have the mortgage debt discharged or satisfied out of the Chap. XVII. personal estate or any other real estate of such person, but the land or hereditaments so charged shall, as between the different persons claiming through or under the deceased person, be primarily liable to the payment of all mortgage debts with which the same shall be charged, every part thereof, according to its value, bearing a proportionate part of the mortgage debts charged on the whole thereof: Provided always, that nothing herein contained shall affect or diminish any right of the mortgagee on such lands or hereditaments to obtain full payment or satisfaction of his mortgage debt, either out of the personal estate of the person so dying as aforesaid or otherwise. Provided also, that nothing herein. contained shall affect the rights of any person claiming under or by virtue of any will, deed, or document already made, or to be made before the 1st of January, 1855.

The Real Estate Charges Act, 1867 (30 & 31 Vict. c. 69), extends and defines the meaning of the words “contrary or other intention" in the case of testators dying after the 31st of December, 1867, and by sect. 2 declares that in the construction of the principal Act the word mortgage shall be deemed to extend to any lien for unpaid purchase-money upon any lands or hereditaments purchased by a testator.

By the Real Estate Charges Act, 1877 (40 & 41 Vict. c. 34), it is enacted as follows:

1. The Acts mentioned in the schedule hereto (17 & 18 Vict. c. 113; 30 & 31 Vict. c. 69) shall, as to any testator or intestate dying after the 31st December, 1877, be held to extend to a testator or intestate dying seised or possessed of or entitled to any land or other hereditaments of whatever tenure, which shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, or any other equitable charge, including any lien for unpaid purchase-money; and the devisee or legatee or heir shall not be entitled to have such sum or sums discharged or satisfied out of any other estate of the testator or intestate, unless (in the case of a testator) he shall, within the meaning of the said Acts, have signified a contrary intention; and

Chap. XVII. such contrary intention shall not be deemed to be signified by a charge of or direction for payment of debts upon or out of residuary real and personal estate, or residuary real estate. 2. This Act shall not extend to Scotland.

What persons are within'

the Acts.

Copyholds.

Land on trust for sale.

Leaseholds.

WHAT PERSONS ARE WITHIN THE ACTS.

The Crown taking personalty in default of next of kin is within the words "persons claiming through or under the deceased person" in Locke King's Act. Dacre v. Patrickson, 1 Dr. & Sm. 186.

The heir taking by descent, owing to lapse or otherwise, from a person dying after the 31st December, 1854, is not entitled to exoneration under the exception in the proviso in the original Act, though the will may be made before the 1st January, 1855. Power v. Power, 8 Ir. Ch. 340; Piper v. Piper, 1 J. & H. 91; Nelson v. Page, 7 Eq. 25.

On the other hand, a devisee taking under a will made before the 1st January, 1855, is within the proviso, though the will may have been republished after that date. Rolfe v. Perry, 3 D. J. & S. 481.

The donee of an option to purchase land at a fixed price is not a devisee within the Act. Given v. Massey, 31 L. R. Ir. 126.

WHAT PROPERTY IS WITHIN THE ACTS.

Copyholds are within Locke King's Act. Piper v. Piper, 1 J. & H. 91.

Land devised on trust for sale, and coming to the testator as personalty, is not within that Act. Lewis v. Lewis, 13 Eq. 219. Leaseholds are not within the original Act or the Act of 1867. Soloman v. Soloman, 12 W. R. 540; 33 L. J. Ch. 473; Gael or Gall v. Fenwick, 22 W. R. 211; 43 L. J. Ch. 178; In re Wormsley's Estate; Hill v. Wormsley, 4 Ch. D. 665.

They are within the Act of 1877. In re Kershaw; Drake v. Kershaw, 37 Ch. D. 674.

The Act applies where real and personal estate are directed

to be converted, and the proceeds made a mixed fund. Elliott Chap. XVII. v. Dearsley, 16 Ch. D. 322.

If the mortgage includes freeholds and leaseholds, the mortgage must be apportioned between the freeholds and leaseholds according to their values at the testator's death, and the amount apportioned in respect of the leaseholds will, in cases not within the Act of 1877, be discharged out of the personal estate or out of the fund appointed for payment of debts. Gall v. Fenwick, supra.

WHAT MORTGAGES ARE WITHIN THE ACTS.

deposit.

Mortgages by deposit of title deeds, with or without a Mortgage by memorandum of agreement to execute a legal mortgage, are within the Acts. Pembroke v. Friend, 1 J. & H. 132 ; Davis v. Davis, 24 W. R. 962.

So is a deposit of deeds, with a memorandum, though expressed to be only a collateral security. Coleby v. Coleby, L. R. 2 Eq. 803.

But a mere general charge by a testator on real estate in aid of his personalty was not within the original Act. Hepworth v. Hill, 30 B. 476.

secure firm's debt.

A mortgage to secure the debt of a firm in which the testator Mortgage to is a partner is not within the Acts if the partnership is solvent and able to pay the debt. The debt is the debt of the firm, and the assets out of which the debt is payable are the partnership assets and not the testator's separate estate. In re Ritson; Ritson v. Ritson, (1899) 1 Ch. 128.

A judgment under which the land has been delivered in Judgment. execution under a writ of elegit and a judgment mortgage in Ireland are charges within the Acts. In re Anthony; Anthony v. Anthony, (1892) 1 Ch. 450; Nesbett v. Lander, 17 L. R. Ir. 53.

A deed containing a covenant to pay an annuity with a charge on land and powers of distress and entry and a demise to trustees to secure the annuity, creates an equitable charge within the meaning of the Act of 1877. Re Sharland; Kemp v. Rozey, 74 L. T. 664.

Chap. XVII.

Lien for purchasemoney.

A lien for unpaid purchase-money on lands purchased by a testator is, by 30 & 31 Vict. c. 69, s. 2, declared to be within the original Act. But that Act mentions only a lien upon lands purchased by a testator, which was construed to mean a person who makes a will, though it may not dispose of the land. It did not extend to the case of an intestate. Harding v. Harding, 13 Eq. 493; Dowdall v. M'Cartan, 5 L. R. Ir. 313, 642.

The Act of 1877 extends to the lands of an intestate.

Where a testator contracted to buy real estate, and the contract was not completed at his death and was afterwards rescinded, it was held that the devisees of the real estate were entitled to claim against the personalty only the price of the estate less the unpaid purchase-money. In re Cockcroft; Broadbent v. Groves, 24 Ch. D. 94. See, too, Day v. Day, 14 W. R. 261; In re Kidd; Brooman v. Withall, (1894) 3 Ch. 558.

How contrary intention ascertained.

Direction to pay debts.

Direction to pay debts out

WHAT IS A CONTRARY INTENTION WITHIN THE ACTS.

The contrary intention is to be ascertained by referring not only to the will, but also to the mortgage and other deeds connected with it. In re Campbell; Campbell v. Campbell, (1893) 2 Ch. 206.

It was decided that a general direction to pay debts, or to pay debts out of the estate, did not show the contrary intention required by Locke King's Act. Pembroke v. Friend, 1 J. & H. 132; Brownson v. Lawrance, 6 Eq. 1; Woolstencroft v. Woolstencroft, 2 D. F. & J. 347.

Whether the fact that mortgaged lands are devised in strict settlement would make any difference seems doubtful; at any rate it would not where the testator himself contemplates the mortgages as subsisting from generation to generation. Coote v. Lowndes, 10 Eq. 376.

But a direction, that the debts are to be paid out of the of the personal personal estate or out of any particular fund, was held to show a contrary intention. Moore v. Moore, 1 D. J. & S. 602; Eno v. Tatham, 3 D. J. & S. 443; 32 L. J. Ch. 311; Mellish v.

estate or a

particular fund.

Vallins, 2 J. & H. 194; Newman v. Wilson, 31 B. 33; Maxwell Chap. XVII. v. Hyslop, L. R. 4 Eq. 407; ib. 4 H. L. 506. See Allen v. Allen, 30 B. 395; Porcher v. Wilson, 14 W. R. 1011.

By 30 & 31 Vict. c. 69, however, it is enacted that in the wills of testators dying after the 31st December, 1867, a declaration that debts are to be paid out of the personal estate is not to be deemed a declaration of intention to exonerate mortgaged lands.

Under this Act, "if a testator wishes to give a direction which shall be deemed a declaration of an intention contrary to the rule laid down by Locke King's Act, it must be a direction applying to his mortgage, debts in such terms as distinctly and unmistakably to refer to them;" per Giffard, V.-C., in Nelson v. Page, 7 Eq. 25, p. 28. See Allen v. Allen, 30 B. 395; Greated v. Greated, 26 B. 621.

The Amendment Act,

30 & 31 Vict.

c. 69.

pay debts.

In cases governed by the Act of 1867, a direction to pay Direction to debts out of a mixed fund of realty and personalty, or a direction to pay debts out of the personal estate in exoneration of the real estate, or a charge of debts on certain real estate in aid of the personal estate, and in exoneration of the other real estate, will not entitle the devisee of mortgaged lands to have the mortgage discharged. Gael or Gall v. Fenwick, 22 W. R. 211; 43 L. J. Ch. 178; In re Rossiter; Rossiter v. Rossiter, 13 Ch. D. 355; In re Newmarch; Newmarch v. Storr, 9 Ch. D. 12; Elliott v. Dearsley, 16 Ch. D. 322; and see the Act of 1877, supra, p. 151.

A direction to pay all debts of every kind, including specialty debts, has been held not to include mortgage debts. Buckley v. Buckley, 19 L. R. Ir. 544.

trade debts.

Where a testator charged his trade debts upon his residue, Charge of and after the date of his will deposited the title deeds of real estate with his bankers to secure an overdrawn trade account, it was held that the charge showed a contrary intention. In re Fleck; Colston v. Roberts, 37 Ch. D. 677.

So where a testator charged his property used in trade with his trade debts, and his residue with all other debts, inasmuch as the trade debts included debts secured by mortgage, it was held that other debts charged on the residue also included.