Heir and devisee may alien.

Hotchpot.

Settlement by heir.

(4.) The statutes create no charge on the land, and the heir or devisee may alien.

The debts of the ancestor or testator are not by these statutes charged, or made liens, upon assets descended, or devised, but the heir or devisee is personally liable to the extent of such assets (u). The heir or devisee may, before action or suit, sell or mortgage for valuable consideration the freehold or copyhold assets, and make a good title to the purchaser or mortgagee, free from the debts (); and the existence or notice of debts is immaterial, unless there be fraud, or want of bona fides (y); and that though the heir, or devisee, sell as beneficial owner (); and the purchaser is not entitled to have the will established against the heir, unless a case of suspicion arises (a). The creditors of the estate cannot follow the property sold (b). If the devisee sell pending a suit by creditors for sale and payment of debts, such sale is void (c). An equitable deposit, with a memorandum of charge, by the heir or devisee is an alienation within the statute (d). The mortgage of an equitable devisee for life is in the same position (e). The bankruptcy of the heir was not considered an alienation, and hence the creditors of the ancestor were held entitled to follow the real estates in the hands of the assignees in bankruptcy of the heir (ƒ). The conveyance by the devisees in trust to new trustees did not bar the creditor's rights (e).

Where specialty creditors exhaust descended estates, they must bring them into hotchpot ().

The settlement of the real estate by the heir or devisee upon his marriage is an alienation discharging it from the debts of the

(u) Spackman v. Timbrell, 8 Sim. 253; and see 1 Wm. IV. c. 47, ss. 6, 8; Morley v. M. 5 De G. M. & G. 610; 1 Jur. N. S. 1097; Kinderley v. Jervis, 22 Beav. 1; 2 Jur. N. S. 602.

(x) Higgins v. Shaw, 2 Dr. & W. 356; Haynes v. Forshaw, 11 Ha. 93; 17 Jur. 930, V. C. Wood.

(y) Stroughill v. Anstey, 1 De G. M. & G. 635; 16 Jur. 675, L. C.; Jones v. Noyes, 4 Jur. N. S. 1033, V. C. Wood; Richardson v Horton, 7 Beav. 112, N. S. 1033, V. C. Wood; Storry v. Walsh, 27 L. J. Ch. 338, M. R.; Hynes v. Redington, 10 Ir. Ch. 206.

(2) Collingwood v. Russell, 10 Jur. N. S. 1062, L. J.

(a) M'Cullock v. Gregory, 3 K. & J. 12; 2 Jur. N. S. 1134, V. C. Wood. (b) Haynes v. Forshaw, sup. (c) Walker v. Smalwood, Amb. 676.

(d) Exp. Baine, 1 Mont. D. & De. G. 492; British Mutual Investment Co. v. Smart, 10 Ch. 567, overruling Carter v. Sanders, 2 Drew. 256. See 2 Dav. Conv. 995, ed. 3.

(e) Coope v. Cresswell, 2 Ch. 112, reversing 2 Eq. 106, V. C. Kindersley. (f) Exp. Morton, 5 Ves. 449. (h) Chapman v. Esgar, 1 Sm. & G. 575; 18 Jur. 341, V. C. Stuart.

ancestor, but leaving the heir personally liable for them (i). But an agreement for a settlement by an infant heir, never carried into effect, is not an alienation within the statutes ().

An equitable alienation has the same effect as a legal alienation; and an equitable mortgagee from the heir or devisee will be protected against execution (1).

v. heir.

A judgment against the heir is not an alienation within the Judgment statutes; and the simple contract creditors of the ancestor will be preferred to the judgment creditors of the heir (m). The judgment creditor of the heir under the old law took a charge not specifically on the estate, but on the interest of the heir therein, i. e., only to the extent that the estate was not required for the payment of the debts of the ancestor in a due course of administration (n). Any creditor may, in the interval between a contract for sale by the heir or devisee and the payment of the purchase money, obtain an injunction restraining payment of the purchase money to the heir (o).

The charge of debts under 3 & 4 Wm. IV. c. 104, has not the Charge of legacies. effect of relieving a purchaser from the heir or devisee from seeing to the satisfaction of legacies charged on the estate (p). In the case of Eland v. Eland (q), there was an express charge of debts. and legacies, and a mortgage was made free from incumbrances, excepting the legacies, and it was held that the amount of the legacies was applicable in satisfaction of the debts of the testator, as part of his general estate.

devisee like

In regard to real estate the heir and devisee under these statutes Heir and stand in somewhat the same position as the executor does with executors. regard to the personal estate ("), with the exception that the heir or devisee may sell or mortgage for his own benefit or debt. The words "assets to be administered in equity" mean only that the creditors' remedy shall be in equity, and not that his estate shall be equitable assets (8).

(i) Spackman v. Timbrell, sup.; Richardson v. Horton, sup.

(k) Pimm v. Insall, 1 Mac. & G. 449; 14 Jur. 357, affirming 12 Jur. 577.

(Coope v. Cresswell, sup. ; British Mutual Investment Co. v. Smart, sup.; overruling Carter v. Sanders, sup. (m) Kinderley v. Jervis, sup.

(n) 3 Dav. Conv. 995-6, ed. 3; 477, ed. 4.

(0) Green v. Lowes, 3 Bro. C. C. 217.

(p) Horn v. H. 2 S. & S. 448.

(2) 4 My. & C. 420.

(r) Dilkes v. Broadmead, 2 Giff. 113

2 De G. F. & Jo. 566.

(s) Lewin on Tr. 704, ed. 7.

Parties to administration suit.

Funeral expenses. Lunatic's costs.

Judgments prior to charge.

Executory devises.

West Indies and colonies.

N. S. Wales.

The heir at law is not a necessary party, as well as the devisee, to an administration suit under this Act, where the real estate has been devised, whether the devise be to a devisee for his own benefit (f), or for the payment of debts (u).

According to Carter v. Beard (x), the real estate cannot be charged with the funeral expenses under this Act; but the real estate of a lunatic, who has died before the costs of the proceedings under the commission have been ordered to be raised under 1 Wm. IV. c. 65, ss. 28, 30, is liable, by virtue of an implied contract, for those costs as having been necessarily incurred for the protection of his person and estate (y).

Judgments recovered against the deceased in his lifetime, when liens on the real estate (), have priority to a charge of debts. created by the will, and the same applies, of course, to an administration of assets under this statute (≈).

Lands, of which the heir is seised subject to executory devises, are now assets, just as if the heir were seised in fee simple absolute (a).

(5.) As to West Indies and Colonies.

It may be doubtful whether the statute of Wm. & M. c. 14 (the Statute of Fraudulent Devises), was imported into the West Indies, independently of 5 Geo. II. c. 7, s. 4 (b); but the latter statute made real estates in the West Indies legal assets in such a way as to give the same priority to specialty creditors against real estate, as they previously had against personal estate; and it is not competent for a testator, by devise of lands in the West Indies, to change the legal distribution of his assets by directing a disposition equally among his creditors (c).

A somewhat similar statute is in force in New South Wales (d), under which it has been held that land is not assets in the hands of the executor, but the creditor must proceed against the person

(t) Weeks v. Evans, 7 Sim. 546; Bridges v. Hinxman, 16 ib. 71, overruling Brown v. Weatherby, 10 ib. 125; 12 ib. 6; Goodchild v. Terrett, 5 Beav. 398.

(u) Ord. XVI. r. 45.

(x) 10 Sim. 7.

(y) Williams v. Wentworth, 5 Beav. 325.

(2) Sharp v. Earl of Scarborough, 4 Ves. 538; sup. p. 118.

(a) 11 & 12 Vict. c. 87.
(b) See 37 Geo. III. c. 119.

(c) Turner v. Cox, 8 Mo. P. C. C. 288; overruling Charlton v. Wright, 12 Sim. 274; and see Lyon v. Colvile, 1 Coll. 449. (d) 54 Geo, III. c. 15, s. 4.

in whom the real estate is vested (e). It was similarly held in

Jamaica (ƒ).

By 9 Geo. IV. c. 33, s. 15, real estate belonging to British Indian assets. subjects in India is declared to be assets in the hands of executors or administrators, who are to have full power to convey the same as the owner could have done: and consequently, the heir and devisee are not in such case necessary parties to a creditor's action (9).

(6.) Interest and other matters.

As a general proposition, a devise for payment of debts does not Interest. enhance the amount of the demand, or entitle the party to interest, when he cannot have interest independently of the devise, but, leaving the amount unaffected, it provides a new fund for the payment of the debts (h); and in case of an administration suit not within 3 & 4 Wm. IV. c. 104, where a decree for marshalling assets was made, the specialty creditors having exhausted the personalty, the Court would not raise out of the real estate, for the benefit of the simple contract creditors, the interest which would have been payable, in respect of the specialty debts, if they had not been satisfied out of the personal estate, although a considerable time had elapsed after the decree before the real estate could be made available for the simple contract creditors (i).

Limitations.

Though a devise or charge upon real estate for the payment of Statute of debts will prevent the Statute of Limitations from running, as to debts not barred in the testator's lifetime (), it will not, of itself, revive a debt which has become so barred (). And a trust or charge by will on personal estate does not at all prevent the operation of the statute (1).

The Court has no power, under 1 Wm. IV. c. 47, 3 & 4 Wm. Repairs. IV. c. 104, or 2 & 3 Vict. c. 60, in an administration action, in which a certain sum is decreed to be raised out of the testator's real estate for payment of debts, to add to the sum required for

(e) Bullen v. A' Beckett, 1 Mo. P. C. C. N. S. 223; 9 Jur. N. S. 973.

(f) Doe v. Stennett, McDougal's Rep. 15; Munroe v. Watt, Jamaica Eq. Rep. 1873, p. 19; not following Thomson v. Grant, 1 Russ. 542, n. See 4 Burge, Conf. L. 670.

(g) Story v. Fry, 1 Y. & C. C. C. 603. (h) Morse v. Tucker, 5 Ha. 79; aliter, if the charge is of the simple contract

debts of a third person. Shirt v. Westby,
16 Ves. 393.

(i) Cradock v. Piper, 15 Sim. 301.

(k) Burke v. Jones, 2 V. & B. 275; Hughes v. Wynne, 1 T. & R. 307; Hargreaves v. Mitchell, Mad. & G. 326; Piggott v. Jefferson, 12 Sim. 26.

(1) Burke v. Jones, sup.; Hargreaves v. Mitchell, sup.; Wms. Ex. 2036, ed. 8.

that purpose, a further sum for repairs of the property, although without such repairs the money could not be raised, and a mortgage would be much more beneficial to the infant heir, or devisee, than a sale (n).

The real estate of a deceased debtor can be administered under 3 & 4 Wm. IV. c. 104, at the suit of, not only a creditor, but the heir, next of kin (0), or parties interested under the will (p).

(7.) St. 32 & 33 Vict. c. 46, Simple contract and specialty
pari passu.

The order of administration of assets has been altered by two statutes, and the question of legal or equitable assets is not now of so much moment; for, by 32 & 33 Vict. c. 46, all debts, whether by specialty or simple contract, of debtors dying on or after the 1st Jan., 1870, are payable, pari passu, out of the assets, whether legal or equitable; but priority may still be gained by any creditor obtaining judgment against the executor or administrator (q). Rent is a specialty within this statute (r).

In England, wherever a tenancy exists, whether by deed or by parol, rent ranks as a specialty; but this does not apply to lands out of England (s); and an executor paying a simple contract debt in ignorance of a debt due for arrears of rent will be protected (f).

It is presumed that the right remains in the executor of preferring any debt of equal degree, but the executor cannot prefer a simple contract debt to a specialty. It follows that in cases falling within this Act, it is still material to inquire whether the executor had notice of a specialty or of a breach thereof, or whether the specialty was to secure a contingent debt (u).

The right of retainer by an executor is not affected by this Act (x).