Powers given by last section extended to survivors, devisees, &c.

Executors to have power of raising money, &c., where there is no sufficient devise.

Purchasers,
&c., not bound
to inquire as
to powers.

Sections 14, 15, and 16 not to affect certain

sales, &c.,

nor to extend

to devises in fee or in tail.

position, by public auction or private contract, of the said hereditaments or any part thereof, or by a mortgage of the same, or partly in one mode and partly in the other, and any deed or deeds of mortgage so executed may reserve such rate of interest and fix such period or periods of repayment as the person or persons executing the same shall think proper.

15. The powers conferred by the last section shall extend to
all and every person or persons in whom the estate devised
shall for the time being be vested by survivorship, descent,
or devise, or to any person or persons who may be ap-
pointed under any power in the will or by the Court of
Chancery, to succeed to the trusteeship vested in such
devisee or devisees in trust as aforesaid.

16. If any testator who shall have created such a charge as is
described in the fourteenth section shall not have devised
the hereditaments charged as aforesaid in such terms as
that his whole estate and interest therein shall become
vested in any trustee or trustees, the executor or executors
for the time being named in such will (if any) shall have
the same or the like power of raising the said moneys as is
herein before vested in the devisee or devisees in trust of the
said hereditaments, and such power shall from time to time
devolve to and become vested in the person or persons (if
any) in whom the executorship shall for the time being be
vested: but any sale or mortgage under this 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 outstanding subsisting legal estate.
17. Purchasers or mortgagees shall not be bound to inquire

whether the powers conferred by sections 14, 15, and 16 of
this Act or either of them, shall have been duly and cor-
rectly exercised by the person or persons acting in virtue
thereof.

18. The provisions contained in sections 14, 15, and 16 shall not in any way prejudice or affect any sale or mortgage already made or hereafter to be made under or in pursuance of any will coming into operation before the passing of this Act, but the validity of any such sale or mortgage shall be ascertained and determined in all respects as if this Act had

not been passed, and the said several sections shall not ex-
tend to a devise to any person or persons in fee or in tail,
or for the testator's whole estate and interest charged with
debts or 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.

section where

provision for

According to the terms of sect. 14, the power is to Operation of be vested in the trustees only where the testator has testator has not made any express provision for raising the debts, made a partial &c. out of the estate charged. It is conceived that the debts. simple purpose of these words is to prevent any particular provision which the testator may have made for the application of his property, or of particular parts of it in payment of his debts, from being frustrated. If, however, he has made express provision for the payment of his debts out of particular parts of his estate, and such parts prove to be insufficient for the purpose, it is presumed that the trustees might sell the remainder of the estate vested in them under the powers conferred by this section in order to meet the deficiency (m).

It has been held that an administrator with the will Administrator annexed cannot sell under sect. 16 (n).

with will annexed cannot sell under sect.

subject to

debts, can sell, &c., if he is cutor.

also an exe

It will be scen that under the 18th section the case 16. of a devise to any person or persons in fee or in tail, or Operation of for the testator's whole estate and interest charged with 18th section. debts or legacies, is withdrawn from the Act. Under Devisee in fee such a devise, subject to debts or to debts and legacies, it is well established that the devisee, if he is also the executor or one of the executors, can sell or mortgage, and that the purchaser or mortgagee is not bound to see to the application of his money, but whether a devisee not being an executor can make a good title alone, remains undecided (o). If, however, land is devised to A. absolutely subject to legacies only, it is apprehended

(m) See Wrigley v. Sykes, 21

Beav. 337.

(n) Re Clay and Tetley, 16 Ch. D. 3.

(0) Johnson v. Kennett, 3 M. & K. 624; Colyer v. Finch, 5 H. L. C. 905; Corser v. Cartwright, L. R. 7 H. L. 731; West of England Bank v. Murch, 23 Ch. D. 138.

How long power remains

the 14th

section.

that a title cannot be made without showing the payment or release of the legacies, and if it is intended to pay them out of the purchase-money, the purchaser must see to the application of his purchase-money accordingly (p).

The existence of the power of sale conferred by the in force under Act is not likely to create any practical difficulty in cases coming within the 14th section. The payment of debts is thereby in effect made one of the trusts on which the trustees hold the property, and upon any sale made by them within twenty years from the testator's death, a purchaser can safely take a title from them without inquiry (q).

How long

section.

But there is more difficulty in cases coming within under the 16th the 16th section. Suppose, for instance, that the real estate is devised to the use of A. for life, with remainder to his first and other sons in tail. During A.'s life, the executors would clearly have a power of sale for payment of debts, but on A.'s death his eldest son bars the entail and becomes owner in fee simple, and the question is, whether the executor's power still subsists, or whether the case does not come within the exception at the end of the 18th section-in other words, whether that exception applies only to devises creating a fee simple or fce tail in possession at the testator's death, or extends also to estates originally limited in remainder, so soon as they become estates in possession.

Express provision for

raising debts, &c., should be

inserted.

On the whole, the above enactments cannot be considered as placing the law in relation to a charge of debts on a perfectly satisfactory footing, and the practitioner is recommended not to rely on them, but as a general rule to insert in a will an express provi sion for raising money to pay debts and legacies by proper trusts or powers vested in trustees for that purpose.

If an owner of land dies intestate, or makes a will containing no charge of debts either express or im

(p) Dickenson v. Dickenson, 3 B. C. C. 18; Johnson v. Kennett, 3 M. & K. 630.

(1) In re Tanqueray Willaume and Landau, 20 Ch. D. 465.

plied, the heir or devisee is liable to the debts to the extent of the lands descended or devised, and the land itself is to be administered in equity, and there is no difference in this respect between specialty and simple contract debts (r).

heir, &c., for

tors.

If the heir or devisee aliens for valuable con- Alienation by sideration, whether by way of sale or ante-nuptial value, good settlement, before any proceedings are taken for ad- against credi ministration, the alienation is valid, and he remains liable personally for the ancestor's or testator's debts to the extent of the value of the land, as if they were his own (s). But a voluntary alienation, or a judgment entered up against the heir or devisee will not prevail (t).

An alienation by a legatee of personal estate with the assent of the executor is valid against any debts of the testator remaining unpaid (u).

so

is an alienation for

value by
a legatee of
personal

to future

The 3 & 4 Will. 4, c. 104, extends not only to debts estate. due at the testator's death, but also to all liabilities Act extends which may result out of obligations entered into by liabilities. him during his life (x).

payment of

regards

Statute of

A devise or trust for the payment of debts raises no Operation of trust for the payment of those debts which have been devise for the barred by the Statute of Limitations prior to the death debts, as of the testator (y); and if the time allowed by the statute has not run out at the testator's death, such a devise or trust will not prevent the statute from running in equity after the death of the testator either as to real (2) or personal estate (a).

(r) 7 Geo. 4 & 1 Will. 4, c. 47, ss. 2, 3, 4; 4 Will. 4, c. 104; 32 & 33 Vict. c. 45.

(8) Spackman v. Timbrell, 8 Sim. 253; Richardson v. Horton, 7 Beav. 123; In re Hedgely, 34 C. D. 379.

(t) Kinderley v. Jervis, 22 Beav. 1. (u) Dilkes v. Broadmead, 2 D. F. & J. 566.

(x) Hamer's Devisees' case, 2 De G. M. & G. 366.

(y) Burke v. Jones, 2 Ves. &
Bea. 275.

(z) 37 & 38 Vict. c. 57, s. 10.
(a) Evans v. Tweedy, 1 Beav. 55;
Freake v. Cranefeldt, 3 M. & Cr.
499.

Limitations.

Descent governed by

and Inherit

ance Act.

XI. Descent, and the mode in which the personal estate of an intestate is distributed.

The freehold land of a person dying intestate deCommon Law volves according to the rules of descent established by the common law, as modified by the Act 3 & 4 Will. 4, c. 106, for a full statement and explanation of which the reader is referred to Stephen's Commentaries, Book II. Part I. c. xi. It will be sufficient here to state as a general result of these rules that the order of succession where the intestate (whom we may call A.) has acquired land by purchase is as follows:

General result

of rules of

descent, as to

order of succession.

Sons according
to seniority
and their
issue.
Daughters
equally and
their issue.

Father.

Brothers and sisters of the whole blood.

Half-brothers

and sisters on the father's side.

Paternal grandfather, uncles and aunts and

their issue.

(1.) First in order come A.'s eldest son and his issue ad infinitum,
next A.'s second son and his issue, and so on to the
young-
est son.
If A. has left no son nor issue of a son, A.'s
daughters and their lineal descendants take in equal shares
as between daughters, the issue of a deceased daughter
representing her. As among the issue of deceased sons
and daughters the descent is governed by the rules (i) that
males are preferred to females, (ii) that among males
the eldest is preferred, while females take equally, and
(iii) that the parent is always preferred to, and takes in
exclusion of his own issue.

(2.) If A. has left no issue, his father succeeds.

(3.) If A. has left no issue nor a father, A.'s brothers of the
whole blood and their lineal descendants take, an elder
brother and his issue being always preferred to younger
brothers and their issue. The issue of a dead brother
represent their parent as in the case of A.'s own sons.
(4.) Then come A.'s sisters of the whole blood equally and
their issue, the issue of a dead sister representing her
as in the case of A.'s daughters.

(5.) Then come A.'s half-brothers on the father's side, and
their issue in similar order.

(6.) Then A.'s half-sisters on the father's side, and their issue in similar order.

(7.) Then A.'s paternal grandfather, then A.'s paternal uncles and aunts, and their issue in similar order.