 6d. 1894 " Framed after .... Mr. Pollock in his ' Digest of the Law of Partnership.' 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" The above is another name for what is commonly known to the profession as Coote's Probate Practice, a work about as indispensable in a solicitor's office as any book of practice that is known to us." — Law Times. Tudor's Leading Cases on Real Property, &c. A Selection of Leading Cases on the Law relating to Real Property, Conveyancing, and the Construction of Wills and Deeds. With Notes. By Owen Davies Tudor, Esq. Fourth Edit. By T. H. Carson and H. P. Bompas, Barristers-at-Law. (In preparation.} Brown's Copyhold Enfranchisements. The Law and Practice on Enfranchisements and Commutations, as well by the Conxnion Law as under the Copyhold Act, 1894, and other Acts, with Practical Directions ; together with the Copyhold Act, 1894, fully Annotated ; and an Appendix of Forms, Precedents, and Statutes. Second Edition. By Archibald Brown, of the Middle Temple, Esq., Barrister-at-Law. Post 8vo. Price 16s. ; for Cash with order, post free, 13s. Gd. 1895- Oke's Magisterial Synopsis. 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