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heir or beneficial devisee, where the land is charged with the payment of debts or legacies.

Section 18 of Lord St. Leonards' Act, which deals with the case of a beneficial devisee, as opposed to a devisee in trust, provides that ss. 14-16 of that Act (to which we have before referred (r)) shall not extend to a devise to any person in fee or in tail or for the testator's whole estate and interest charged with debts and legacies, nor shall they affect the power of any such devisee or devisees to sell or mortgage as he or they may by law now do. A devise in settlement to A. for life with remainder to B. (s), or a devise to the son of the testator who should first attain the age of twenty-five (t), is not a devise in "fee or in tail" within the meaning of s. 18, and in that case the executors can sell under s. 16.

In cases falling within s. 18, although that section seems to imply that the devisee has power to sell, yet if the devisee of real estate charged with the payment of debts is not also executor, it is probably still the duty of the purchaser, where the testator died prior to the Land Transfer Act, 1897, to see that the purchase money is properly applied (u), unless the executors concur in the sale, or have released the property by a deed which recited that all the debts

(r) Supra, p. 87.

(8) Re Wilson (1886), 54 L. T. 600.

(t) In re Barrow-in-Furness and Rawlinson's Contract, [1903]

1 Ch. 339.



(u) Corser v. Cartwright (1875), L. R. 7 H. L. 737, cf. dictum of KAY, L.J., in Re Wilson (1886), 34 W. R.

had been duly discharged (r). If legacies only and not debts are charged and the beneficial devisee is selling, the purchaser must require the concurrence of the legatees, since he is in that case bound to see to the application of his purchase money (y). On the other hand, where debts and legacies were not expressly charged on real estate, the heir or devisee could sell free from debts (whether simple or specialty), and thereupon the heir or devisee became personally liable for them to the extent of the value of the land aliened (). Now, as we have seen, all freehold lands descend in the first place to the executors under the Land Transfer Act, 1897; but under s. 3 (1) of that statute, the executors may convey to the heir or devisee "subject to a charge for the payment of any money which the personal representatives are liable to pay." If the conveyance has been made in this form, it is conceived that the purchaser from the heir or devisee should either require evidence of payment of the debts of the deceased, or obtain the concurrence of the executors.

From the point of view of the devisee, a vague charge of this character seems to be highly objectionable. It is true that in a recent case (a) KEKEWICH, J., held that the charge did not apply to debts of which the executors had no notice at the time of the conveyance. In that case it appears to

(x) Storry v. Walsh (1854), 18 Beav. 559. (y) In re Rebbeck (1894), 63 L. J. Ch. 596. (z) In re Hedgely (1886), 34 Ch. D. 379. The lord claiming by escheat or a voluntary assignee of the heir or devisee is equally liable (Re Hyatt (1888), 38 Ch. D. 609).

(a) In re Cary and Lott's Contract, [1901] 2 Ch. 463.

have been admitted that the estate had been properly administered, and that there remained unpaid no 'debt of the testator of which the executors had notice (b). But it does not appear how a purchaser from the devisee is to satisfy himself as to this negative fact, viz., that the executors had no notice of any liability. If the executors have no notice of any liability, there seems no reason for creating the charge, since in any case the executors would be protected by s. 29 of Lord St. Leonards' Act.

It is submitted that the intention of the legislature was to provide for the case where the executors have notice of a contingent liability, e.g., in respect of shares held by the testator or covenants entered into by him, which would not justify them in postponing distribution, but which may subsequently ripen into a debt. In that case, by creating the charge the executors are protected from any personal liability for devastavit (c), since their "liabilities in respect of the land cease."



As we have already seen (cc), incumbrances which affect the property in the hands of a purchaser must be removed by the vendor or be paid off out of the purchase money, and any assignee of the unpaid purchase money takes subject to the purchaser's

(b) In re Cary and Lott's Contract, [1901] 2 Ch. 463, at p. 467. (c) Cf. Williams on Executors (10th ed.), p. 1079. (cc) Supra, p. 395.

right in this respect (d). Where the property is subject to a mortgage which is not redeemable for a fixed period, or to portions for younger children which are not yet raisable (e), the purchaser may have recourse to the provisions of s. 5 of the Conveyancing Act, although it seems that, where it would inflict a hardship on the vendor, the purchaser cannot compel him to make use of this section (ƒ). The Conveyancing and Law of Property Act, 1881, s. 5, provides:

"(1) Where land subject to any incumbrance, whether immediately payable or not, is sold by the court, or out of court, the court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into court, in case of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land, of such amount as, when invested in Government securities, the court considers will be sufficient, by means of the dividends thereof, to keep down or otherwise provide for that charge, and in any other case of capital money charged on the land, of the amount sufficient to meet the incumbrance and any interest due thereon; but in either case there shall also be paid into court such additional amount as the court considers will be sufficient to meet the contingency of further costs, expenses, and interest, and any other contingency, except depreciation of investments, not exceeding one-tenth part of the original amount to be paid in, unless the court for special reason thinks fit to require a larger additional amount.

"(2) Thereupon, the court may, if it thinks fit, and either after or without any notice to the incumbrancer, as the court

(d) Lacey v. Ingle (1847), 2 Phil. 413; Greenwood v. Taylor (1845), 14 Sim. 505.

(e) Sheppard v. Wilson (1845), 4 Hare, 394.

(f) In re Great Northern Rail. Co. and Sanderson (1884),

25 Ch. D. 788.

thinks fit, declare the land to be freed from the incumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in court.

"(3) After notice served on the persons interested in or entitled to the money or fund in court, the court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof.

"(4) This section applies to sales not completed at the commencement of this Act, and to sales thereafter made” (g).



Attendance of Vendor.-It is unusual for the vendor personally to attend the completion of the purchase, but the purchaser, prior to January 1st, 1882, was entitled to require the conveyance to be executed in the presence of his solicitor. Section 8 of the Conveyancing Act, 1881, now provides that "on a sale, the purchaser shall not be entitled to require that the conveyance to him be executed in his presence, or in that of his solicitor, as such; but shall be entitled to have, at his own cost, the execution of the conveyance attested by some person appointed by him, who may, if he thinks fit, be his solicitor."

In practice the conveyance is now executed by the vendor, and handed to his solicitor as an

(g) As to the interpretation of this section, see In re Freme's tract, [1895] 2 Ch. 261.

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