Hi 111 ■ m THE REPRESENTATIVE LAW NEW LAW BOOKS PUBLISHED BY WM. CLOWES & SONS, LIMITED, LAW PUBLISHEKS AND BOOKSELLERS, Printers an " -* Law Reporting 27, ] BRETT'S OF ENGLiS University ; Property and "Clerke and "Leading d %* The main i to deal with past to understand tht The Law Jov recommend thes deservedly popul; but praise for thi that Mr. Brett h; BRETT'S Thomas Br Brett's Con' Third Editi. of the Innei "There is no 1 of Courts of Eqi Specially recoi THE EN( the incidem porary Est* to the secti death each i as a means and Success UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY N, E.C. 38J. SENT LAWS at-Law, LL.B. London ; Exhibitioner in Real s, 1869 ; Joint Author of cy Acts, 1883 ; " and of :orporated Law Society, and living law, and only ;ary to enable the reader are able confidently to redict they will become isive, and we have little . . . We are of opinion EQUITY. By -Author of " Clerke and ed Law Society, &c, &c. emple, and J. M. Dixon, ; most important decisions ■mal. cloth, 6s. lowing at a glance ession, Account, the Tem- f and 1896), with reference •ment, and at what date of es to decisions. Designed S. Harris, of the Legacy FRIENDLY SOCIETIES (THE LAW RELATING TO). Comprising the Friendly Societies Act 1896, and the Collecting Societies and Industrial Assurance Companies Act 1896, together with an Appendix containing Model Rules and the Forms appended to the Treasury Regulations, 1897. By F. Baden Fuller, B.A. (Oxon), of the Inner Temple, Barrister-at-Law. Just published, demy 8vo, cloth, 21s. THE LAW AFFECTING SOLICITORS. A Treatise on the Law Affecting Solicitors of the Supreme Court. By Arthur P. Foley, B.A. (late Scholar of St. John's College, Oxford), of the Inner Temple and Midland Circuit, Barrister-at-Law. With Appen- dix containing the Statutes bearing on the subject. Just published, demy 8vo, cloth, 12s. 6d. THE STOCK EXCHANGE (THE LAW AND PRACTICE OF). 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WORKS BY AMHERST D, TYSSEN, D.C.L -•— THE LAW OF CHARITABLE BEQUESTS. Price 21s. Cash price 17s. Postage Qd. AND THE NEW LAW OF CHARITABLE BEQUESTS. Price Is. Qd. William Clowes & Sons, Ltd., 27, Fleet Street, E.C. . THE LEASEHOLD ASSURANCE GUIDE, 1891. Price Is. 6d. Stevens & Haynes, Bell Yard, Temple Bar, E.C. GOSPEL CHRONOLOGY: l.\ EXAMINATION OF THE EVIDENCE AS TO TEE DATE OF THE CRUCIFIXION Price lc. Williams & Noegate, 11, Henrietta St., Covent Garden. THE EEAL REPRESENTATIVE LAW, 1897 BEING PART I. OF THE LAND TRANSFER ACT, 1897 A X I ) A DISCUSSION ON ADMINISTRATION THEREUNDER. BY AMHERST D. TYSSEN, D.C.L., OF THE INNER TEMPLE, BARRISTER- AT-LAW. LONDON: WILLIAM CLOWES AND SONS, LIMITED, 27, FLEET STREET, 1898. T T9*9lr IS9S LONDON: PRINTED BY WILLIAM CLOWES AND SONS, LIMITED, STAMFORD STREET AND CHARING CROSS. PREFACE. The object of this book is to combine in a handy form that portion of the Land Transfer Act, 1897, which amends the general law, with the previous statutory enactments relating to the same subject, and notes upon the same, and references to the principal recent decisions bearing upon the law of the administration of the estates of deceased persons, so far as they are connected with the constitution of a real representative. A. D. T. 40, Chancery Lane, January, 1898. 7831B4 TABLE OF CONTENTS. PAGE List of Statutes cited ix List of Cases cited xiii Introduction 1 THE LAND TRANSFER ACT, 1897. (The material parts thereof ) 6 CHAP. I. S. 1, § 1. Extent of the Act — Real Estate to vest in the Personal Representative — Estates tail Affected . 14 II. Position Pending Administration and Probate . . 18 III. S. 1, §§ 2, 3, 4, 5. Appointed Property Affected — Copyholds Excluded — Commencement of the Act .... 22 IV. S. 2, §§ 1, 2. Personal Representatives to be Trustees — Estate Duty — Succession Duty — The Settled Land Acts — Advowsons — Powers of Leasing — Powers of One Executor — Devolution of Proceeds of Land Sold . 20 V. S. 2, §§ 3, 4. Administration — Order of Assets — Rules as to Legacies — Order of Liabilities — Right of Retainer 35 VI. S. 3, § 1. Assent to Devise — Conveyance to Heir — Resi- duary Devise — Protection of Personal Representative 45 VII. S. 3, §§ 2, 3, 4. Beneficiary's Right to Conveyance — Vesting Orders — Duration of Power of Sale — Statutes of Limitation — Effect of Existing Mortgages of Land 51 VIII. SS. 4, 5. Power to Appropriate Property — Stamp Duties — Pecuniary Legatees — Residuary Legatees and Devisees 01 IX. On the Form of a Judgment for Administration . . 66 X. Administration in Bankruptcy and the High Court Compared — Right of Retainer — Statute-barred Debts —Lessor's Rights— Bills of Sale — Interest. . . 69 Vlll CONTENTS. XL XII. XIII. XIV. Preferential Claims — The Act of 18SS — Fbiendls Societies — Savings Banks and Building Societies — Recent Decisions — Overseers — Regimental Debts — Paving Officers 75 Judicature Act, 1875, S. 10 — Costs beckoned — Secured Creditors — Execution Creditor — Judgment aga in-. Executor — Right of Retainer — Loan by. Wife — Crown Claims — Execution and Judgment against Deceased — Voluntary Obligations — Summary 82 The Executor's Right of Preference . . . .96 Cautions for Drawing Wills — Position of Charitable Devises . . . . . . . . . . 10o APPENDIX. The Debts Recovery Act, 1830. 11 Geo. 4, and 1 Will. 4, c. 47 ■ Notes thereon, including the Trustees Act, 1893, ss. 30, 32, 33, 34 The Administration of Estates Act, 1833. 3 & 4 Will. 4, c. I'M The Debts Recovery Act, 1839. 2 & 3 Vict, c 60 The Debts Recovery Act, 1848. 11 & 12 Vict, c 87 . The Law of Property Amendment Act, 1859. 22 & 23 Vict, c 35, ss. 27, 28, 29 . The Administration of Estates Act, 1869. 32 & The Bankruptcy Act, 1883. 46 & 47 Vict, c 52 and ss. 40, 42, 45, 46, 125, 150, 152 The Preferential Payments in Bankruptcy Act, Vict, c 62 The Bankruptcy Act, 1890. 30, 31, and Part of Schedule Notes respecting Rules' . Addendum .... Index ok Subjects . 53 & 54 Vict, c 71. ss. 11, 21, 2s. 29 33 Vict, c 46 . s. 30, §§1,2; L888. 51 & 52 103 106 108 109 110 111 113 113 117 119 121 121 123 TABLE OF STATUTES CITED. Where the nuinero of a page referred to in this table is placed within brackets, the statute or section mentioned will be found set out in full on that page. The material portion of the Land Transfer Act, 1897, itself will be found printed consecutively on pages 6 to 12. The discussion of each section will be found to commence on the page in which it is indicated in this table as being printed in full the second time. 1357. 1571. 1623. 1692. 1744. 1796. 1805. 1807. 1817. 1830. 1833. 1834. 1836. 1837. 1838. 1839. 1848. 1849. 1853. 1855. 1858. 1859. 1860. 1862. 1863. 1864. 1865. 1869. 31 Edw. 3, st. 1, c. 11 (Administrators) 13 Eliz. c. 5 (Voluntary Settlements, Creditors) 21 Jac. 1, c. 16 (Limitations, Simple Contract Debts) 3 & 4 W. and M. c. 14 (Statute of Fraudulent Devises) 17 Geo. 2, c. 38 (Overseers), s. 3 36 Geo. 3, c 52 (Legacy Duty Act) 55 Geo. 3, c. 1S4 (Probate Duty) 47 Geo. 3, sess. 2, c. 74 (Traders' debts) 57 Geo. 3, c. xxis. (Metropolitan Paving), s. 51 11 Geo. 4 & 1 Will 4. c. 47 (Debts Recovery Act, 1830) 3, [103], 109, 110 3 & 4 Will. 4, c. 27 (Limitation, Land) PAGE 20 38 55 3 SO 90 90 3 81,93 LOT 76, s. 42 c. 42 (Limitation, Specialty Debts), s. 3 c 104 (Administration of Estate Acts, 1833) 3, 38, 4 4 & 5 Will. 4, c. 40 (Friendly Societies), s. 12 6 & 7 Will. 4, c. 32 (Building Societies), s. 4 1 Vict. c. 36 (Wills Act), ss. 24, 25, 27 1 & 2 Vict. c. 1 1 (Judgments) 2 & 3 Vict. c. 60 (Debts Eecovery Act, 1839) 11 & 12 Vict. c. 87 (Debts Recovery Act, 1S48) 12 & 13 Vict. c. 106 (Bankruptcy), s. 167 16 & 17 Vict. c. 51 (Succession Duty Act, 1853), ss. 44, 45, 46 18 & 19 Vict, c 63 (Friendly Societies), s. 23 c. 120 (Metropolitan Management), s. 90 21 & 22 Vict. c. 95 (Court of Probate Act, 1858), s. 19 22 & 23 Vict. c. 35 (Law of Propertv Amendment), s. 27 s. 28 s. 29 23 & 24 Vict. c. 38 (Law of Property Amendment), a. 3 (Judgments) 55 . 73 55,60 [108] 76 77, 93 .. 47 . . 92 3, 33, 34, [109] 3, [110] 77, 76 .. 29 76 81 [19], 20 48, [111] 49, [111] 48, [111] 92 25 & 26 Vict. c. 89 (Companies Act, 1S62), ss. 16, 75. 76 26 & 27 Vict. c. S7 (Savings Banks), s. 14 27 & 28 Vict. c. 112 (Judgments) 28 & 29 Vict. c. 86 (Law of Partnership Amendment), s. 5 32 & 33 Vict. c. 46 (Administration of Estates Act, 1869) 2,43 .. 76 .. 92 75,79 3, 41, 86, 98, [113] TABLE OF STATUTES CITED. 1877. 1 879. 1880. 1881. 1889. 1890. 1869. 32 & 33 Yict. c 62 (The Debtors Act), s. 27 . . c. 71 (Bankruptcy) s. 32 s. 87 1873. 30 & 37 Vict. c. 66 (Judicature Act, 1S73), s 3 s. 1G S. 2. r ). s< I s. 25, § 1 1 c. 91 (Statute Law Revision) .. 1874. 37 & 38 Vict, c. 12 (Building Societies) . . s. 7 .. c. 57 (Limitation, Land) s. 8 . . 1875. 38 & 39 Vict. c. 60 (Friendly Societies), s. 15, § 7 c. t>G (Statute Law Revision) . . c. 77 (Judicature Act, 1875), s. 10 PAGE 97 89 85 84 •2D 20 82 97 107 77 77 5, 60 7:. in 72, 78, 79, [82], 84, 80, 87,90 1. 6, 9, 13, 14 14, [23] I 'i a ll Vict, c ■12 & 43 Vict, c 43 & 44 Vict. c. 44 & 45 Vict, c 1882. 45 & 46 Vict c. 1883. 46 & 47 Vict, c 1884. 47 & 48 Vict. c. 1887. 50 & 51 Vict, c IKS*. 51 & 52 Vict, c 52 & 53 Vict, c 53 & 55 Vict. c. 1891. 54 & 55 Vict. c. 81 ( Land Transfer Act, 1875) s. 2 .. 8. Ill 59 (Colonial Stock Act) 59 (Civil Procedure) 9 (Statutes Definition of Time Act, 1880), 41 (Conveyancing Act, 1881), s. 30 . . s. 59 38 (Settled Land Act, 1882), s. 2, § 8 ss. 39, 59, 60 75 (Married Women's Property), s. 3 I '.< (Statute Law Revision) 52 ( Bankruptcy), s. 30 s.40 s. 41 s. 42 ss. 45, 46 . . . . 84, s. J22 s. 1 25 70, 73, 78, 85 §3 §4 s. 150 8. 152 71 (Intestates Act), s. 3 73 (Copyhold Act, 1887), s. 1 57 (2nd Statute Law Revision, 1888) 62 (Preferential Payments) 74, 75, 78, 80, 81, 84, 85, 87, 88, 90, 92, 93, 94, [117] B. 1, § 4 94 $5 77 § 6 . . . . 79, [80], 87 s. 3 . . . . 79, [80] • 7 (Customs and Inland Revenue Act, 1889), ss. 10, 12 29 39 (Partnership), ss. 2,3 75 69 (Settled Land Act, 1890), s. 16 30 71 (Bankruptcy), s. 11 84, [1 19] s. 21 71, [119] s. 28 73, [120] ss. 29-31 [120] 21 (Savings Banks), s. 13 76 [13] .. 62 .. 107 1 .. [25] [15], 24 2,42, 43 [29, 30] .. 31 [78], 79, 87 .. KIT [89], [113 | 85, [114], 119 94, 114 73, [115] 91, [115], 120 .. 7:; 86, 95, [116] 69, 120 .. 120 19], 90, [117] 79,90, [1)7] 90 • [24] 107 TABLE OF STATUTES CITED. XI 1891. 5-1 & Go Vict. c. 39 (Stamp Act), s. 57 s. 59 s. 73 s. 115 Schedule c. 73 (Mortmain and Charitable Uses) 1893. 56 & 57 Vict. c. 5 (Regimental Debts) c. 53 (Trustee Act, 1893), s. 10 . . s. 26 (vi.) . . ss. 30, 32, 33, 34 1894. 57 & 58 Vict. c. 30 (Finance Act, 1S94), s. 6, §§ 2, 8 s. 8 s. 9 s. 39 1S97. 00 & 61 Vict. c. 19 (Preferential Payments) . c. G5 (The Land Transfer Act, 1897) Preamble s. 1, § 1 §2 §3 §4 §5 . 2, § 1 §2 §3 §4 s. 3, § 1 §2 §3 §1 s. 4, § 1 §2 §3 s. 5 s. 11 s. 22, § 1 §2 §3 §4 §5 §6 §7 §8 s. 24, § 1 §2 s. 25 s. 26 PAGE .. 63 .. 63 .. 64 .. 62 62, 63, 64 .. 100 80,81 31 .. [52] . . [107] .. 28 .. 28 27,28 .. 62 .. 84 [6], 14 [6], [14], 15, 16, 17. 21 . . [6], [22] . . [6], [23] [7], IS, [23] • • • • [7J, [25] [7], 18, [26], 51 [7], 19, [32], 49, 53 • • ' [7], 27, [35] [8], [44] [8], [45] [8], 29, [51] [8], [54] [8], [54] [9], [61] [9], [61] [9], [61] [9], 28 [61] .. [10] .. [10] .. [10] .. [10] .. [10] .. [11] [11], 65 •• [12] • • [12] •• [12] •• [12] [12], 14 [12], 14 TABLE OF CASES CITED. A. L'AGE Adcock v. Evans 42, 88 Albion Steel and Wire Co., In re 7'.), 85, 88 x\llen, In re 42, 88 Allison v. Frisby 59 Alston v. Trollope 72 Association of Land Financiers, In re 79, 85, 88 Atkins v. Shephard 91 Atkinson v. Powell 71 A.-G. v. Leonard 89 Austin v. Beddoe 47 B. Bailey, Ex parte . . .. 76, 77 Bain v. Saddler 3, 42 Baker, In re 71, 72 Bannell, In re 7G Barker, In re 33 Barrett, In re 97 Bate, In re 40 Beeman, In re 42, 88 Bentinck, In re, Bentinek v. Bentinck 41, 90, 99 Blake v. Gale (No. 1) .... 57 (No. 2) .... 57 Blann v. Bell 36, 39 Boatwright v. Boatwright . . . . 56 Bos well v Gurney 74 Bowden v. Layland 57 Bowles v. Hyatt 58 Bracken, In re 48 Brackenbury, In the goods of . . 42 Bridger, In re 28 Bridges v. Shaw 36 Briggs, In re 41 Briggs v. "Wilson 72 PAGE Brornpton Hospital v. Lewis . . 28 Broth wood v. Keeling .. .. 40 Buck v. Robson 2 Burdick v. Garrick 55 Butler, In re 37 0. Calver v. Laxton . . . . 41, 99 Campbell, Ex parte, Campbell v. Campbell 88 Churchill, In re 89 Clayden v. Green 17 Clegg v. Rowland 48 Clough v. French 43 Coats v. Commissioners of Inland Revenue 64 Coope v. Cresswell . . . . 55, 59 Copland, In re 36 Crawford v. May 87 Crowder v. Stewart 41 Crown, Ex parte the 90 D. Davidson y. Illidge 42 D'Epineuil, In re . . . . 74, 80 Dibb v. Walker 58 Doughty v. Townson 48 Downe v. Morris 109 Dowsett v. Culver 62 lv Earp v. Briggs 41 England, In re 59 Evans v. Brown 108 XIV TARI.i: <>!•■ CASKS ( 1 I ID. F. PAGE Farqnh urson v. Floyer . . . . 10 Fellow r. Jermyn :;:; l- o p. Wills 36,39 Ferguson v. < fibson . . . . 10, 42 ■. Fishet 3S Fort, In re 5 Foster v. Foster 33 Fowler v. James 42, 88 Frisby, Tnn 59, 60 Fryman's Estate, In re, Fryman . Fryman 73 Jones, In ii . Oalver p. Laxton • i di a, In n . Jones I lalese •loins v. Pennefather . . Jones p. Williams Kelland v. Fnlford . Knott, In re . Kem] r. Waddingham 1-AC.F. 41.99 86, 39 . 88 76, 78 . 33 74,86 92 G . In re 57 rt, fin re. Ex parte ..71, 87, 88 . In re 88 Gould, In re 74. 86 Gowan v. Bronghton .. .. 36, •'•'. , Greville >•. Browne in II. Han-.,,, o. Btnbbs .. .. 86, 98 Harris v. Harris 98 Harrison, In re 88 II tstings, In re 43 Henderson v. Dodds 40 Henley and Co., In re . . . . 89 II • sman v. Fryer 40 I ley wood. In re 75,79 I I a - B Weaver 71 Bill v. Walker 72 Hollingshead, In re, Hollingsheud . Webster 55 Eoslcln's Trusts, In re . . . . 22 Bnbback, Tn re 41, S6 Hunt v. W( Tiliain ~- I torsi v. Enrsl 39 Hyatt, In re . . 58 Hyetl '•. Mekin 33 [llidge, In re 42 International, etc., Co.. p. Hawea 1 1, 86 n )•. Pease. . Johnstone v. Baber 37 :;i Lancefield v. Iggnlden .. .. 47 Land Financiers, Association of. In re 79, 85, 8S Latimer v. Harrison 88 I . Baa o. Herbert 37 Lee r. Xnttall 87 Leng, In re . . . . 78, 83, 86, 87, 88 I.' pine. In re 62 Lindsell v. Phillips 60 I.ole r. Betteridge 91 Loonies r. Stotherd 42 I.owis ». Rumney 72 M. Maggi, Lire 85. 86, 9S Manisty v. Churchill 89 Mareden, In re 57 Masonic, etc., Life Assurance Co., In re 20 May, Ex parte. In re 71 May. In re, Crawford v. May . . 87 Middleton, Tn re 36,40 Midgley v. Midgley 73 Mitchell v. Holmes 19 Mitchelson v. Piper 99 Molouy v. Brooke . . . . 71, 98 Moodie o. BanniBter 72 Mordaont v. Beuwell 34 Morgan v. Richardson . . 63 Mn.mt-Cashell, Earl of, V. More- Smyth 15 N. Newton v. Sherry 48 Nichols v. Baker 71,72 Norton Ironworks Co.. In re . . 85 TABLE OF CASES CITED. XV O. Oceanic Steam Co. r. Sutherberry 32 Official Receiver, Ex parte 74, 86 Oriental Bank Corporation, In re 90 P. Parker v. Ringham 86 Parkinson v. Heywood . . 75, 79 Patching v. Burnett 36 Peacock v. Peacock 38 Pears v. Laing 56 Philips v. Beal 72 Philips v. Jones 98 Phillips, Ex parte, In re Watson 19 Powers, In re 60 Pratt v. iDman S4 Price, In re 40 Putnam r. Bates 54 R. Radcliffe, In re 97 Richardson, In re 63 Richardson v. Richardson . . . . 40 Roddam v. Morley 55 Roper, In re 36 Row v. Row 3'J Ry ves o. Ryves 38 S. Salt, In re 40 Sander v. Heathfield 42 Schofield. Ex parte 75 Scott r. Cumberland . . . . 38, 39 Shaw, In re 36 Shepherd, In re 91 Shewen v. Vanderhorst . . . . 72 Shirreff v. Hastings 43 Smith v. Morgan . . 85, 86, 9S Sperling v. Rochfort 22 Stead v. Hardacre 38 Steward v. England 59 Stubbs' estate, In re . . .. 86, 98 Summers, In re 74 Sutton v. Sutton 17, 60 Tadman Talbot v. o. D'Epineuil Earl of Shrewsbury 74, S6 43 Tanqueray-Willaume and Lan- dau, In re 52 Tarn v. Emmerson (see In re Leng) 78, 83, 86 Taylor v. Bland 36 Thompson v. Harris . . . . 36, 40 Thorne v. Thorne 46 Tomkins v. Colthurst 40 Trethewy v. Helyar . . . . 36, 39 Trover v. Hutchings . . . . 73, S8 Turner, In re, Turner v. Waller 92 Tyler r. Thomas 109 Y. Van Gheluive v. Nerincks . . 92 Van Hagan, In re 22 Venn and Furze's contract, In re 53 Venour v. Sellon 17 Venours Settled Estates, In re. . 17 Vibart v. Coles 97 Vincent v. Godson 43 W. Walters v. Walters 42 Watkins v. Barnard . . . . 85, 91 Watson, In re, Ex parte Phillips 19 Weaver, In re 71 Wells, In re 71,98 Wenham, In re ''2 Whistler, In re 53- Whitaker v. Barrett 97 Willett v. Earle 43 W illiams, In re, Jones v. Williams 76,78- Williams estate, In re. Williams v. Williams 86, 98 Williams r. Jenkins 4o Williams v. Williams 86 Wilson v. Coxwell . . . . 41, 91 Wilson v. Paul 99 Winehouse v. Winehouse .. !?5. '.':» Withernsea Brickworks, In re . . 84 Wood v. Ordish 38 Wood v. Weightman 48 Wvlie,I»re 28 Wylie v. Moffat 28 Wyman '•. Carter 5 York, In re THE REAL EEPEESENTATIVE LAW, 1897. INTRODUCTION. The Land Transfer Act, 1897, comprises matters of very different nature in one enactment. (1) It amends in many particulars the Land Transfer Act, 1875, permitting the voluntary registration of land in any part of England or Wales ;. (2) it authorizes the Crown by order in Council to make registration compulsory in some one district subject to a power for the County Council to veto the same ; and (3) it introduces an important amendment of the general law by making real estate vest in the personal representative. This publication is intended to deal only with the matter last mentioned; but owing to the Mezentian policy, which has been adopted in framing the Act, it seems to be necessary to print herewith some matters which have no direct bearing upon the subject. The vesting of real estate in the personal representative is an amendment which has long been called for, and will be universally welcomed ; but the registration of title to land is a question on which opinions are by no means unanimous. In the judgment of the present writer the registration of title is inexpedient, and the registration of deeds is rather to be looked to in order to remedy such mischiefs as do exist. But with respect to deeds there is no need to register ordinary leases and conveyances on sales, where the lessee or purchaser at once B 2 THE REAL UKl'KKSEXTATIVK LAW, 1897. takes possession. The only deeds which require registration are mortgages and other deeds under which the conveying party is left in possession. It is remarkable that for nearly two centuries Middlesex, and Yorkshire, and Bedford level have been subject to special laws requiring the registration of all deeds, and other counties have had no registration at all. Com- plaints have been made of the trouble and expense occasioned by the registries, and of the frauds perpetrated in districts where they do not exist; yet no one has advocated the simple expedient of restricting registration to deeds which do not carry possession with them, and enforcing such registration everywhere. However, whatever may come of the provisions respecting registration contained in the present Act, there can be no question that the vesting of real estate in the personal representative is a beneficial amendment of the law. Such a provision has long been wanted to make all the assets of a deceased person available for payment of his debts, and to simplify the remedies of his creditors. It will be well to state the principal steps in the history of the law, which have led up to the present position of affairs. At common law the freehold land of a deceased debtor was assets in the hands of his heir for the payment of creditors holding a document under seal, whereby the debtor expressed to bind his heirs to pay the debt. These may be called heritable creditors. Other creditors had no remedy at all against the land of a deceased debtor. But now, by s. 59 of the Conveyancing Act,. 1881, 44 & 45 Vict. c. 41, all obligations under seal create heritable claims. And the liability of share- holders to pay calls is made a heritable debt by the Companies Act, 1862, 25 & 26 Vict. c. 89, ss. 16, 75, 76 (Buck v. Robson, L. R. 10 Eq. 629, July, 1870, V.-C. Bacon). In the course of time a power of devising land was acquired. Then some debtors were more honest than the law, and devised their lands on trust to pay their debts, or charged their lands with payment of their debts. In these cases the Court INTRODUCTION. 3 of Chancery administered the trust, and applied the proceeds of the land in first paying common creditors enough to place them on an equality with heritable creditors and iu redressing some other legal inequalities, and afterwards in paying all debts rateably {Bain v. Sadler, L. R. 12 Eq. 570, V.-C. Wickens, 1871). This land was called equitable assets. At the same time, namely, in and prior to the seventeenth century, other debtors were less honest than the law, and having borrowed money on the security of heritable specialties, they by will devised their lands away from their heir, in which case the creditors were remediless, as the devisee was under no liability to pay them. The Statute of Fraudulent Devises (3 & 4 W. and M. c. 14, s. 2) was then passed, leaving the case of equitable assets untouched, but providing that other devises should be void as against heritable creditors. It was not till 1807 that other creditors had any remedy given against the land of a deceased debtor, and the Act of that year only applied to the lands of deceased traders (47 G. 3, sess. 2, c. 74). The two last-mentioned Acts were then repealed and re-enacted, with amendments by the Act 11 Geo. 4 & 1 Will. 4, c. 47, now called the Debts Recovery Act, 1830 ; and in 1833 the Stat. 3 & 4 Will. 4, c. 104, now called the Administration of Estates Act, 1833, was passed, enacting that the lands of all persons not charged with debts by will should be assets to be administered in equity for the payment of all debts, with a clause, however, giving a priority to heritable creditors. This Act made the copyhold lands of a deceased debtor assets for payment of his debts. A little later the Debts Recovery Act, 1839, 2 & 3 Vict. c. 60, authorized mortgages as well as sales of land to pay debts, and directed any surplus money to devolve like the land ; and the Debts Recovery Act, 1848, 11 & 12 Vict. c. 87, extended the Act of 1830 to cases in which land became vested in an heir subject to an executory devise over to some person not existing or unascertained. On January 1, 1870, the Administration of Estates Act, 1869, came into operation, directing all assets to be applied 4 THE REAL REPRESENTATIVE LAW, 1897 rateably in the payment of specialty and simple contract debts (32 & 33 Vict. c. 46). The law, however, still remained imperfect, inasmuch as land, not charged with debts by a testator, was merely made assets to be administered in equity, and land charged with debts by a testator was sometimes assets in the hands of the devisee and sometimes in the hands of the executor, according to the terms of the will. The result was that, in many cases, the debts could not be paid out of Court, and the creditors could only get the benefit of the Act of Parliament at the expense of an administration action. A heritable creditor could and can bring an action against the heir, or against the heir and devisee, for payment of his own debt alone out of the debtor's freehold lands. Another creditor, of a person dying before the end of the year 1897, can only attach his land by means of an action on behalf of all creditors against the personal representatives and the persons taking the land, for payment of all the debts of the deceased. Now the law is to be placed in a more satisfactory state. In the case of persons dying on or after January 1, 1898, real estate (except copyholds and certain customary freeholds hereinafter defined) will vest in the personal representatives. They will therefore be able to sell or mortgage it in order to pay the debts of the deceased, and an action to administer real as well as personal estate will be maintainable against the personal representatives alone. We may, perhaps, in this place, remind our readers of some well-known rules of law, namely, (1) that on the death of a testator his personal estate vests in his executors, who have power to sell or mortgage it in order to raise money to pay his debts ; (2) that land held for any fixed term of years, absolute or determinable, is deemed personal estate and vests at law in the executors, so that (3) although such land may be specifically bequeathed by the will, the executors can sell it and confer a good title on the purchaser without the con- currence of the specific legatee ; (4) in like manner on the INTRODUCTION. O death of an intestate his personal estate vests in his adminis- trator when constituted, and an administrator with the will annexed is in the same position (Wyman v. Carter, L. E. 12, Eq. 309, May, 1871, V.-C. Bacon) ; but, on the other hand, the rules have hitherto been that (5) real estate devised by will has gone directly to the devisee without any power for the personal representative to touch it, and (6) on intestacy real estate has descended direct to the heir at law. It is the last two rules that are altered by the present Act with respect to freehold land. It will be convenient to print first the material portions of the Act in full, and then comment on its provisions separately. THE REAL REPRESENTATIVE LAW, L897. THE LAND TRANSFER ACT, 1897. 60 & 61 Vict. c. 65. An Act to establish a Real Representative, and to amend the Land Transfer Act, 1875. [6th August, 1897.] 38 & 39 _ 1 jU HEREAS it is expedient to establish a real representative, * " and to amend the Land Transfer Act, 1875, in this Act referred to as " 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 Heal Representative. Devolution 1. — (1.) Where real estate is vested in any person without intent in a "g^ m an J other person to take by survivorship it shall, real estate 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. (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 THE LAND TRANSFER ACT, 1807. 7 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 commencement of this Act. 2. — (1.) Subject to the powers, rights, duties, and liabilities Provisions herein-after mentioned, the personal representatives of a adminis- deceased person shall hold the real estate as trustees for the tration. 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. (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 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 administered in the same manner, subject to the same liabili- ties 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 8 llll. REAL REPRESENTATIVE LAW, 1897. Legacies, or the liability of real estate to be charged with the payment of legacies. i I.) 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 he made by rules of court for adapting the procedure and practice in the grant of letters of administration to the case of real estate. ProvisioD 3. — (1.) At any time after the death of the owner of any Jortransfer land, his personal representatives may assent to any devise devisee. 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 thy 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 repre- sentatives 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 representatives, order that the con- veyance 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. (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 THE LAND TRANSFER ACT, 1897. 9 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 Appropri- may, in the absence of any express provision to the contrary ^° d n in contained in the will of such deceased person, with the satisfaction consent of the person entitled to any legacy given by the or share in deceased person or to a share in his residuary estate, or, estate - if the person entitled is a lunatic or an 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 appropriation is effectual, notice of such intended appro- priation 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 otherwise 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 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 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 Liability payable in respect of real estate or impose on real estate any 01 l u y " other duty than is now payable in respect thereof. [Part II. contains amendments of the Land Transfer Act, 1875, and Part in THE REAL REPRESENTATIVE LAW, L897. HL contains provisions respecting compulsory registration and an insurance rund. I'-ut s. 11 in Tart II. is in the following words: — ] 11. SectioD two of the statute of the thirty-second year of the reign of Eenry the Eighth, chapter nine, which prohibits c. 9. sales ami other dispositions of land of which the grantor or his predecessor in title lias not been in possession for one whole year previously to the disposition being made, is hereby repealed. Part IT. Miscellaneous. and 22. — (1.) Regulations may be made by the Lord Chancellor, under section one hundred and six of the principal Act, alter- ing or adding to the official styles of the registrar and other officers of the registry, for the purposes of this Act. (2.) General rules under section one hundred and eleven of the principal Act shall be made by the Lord Chancellor witli tin- advice and assistance of the registrar, a judge of the Chancery Division of the High Court to be chosen by the judges of that division, and three other persons, one to be chosen by the General Council of the Bar, one by the Board of Agriculture, and one by the Council of the Incorporated Law Society. (3.) Orders under section one hundred and twelve and one hundred and twenty-two of the principal Act shall be made by the Lord Chancellor with the advice and assist- ance of tin- same persons, and with the concurrence of the Treasury. i I.) The fee orders relating and incidental to registration of title shall be arranged from time to time so as to produce an annual amount sufficient to discharge the salaries and other ' )> uses (including the annual contribution to the insurance 38 & 39 fund) incidental to the working of the principal Act, and this %1,t - '• " : Act, ami no more. THE LAND TRANSFER ACT, 1897. 11 (5.) Subject to any alterations that may be made in accord- ance with sections one hundred and twelve and one hundred and twenty-two of the principal Act and this section, the fees to be charged in districts where registration of title is com- pulsory shall, as regards the matters mentioned in the Second Schedule hereto, be as therein set forth. (6.) Provision may be made by general rules, under section one hundred and eleven of the principal Act, as amended by this Act, for carrying this Act into effect, and in particular for the following purposes : — (a.) For carrying out the provisions of this Act with respect to compulsory registration ; (b.) For adapting to the registration of proprietors of lease- hold land the provisions of the principal Act, as to absolute and possessory titles, and as to land certificates ; (e.) For adapting to sub-mortgages and to incumbrances prior to registration the provisions of the principal Act with regard to charges ; (d.) For the conduct of official searches against cautions, inhibitions, and such matters of a like nature as may be prescribed, and for enabling the registered proprietor to apply for such searches by telegraph, and for returning the replies in like manner to him or to such other person as he may direct ; (e.) For enabling cautions to be entered against the regis- tration of possessory and qualified titles as qualified or absolute ; (/.) For enabling a mortgagee by deposit to give notice to the registrar by registered letter or otherwise of the deposit with him of the land certificate, office copy of the registered lease, or certificate of charge. Provided that the fee for the entry of any such notice shall not exceed one shilling ; (g.) For applying to the grant of leases and dealings with leasehold land the provisions of this Act with respect to compulsory registration ; L2 THE REAL REPRESENTATIVE LAW, 1897. Provi for thr Yorkshire tries Interpre- tation. < ".•in i m. ht .■(' Short title and con- struction. i A. i For allowing the insertion, inserting in the register, and in land certificates, of the price paid or value declared on first registrations, transfers, and transmissions of land ; and (♦.) For regulating any such matters as are authorised by tin's Act to be prescribed. (7.) Provided that nothing in the rules under the said Bection shall extend to allow the inspection of any entry in the register, excepl by or under the authority of some person interested in the land or charge to which the entry refers. (8.) Provision may be made by general orders under fcion one hundred and eighteen of the principal Act for modifying the provisions of that Act with respect to the formation and constitution of district registries, and for pro- viding the mode in which district registrars are to be remunerated; but nothing in any such order shall affect the provisions as to qualification contained in section one hundred and nineteen of the principal Act. 23. — (This section merely relates to the Yorkshire Registries.) 24. — (1.) All hereditaments, corporeal and incorporeal, -hall be deemed land within the meaning of the principal Act and this Act, except that nothing in this Act shall render compulsory the registration of the title to an incorporeal here- ditament, or to mines or minerals apart from the surface, or to a Lease having less than forty years to run or two lives yet to Jail in, or to an undivided share in land, or to freeholds intermixed and indistinguishable from lands of other tenure, or to corporeal hereditaments parcel of a manor, and included in a sale of the manor as such. (2.) In this Act the expression "personal representative" means an executor or administrator. 25. This Act shall come into operation on the first day of January one thousand eight hundred and ninety-eight. 26. This Act may be cited as the Land Transfer Act, 1897, and shall be construed as one with the principal Act, and that THE LAND TRANSFER ACT, 1807. 13 Act and this Act may be cited together as the Land Transfer Acts, 1875 and 1897. Two schedules are appended to the Act, of which the first merely con- tains a number of minor amendments of the Land Transfer Act, 1875, and the second merely relates to fees in connection with registration. Inasmuch as the present Act refers to s. Ill of the Land Transfer Act, 1875, on the subject of rule-making, it becomes desirable to turn to that section. It will be seen that that section is amended by the present Act in that the power of making rules is conferred on a different set of persons. The material parts of the section itself are as follows : — 111. " Subject to the provisions of this Act, the Lord Chancellor may, with the advice and assistance of the registrar, from time to time make, and, when made, may rescind, annul, or add to, general rules in respect of all or any of the following matters " (a list of matters then follows, and the section pro- ceeds) : " Any rules made in pursuance of this section shall be deemed to be within the powers conferred by this Act, and shall be of the same force as if enacted in this Act, and shall be judicially noticed. " Any rules made in pursuance of this section shall be laid before both Houses of Parliament within three weeks after they are made, if Parliament be then sitting ; and if Parliament be not then sitting, within three weeks after the beginning of the then next session of Parliament." 1 1 THE REAL IIEPRESEXTATIVE LAW, 1897. CHAPTER 1. Section 1, § 1 — Extent of the Act — Real Estate to vest in' the Personal Representative — Estates tail affected. I >i visions Act. Commence- ment of the Act. Scotland .inl 1 1 exclu i t in tin] -en- tative. It will be seen that the Land Transfer Act, 1897, is divided into four parts, of which the first is by far the most important. The second part merely contains amendments of the Land Transfer Act, 1875 ; the third part provides for the introduc- tion of compulsory registration into some district with a power for the county council of the district to veto the same ; and the fourth part contains some miscellaneous provisions. The first part of the Act, however, contains an important amendment of our general law. The amendment is to come into operation on January 1, 1898, that being the date fixed by B. 25 for the commencement of the Act. There is no clause in the Act expressly limiting its effect territorially ; but the Act begins with a recital, " Whereas it is expedient to establish a real representative, and to amend the Land Transfer Act, 1875, in this Act referred to as the principal Act." And s. 26 runs : " This Act may be cited as the Land Transfer Act, 1897, and shall be construed as one with the principal Act." Now, in the second section of the Land Transfer Act, 1875, we read, " This Act shall not apply to Scotland or Ireland." We conceive, therefore, that the Land Transfer Act, 1897, also does not apply to either Scotland or Ireland. We can proceed now to examine its details. Section 1, § 1 enacts as follows : " Where real estate is vested in any person without a right in any other person to take by survivorship, SECTION 1, § 1. 15 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." It occurs to us at once to compare this with the corre- sponding provision in the Conveyancing Act, 1881, relating to trust and mortgage estates, namely, s. 30 of that Act. We there read — " Where an estate or interest of inheritance or limited to the heir as special occupant in any tenements 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." The language of the Conveyancing Act appears to us to be most correct. Apart from these enactments, an estate pur autre vie, not limited to the heir as special occupant, goes to the personal representative, either as special occupant or statutory occupant, Earl of Mount-Cashell v. More-Smyth, App. Cas. 1896, p. 158, so that the only estates requiring legislation are estates pur autre vie, limited to the tenant and his heirs, and estates of inheritance. It also appears to us that the policy of s. 30 of the Conveyancing Act required all estates of inheritance to be included within it, but that the policy of the Land Transfer Act, 1897, requires estates tail to be left in their present position, and only other estates of inheritance, and estates limited to the heir as special occu- pant, to be dealt with. That being so, the language of s. 1, § 1, above set out, appears to be somewhat unfortunate. It differs from that in the Conveyancing Act, but we do not see that it has any different effect, and we are obliged to supply a good deal in order to give a reasonable effect to it. The words " with- out a right in any other person to take by survivorship," are doubtless intended to exclude any case in which the deceased If! THE REAL BEPEESENTATIVE LAW, 1897. was one of two or more joint tenants, and land standing limited to a husband and wife. We do not imagine that these words are intended to apply to a case in which land forming assets of a partnership happens to be vested in one of the partners, and the terms of the partnership deed carry the beneficial interest in it to the survivors. Again, when a man is a tenant for life, or tenant in fee simple, with a gift over on his death without issue, he comes literally within the words of this statute: " Real estate is vested in him without a right in any other person to take by survivorship." But we do not imagine that the statute is intended to alter the law, on the death of any tenant for life, or the death, without issue, of any such tenant in fee. In each case we conceive that the personal representative of the deceased has merely the same rights in respect of emblements, fixtures, and apportionment of rent, as uuder the prior law. We must, in fact, read the Act as meaning that the interest of the deceased — if it continues — shall vest in his personal representative. In like manner we must regard the Act as conferring the legal estate on the personal representative, when the legal estate was in the deceased ; but an equitable estate only when the deceased had only an equitable interest, and as not applying to trust and mortgage estates, which w r ere already provided for by the Conveyancing Act. The case of a tenant in tail requires special consideration. j W If the tenant in tail dies without issue, the estate tail deter- mines, and we apprehend that the existing law is not altered, and that the case resembles that of the death of a tenant for life. But suppose that a tenant in tail dies leaving issue capable of inheriting it. Here the estate tail continues, and, under the prior law, the heir in tail took it, and it was not subject to the debts of the deceased, except judgment and specialty debts due to the Crown, and the claim of any creditor who had actually taken the land in execution (Williams on Real Property, pt. i. c. 2). We see no way of resisting the conclusion that an estate tail will now vest in SECTION 1, § 1. 17 the personal representative. It probably seldom happens that a tenant in tail, who has issue, omits to bar the entail, except under settlements like that of the Shrewsbury estates, where a special statutory prohibition against barring is imposed. The case which we are contemplating, therefore, is not likely to happen often; but it is well that attention should be called to it, as it holds an anomalous position. Advowsons also will go to the personal representative after the commencement of this Act, and the rights and duties of the personal representative, with respect to them, will require consideration. It will be seen that the marginal note to s. 1 is in the words, " Devolution of legal interest in real estate on death." But it must be remembered that the marginal notes of an Act of Parliament are no part of the Act, and do not explain or control the words of the Act itself [Claydon v. Green (L. R. 3 C. P. 511) (June, 1868) ; and see the dictum of Jessel, M.E., in Sutton v. Sutton (22 C. D. 513) (December, 1882), correcting the observations of the same judge in In re Venours settled estates, Venour v. Sellon (2 C. D. 525) (April, 1876)]. The efficacy of the present Act would be sadly impaired if it did not include equities of redemption and other equitable estates. Formerly, when these were devised to executors on trust to pay debts in aid of the personal estate and subject thereto on trust for a third party, the executor took an equitable estate, although not a beneficial interest. The framer of the mar- ginal note may well have intended to include these equitable estates in the words "legal interest," meaning, in fact, an interest other than a beneficial interest. It will be seen that the section refers to chattels real, and there is no doubt that a personal representative took equitable chattels real as well as legal. 18 THE REAL REPRESENTATIVE LAW, 1897. intestate.- CHAPTER II. Position Pending Administration and Probate. what While we are discussing the main clause of this Act, making real estate vest in the personal representative, it will be worth adminis- our while to consider in whom it is vested in the interval between the death of the owner and the constitution of a personal representative. We will consider first the case of a tenant in fee simple of freehold land dying wholly intestate, and we will imagine that he was himself the purchaser of the land, so that at present the land would devolve on his heir-at-law. We need not consider the position of copyholds, as s. 1, § 4, excludes them from the present enactment. After January 1, 1898, what will be the position of these freeholds pending the appointment of an administrator? Who will be entitled to receive rents from the tenants? What remedies will exist in the event of any trespass or robbery being committed on the land ? Will the land vest in the heir, as at present, until a personal representative is appointed ? On looking a little farther into the Act we find in s. 2? § 1, that, subject to certain provisions, the personal representa- tives are to hold the real estate as trustees for the persons by law beneficially entitled thereto — that is to say, the object of the Act is to vest the real estate in the personal represen- tative to enable liim to apply it in paying the debts of the deceased, but any surplus is to devolve beneficially as at POSITION PENDING ADMINISTRATION AND PROBATE. 19 present. This would rather favour the view that, pending administration, the legal estate should devolve as at present. The next sub-section, however, s. 2, § 2, provides that a 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, etc., 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," with an exception which we need not consider here. Now what are the enactments and rules of law relating to the effect of letters of administration as respects the dealing with chattels real before administration ? Pending administration there is no administrator designate, no person who has an absolute right to administration, such as an executor has to a grant of probate. The adminis- trator's title arises solely under the grant of administration, and we conceive that, pending administration, the right to receive rent for a chattel real of the deceased or to bring an action for a trespass done to a chattel real, is in abeyance ; and that when an administrator is constituted, these rights accrue to him. See Mitchell v. Holmes (L. R. 8 Ex. 119) (January, 1873), and compare In re Watson, Ex parte Phillips (18 Q. B. D. 116, on app. 19 Q. B. D. 234) (June, 1887). If this is so, all right of the heir-at-law, qua heir, is excluded pending the grant of administration ; and realty becomes entirely assimilated to personalty in this respect. But, if we are not mistaken, the position even of personalty is not quite clear in the circumstances which we are considering. The Court of Probate Act, 1858, 21 & 22 Vict. c. 95, s. 19, enacts : " From and after the decease of any person dying intestate, and until letters of administration shall be granted in respect of his estate and effects, the personal estate and effects of such deceased person shall be vested in the judge of the Court of Probate for the time being, in the same manner and to the same extent as heretofore they vested in the ordinary." 20 THB REAL REPRESENTATIVE LAW, L897. There appears to be no doubt that the chattels real of a deceased intestate vested in the ordinary prior to this Act. Administrators originated under the Act 31 Ed. III. st. 1, e 11, and came into being as deputies of the ordinary. They took what the ordinary previously had; and conversely all tilings, which vested in an administrator under the law prior to the institution of the Court of Probate were vested in the ordinary until an administrator was appointed. The Court of Frobate Act, 1858, then vested the chattels real and other personal estate of a deceased intestate in the judge of the Court of Probate for the time being ; and now the Judicature Act, 1873, has enacted (s. 3) that the Court of Probate and other Courts shall be united and consolidated together and constitute one Supreme Court of Judicature : and another section (s. 16) confers on the High Court of Justice the former jurisdiction of the Court of Probate; but there is no express enactment respecting the vesting of the personal estate of an intestate pending administration. It would seem, therefore, to be vested in all the judges of the High Court of Justice. We presume, therefore, that in the case of all persons dying intestate on or after January 1, 1898, their freehold real estate, as well as their personal estate, will be presumed to be in the same gremium legis, pending the appointment of an administrator. The case will, however, be different where a freeholder dies leaving a will appointing an executor, who proves it. Here the executor's title arises under the will, and all chattels real vest in him at once ; and in the case of persons dying after the beginning of the year 1898 all freeholds will vest in him likewise. He will therefore be able to do before probate in I >ect of freeholds all such acts as he can now do in respect of chattels real ; that is to say, he will be able to give receipts for the rents, and to distrain, but if an action of replevin were brought he would be obliged to produce the probate at the trial [compare In re Masonic and General Life Assurance Company (32 C. L>. 373) (December, 1885, Pearson, J.)] ; he will POSITION PENDING ADMINISTRATION AND PROBATE. 21 be able to take possession of the lands, and having taken possession, to maintain any action against a wrong-doer, because possession alone was sufficient to maintain an action of trover or trespass ; he will also be able to make any lease or letting of the lands, which he might make after probate. This opens up another question, namely, what power of leasing and letting lands a personal representative will have under the present Act. We will, however, postpone the consideration of that question for the present. [Note. — The point last mentioned will be found discussed on pp. 31, 32.] THE REAL REPRESENTATIVE LAW, 1897. CHAPTER II r. Section 1, §§2, 3, 4, 5 — Appointed Property Affected — Copyholds Excluded — Commencement of Act. Property We pass on now to § 2 of s. 1 of this Act. The first sub-section under 11 ' nas enacted that real estate shall vest in the personal repre- general sentative. The second then proceeds — s.1, §2. (2.) "This section shall apply to any real estate over which a person executes (sic) by will a general power of appointment, as if it were real estate vested in him." This is in keeping with the main policy of this part of the Act, namely, to give the personal representative complete control over all property which is subject to the payment of the debts of the deceased. It has long been settled that real as well as personal property over which the deceased exercises a general power of appointment is thereby made part of his estate and becomes subject to his debts. In the case of personal estate it has become settled that it is proper for the trustees of the property to hand it over to the executors and that they are thereby discharged as against the appointees. [In re Hoskin's Trusts (5 C. D. 229) (V.-C. Malins, February, L877, on appeal 6 C. D. 281, Jessel, M.R., and James, L.J., . I nne, 1877).] And the decisions have gone on the principle of treating real and personal property alike in this respect as far as possible. [In re Van Hagan, Sperling v. Rochfort (16 C. D. 18) (C. A., November, 1880).] Still this has hitherto been an equitable doctrine only, and under a power to appoint the legal estate, it has vested in the appointees, with the result that in many cases the aid of the Court has been required SECTION 1, §§ 2, 3, 4. 23 to make the property available for creditors. Under the present Act the law is to stand, that whenever a testator exercises by will a general power of appointing the legal estate as well as the beneficial interest, the legal estate will go, not to the appointees, but to the testator's personal repre- sentative. If the testator has only power to appoint the beneficial interest, then doubtless his executor will not take the legal estate, but an equitable estate only, as if the will had appointed the property to the executor with power to sell or mortgage it to raise money to pay the testator's debts, and an ultimate trust of the beneficial interest, or the surplus of it, for the appointee named in the will. Before leaving this sub-section we ought to allude to the point that it has been held in some cases that property, over which a testator has exercised by deed a general power of appointment, is made assets for the payment of his debts, and such property is necessarily unaffected by the present enactment. Passing on to the next sub-section, it runs as follows : — (3.) " Probate and letters of administration may be granted s. l, § 3. in respect of real estate only, although there is no personal estate." This does not appear to call for any comment. The fourth sub-section is more material, namely — (4.) " The expression ' real estate,' in this part of this Act, s. l, § 4. shall not be deemed to include land of copyhold tenure or Copyholds customary freehold in any case in which an admission or any excluded - act by the lord of the manor is necessary to perfect the title of a purchaser from the customary tenant." The meaning of this clause will be made more clear if we turn to the Land Transfer Act, 1875, with which the present Act is directed to be read. The second section of that Act runs as follows : — " This Act shall not apply to Scotland or Ireland, and land shall not be registered under this Act unless it is of freehold tenure or is leasehold, held under a lease which is 24 THE BEAL REPBESENTATIVE LAW, 1897. cither immediately or mediately derived out of land of free- hold tenure; but for the purposes of this Act 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 purchase (sic) from the customary tenant, shall not be deemed to be land of freehold tenure." We think it is clear, therefore, that the Act of 1897 does not apply to (1) land of copyhold tenure, or (2) customary freeholds passing by surrender and admittance or otherwise requiring the intervention of the lord of the manor in their conveyance. We propose to use the expression quasi-copy- holds to denote these customary freeholds. It will be seen that all estates and interests in these lands, equitable as well as legal, are excepted out of the Act; and the exception is much more extensive than in the similar case under the Conveyancing Act. The last-mentioned Act con- tains a clause, s. 30, making trust and mortgage estates vest in the personal representatives. In practice this was found prejudicial to the beneficiaries in the case of copyholds ; for testators usually find it desirable to appoint two or more executors, and the fine payable on the admittance of two or more joint tenants of copyhold is ordinarily greater than the fine payable on a single admittance. The result was that a clause (s. 45) was introduced into the Copyhold Act, 1887 (50 & 51 Vict. c. 73), enacting— "The 30th section of the Conveyancing and Law of Property Act, 1881, shall not apply to land of copyhold or customary tenure vested in the tenant on the Court Kolls of any manor upon any trust or by way of mortgage." The present Act excludes copyhold land vested in trustees for the deceased person, as well as copyholds of which the deceased was tenant on the Court Kolls. In such cases the customary heir or devisee takes the beneficial or legal interest free from any claim of the personal representative, and it will still be assets in the hands of such heir or devisee. The existence of copyholds and quasi-copyholds has prevented SECTION 1, § 5. 25 the Act from being made as complete as could have been desired. There is yet one more sub-section in section 1, namely — " (5) This section applies only in cases of death after the s. l, § 5. commencement of this Act." ment of The commencement of the Act is fixed by s. 25, which is Act - in the following words : — "This Act shall come into operation on the 1st day of January, 1898." It applies, therefore, to the estates of all persons who die after the commencement of that day. And there is no doubt that the commeucement of the day should be reckoned accord- ing to Greenwich mean time ; for by the Statutes Definition of Time Act, 1880, it is enacted (43 & 44 Vict, c. 9, s. 1)— " Whenever any expression of time occurs in any Act of Parliament, deed, or other legal instrument, the time referred (sic) shall, unless it is otherwise specifically stated, be held in the case of Great Britain to be Greenwich mean time ; and in the case of Ireland, Dublin mean time." THE BEAL REPRESENTATIVE LAW, 1897. anes. CHAPTER IV. ction 2, §§ 1, 2 — Personal Representatives to be Trustees — Estate Duty — Succession Duty — The Settled Land Acts — Advowsons — Powers of Leasing —Powers of One Executor — Devolution of Pro- ceeds of Land Sold. The second section of this Act is divided into four sub-sections, of which the first runs as follows : — § l - " (1) Subject to the powers, rights, duties, and liabilities represen- hereinafter mentioned, the personal representatives of a tee fo r deceased person shall hold the real estate as trustees for the benefici- 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." The matter referred to at the end of this clause, namely, the conveyance of the real estate from the personal repre- sentative to the parties taking it beneficially, is more fully dealt with in the third section of the Act; so that we may confine our attention for the present to considering the state of affairs while the real estate is still vested in the personal representative. We shall doubtless find three classes of cases arising — (1) intestacies; (2) wills made in contemplation of the state of law existing prior to the passing of this Act ; and 1 3 1 wills made in contemplation of this Act itself. It will clearly be the duty of the personal representative in every case to consider whether a sale of any of the real estate will be requisite in order to pay the deceased's debts SECTION 2, § 1. 27 and funeral and administration expenses. And here we must remember that real estate is now subject to estate duty under the Finance Act, 1894 (57 & 58 Vict. c. 30). That Act pro- vided by s. 9 — " (1) A rateable part of the estate duty on an Estate estate, in proportion to the value of any property which does uty - not pass to the executor as such, shall be a first charge on the property in respect of which duty is leviable; provided that the property shall not be so chargeable as against a bond fide purchaser thereof for valuable consideration without notice." That is to say, under the prior law a rateable part of the estate duty is a charge upon the real estate. What is to happen after January 1, 1898, when real estate passes to the executor as such ? Is the entire estate duty to fall primarily upon the residuary personalty, which at present bears the duty on the property which passes to the executor as such ? We think this question should be answered in the negative, and that the duty payable in respect of real estate will still be borne by it. If s. 1 stood alone, it would seem to make the residuary personalty the primary fund for paying the entire estate duty. But later on, in s. 2, § 3, we read that real estate in administration is to be treated like personal estate, but 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." These words appear to show that the intention of the Act is only to make real estate more readily available for creditors without altering the rights of beneficiaries inter se. In the case of wills made under the old law, there is also the principle to be observed of not allowing the effect of a will to be altered by a statute passed after the date of it. But this principle is not universally applicable. Sometimes a statute abolishes a rule which would have defeated a testator's clear intention, aud then the prior will is construed according to the altered law. In other cases the testator has used words which may THE REAL REPRESENTATIVE LAW, 1897. be l >nteniplating a possible alteration of the law, and in Bucb cases the new law would be properly applicable to the will. There have, indeed, been several recent striking cases of wills having their effect altered by legislation enacted after their execution. [In re Bridger, Brompton Hospital for Con- sumption v. Lewis (1894, 1 Ch. 297); in re Wylie, Wylie, v. Moffat (1895, 2 ch. 116).] It will further be found that the fifth section of the present Act enacts that " 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." These words may well be held to preserve the incidence on real estate of that portion of the estate duty which was thrown upon it by the Finance Act, 1894, and we conceive also that the present Act makes the personal representative account- able for the estate duty on freeholds under ss. 8 and 9 of the Finance Act, 189-4 (57 & 58 Vict. c. 30), and gives him the option of paying it at once under s. 6, § 2, or by instalments extending over eight years under s. 6, § 8. In the case of real estate devised to or descending on one person absolutely, it may be possible to raise the duty out of the rents, and pay it by instalments, as allowed by s. 6, § 8, of the Act. But where land is settled, it would seem to be necessary to raise the duty by means of a sale or mortgage, as the duty is a charge on the corpus. A purchaser of real estate from a personal representative, however, clearly has notice of its liability to estate duty, and we conceive, therefore, that he will have to see that the duty is paid, and furnish himself with a certificate of discharge under s. 11, § 1, of the Finance Act, 1S94 (57 & 58 Vict. c. 30). And settlement estate duty under s. 5 of the same Act appears to be subject to the same provisions as ordinary estate duty. If the option has been exercised of paying the duty by instalments extending over eight years, and the land is sold during that period, the purchaser will have to see that the outstanding claim for duty is satisfied on completion (s. 6, § 8). SECTION 2, § 1. 29 We will next ask whether the effect of vesting the real Succession estate in the personal representative will involve him in any y " obligation to see to the payment of succession duty. It appears to us that it does so, and that the personal repre- sentative will be a trustee of the real estate within the meaning of s. 44 of the Succession Duty Act, 1853 (16 & 17 Vict. c. 51). The provisions of ss. 44, 45, and 46 of that Act, and of ss. 10 and 12 of the Customs and Inland Eevenue Act, 1889 (52 & 53 Vict, c. 7), will consequently apply. The personal repre- sentative will have power to raise the duty and costs upon security of the property, and will be liable to give the notice and make the returns prescribed by s. 45 of the Succession Duty Act, 1853. But the power of the personal representative to sell or mortgage real estate to pay debts is, of course, para- mount to the claim of the Crown to succession duty ; so that a purchaser or mortgagee from the personal representative will not be concerned to see to the duty. The Act, however, does not make it clear how long this power of the personal representative is to continue. We shall have occasion to notice this point again later, under s. 3, § 2. But we may observe here that personal representatives The Settled are constituted by this Act trustees of the land with a power of sale thereof, and consequently if the land is so devised as to be settled land within the meaning of the Settled Land Act, 1882, it is arguable that the personal representatives are trustees of the settlement for the purposes of the Settled Land Acts (Settled Land Act, 1882, s. 2, § 8). This point deserves consideration. We will suppose three cases : (1 ) a will devising land in settlement, and appointing two persons other than the executors to be trustees of the settlement for the purposes of the Settled Land Acts, but without giving them any power of sale ; (2) a similar will, but giving the trustees a power of sale ; and (3) an intestacy where the intestate leaves an infant heir. On turning to the Settled Land Act, 1882, 45 and 46 Vict. c. 38, s. 2, § 8, it will be seen to enact that " The persons if Land Acts. THE REAL REPRESENTATIVE LAW, 1897. any, who are for the time being under a settlement trustees with power of sale of settled land (or with power of consent to or approval of the exercise of such a power of sale) or if under a settlement there are no such trustees, then the persons, if any for the time being, who are by the settlement declared to be trustees thereof for the purposes of this Act, are for the purposes of this Act trustees of the settlement." On turning to the Settled Land Act, 1890, 53 & 54 Vict, c. 69, s. 16, it will be seen not to affect the present question, as that section only applies " when there are for the time being no trustees of the settlement within the meaning and for the purposes of the Act of 1882." Consequently, if executors may be regarded as trustees of settled land under the new law, it will follow that in case (1) above mentioned, the executors will be such trustees during the winding up of the estate, to the exclusion of the special trustees named in the will, because the appointment of the latter is ineffectual if there are trustees with a power of sale. On the same supposition, in case (2) above mentioned, there would be two sets of trustees with powers of sale : (a) the executors, with power to sell to pay debts; and (b) the trustees appointed by the will. As between these two it should seem that the trustees appointed by the will could not make a title to the land free from the executors' power of sale until the executors had assented to the devise or conveyed the land to the uses of the will. Then, unless the executors are to be regarded as. trustees for the purposes of the Settled Land Acts, the tenant for life, who would have a good equitable estate for life, subject only to the liability of the land for debts, could not make any sale of the land pending the wind- ing up of the estate. On the other hand, if the executors are to be regarded as trustees for the purposes of the Acts, no harm would be done to them by a sale by the tenant for life, as the purchase money would be payable to them or into Court, In case (3) above mentioned, the case of an intestacy with SECTION 2, § 1. 31 an infant heir, the land is settled land by reason of s. 50 of the Act of 1882, and by s. 60 the powers of a tenant for life may be exercised by the trustees on behalf of the infant ; but s. 30 enacts that capital money shall not be paid to fewer than two persons as trustees of a settlement, unless the settlement authorizes its receipt by one person. Now the general practice of the probate division, in granting administration, is to appoint a single administrator. Hence, if an administrator is a trustee of settled land under the circumstances stated, it would be improper for him to sell as such trustee and receive the money alone, although such an act in his character of adminis- trator would be quite proper. A single trustee, moreover, does not seem to have power to appoint a co-trustee with him- self, although on his death his representatives could appoint two or more in his place (Trustee Act, 1803, 56 & 57 Vict. c. 53, s. 10). This position of affairs may prompt the suggestion that the Court may consider whether in future the practice of appointing a single administrator should be adhered to when there is real estate and an infant heir, or indeed real estate at all. In some cases an appointment of two administrators might be desirable, one to protect the interests of the heir, and the other for the next of kin, and in many more cases it might be well to reserve power to appoint a co-administrator with the party first appointed. With respect to an advowson, it is clearly vested in the Adrow- personal representative, and made liable to be sold for the sons ' payment of debts. But if a vacancy should occur before it is sold, the right to fill that vacancy is inalienable ; and it would be the duty of the personal representative to present the nominee of the beneficiaries [Johnstone v. Briber (6 De G. M. & G-. 430)]. Under such circumstances it would seem that the heir or devisee possessed the power of nomination even although the estate might be insolvent. We may next consider what power the personal repre- Power of sentative will have of leasing or letting the real estate while it remains vested in him : and to aid us in considering: this easms;. 32 mi: kkal representative law, isht. s. 2, § 2. question we shall do well to set out the second sub-section of s. 2 of the Act, namely : " (2) All enactments and rules of law relating to the effect of probate or letters of administra- tion 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 representatives without the authority of the Court to sell or transfer real estate." This appears to make it clear that the personal repre- sentative will have the same powers of leasing and letting real estate that he has at present over chattels real. These powers will be found discussed in the recent case of Oceanic Steam Navigation Company v. Sutherberry (16 C. D. 236) (November, 1880) ( Jessel, James, and Lush, affirming the V.-C. of Lancaster). In that case an administrator had granted an underlease of a leasehold estate for twenty-one years, with an option for the underlessee to purchase the leasehold interest at a fixed price at any time within seven years, and a power for the administrator to call on the underlessee to exercise or renounce the option at any time on three months' notice. It was held that this, was beyond the powers of the administrator. All of the judges, however, affirmed the view that an administrator might grant a prudent lease so as to make the property productive pending a sale. On the same principle a personal representative will be able to grant a prudent lease of real estate which becomes vested in him by the present Act. Conveyancers will doubtless bear this point in mind in drawing wills in future ; and in the cases of wills previously made and of intestacies hereafter occurring, the worst that can happen will be that occasionally it may be necessary to apply section 2, § 2. 33 to the Court to sanction some proposed lease. Fortunately this can now be done very readily by originating summons. It would doubtless be difficult to frame any general rules defining the powers of leasing which a personal representative ought to possess. The nature of the property, and the state of the family, and the general condition of the estate, admit of endless varieties, so that in some cases it might be beneficial to allow to a personal representative very large powers of leasing, and in other cases none at all. The words forbidding less than all the executors to sell Power or transfer real estate without the authority of the Court, may executor. very well be held to apply to leases, and certainly it would be unwise to take a lease from less than all the executors. One executor, however, may doubtless give a receipt for rent of real estate, as now for rent of leasehold property, but all would have to join in bringing any action. It will be convenient also to consider the following question Devolution in this place. Clearly under the present Act personal repre- pro^eds^of sentatives take power to sell real estate to pay debts. That sales - being so, it may happen that the proceeds of sale of some real estate may satisfy all liabilities of the testator's estate and leave a balance in the hands of the personal representative. This balance becomes subject to the provisions of the Act 2 & 3 Vict. c. 60, and follows the limitations of the land which produced it. If the land vests in an heir or devisee, the balance is payable to such heir or devisee ; but if he dies before it can be paid to him, a question may be raised whether it devolves in equity as real or personal estate. We conceive that it should be held to devolve as real estate [Fellow v. Jermyn (W. N". 1877, 95, Jessel, M.E.) ; compare Kellancl v. Fulford (6 C. D. 491) (March, 1877, Jessel, M.R.) ; Foster v. Foster (1 C. D. 588) (December, 1875, Jessel, M.R.) ; In re Barker (17 C. D. 241) (January, 1881, C. A.); contra Eyett v. MeJcin (25 C. D. 735) (January, 1884, Kay, J.)] ; but if on one devolution it vests in one person absolutely, it may then descend as personal estate on a second devolution D :; I rm: REAL REPRESENTATIVE LAW, 1897. [Mordaunt v. Benwell (19 C. D. 302) (December, 1881, Fry, J.)]. It may sometimes happen that the item of property properly applicable for debts may be a house or some other property incapable of division, and clearly worth far more than the total of the unpaid debts. In such cases a mortgage would seem to be more proper than a sale, and such a course is authorized by the Act 2 & 3 Vict. c. 60; but there would then be generally some little margin between the amount raised and the amount required, and this would devolve as real estate in equity. ( 35 ) CHAPTER V. Section 2, §§ 3, 4 — Administration — Order of Assets — Eules as to Legacies — Order of Liabilities — Eight of Eetainer. Section 2, sub-section 3, of the Act runs as follows : " (3) In s. 2, § 3. the administration of the assets of a person dying after the a^nis- commencement of this Act, his real estate shall be administered tration. in the same manner, subject to the same liabilities for debt (sic) 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." We observe that the first clause of this sub-section mentions debt costs and expenses, and the second clause speaks of funeral and testamentary expenses, debts, or legacies. It is clearly proper to mention legacies in the second clause and not in the first, but it is not clear why costs are mentioned in the first and not in the second. Eeal estate is henceforward to be subject to the same liability for costs as personal estate, but the order of applying assets in payment of debts, funeral and testamentary expenses, and legacies, is not to be altered. It will probably be held that the discretion as to costs, which is given by the Judicature Act, is not hereby abridged, and under that discretion some customary rules will be observed resembling as closely as possible the rules at present in use. 36 THE REAL REPRESENTATIVE LAW, 1897. It lias been settled in recent years that if the costs of an administration suit are increased by the administration of the real estate, such increase must be borne by the real estate [Patching v. Barnett (51 L. J. Ch. 74, 45 L. T. 292); In re Middleton, Thompson v. Harris (19 C. D. 552) (February, 1882, C. A.) ; In re Roper, Taylor v. Bland (45 C. D. 126) (June, 1880, C. A.) ; In re Copland (W. N., 1895, 137, North, J.)]. The policy of the present Act is in agreement with that rule, but fortunately the new law will tend to reduce the costs of administering real estate. In the recent case of In re Shaw, Bridges v. Shaw (1894, 3 Ch. 615, Kekewich, J.), executors had established a will in a probate action against the heir-at-law, but the order declaring the will valid had ordered the costs of the heir-at-law to be paid out of the estate. It was held that this only bound the personal estate, on the ground that the Court had no jurisdiction to order costs out of real estate in a probate action. It is possible that the present Act may be held to enlarge the power of the Court in this respect. In the absence of special circumstances assets are applied in paying costs in the same order as in paying debts. A suggestion was once made that costs should be paid primarily out of a share of residue which lapsed ; but this view was disapproved of, and it is settled that when a share of residue lapses the costs are paid first out of the general residue, and the amount of the shares of residue are thus ascertained, and the lapsed share then goes to the next of kin or heir-at- law [Gowan v. Broughton (L. R., 19 Eq. 77) (November, 1874, V.-C. Mulins); Trethcwy v. Eelyar (4 C. D. 53) (November, 1876, Jessel, M.E.) ; Fenton v. Wills (7 C. D. 33) (November, 1877, V.-C. Bacon); Blann v. Bell (7 C. D. 382) (Novem- ber, 1877, V.-C. Hall); In re Jones, Jones v. Calss (10 C. D. 40) I November, 1878, V.-C. Malins)]. Order of The rules which settle the order of the application of real offsets. 011 an( l l' ,er sonal assets in payment of funeral and testamentary expenses and debts are as follow : — SECTION 2, § 3. 37 Lands of any tenure, subject to any mortgage charge or lien, whether the same be a specialty or simple contract debt, are applied first in discharging such mortgage charge or lien. Debts not secured by any mortgage charge or lien, and the balance of any debt so secured, are paid out of the assets in the following order : — (1.) The residue of the personal estate not specifically bequeathed or appropriated for the payment of any demon- strative legacy, after setting apart a sum sufficient to meet the pecuniary legacies ; and of course the surplus of any fund appropriated to answer a demonstrative legacy is included in this item. (2.) Eeal estate expressly devised for payment of debts. (3.) Eeal estate which descends in its entirety simply. (4.) Property real or personal specifically devised or bequeathed, but charged with payment of debts, and a residue of realty so charged. (5.) The sum set apart out of the general personal estate to meet the pecuniary legacies, as mentioned in the first item. (6.) Real estate comprised in a residuary devise and not charged with debts ; property, real or personal, specifically devised or bequeathed and not charged with debts, and any sum appropriated for a demonstrative legacy [Jackson v. Pease (L. R. 19 Eq. 96) (November, 1874, V.-C. Hall), and see In re Butler, Le Bas v. Herbert (1894, 3 Ch. 250, Kekewich, J.), for a case of personalty pledged by the testator and specifically bequeathed]. (7.) The wife's paraphernalia in a legal sense. (8.) Property real or personal over which a testator has exercised a general power of appointment by will. (9.) Donationes mortis causa. The order of the last three items has not been settled by any decided case. Items 1, 5, and 7, and the personalty in item 6 are legal assets. Items 2, 4, and 8 are equitable assets. Item 3, and 38 THE BBAL IlEPKESEXTATIVE LAW, 1897. the realty mentioned in item 6 were formerly legal assets for the payment of heritable creditors only, and were made Btatutory assets by the Act 3 & 4 Will. IV. c. 104. Item 9 is perhaps only assailable under the statute 13 Eliz. c. 5, but perhaps recoverable by the executor, and so legal assets (1 P. Williams 406). When a partial interest lapses or results, or otherwise passes to the heir, the law is rather hard to apply. There must necessarily be a practical difficulty in selling a partial interest in land without selling its entirety. And a legal difficulty presents itself; for, in general, under a lapse, the heir takes what the devisee would have taken if he had not died before the testator; and, if the heir takes what the devisee would have taken, he stands in a better position with regard to land which the testator had devised away from him, than in regard to land which the testator had left to descend on him. In Byves v. Ryves (L. E. 11 Eq. 539) (March, 1871), V.-C. Malins had before him a case in which land was charged with debts, and devised in undivided shares, one of which lapsed ; and he held that the point was settled, and that the heir-at- law took the lapsed share charged only with a rateable portion of the debts. The cases thus settling the law were Peacock v. Peacock (13 W. R. 516) (February, 1865, V.-C. Wood); Fisher v. Fisher (2 Keen, 610) (April, 1838, Lord Langdale, M.E.); Wood v. Orclish (3 Sm. & Giff. 125). And the same Vice-Chancellor adopted a similar rule in Stead v. Hardacre (L. R. 15 Eq. 175) (January, 1873), where a testator devised all his land to trustees charged with debts, and specifically disposed of the beneficial interest in some portions, and left other parts undisposed of, and it was held that each part bore its rateable share of the debts. However, in Scott v. Cumberland (L. R. 18 Eq., 578) (July, 1874), V.-C. Malins had before him a case in which land not charged with debts was devised in undivided shares, and one >hare lapsed ; and after elaborate argument he delivered a SECTION 2, § o. 39 considered judgment, holding - that the case was different when there was no charge of debts, and that the lapsed share should be applied in paying debts as if it had descended without being devised at all by the will. A few months later, namely, in November, 1874, the same judge expressed a similar opinion respecting a lapse of a share of residuary personalty (see Cowan v. Broughton (L. R. 19 Eq. 77)); but that opinion has since been abandoned [Trethewy v. Helyar (4 C. D. 53) (Jessel, M.K. November, 1876) ; Jones v. Caless (10 C. D. 40, V.-C. Malins) ; Fenton v. Wills (7 C. D. 33, V.-C. Bacon) ; Blann v. Bell (7 C. D. 382, V.-C. Hall)] ; and the case of Scott v. Cumberland itself cannot now be regarded as a conclusive authority. It was cited in the cases just mentioned, and was not commended by other judges, though not disapproved of [see particularly Trethewy v. Helyar (4 C. D. 57)], and V.-C. Malins himself in In re Jones, Jones v. Caless (10 C. D. 40) (November, 1878) showed a disposition to qualify his former decisions on this point. Furthermore, Mr. Justice Pearson, who had been counsel for the heir in Scott v. Cumberland, had to consider a similar point in Hurst v. Hurst (28 C. D. 159) (December, 1884). The circumstances of that case were very complicated, but they involved a contention that when a life-estate was made terminable on alienation, and was so terminated, and the heir-at-law took the estate, it should be applied in payment of costs in exoneration of devised estates, and the decision was against that contention. On the other hand, a decision analogous to that in Scott v. Cumberland was given by V.-C. James in Bow v. Boiv (L. R. 7 Eq. 414) (Feb- ruary, 1869). There a disposition of one-sixth of the beneficial interest in a freehold house was held void for uncertainty, so that it passed to the heir-at-law, and the heir was held also to take a legacy of £100, which failed ; and the costs were thrown primarily on these items. The judge, in arriving at this conclusion, relied on the fact that the whole estate was vested in trustees. The case was certainly of a very special nature. THE REAL REPRESENTATIVE LAW. The rule as to Legacies is that they are not payable out of - ite unless the will so directs, expressly or by implication. Bat it the assets out oi which they are payable are applied in paying debts, etc, out of their proper order, the Legatees have a right of marshalling or recoupment out oi the assets de- Boribed in items 2, 3, and 4 in the above list, which ought to have been first applied [In re Salt, Broth wool v. Keeling i'< »:: 1. 1 .verruling In re Bate (43 C. D. 600)] but not out of those described in item 6 (TomkinsY. Colthurst (1 C. D. December, L875,V.-C. Malins ) ; Farquharson v. Fi 3 G IK 10!') (April, 1876, V.-C. Hall)]. The decision oi Lord Chelmsford in Hensman v. Fryer (L.R 3 Ch. 420) (December, - 7 | has long been regarded as over-ruled upon this point. We may also observe that the principal case in which Legacies are charged on land by implication is when they are followed by a devise of the residue oi real estate, in winch the word residue is held to show that something is taken away from it. This is called the rule in GrevtBe v. Brown (~ EL L. Ca 689), that being the leading authority upon the Subject. Oiler of With respect to the order in which the liabilities of an liabilities es t a te are satisfied under the existing law, the cases are not all consistent [In ;•• Price, Williams v. Jenkins (31 < '. I). 485) (January, 1886, Pearson, J.)], but they point to the following result. (1.) The costs, charges, and expenses of the personal representatives, and any debts which they have a right to retain. (2.) The costs of the plaintiff and other necessary parties as between party and party [In re Middleton, Thorn}- v. Harris (19 C. D. 552, see p. 006)]. (3. i The extra costs of the plaintiff as between solicitor and client if he is a creditor ; or the like costs of a creditor, to whom the conduct of an action has been given [Richardson v. Richanhon (14 C. D. 611)]. (1. The debts. retainer. SECTION 2, § 3. 41 (5.) The extra costs of the plaintiff as between solicitor and client, if he is a legatee. (6.) The legacies. Thus, if there is a fund available for creditors, the plaintiff creditor gets his extra costs out of it; and, if there is a fund available for legatees, the plaintiff legatee gets his extra costs out of it [Henderson v. Dodds (L. R. 2 Eq. 532) ; Ferguson v. Gibson (L. R. 14 Eq. 379)]. The executor's right of retainer is a survival of an old rule Right of applicable only to legal assets, which causes a good deal of trouble. Formerly an executor could retain a simple contract debt due to himself against simple contract creditors only, while he could retain a specialty debt against specialty creditors also. Then came the Administration of Estates Act, 1869, 32 & 33 Vict. c. 46, directing specialty and simple con- tract creditors to be paid rateably out of all assets, without making any special mention of the executor's right of retainer. It has been held under this Act that the right of retainer is not abolished, Croivder v. Stewart (16 C. D. 363) (V.C. Malins, December, 1880), In re Hubback, International Marine Hydro- pathic Co. v. Haives (29 C. D. 934) (C. A., June, 1884), and that, if the executor claims to retain a simple contract debt, the assets must be considered as divided rateably between the specialty and simple contract creditors, and then the executor may retain his simple contract debt out of the apportioned share of the simple contract creditors. Wilson v. Coxwell (23 C. D. 764) (1883, Pearson, J.) ; In re Briggs, Earp v. Briggs (W. N. 1894, 162, Chitty, J.) ; In re Bentinch, Bentinch v. Bentinck (1897) (1 Ch. 673). A form of order drawn up under such circumstances will be found at the end of the report of In re Jones, Calver v. Laxton (31 C. D. 440) (December, 1885, Kay, J.). In the case of In re Briggs (sup.), an executor had both a specialty and a simple contract claim, and there were other creditors of both degrees. The specialty claim of the executor was paid first, then the residue was apportioned between the other specialty debts and all the simple contract debts, and the executor retained his 42 THE REAL REPRESENTATIVE LAW, 1897. simple contra t claim out of the share of the simple contract creditors. Rnleg M An administrator lias the same right of retainer as an Rimini. executor [Scmd&r v. Eeathfield (L. R. 19 Eq. 21) (V.C. Malins, trator. 1874)], but a practice has been established that the court, in granting administration to a creditor of a deceased person, who is not entitled, to administration as husband, wife, or kin, will require him to enter into a bond with a condition that he will administer the estate rateably amongst all the creditors of the deceased [In the goods of Brachenbury (2 P. D. 272) (June, 1877)]. In cases in which no such bond is required, an administrator still has a right of retainer [In re Beeman, Foider v. James (1896) (1 Ch. 48, North, J.) ; In re Allen, Adcock v. Evans (1896) (2 Ch. 345, Chitty, J.)]. A perusal of the recent judgments on the right of retainer will show that the judges regard it with disfavour, and. are not likely to hold that the present Act extends the right in any way. The object of the Act is to enable the assets to be readily realized, and. not to improve the position of the person who happens to be the personal representative. Land was previously equitable assets if charged with debts, and. statutory assets if not so charged, and the executor had no right of retainer in either case, and should have no such right now [Walters v. Walters (18 C. D. 182) (Fry J., 1881)] ; nor has a trustee any right of retainer out of land devised to him on trust to sell and pay debts [Bain v. Sadler (L. R., 12 Eq. 570) (V.-C. Wickens, 1871)]. Still, when freehold real estate de- scends or is devised without any charge of debts, the heir or devisee has hitherto had a right of retaining a heritable debt due to himself, and the Conveyancing Act, s. 59, now makes all specialty debts heritable debts [Ferguson v. Gibson (L. R. 14 Eq. 379) (V.-C. Wickens, 1872) ; In re Illklge, Davidson v. Ulidge (27 C. D. 478) (C. A., 1884) ; Loonies v. Stotherd (1 S. and S. 458)]. It would seem that in future this right will be gone in the case of freehold lands, as the estate vests in the personal representative for the purposes of the administration, and section 2, § 3. 43 the heir or devisee has no right to it until all debts are paid. And there was never any such right in the case of copyhold lands, as they were not subject to the debts of a deceased owner, prior to the Act 3 & 4 Will. 4, c. 104, and customary freeholds in general had the same legal incidents as copyholds. If any such customary freeholds as are ex- cepted from this Act were subject to the claims of heritable creditors prior to 1833, the heir or devisee of them would now have a right to retain a heritable claim of his own there- out. But it is probable that there are no such customary freeholds. Apparently, however, the right of retainer by an heir or devisee will still be liable to be asserted in the case of freehold lands if the personal representatives have conveyed them to the heir or devisee, or if the executors have assented to a devise, and a creditor afterwards brings an action. But such a state of circumstances is not very likely to occur, and, if it did occur, it would be necessary to consider whether the rights of the parties were affected by the provisions of s. 3 of the present Act, which will be noticed further on ; but we think that the right of retainer would not be affected thereby. It will be observed that the rights of retainer keep alive the old distinction between heritable claims, specialty claims, and simple contract claims. Heritable claims now include all claims on instruments under seal (Conveyancing Act, 1881, 44 & 45 Vict. c. 41, s. 59) and calls on shareholders under the Companies Act, 1862, 25 & 2G Vict. c. 89, ss. 16, 75, 76. Specialty claims include the same and the rent of lands in England or Wales, when such rent is payable under an unsealed writing or even a parol letting. [Clougli v. French (2 Coll. 277) (November, 1 845, V.-C. Knight-Bruce) ; Vincent v. Godson (4 De G. M. and G. 546) (May, 1854, Lord Cranworth) ; Willett v. Earle (1 Vernon 490) ; In re Hastings, Shirreff v. Hastings (6 C. D. 610) (July, 1877, V.-C. Malins) ; Talbot v. Earl of Shrewsbury (L. E. 16 Eq. 26) (March, 1873, V.-C. Malins)]. The fourth sub-section of s. 2 will not call for any comment, s. 2, § 4.. namely — 11 HIE REAL REPRESENTATIVE LAW, 1897. "(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 pro- vision shall be made by rules of court adapting the procedure and practice in the grant of letters of administration to the case of real estate." ( 45 ) CHAPTER VI. S. 3, § 1. Assent to Devise — Conveyance to Heir — Residuary Devise — Protection of Personal Repre- sentative. Section 3, sub-section 1, is as follows : — s. 3, § i. " 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." We regret to see an extension of the cases in which a legal Assent to estate may pass by a mere assent without any writing ; but devise - taking this sub-section in connection with the preceding clauses, there appears to be no doubt that where a will contains a devise of freehold land which prior to the Act would vest the legal estate in the devisee, that legal estate is now to vest in the executor in the first instance, and to be capable of being transferred to the devisee by mere verbal assent. The transfer is no mere theoretical thing. The powers of selling or mortgaging the land, and making a title to a purchaser, go with it. We presume that under this sub-section the concurrence It; THE REAL REPRESENTATIVE LAW, 1897. of all the persona] representatives will be requisite for an effectual assent or conveyance, though that is not clearly stated, and the general rule is that one of several executors may assent to a legacy and entail the legal consequences of assent being given. Difficulties are often experienced in making out a title to leaseholds, owing to the fact that the legal estate may pass from the executor to the legatee without writing. And now this inconvenient rule is to be brought on to the title of freeholds also. If an executor is selling, the purchaser desires the concurrence of the legatee to admit that no assent has been given ; if a legatee is selling, the concurrence of the executor is desired to admit that he has assented. Such a thing as a formal assent is seldom given in practice ; one solieitor and one estate agent generally act for executor and legatee alike, and payments are made to the legatee pending the administration, but without any release of the executor's power of sale, and it is impossible to say who is in possession, and whether any legal assent has been given. See Thome v. TJiome (1893, 3 Ch. 196, Komer, J.), where the executor was held not to have assented by making payments in expectation. It also often happens that a legatee of leasehold is himself one of the executors, and on his death a doubt is felt whether the legal estate is in his representatives or in those of the original testator. It occurs to us that the remedy for this state of affairs is to provide that the legal estate shall not pass from the executors to .the beneficiary without a consent in writing signed by all the executors and delivered to the beneficiary, and a memorandum of the same endorsed in the probate. In this case clear evidence would be producible at any time, by the executors of the continuance of their power, by the beneficiary of the commencement of his. Let us now consider more minutely the words of this sub-section. It allows assent to a devise contained in a will, required _ ' under but contemplates a conveyance in any other case with the admissibility also of a conveyance in the case of a devise. SECTION 3, § 1. 47 Under an intestacy, therefore, a conveyance is required in order to vest the legal estate in the heir. This is as it should be, and if the precaution is taken of indorsing a memorandum of the conveyance in the document, curiously called letters, constituting the administrator, the title will be placed in a satisfactory state. A question may be asked, whether a mere assent will be Residuary sufficient to pass the legal estate in undescribed lands comprised in a residuary devise. We apprehend that it will ; for it has been held that a residuary devise is still specific, although the Wills Act, 1837, 1 Vict. c. 36, ss. 24, 25, 27, causes it to include lands acquired by the testator after the date of his will, and prior devises, which lapse (Lancefield v. Iggulden, L. 11. 10 Ch. 136). On this point we may refer to the case of Austin v. Becldoe (41 W. E. 619) (April, 1893, North, J.) (W. N. Austin v. 1893, p. 78). In that case there was a bequest of the residue ff$\ of real and personal estate for the benefit of one of the G19 - testator's sons. This residue included a leasehold colliery, but that property was not named in the residuary clause. When the son attained twenty-one, the executors let him into possession of the colliery, but made no formal assignment of the lease, and there were still debts due from the testator's estate. North, J., held that the assent of executors was sufficient to pass the property in leaseholds comprised in a residue, and that it was competent for them to assent to a bequest of part of the residue of an estate without assenting to the whole bequest, and that in this case they had so assented. The case appears to have been argued and decided on the assumption that the will contained a direct gift of the residue to the son, and it is an authority upon the effect of such a gift as well as on the question of what acts of executors amount to assent. We observe, however, that the words of the will as to the residue were, "I direct my trustees to stand possessed thereof in trust for my said son," so that apparently the legal effect of assent by the executors would have been to convert the character in which they held the property from is THE REAL REPRESENTATIVE LAW, 1897. that of executors of the testator into that of trustees for the son. Their power to sell as executors would have gone, but the legal estate would have remained in them. This point, however, does not appear to have been taken in argument. The case, therefore, supports the view that where a will contains a residuary devise, the assent of the executors will be sufficient to pass the legal estate in freehold land comprised therein to the devisee. Protection The provisions of s. 3, § (1), do not seem to be quite of personal satisfactory in other respects. What is wanted is that when repre- J r sentative. the personal representative honestly believes that all liabilities affecting the land have been satisfied, he may make it over to the beneficiary, and that thereafter he shall be free from any claim enforceable against the land, and the remedy of any party having a claim shall be against the beneficiary to whom the land has been conveyed. It will be well to consider the law on this point with refer- ence to other property. By the statute commonly called Lord St. Leonard's Act, but now intituled the Law of Property Amendment Act, 1859, 22 & 23 Vict. c. 35, s. 29, an executor or administrator who issues the usual advertisements, may distribute the assets and is freed from all claims of which he has no notice [Clegg v. Roivland (L. R. 3 Eq. 368) ; Wood v. Weightman (L. R 13 Eq. 434) ; Newton v. Sherry (1 C. P. D. 240) ; In re Bracken, Doughty v. Toivnson (43 C. D. 1)]. This rule is doubtless now extended to real estate by the present Act. Lord St. Leonard's Act, however, does not protect the personal representative against future contingent claims, of which he has notice. An executor may find that his testator has borrowed money on mortgage (a case which will be dis- cussed at the end of the next chapter), or that lie has been surety to an administration bond or accepted a lease for 99 years, or had such a lease assigned to him with the usual covenant on the part of the assignee. The executor then has notice of a possible future claim against the estate. These cases are to some extent met by s. 27 of the same Lord St. Leonard' Act. SECTION 3, § 1. 49 Act, which applies to all cases in which a lease or agree- ment for a lease has been granted or assigned to a deceased person, and provides that if the representatives of the deceased have set apart any fixed sum agreed to be laid out upon the property and assigned the lease or agreement to a purchaser, and satisfied all liabilities up to the date of the assignment, they may distribute the rest of the assets without further liability in respect of the lease or agree- ment. The next section, s. 28, contains a similar provision in case land has been granted or agreed to be granted to a deceased person subject to a perpetual fee-farm rent. In each of these cases, however, it is observable that the personal representative only gains immunity if he assigns the property to a purchaser. He is not protected if he conveys it to a beneficiary : and there is no provision at all for meeting other cases of future possible liability. In all other cases, therefore, the only mode in which the personal representative can obtain protection is by having the estate administered by the Court. Ileal estate (other than copyholds and quasi-copy- holds) now appears to be assimilated to chattels real for the purposes of administration by s. 2, § 2, of the present Act, and if the Act stopped there it would have seemed that the same rules applied to both. But the third section adds a new rule New rule enabling the personal representative to assent to a devise of * s t *° real real estate or convey it to a beneficiary either absolutely or " subject to a charge for the payment of any money which the personal representatives are liable to pay." We should have thought that an assent must necessarily be absolute though a conveyance may be either absolute or conditional ; but the following words are made to apply alike to an assent and an absolute and a conditional conveyance, namely — " 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." E 50 Tin: REAL REPRESENTATIVE LAW. 1897. At first sight there is a contradiction here, for if all liabilities of the personal representatives in respect of the land cease, it is difficult to see how there can be any moneys which they are liable to pay. We presume, howeyer, that this means that, after assent or conveyance, the personal representatives shall cease to be liable to creditors for the land as an asset, and that in all cases the land shall be subject to a charge for so much money as would be recoverable from the personal representatives if they had assets, and that the persons having any unsatisfied claim against the testator's estate should be entitled to proceed against the land to realize the charge hereby created. If this is so, there ought to be an express enactment that the beneficiary might in all cases sell or mortgage the land free from the charge ; and we think also that a power for the personal representative at any time to assent or convey away the land, and so deprive creditors of the benefit of the Act, is a little too wide. In practice executors and administrators will doubtless refrain from parting with any land until they feel satisfied that it will not be wanted for administration purposes; but it maybe necessary for them to be on their guard lest passive acts on their part in letting devisees take possession should be held to amount to assent. ( 51 ) con- veyance. CHAPTER VII. Section 3, §§ 2, 3, 4 — Beneficiary's Right to Conveyance — Vesting Orders — Duration of Power of Sale — Statutes of Limitation — Effect of Existing Mort- gages of Land. The second sub-section of s. 3 runs — s. 3, § 2. " (2.) At any time after the expiration of one year from ^s^ of v ' J L J beneficiary the death of the owner of any land, if his personal repre- to call for sentatives 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 representatives, order that the con- veyance 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." This clause is in addition to the words at the end of s. 2, § 1, that the beneficiaries "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." We apprehend also that the opening words of s. 2, § 1, making the personal representatives trustees for the persons by law beneficially entitled to the land, let in the whole law of trustees, and entitle the beneficiaries to call upon the personal representatives both to convey the land and account for the profits of it, and also enable the Court to make a vesting order under the Trustee Act, 1893, s. 26, where inter Vesting 7 . r> i orders. aha we find — 52 THE REAL REPRESENTATIVE LAW. 1897. " (vi.) Where a trustee jointly or solely entitled to or possessed of any land (or entitled to a contingent right therein) has been required, by or on behalf of a person entitled to require a conveyance of the land (or a release of the right) to convey the land (or release the right), and has wilfully refused or neglected to convey the land (or release the right) for twenty-eight days after the date of the requirement ; " The High Court may make an order (in this Act called a vesting order) vesting the land in any such person in any such manner and for any such estate as the Court may direct (or releasing or disposing of the contingent right to such person as the Court may direct)." The cases in which difficulties are likely to arise under the present Act are those in which the personal representative is uncertain whether some possible liability of the deceased will mature into a claim or not. The deceased may have been surety to an administration bond or incurred some similar liability, and it may still be possible for a claim to arise against his estate. In such a case the Court should have power to order a conveyance with the effect that the appre- hended liability should be enforceable against the transferee and not against the transferor. Probably this result may be worked out under the Act, but the provisions of this third section are not as clear as might be desired. This clause, however, giving the heir or devisee a 'prima facie right to a conveyance at the end of the executor's year, appears to draw a distinction between freeholds and leaseholds, and makes it doubtful whether all the rules laid down with respect to leaseholds apply to freeholds also. The most Duration important point is whether a purchaser from a personal repre- tor" "" • sentiltlve can safely accept a title, without inquiry, when a long of sale. time has elapsed since the death of the prior owner. In the case of In re Tanqueray-Willaume and Landau (20 C. I). 465) (February, 1882), the Court of Appeal laid down that when executors, in whom the legal fee was vested, were selling real estate charged with debts by a tes>tator, a purchaser was not section 3, § 2. 53 entitled to inquire whether any debts remained unpaid, unless twenty years had elapsed from the testator's death. But it has been held that this limit of twenty years does not apply to an executor selling leaseholds, and that he can make a title beyond it, In re Wliistler (35 C. D. 561) (January, 1887, Kay, J.) ; In re Venn and Furze's contract (1894, 2 Ch. 101, Stirling, J.). Now the present Act says (s. 2, § 2) that the powers of a personal representative 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, save that it shall not be lawful for some or one only of several joint personal representatives, to sell or transfer real estate without the authority of the Court. We have, therefore, to consider whether the unlimited power of sale is applicable to real estate under the Act, seeing that the Act contemplates a speedy conveyance of real estate to the parties taking the same, on the expiration of the executor's year. Now, in cases in which a residuary account is required, and succession duty becomes payable, the render- ing of such an account constitutes a winding up of the estate, and would ordinarily entitle the parties taking the real estate to have the same conveyed to them subject only to the pay- ment of the succession duty ; and under dispositions in favour of a wife and children, although no succession duty is payable, and no residuary account is required by the Commissioners of Inland Revenue, still such an account is often prepared to act as a settlement of accounts between the parties; and in such cases the power of the executors to sell would ordinarily cease as between the parties on the settlement of the account. Such a settlement would doubtless be followed by a delivery of possession of land to the beneficiaries, if they were entitled to it ; but in many cases it is proper for the executors to continue to hold the land as trustees during some life interest or minority. It may be well, therefore, for a purchaser to inquire in all cases not merely whether any assent has been given to a devise, or any conveyance of the property has been executed, but whether any account has been rendered by the ."'1 THE REAL REPRESENTATIVE LAW, 1897. personal representatives to any parties, and whether any succession duty has been paid or assessed in respect of the property ; and of course a purchaser should ascertain that the personal representative is in possession of the property by inquiring who has received and given receipts for the rent. There are two further sub-sections in s. 3, but they relate only to registered land, namely — " (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 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." We may here consider how far the application of the Statutes of Limitation is affected by the new Act. Its chief effect appears to be to simplify the law. As long as real and personal estate are both vested in the personal representative, it seems clear that the acts of the personal representative, whether in the way of payment or acknowledgment, will pro- long the remedies against both classes of property. If the personal representative issues the usual advertisements and satisfies all known claims, and makes over the rest of the estate to the beneficiaries, he ceases to be under any further liability himself. The remedy of any latent creditor is then against the beneficiaries, and in such a case there cannot have been any acts of the personal representative affecting the question. A personal representative may, however, believe that the personal estate is adequate to satisfy all liabilities, and so assent to devises without actually paying all debts, and further claims may then appear. Here we conceive the existing law would apply, that is to say, the devisees would not be affected by the acts of the executor after assent. This was decided in Putnam v. Bates (3Russ. 188) (February, 182(J, M.R), STATUTES OF LIMITATION. 55 in the case of a simple contract debt, and the reasoning appears to apply to a specialty debt also, although they come under different statutes of limitation, 21 Jac. 1, c. 16 (simple con- tracts) ; and 3 & 4 Will. 4, c. 42 (specialty debts) ; also 3 & 4 Will. 4, c. 27, and 37 & 38 Vict. c. 57, as to rights against land. So piyment by one devisee will not prolong the time against another [Coope v. Cresswell (L. E. 2 Ch. App. 112) (December, 1866, Lord Chelmsford)], but payment of interest by a tenant for life of land will prolong the time against remainder- men of the same property; both in the case of a specialty debt [Roddam v. Morleij (1 De G. & J. 1) (April, 1857, C.A.)] and a simple contract debt [In re Hollingshead, Hollingshead v. Webster (37 C. D. 651) (January, 1888, Chitty, J.)]. Where a confidential relation exists, and one of the parties dies, the Statute does not begin to run unless or until a personal representative is constituted [Burdich v. Gar rich (L. E. 5 Ch. 233) (January, 1870, Lord Hatherley and L.J. Giffard)]. When the estate of a deceased person includes real property Effe ct of on the security of which the deceased has borrowed money on mortgage, the position of the personal representative is far from satisfactory. The mortgage debt is properly payable out of the mortgaged property, so that the personal representative ought not to pay it off out of the personal estate. Then immediately after the mortgagor's death the security may be sufficient, the mortgagee may not wish to call in his money, and the party taking the mortgaged land may not wish to pay it off, and may pay the interest regularly. The persons beneficially interested in the personal estate would also naturally claim their shares of it, and the personal representative would naturally pay them. Nevertheless years afterwards it may happen that the security for the mortgage proves deficient, and there is ground for saying that the mortgagees can then sue the personal representative for the deficiency, and that the payment of interest by the party taking the land prevents the statute of limitations from applying, so that the personal representative may be disallowed all payments to beneficiaries, ages. 56 THE REAL REPRESENTATIVE LAW, 1897. whatever time may have elapsed since they were made. The <»nly way in which a personal representative could protect himself from this result nnder the old law, and now in the case of a mortgage of copyholds or quasi-copyholds, was and is by applying to the Court to administer the estate, and sanction the payments to beneficiaries. The new law improves his position in the case of a mortgage of freeholds, as he can now threaten to sell the mortgaged property, or a sufficient part of it to discharge the mortgage unless the devisee pays off the old mortgage, or the mortgagee consents to release the mortgagor's estate. The cases on this point are not all consistent, and it will be well to give a list of them. (1.) Pears v. Laing (L. R. 12 Eq. 41) (February, 1871, V.C. Bacon). In this case the facts were very complicated. The testator died in 1825, and the will directed the mortgaged property to be exonerated from the mortgage by other property. The mortgagee had received interest from an equitable tenant for life of part of the testator's property up to a date within ten years of the filing of the bill, and some three years before the bill was filed a trustee of the equity of redemption sold part of the mortgaged property, and the purchase money was paid to the mortgagee. The V.C. expressed his opinion that either of these circumstances was sufficient to keep alive against all persons the right of action upon the covenant in the mortgage deed. (2.) Boahvrighty. Boatwright (L. R. 17 Eq. 71) (November, 1873, Jessel, M.R.). In this case a testator owed a sum of ^100 on a promissory note. He appointed his daughter to be an executor, and gave all his real and personal property to his wife for life. It is said that the widow took possession of his real and personal estate and paid interest on the £100 until February, 1864, but not afterwards. In September, 1870, the daughter proved the will, and in February, 1871, the creditor filed a bill for administration. He was held to be barred : as the delay in proving the will did not prolong the time. He MORTGAGE DEBTS. 57 might clearly have applied for administration himself. The judge also said that the payment of interest by the tenant for life, would only prevent the statute from running as against the real estate. (3.) In re Gale, Blake v. Gale (22 C. D. 820) (January, 1883, V.-C. Bacon). A testator having mortgaged a farm, devised it subject to the mortgage to his three executors upon certain trusts for his daughters. He left considerable personalty, which was distributed. The daughters for some time, and afterwards the husband of one of them, occupied the property at a rent, and paid the interest on the mortgage. The farm then fell in value, and the mortgagees brought an action to administer the real and personal estate of the testator. It is said that they were held entitled to an order to foreclose (but qiisere sell) the mortgaged property, and administer the estate ; but the judge is said to have laid down that any claim against the executors for a devastavit was barred at the end of six years, and not affected by the payment of interest, and to have referred to In re Baker, Collins v. Rhodes (20 C D. 230) (November, 1881, C. A.), but that case is the other way. Further proceedings in In re Gale will be noticed below. (4.) In re Marsden, Bowden v. Layland (26 0. D. 783) (May, 1884, Kay, J.). Here a testator had mortgaged lease- holds and died. The executors paid interest on the mortgage and also made payments to beneficiaries, and after a lapse of six years proceedings were taken to realize the mortgage and administer the estate. It was held that the executors could not be allowed as against the mortgagee payments made to beneficiaries more than six years before the action was com- menced. The judgment in this case proceeds on the principle that it is a breach of trust for an executor to pay money out of the estate to legatees, when he knows that there are debts unsatisfied. (5.) Blake v. Gale (31 C. D. 196) (November, 1885, V.-C. Bacon). This was a sequel to case No. 3 mentioned above. It appears that a sale was ordered in the former action, but THE REAL REPRESENTATIVE LAW, L897. the property proved unsaleable, and in taking the accounts the executors were charged with the shares of the residue which they took beneficially, but allowed all payments made to other residuary legatees, but without prejudice to any right of the plaintiffs to make such other residuary legatees refund. The plaintiffs then brought an action for that purpose. They were held to be barred, by delay and acquiescence, their right being pnrely an equitable right not subject to any statutory limita- tion, and this decision was affirmed on appeal Blake v. Gah (32 C. I 1 . 571). More than twenty years had elapsed since the payment to the legatees, and the m irtgagees were held to have assented to the payment at the time. (6.) In re Hyatt, Bowles v. Hyatt iZ$ C. D. 609) (Ap. 1888, Chitty, J.). In this case executors, who were also devisees of the real estate, distributed personalty leaving a mortgage of freeholds outstanding. They received the rents of the mort- gaged property, paid the interest on the mortgage, and paid over the surplus of the rents according to the will. One of them died and a new trustee was appointed and the rents were applied as before. The rents then fell, the security became deficient, and the mortgagees sued the original and substituted trustee. It was held that in taking the accounts all payments most be disallowed which would have been bad at the time against the plaintiffs, whether made within or prior to six y.-ars before action brought. This happened to inclu le simple contract debts, as the testator died before 1870. It was also held that the rents and profits of the land were assets by '•tion. The judgment in this case contains an elaborate disquisition on the law. (7.) DM v. Walker (1893, 2 Ch. 429, Chitty, J.). In this case there had been a mortgage in 1831 and a settlement of the mortgaged property in 1833, with a provision that the mortgaged property should bear the debt in exoneration of the settlor. Interest was paid by successive tenants for life under the settlement until 1889, and the estate was then sold and proved insufficient to satisfy the mortgage. The mortgagor MORTGAGE DEBTS. 59 had died in 1860, and the mortgagees after sale of the laud brought an action against his executor to recover the rest of the sum due to them. It was held that the Statutes of Limitation were excluded by the payment of interest. This was held to follow from Forsyth v. Bristowe (8 Ex. 71G), where it was held that payment of interest by the assignee of an equity of redemption kept the right of action alive against the original mortgagor. (8.) In re England, Steward v. England (1895, 2 Ch. 100, Kekewich, J., affirmed on appeal, Ibid., p. 820). Here a father had covenanted to pay £4000 to a trustee to be held on trust for his son for life with remainder over, and charged the sum and interest until payment upon certain land, and had then devised the land to the son in fee. The son had taken possession of the land and enjoyed the rents and profits for more than twelve years. The land then fell in value, and the trustee of the £4000 took proceedings against the son and the personal representative of the father to have the £4000 raised. The son did not contest the liability of the land, but the personal representative raised the defence of the Statute of Limitations in respect of the personal estate. Mr. Justice Kekewich held (1) that the son must be treated as having paid interest to the trustee and received it back and (2) that the principle of Coope v. Cresswell (L. E. 2 Ch. 112) applied, and that payment of interest by a devisee did not keep up the right of action against the executors, but as the authorities were conflicting he suggested an appeal. An appeal was taken and the decision was affirmed, the ground of affirmation being that the son was not liable to pay the interest, and that only payment by a party liable would keep the right of action alive. The judges, L.JJ. Lindley, Lopes, and Bigby, did not profess to overrule any of the cases previously mentioned, but to distinguish them ; but the distinction seems to be a very fine one. They stated, however, that they recognized the case of In reFrishj, Allison v. Frisby (4:5 C. D. 106) (November, 1889, C.A.) as correct. The decisiun in that case was to the effect THE KKAT. REPRESENTATIVE LAW. 1897. that payment of interest by a principal debtor prevented the statute from running in favour of a Burety. An opinion to that effect had been expressed in In re Powers, Lindsettv. Phillips ::0 C. D. 291) (Jnly, 1885, C.A.), where, however, the surety had given a separate bond, and twenty years hud not run since the date of it. The question whether a personal action against a surety for a mortgage debt is Bnbject to the twelve years' limit imposed by s. 8 of the Real Property Limitation Act, 1874, 37 & 3S Vict. c. 57, or the twenty years' limit allowed by s. 3 of the Civil Procedure Act, IS: 1 .: 1 ., 3 & 4 Will. 4, c. 42, must be regarded as doubtful. See In re Frisby, cited above. But it is settled that the twelve years' limit applies to personal actions against the mortgagor. Sutton v. Sutton {22 C. D. 511) (December, 1882, C.A.i. However, whether payment of interest on a mortgage by a devisee does or does not preserve the mortgagee's right of action against the personal representative of the mortgagor, it is clear that such right of action subsists for a period of twelve years from the last payment by the mortgagor himself. In the case of mortgages of copyholds and quasi-copy holds the personal representative still has no means of protecting himself against this liability except by obtaining the sanction of the Court to his distribution of the estate. In the case of freeholds, however, he will in future have the mortgagor's equity of redemption vested in him, and will be able to sell the property and pay off" the mortgage unless some arraugement is made whereby he is released from liability. ( 61 ) CHAPTER VIII. Sections 4, 5 — Power to Appropriate Property — Stamp Duties — Pecuniary Legatees — Residuary Legatees and Devisees. It will be seen that the first part of the Act contains two more sections, and it will be well to set them out in full before com- menting on them. "4. (1.) The personal representatives of a deceased person s. 4, § l. may, in the absence of any express provision to the contrary Power t0 contained in the will of such deceased person, with the consent priate pro- of the person entitled to any legacy given by the deceased perty " person or to a share in his residuary estate, or, if the person entitled is a lunatic or an infant, with the consent of his committee, trustee (sic), 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 Reference part of the property of the deceased person in such manner as t0 intended they think fit. Provided that before any such appropriation 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 otherwise directed by the Court. " (2.) Where any property is so appropriated a conveyance s. 4, § 2. thereof by the personal representatives to the person to whom As t0 it is appropriated shall not, by reason only that the property duty. legatees. 62 THE REAL REPRESENTATIVE LAW, 1S97. 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. s 4 § 3. " (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. s. 5. " 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." Present Before scrutinizing these clauses minutely, it will be well transfers to ^° consider the existing law. An executor may sell any pecuniary personal estate not specifically bequeathed in order to pay legacies, and a testator often gives his executors power to sell some real estate for a like purpose. That being so, there is nothing to prevent an executor from selling any such property to a legatee for the best price that can reasonably be gotten, and setting off the price against the legacy. [In re Lepine, Doicsett v. Culver (1892) (1 Ch. 210, C.A.)] In such a case there would ordinarily be a stamp duty of 10s. per £100 on the conveyance, but the stamp varies with the nature of the property. Articles of furniture, and many bonds which bear interest, pass by delivery only, and no stamp duty at all is payable beyond a penny receipt stamp. If a mortgage were transferred to a legatee, the stamp would be only 6d. per £100. Stock in the Bank of England bears a fixed duty of 7s. 9cl. whatever its amount may be ; stock of the Govern- ment of Canada, and other stocks regulated by the Colonial Stock Act, 1877, are stated in the Schedule to the Stamp Act, 1891, to require a stamp of 2s. 6d. per £100 stock, but the 114th section of the Act provides for a composition of this duty, and is extended to certain foreign stocks by the Finance Act, 1894, s. 39 ; and the 115th section of the Stamp xVct, 1891, contains provisions for the composition of the duty on transfers of the stock and funded debts of any county APPROPRIATION OF ASSETS. 63 council, corporation, or company, and many compositions have been effected under these clauses. Hence, where an executor transfers personal property to a pecuniary legatee in satisfaction of a legacy, or part of a legacy, the stamp duty would be the same as if the legatee paid in cash the agreed value of the property, and the executor paid the legacy in cash. And in like manner if an executor, acting under a power given by the will, conveyed real estate to a legatee, there would be a duty of 10s. per £100 on the agreed value of the real estate. These cases indeed come under s. 57 of the Stamp Act, 1891. Turning next to a residuary gift in a will, the case is As to somewhat different. We may exclude the simple case of a je^tees^ residuary gift to one person, and consider a case of two or more, and, to fix our thoughts, we will imagine that we are dealing with three residuary legatees. If any portion of the estate consisted of stock naturally divisible, the executor might transfer an aliquot share to each legatee, and this would not be a conveyance on sale, but would seem to bear a 10s. stamp, if the stock were not one of the kinds above mentioned (Stamp Act, 1891, schedule). The executor might, however, arrange with one legatee for him to take the entirety of one item of property, and in such a case there would seem to be a sale of the entire property, and not merely of the two-thirds to which the legatee was not previously entitled in equity. [In re Richardson, Morgan v. Richardson (1896, 1 Ch. 512, North, J).] An executor can sell the entirety of any personal property for the purpose of division, but he has no power to sell to one of three residuary legatees the two-thirds of the other two. If, however, the three legatees agreed on a division of the property, there would seem to be a purchase by each from the others of the two-thirds of the other two in the items allotted to him. This would be a purchase of the beneficial interest, and by s. 59 of the Stamp Act, 1891, the agreement would bear the same stamp as an actual sale of the property, that is to say, an 64 THE BEAL REPRESENTATIVE I. AAV, 1897. Residuary devisees. Powers added by present Act. actual sale of the three Bets of two-thirds. However, an actual sale under such circumstances would be merely a deed of exchange or partition bearing a 10s. stamp, with a further ad valorem duty of 10s. per £100 if more than £100 passed in cash on the partition (Stamp Act, 1891, s. 73 and schedule). An 1 consider Coats v. Commissioners of Inland Revenue (1897, 2 Q. B. 423). The legal conveyances of the property from the executor would then bear their proper stamps as con- veyances not on sale, that is to say 10s. each, except in the case of the special stocks. The position of an administrator does not seem to differ from that of an executor so far as regards the point we are now considering. We may add that, under the present law, if a residue of real estate or any specific real estate is devised to trustees on trust for two or more persons, the devisees in trust do not take any implied power of sale for the purpose of dividing the property. Such a power would convert the property from it alty to personalty if it were exercised. We apprehend therefore that the present Act does not give to executors or administrators any implied power to sell real estate for the purposes of division, although there can be no doubt that they take power to sell real estate to pay debts. We can now consider what the fourth section of the present Act adds to the existing law. It appears to give a power to executors to divide residuary realty amongst devisees when a residue is devised in undivided shares. We doubt, however, whether any similar power is given to an administrator to divide land amongst co-heirs. The section talks of the consent of the person entitled to a share in the residuary estate, as if it only contemplated a single set of residuary beneficiaries. Under an intestacy the husband or widow and next-of-kin take the personalty, the heir or co-heirs take the realty. No doubt the claims of creditors must first be satisfied, and may require a sale of some land. Still, one of several co-heirs would not ordinarily be considered as answering the description APPROPRIATION OF ASSETS. 65 of "a person entitled to a share in the residuary estate." Questions may also arise as to whether the section applies when there is a resulting trust of a mixed residue, or where the residue of personalty is given one way, and the residue of realty another. It may be taken, however, that the section applies to pecuniary legacies and shares of residues of personalty, which can be practically appropriated under the present law, and also to gifts of mixed residues of realty and personalty to two or more in undivided shares. It may also be found to extend the existing law in cases where one or more of the beneficiaries is an infant or a lunatic. If proceedings are taken under the section the following points will require attention — (1.) The consent of the beneficiary will be required ; or, if the beneficiary is a lunatic or an infant, the consent of his committee, trustee, or guardian. We are unable to attribute any precise meaning to the word trustee in this sentence. (2.) There should be a valuation of the property of the deceased, or the material portions of it, in accordance with the provisions for the time being prescribed by rules made under the Act. (3.) Notice of the intended appropriation must be given to all persons interested in the residuary estate, with power for any of such persons to apply to the Court within a time to be prescribed by the rules. We observe that by s. 22, § 6 (*'), power is given to make rules " for regulating such matters as are authorized by this Act to be prescribed." It seems to be pretty clear that in all cases in which an appropriation can be practically effected under the existing law, the process is less cumbrous than under the new Act. 66 THE REAL REPRESENTATIVE LAW, 1897. CHAPTER IX. On the Form of a Judgment for Administration. Adminis- The new Act simplifies many of the proceedings in an action tration ^ administration. In future it will never be necessary to actions. make any heir-at-law or devisee of freehold land a party to the action, and no inquiry as to heirship will ever be required, except in the case of copyholds and quasi- copyholds. Position of Hitherto the order of administration has generally been (1) re ofit s a of personal estate, (2) proceeds of sale of real estate, and (3) rents real estate, and profits of real estate prior to sale. The last-mentioned item may now very properly be taken earlier. The rents and profits of freehold real estate will now be regularly received by the personal representative from the time of the death of the deceased; and an account of them may well be taken in the first instance, immediately following the usual accounts of the personal estate. So far as creditors are concerned it may often be convenient to satisfy their claims by means of the rents of real estate, and to work out the rights of the beneficiaries after the creditors have been got rid of. It may also happen that the personal representative has sold some real estate before the judgment is pronounced, which he will be able to do in future without the help of the court. Form of That being so, an administration judgment would be shortly judgment. aS follosVS :— 1. An account of the debts of the deceased. 2. An account of his funeral expenses. 3. An account of his personal estate come to the hands of his personal representatives. ON THE FORM OF A JUDGMENT FOR ADMINISTRATION. 67 4. An inquiry what parts of his personal estate are outstanding. 5. An account of the rents and profits of his real estate received by his personal representatives including the proceeds of any real estate sold by them. Then would follow an order that his personal estate and the rents and profits and proceeds of sale of his real estate be applied in a due course of administration, and in case they should be insufficient, then, if the form now in use is adhered to, the judgment would proceed — 6. An inquiry what other real estate he was entitled to besides that already sold. 7. An inquiry what incumbrances affected such real estate. 8. An account of the sums due to consenting incumbrancers. 9. An inquiry as to their priorities. Then a direction for sale of the real estate and payment of the proceeds into court. But it may be found preferable to depart from this old Should form under the new law. Under the existing practice diffi- aerations culties have sometimes been caused by the absence of any bemad e? accounts of the sums due to non-assenting incumbrancers, and also by real estate being put up for sale before the certificate as to incumbrances was made. But the case will be very different under the new Act. Hitherto it has often happened that no one could sell the land except under the decree of the court, and the judgment has therefore been a material link in the chain of title, and the certificate also has been required. But under the new law the personal representative will always be able to sell freehold land without any authority from the court, and it may often be found most convenient to keep the proceedings in court off the title and give leave to the personal Keep representative to sell land out of court, and permit a proper titled ° portion of the purchase money to be paid to assenting incum- brancers. The personal representative might then be ordered to pay the balance into court as at present, or to hold it subject to the further order of the court; in fact, the order might 6S THE REAL REPRESENTATIVE LAW, 1897. direct the personal representative to realize the real estate just as he is ordered to get in the outstanding personal estate. Should While considering the form of an administration judgment, "penses S be ** ma y ^ e wortn while adverting to the point that it contains mentioned no provision for the costs, charges, and expenses of the personal raent? representatives. In all cases some expenses are incurred, which the executors or administrator are bound to pay, and which they are entitled to pay out of the assets and pay out of the assets accordingly. But if they are called to account, all these items are disallowed out of their accounts in the first instance by the master (formerly the chief clerk), with liberty for them to claim them again when they bring their bill of costs, charges, and expenses to be taxed. The result is that a nominal balance is found due from the executors or adminis- trators, which does not at all represent the real state of the case. These expenses, moreover, are in general matters which the master (formerly chief clerk) is quite as capable of dealing with as the taxing master. If an account was directed of them in the first instance the master's certificate would represent the real position of the estate more nearly than at present. ( 69 ) CHAPTER X. Administration in Bankruptcy and the High Court Compared — Eight of Eetainer — Statute - barred Debts — Lessor's Rights — Bills op Sale — Interest. It will be well here to refer to s. 125 of the Bankruptcy Act, Adminis- 1883, providing for the administration in bankruptcy of b ™ £"* m insolvent estates of deceased persons. Sub-section 3 of that ruptcy. section enacts that "Upon an order being made for the administration of a deceased debtor's estate, the property of the debtor shall vest in the official receiver of the Court, as trustee thereof, and he shall forthwith proceed to realize and distribute the same in accordance with the provisions of this Act." The order for an administration in bankruptcy is procurable on service upon the personal representative alone, but, nevertheless, it will be seen that it vests the real as well as the personal estate of the deceased in the official receiver and makes it available for creditors, without any need for serving the heir or devisee. A similar advantage is extended to solvent estates by the present Act, We may here very well inquire what will be the respective Compared advantages after January 1, 1898, of administration in bank- Q^ t Hlgh ruptcy and by the High Court respectively. Of course an order for administration in bankruptcy can only be made when it can be shown that an estate is insolvent, but administration by the High Court is always available. First, if the estate includes any copyholds or quasi- Copyholds copyholds, the jurisdiction in bankruptcy may be preferable. offici ai Iu the High Court it would be necessary to bring the heir or receiver. 70 THE REAL REPRESENTATIVE LAW, 1897. devisee before the Court, and that would not be required in bankruptcy ; but we do not think that any fine would be saved by proceeding in bankruptcy. The effect of the order in bankruptcy is to vest all the property of the deceased in the official receiver, and if he sells copyholds and the purchaser applies for admittance, we presume the lord would be entitled to two fines, one as on an admittance of the official receiver and the other on the admittance of the purchaser. The order, in fact, vests the right to admittance in the official receiver. We conceive that the case would be the same, if the estate were administered by the High Court. The lord would be entitled to one fine for the admittance of the heir or devisee and another for the admittance of the purchaser. The con- sideration of this point shows that the present Act might well be supplemented by a provision adopting the device usually employed in wills of cojiyholders, that is to say, giving the personal representative a mere power to sell copyholds and a power to receive the rents and profits until sale. The result of that device is well known to be that on a sale by the personal representative, the purchaser comes in as appointee under the power given by the will, and only one fine is payable. If the sale is delayed, the lord may doubtless seize the land quousque; but, in order to enable him to exercise that right, it is necessary for him to issue proclamations at three successive Courts calling on the party claiming the land to come and be admitted ; and as Courts are held only half-yearly, there is time enough to sell the land before the lord can seize it. Right of Returning to our main question as to the relative advantages [^ of administration in bankruptcy or by the High Court, a second Court. point is that the personal representative may exercise his right of retainer in the high Court but not in bankruptcy. Under the Bankruptcy Act, 1883, as originally passed, an order for administration in bankruptcy could not be made until the expiration of two months after the grant of probate or letters of administration, and it was generally possible for ADMINISTRATION IN BANKRUPTCY. 71 the personal representative to possess himself of assets and actually exercise his right of retainer within that time [Ex parte May, In re May (13 Q. B. D. 552)]. But the Bankruptcy Act, 1890, 53 & 54 Vict. c. 71, s. 21, allows such an order to be made before the expiration of such two months, and diminishes, but does not extinguish the chance of an executor retaining a debt [see the recent case of In re H. F. Gilbert, Ex parte Gilbert (W. N. 1897, 174)]. An order for administration in the High Court of Justice was always obtainable at any time after the constitution of a personal representative : and, if it is made, it rests with the discretion of the judge in whose court it is made to keep the administration there or transfer it to the Bankruptcy Court, and the fact that some progress has been made in the High Court is a reason for retaining it [In re Weaver, Higgs v. Weaver (29 C. D. 236) (1885, Pearson, J.)]. It may be trans- ferred, however, although some proceedings have been taken under the judgment; and the fact that the executor is a creditor, and will be deprived of his right of retainer by a transfer, is no reason for refusing it [In re York, Atkinson v. Poivell (36 C. D. 233) (1887, Stirling J.)]. On the other hand, it has been held that the circumstance that the executor has a right of retainer is not a ground for ordering a transfer [In re Baker, Nichols v. Baker (44 C. D. 262) (1890, C.A.)] ; and in the last-mentioned case it was alleged that some stale claims were made against the estate, as to which it was contended statute that, in bankruptcy, any creditor might raise the objection that they were barred by the Statutes of Limitation, but that in the High Court it would rest with the executor alone to waive or raise that defence ; but that objection was held not to be a ground for a transfer. It has also been held that the High Court will not interfere with an executor's right of retainer by appointing a receiver against him [In re Wells, Molony v. Brooke (45 C. D. 569) (1890, Stirling, J.)]. The above-mentioned contention put forward in In re barred claims. 72 THE REAL REPRESENTATIVE LAW, 1897. Biker, Nichols v. Baker (44 C. D. 262), does not appear to be quite a correct statement of the law. Debts barred by the Statutes of Limitation are not proveable in bankruptcy (" Robson on Bankruptcy," c. xii. end). In the High Court an executor might pay a statute-barred debt before an administration decree was pronounced, even where the per- sonalty was deficient, and the effect of the payment was to throw further debts on the realty [Loivis v. Rumneij (L. R. 4 Eq. 451) (July, 1867, Eomilly, M.R.)]. This result is more natural under the new Act. It has also been held that an executor may retain a statute-barred debt due to himself [Hill v. Walker (4 K. & J. 169) (February, 1858, V.-C. Wood)]. But in Shewen v. Vanderhorst (1 R. & M. 347) (November, 1851, Lord Lyndhurst) it was held that a residuary legatee might raise the objection of the statute against a claim under an administration decree ; while in Moodie v. Bannister (L. J. 28 N.S. Ch. 381 ; 4 Dr. 432) (February, 1859, V.-C. Kindersley) an acknowledgment of a specialty debt by an executrix was held to preclude a residuary legatee from setting up the statute ; and if the executor does not plead the statute to a plaintiff's claim, the residuary legatee cannot raise it after judgment [Briggs v. Wilson (5 De G. M. & G. 21) (s. c. 23 L. T. 136 ; in 1854)]. An acknowledgment by an executor after judgment for administration has been held to be ineffectual [Philips v. Beal (32 Beav. 26)]. In Alston v. Trollope (L. R. 2 Eq. 205) (May, 1866, Romilly, M.R.), where an estate was being administered, it was held that the Court would not set up the statute on behalf of absent parties, if none of the parties before the Court took the objection; but it should seem that under s. 10 of the Judi- cature Act, 1875, the Court would set up the statute if the estate was deficient, for that section enacts inter alia that the rules in bankruptcy as to debts proveable shall apply to insolvent estates. In In re Wenham, Hunt v. Wenliam (1892, 3 Ch. 59, North, J.), executors took out an originating summons against a EIGHTS OF LESSORS. 73 creditor of the estate and the residuary legatee, and it was held that the residuary legatee was entitled to raise the statute against the creditor. Reference on this point may also be made to two rather special cases, namely, Midgley v. Midgley (1893, 3 Ch. 282, C.A.), and Trevor v. Eutchins (1896, 1 Ch. 844, C.A.). The position of a lessor with respect to the estate of a Lessor's deceased insolvent is now to some extent regulated by the n s hts - provisions of s. 1, § 4, of the Preferential Payments Act, 1888. Subject to that Act, his rights gave rise to a decision in In re Fryman's estate, Fryman v. Fryman (38 C. D. 468) (April, 1888, Chitty, J.). In that case an order for the administration of the estate of a testator had been made in the Chancery Division, and shortly after it was pronounced the lessor of the testator's place of business, who was himself the plaintiff in the action, applied for leave to distrain. The estate was admittedly insolvent (p. 470) ; and, in lieu of an actual distress, the amount claimed for rent for the last five years and three- quarters was set aside, and the plaintiff then applied to have it paid to him. Some other creditors opposed the claim on the ground that a lessor's claim was limited to one year's rent by s. 42 of the Bankruptcy Act, 1883, whenever there was an order of adjudication or an order for the administration of the estate (1) of a debtor whose debts do not exceed £50, or (2) of a deceased person who dies insolvent. But it was held that the last-mentioned alternative referred only to orders made • under s. 125 of the Bankruptcy Act, 1883, just as the previous alternative referred to orders under s. 122 thereof. The limit of one year's rent, for which a lessor was per- mitted to distrain by the Bankruptcy Act, 1883, has now been reduced to six months by s. 28 of the Bankruptcy Act, 1890, 53 & 54 Vict. c. 71 ; so that a lessor's power of distraining is confined to that compass, when an estate is administered in bankruptcy, whereas under an administration by the High Court there is only the limit of six years imposed by the Statute of Limitations, 3 & 4 Will. 4, c. 27, s. 42. It may, 74 THE REAL REPRESENTATIVE LAW, 1897. perhaps, be arguable, however, that the rule in bankruptcy is imported into administration by the Preferential Payments Act, 1888. Bills of In a note on p. 549 of 7 C. D. will be found a short state- ment of a case of In re Knott, before V.-C. Hall, in November, 1877, where a claim against an insolvent estate was made by the holder of an unfiled bill of sale, which would have been void in bankruptcy, but was held to be good in the High Court. This decision has been recognized as correct in sub- sequent cases [In re Count UEpineuil, Tadman v. D'Ejnneuil (20 C. D. 217) (March 1882, Fry, J.)], but it is not clear that the result would be different if an estate were being admin- istered in bankruptcy, for it has been held in ex y>arte Official Eeceiver, In re Gould (19 Q. B. D. 92) (May 1887, C.A.), that s. 47 of the Bankruptcy Act, 1883, which avoids certain voluntary settlements on the bankruptcy of the settler, does not apply in an administration under s. 125 of that Act. interest. On the subject of interest, the rule in the High Court resembles that in bankruptcy, namely, that, when an estate is insolvent, interest is reckoned up to the date of the order for administration, but not afterwards [In re Summers, Boswell v. Gurnetj (13 CD. 136) (August, 1879, Jessel, M.R.)]. When the estate is solvent the rules relating to interest are prescribed by Order LV., rules 62, 63 of the rules of the Supreme Court. ( 75 ) CHAPTER XL Preferential Claims — The Act op 1888 — Friendly Societies — Savings Banks — Building Societies — Recent Decisions— Overseers — Regimental Debts — Paving Officers. On the question of preferential claims, a decision has been Preferen- recently given that the rules in bankruptcy apply to all insolvent estates. [In re Heywood, Parkinson v. Heywood (1897) (2 Ch. 593, Stirling, J.).] And if this decision holds good, the question will be somewhat simplified. A material part of the law will then be found in the Preferential Pay- ments Act, 1888, 51 & 52 Vict. c. 62 ; but we shall find that Preferen- there are other points not touched by that Act. That Act mentsTct, will be seen to give priority to certain rates, taxes, and wages, 1888 - and to preserve the effect of s. 5 of the Act 28 & 29 Vict, c. 86, and the provisions of the Friendly Societies Act, 1875. With respect to the Act 28 & 29 Vict. c. 86, it is sometimes called Bovill's Act, or more descriptively the Law of Partner- Bovill's ship Amendment Act, 1865, and it permitted loans to traders with a reservation of a share in profits without involving the lender in the liabilities of a partner ; but it provided, by s. 5, that the claim of such a lender should be postponed to other creditors in bankruptcy. This Act has now been repealed, but its provisions have been re-enacted and extended by the Partnership Act, 1890, 53 & 54 Vict. c. 39, ss. 2, 3. [See In re Fort, Ex parte Schofield (1897) (2 Q. B. D. 495).] With respect to the Friendly Societies Act, 1875, it con- Friendly tains a clause, s. 15, § 7, providing that, on the death or ocieties - Banks. 16 THE REAL REPRESENTATIVE LAW, 1897. bankruptcy of any officer of a friendly society, any debt due from him to the society shall be paid in preference to any other claims against his estate. Similar provisions had been inserted in the Friendly Societies Act, 1834 (4 & 5 Will. 4, c. 40, s. 12) and 1855 (18 & 19 Vict. c. 63, s. 23), and the provisions of the Act of 1834 had been incorporated into the Building Building Societies Act, 1836 (6 & 7 Will. 4, c. 32, s. 4). 5ociet.es. Moreoyei . the Bankruptcy Act> 1849> 12 & 13 Vict C. 106, contained a clause, s. 167, giving a preference to sums due to friendly societies from their officers, but not noticing building societies; and it was held that, under this Act, building societies had no preference in the bankruptcy of their officers. [Ex parte Bailey, In re Banell (23 L. J. Bank- ruptcy, 36 ; 5 D. M. and G. 380) (1856).] A right of prefef- Savings ence is also given to savings banks on the bankruptcy of their officers by the Trustee Savings Banks Act, 1863, 26 & 27 Vict. c. 87, s. 14. The Bankruptcy Act, 1883, 46 & 47 Vict. c. 52, then supervened, and accorded certain preferences, by s. 40, adding that other debts should be paid pari passu, but that nothing therein should prejudice the provisions of the Friendly Societies Act, 1875. Under this Act Mr. Justice North had before him a case of In re Williams, Jones v. Williams (36 C. D. 573) (July, 1887), which was a claim by the trustees of a savings bank against the estate of an officer of the bank, who had died indebted to the bank and insolvent. The learned judge considered that the case resembled that of Ex parte Bailey (5 D. M. & G. 380) (1856) noticed above, and that the preference of the claim was taken away in bankruptcy by the Bankruptcy Act, 1883, but that that left unaffected the right of preference in administration by the High Court. A few years later the Savings Bank Act, 1891, 54 & 55 Vict. c. 21, was passed, enacting, by s. 13, as follows: — "Nothing in s. 40 of the Bankruptcy Act, 1883, shall affect the priority given by s. 14 of the Trustee Savings Bank Act, 1863, to the debts mentioned in that section." This provision doubtless restores the preference of the claim PREFEKENTIAL CLAIMS. 77 of a savings bank against the estate of its officers in bank- ruptcy as well as administration ; but it is noticeable that the framer of the Act of 1891 overlooked the fact that s. 40 of the Bankruptcy Act, 1883, had been in part repealed and in other respects altered by the Preferential Payments Act, 1888, 51 & 52 Vict. c. 62. However, s. 1, § 5, of the last- mentioned Act is in the words — " This section, as far as it relates to the property of a bankrupt, shall have effect as part of s. 40 of the Bankruptcy Act, 1883." So that we may presume that the Savings Bank Act, 1891, produces the effect desired by the framer. The position of building societies requires a little further Position of notice. The Act of 1836 (6 & 7 Will. 4, c. 32), which gave g S[ them a preference, as above mentioned, was repealed by the Building Societies Act, 1874 (37 & 38 Vict. c. 42), which contains no similar provision ; but societies formed under the Act of 1836 remain subject thereto, unless they obtain a certificate of incorporation under the Act of 1874 (s. 7), and some building societies formed under the Act of 1836 still remain subject thereto. It is clear, however, that since the Bankruptcy Act, 1849, the right of preference in bankruptcy, which existed under the Building Societies Act, 1836, has been taken away. The omission of building societies from that Act may have been due to inadvertence, but the omission of Parliament to provide for them in the later bankruptcy Acts, when attention was drawn to the point by Ex parte Bailey (5 D. M. & Gr. 380) (1856), and the omission of any preferential clause from the Building Societies Act, 1874, can only be due to design. It may very well have been felt that the members of building societies belonged in general to a more wealthy class than members of friendly societies and depositors in trustee savings banks, and did not require the same care to safeguard their interests. It would also seem to follow from the decisions about to be mentioned that the preference of the older building societies is now taken away in the High Court as well as in bankruptcy. 78 THE REAL REPRESENTATIVE LAW, 1897. Returning to the case of In re Williams, Jones v. Williams (36 C. D. 573), which came before Mr. Justice North in 1887, we have seen that the judge considered that the preference given to savings banks on the bankruptcy of their officers remained in administration by the High Court, although taken away in bankruptcy. It followed that the trustees of the bank would have their preference in that case, if the administration remained in the High Court, but lose it if the administration were transferred to bankruptcy under s. 125 of the Bankruptcy Act, 1883; and the judge pointed this out in his judgment. This case, however, was decided before the passing of the Preferential Payments Act, 1888, and was Recent followed by a case of In re Leng, Tarn v. Emmerson (1895) (1 Ch. 652), which came before the Court of Appeal. There a widow claimed in the administration of her husband's estate for money lent by her to him, and he appeared to have left assets of greater value than his debts, but the costs of the administration swallowed up part of the assets and left the residue insufficient to pay his creditors in full. The estate was not being administered in bankruptcy, but it was held that the widow's claim must be postponed to ordinary creditors Loan by on the ground of the combined effect of s. 3 of the Married husband Women's Property Act, 1882, and s. 10 of the Judicature Act, 1875. Lord Justice Lindley in giving judgment recognized that it was established by many decisions that s. 10 of the Judicature Act, 1875, did not import into the administration of insolvent estates all the rules of bankruptcy from time to time ; but he held that it imported s. 3 of the Married Women's Property Act, 1882, which is in the following words: — " Any money or other estate of the wife lent or entrusted by her to her husband for the purpose of any trade or business carried on by him, or otherwise, shall be treated as assets of her husband's estate in case of his bankruptcy, under reserva- tion of the wife's claim to a dividend as a creditor for the amount or value of such money or other estate after, but not before, all claims of the other creditors of the husband for PREFERENTIAL CLAIMS. 79 valuable consideration in money or money's worth have been satisfied." And the learned judge further expressed himself as follows (pp. 656, 657) :— " Whether debts entitled to priority in bankruptcy are to be treated as entitled to similar priority in administering the assets of a deceased insolvent was a question on which decisions were conflicting. [Compare In re Albion Steel and Wire Company (7 C. D. 547) ; and In re Association of Land Financiers (16 C. D. 373).] All doubt on this point was, however, removed by an Act passed in 1888 (51 & 52 Vict, c. 62, s. 1, § 6), which makes the rules in bankruptcy applicable." Now, the Act here mentioned expressly reserves the post- ponement of loans to traders under the Law of Partnership Amendment Act, 1865, but makes no allusion to the post- ponement of claims of wives. While the Bankruptcy Act, 1883, s. 152, enacts that "Nothing in this Act shall affect the provisions of the Married Women's Property Act, 1882." It appears, therefore, that the Preferential Payments Act, 1888, is subject to the provisions of the Married Women's Property Act, 1882, which were thus preserved by the Bank- ruptcy Act, 1883. This incident shows how difficult it is to know what view the Court may take as to whether a provision in a special Act of Parliament is or is not abolished by a subsequent general Act of Parliament, which does not distinctly allude to it. The dictum of Lord Justice Lindley above set out has now been adopted and converted into an actual decision by Mr. Justice Stirling in In re Heijwood, Parhington v. Heyivood (1897, 2 Ch. 593), wherein it has been held that by the combined effect of s. 10 of the Judicature Act, 1875, and s. 1, § 6, and s. 3, of the Preferential Payments Act, 1888, the priorities conferred by the latter Act apply in the administration by the High Court of the estates of persons dying insolvent after the commencement of that Act. Ml THE REAL REPRESENTATIVE LAW, 1897. Overseers. Regimental debts. On turning to the Preferential Payments Act, 1888, 51 & 52 Vict. c. 62, it will be seen that the effect of the two clauses just mentioned is by no means clear without a decision upon them. S. 1, § G, runs — "This section shall apply, in the case of a deceased person who dies insolvent, as if he were a bankrupt. and as if the date of his death were substituted for the date of the receiving order." S. 3 runs — "This Act shall apply only in the case of receiving orders and orders for the administration of the estates of deceased debtors according to the law of bank- ruptcy made and windings-up commenced after the com- mencement of this Act." The date of the commencement being January 1, 1889. The last two cases seem to show that the preference accorded to the older building societies is now taken away, and they also make it desirable to turn to other statutes giving preferences and consider how far they now apply. The Act 17 Geo. 2, c. 38, s. 3, enacted that if an overseer died before ' the expiration of his office, his executors or administrators should pay out of his assets " all sums of money remaining due, which he received by virtue of his office, before any of his other debts are paid and satisfied." The Act gave no priority in insolvency or bankruptcy. It has been amended by later statutes, but this section has not been formally repealed. It may be doubted, however, whether it is not impliedly repealed by the Preferential Payments Act, 1888, having regard to the above-mentioned decisions on the effect of that Act. The Regimental Debts Act, 1893, repealing and re-enacting with variations the Regimental Debts Act, 1863, gives a preference to certain regimental debts — including the funeral expenses — of persons dying subject to military law ; and enacts that so much only of the personal property of the deceased as remains after payment of the preferential charges shall be considered personal estate of the deceased for any of PREFERENTIAL CLAIMS. 81 the purposes of administration (s. 3). Power is given to a Committee of Adjustment to sell the effects of the deceased and pay the preferential charges (s. 6) ; and it is added (s. 6, § 5) that for this purpose the committee shall, to the exclusion of all authorities and persons whomsoever, have the same rights and powers as if they had taken out representation to the deceased (56 & 57 Vict. c. 5). There can be little doubt that an Act of the nature of this Kegimental Debts Act, 1893, would be unaffected by such an Act as the Preferential Payments Act, 1888, even if the order of their dates were reversed. In "Williams on Executors," in connection with this Pavins subject, mention is made of the Act 57 Geo. 3, c. xxix. s. 51. officer£ That Act was a Metropolitan Paving Act of 1817, and may be found printed among the local and personal Acts of that year. It was sometimes called Michael Angelo Taylor's Act. It authorized certain officials, called commissioners and trustees of pavements, to appoint treasurers, collectors, and other officers to receive money for them, and enacted, by s. 51, that on the bankruptcy or death of any such officer, any claim of the commissioners or trustees against his estate should have precedence over all other creditors except the Crown. These commissioners and trustees of pavements were replaced by the vestries and district boards under the Metropolitan Manage- ment Act, 1855, 18 & 19 Vict. c. 120, s. 90, and the offices which formerly existed under them were abolished ; so that the Act of 1817, though not formally repealed, has ceased to have any application. G 82 THE REAL REPRESENTATIVE LAW, 1897. CHAPTER XII. The Judicature Act, 1875, s. 10 — Costs reckoned — Secured Creditors — Execution Creditor — Judgment against Executor — Right of Retainer — Loan by Wife — Crown Claims — Execution and Judgment against Deceased — Voluntary Obligations — Sum- mary. s. 10 of Section 10 of the Judicature Act, 1875, repealed s. 25, § 1, of Act 1875. * ne Judicature Act, 1873, and then re-enacted it, extending it to companies in the following words : " In the administration by the Court of the assets of any person who may die after the commencement of this Act, and whose estate may prove to be insufficient for the payment in full of his debts and liabilities (and in the winding up of any company under the Companies Acts, 1862 and 1867, whose assets may prove to be insufficient for the payment of its debts and liabilities and the costs of winding up), the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being under the law of Bankruptcy with respect to the estates of persons adjudged bankrupt ; and all persons, who in any such case would be entitled to prove for and receive dividends out of the estate of any such deceased person (or out of the assets of any such company) may come in under the decree or order for the administration of such estate (or under the winding up of such company), and make such BANKRUPTCY RULES ADOPTED. 83 claims against the same as they may respectively be entitled to by virtue of this Act." It will be seen that the Act mentions only debts and Costs of liabilities in the case of estates, but debts, liabilities, and costs tration " in the case of companies. Yet one point decided in In re Lena, to ^ e , l*GCKOD6(l Tarn v. Emmerson (1895, 1 Ch. 652), was, that costs were to be taken into consideration in estates also. Lord Justice Lindley said upon this point : " The express mention of costs in dealing with companies being wound up, and the omission of all mention of costs in dealing with the estates of deceased persons are easily accounted for. The section applies to all modes of winding up companies, but only to one mode of administering the estates of deceased persons — namely, admini- stration by the Court. It may well have been considered desirable to point out to liquidators winding up insolvent companies without the assistance of the Court, that they must deduct the costs of winding up, and then see whether the assets left are sufficient to pay the debts in full, or are in- sufficient for that purpose. It was quite unnecessary to instruct the judges of the High Court on such a subject." The principal point at which s. 10 of the Judicature Act Position of was aimed, was a rule, which formerly existed in Chancery, that creditors. a secured creditor could prove for his entire claim, and receive dividends on it, and afterwards realize his security, subject only to a liability to repay any sum exceeding the unpaid part of his claim which he obtained by the realization. In bank- ruptcy, a secured creditor could only prove on the terms of having his security valued, and ranking as a creditor for the excess of his claim thereover; and this was manifestly the fairer rule. But it will be seen that the words of section 10 go beyond a mere incorporation of this rule into administrations and liquidations, and are indefinitely expressed, so that their effect is open to doubt. The section, accordingly, gave rise to numerous decisions, and many points are now settled under it, and are noticed by Lord Justice Lindley in his judgment in In re Leng, Tarn v. Emmerson (1895, 1 Ch. 652). Thus, he Some bank- ruptcy 84 THE EEAL REPRESENTATIVE LAW, 1807. rules not says, it is settled that the rules in bankruptcy which increase a bankrupt's assets, e.g. the reputed ownership clause, the fraudulent preference clause, and the sections which defeat certain settlements and executions, do not apply to the ad- ministration in the High Court of the assets of a deceased person. These assets must be ascertained by applying the general laws of property, and not the special rules applicable only to cases of bankruptcy. On these points the Lord Justice referred to the following cases : — Position of l n re Withernsea Brickworks (16 C. D. 337) (December, 1880, creditor. C.A.). In this case the creditor of a company had taken its goods in execution, and, four days later, a winding-up petition was presented, on which a winding-up order was made sixteen days afterwards. The creditor was held entitled to the benefit of the execution, although the case would have been otherwise in bankruptcy under s. 87 of the Act of 1869. Lord Justice James, in giving judgment, said that he saw no reason why a person relying on his security in an administration or liquidation should be deprived of it, because, under similar circumstances, he would be deprived of it in bankruptcy. He was of opinion that the section no more imported that law into administration or liquidation than it imported the law as to fraudulent preference or reputed ownership. Section 87 of the Bankruptcy Act, 1869, is now replaced by ss. 45 and 46 of the Bankruptcy Act, 1883, and s. 11 of the Bankruptcy Act, 1890, but, subject to the alterations thereby introduced, the last-mentioned decision appears to be unaffected by any later decision or any subsequent Act of Parliament, unless the Preferential Payments Act of 1888 and 1897 apply to such a case ; and it was indeed followed and approved by Chitty, J., in Pratt v. Inman (43 C. D. 175) (December, 1889), holding that s. 45 of the Bankruptcy Act, 1883, did not apply to administrations. Nevertheless it is clear that a more extended operation has now been accorded to s. 10 of the Judicature Act, 1875, than Lord Justice James attributed to it in In re Withernsea Brickivorks. And the Preferential JUDGMENT AGAINST EXECUTOR. 85 Payments Act, 1897, 60 & 61 Vict. c. 19, should also be referred to on the position of creditors of companies in liquidation. The position of an execution creditor, when the debtor dies and his estate is administered in bankruptcy, was considered by Mr. Justice Vaughan Williams in Watkins v. Barnard (1897, 2 Q. B. D. 521). The creditor there succeeded, inasmuch as the sheriff did not receive notice of the petition under s. 125 of the Bankruptcy Act, 1883, until more than fourteen days after selling the goods. The next case referred to by Lord Justice Lindley is In re Maggi, Wineliouse v. Winehouse (20 C. T>. 545) (March, 1882, Fry, J.). In that case one creditor had obtained a Effect of judgment against executors, all parties being under the impres- {"^f™j: nt sion that the estate was solvent. A writ for administration executor. had been previously issued, but the order for administration was not pronounced until eight days after the judgment was obtained. The estate proved insolvent ; and it was held that the judgment creditor was entitled to priority over the others. On reading the judgment in this case it will be seen that it is made to turn on the question whether s. 32 of the Bank- ruptcy Act, 1869, was imported into administrations ; and the judge, after noticing the conflicting decisions of In re Norton Iromvorhs Company (26 W. E., 53) (Jessel, M.R., November, 1877), and In re Association of Land Financiers (16 C. D. 373) (V.-C. Malins, January, 1881), on the one side, and In re Albion Steel and Wire Company (7 C. D. 547) (Jessel, M.R., January, 1878), and Smith v. Morgan (5 C. P. D. 337 ; 49 L. J. Ch. 410) (February, 1880), on the other side, considered that the latter were most weighty, and that the section was not imported. But we have seen that it has now been held that s. 40 of the Bankruptcy Act, 1883, as amended by the Pre- ferential Payments Act, 188S, is imported. We must take it therefore that the principle, on which In re Maggi is based, is now overruled ; and, that being so, it is doubtful whether a case like In re Maggi would now be differently decided, or whether a similar decision could be supported on other 86 THE REAL REPRESENTATIVE LAW, 1897. grounds. Lord Justice Lindley, however, in In re Leng, recognized it as settled law that s. 10 of the Judicature Act, 1875, had not deprived judgment creditors of their right to be paid in priority to other creditors in an administration action, although they had no priority in bankruptcy, and referred to In re Maggi, and the prior case of Smith v. Morgan (5 C. P. D. 337), which was a decision by himself in February, 1880, to the same effect as In re Maggi. Prior to the Administration of Estates Act, 1869, it was settled law that a creditor who obtained judgment agaiust an executor or administrator thereby gained priority over all other creditors of equal degree ; and it was held by V.-C. Wickens in In re Williams estate, Williams v. Williams (L. R. 15 Eq. 270) (December, 1872), that under that Act a simple contract creditor who obtained judgment gained priority over specialty creditors as well as simple contract creditors. But these results did not follow unless the judgment was finally pronounced before any decree for administration was made: an order nisi to sign judgment, or a balance order made in a winding up, were insufficient, as was also a judgment pro- nounced on the same day as an administration decree. [In re Stubbs' estate, Hanson v. Stubbs (8 C. D. 154) (March, 1878, Jessel, M.R) ; In re Hubbach, International Marine Hydro- pathic Company v. Hawes (29 C. D. 136) (June, 1885, C.A.) ; Parher v. Bingham (33 Beav. 535, Romilly, M.R).] In further support of the principle that the rules in bank- ruptcy, which increase the assets, are not imported imo administrations, we may refer again to the cases of In re Knott (7 C. D. 549, n.) ; In re Count H Epineuil, Tadman v. D'Epineuil (20 C. D. 217) (March, 1882, Fry, J.) : and ex parte Official Receiver, In re Gould (19 Q. B. D. 92) (May, 1887, C.A.), the last-mentioned being a case on administration under s. 125 of the Bankruptcy Act, 1883. Right of The Lord Justice also noticed that it was settled that the common law right of an executor or administrator to retain a debt due to himself was not affected by s. 10 of the Judicature retainer. RETAINER BY WIFE. 87 Act, 1875, and referred to Lee v. Nuttall (12 C. D. 61) (June, 1879, C.A.), and In re May, Crawford v. May (45 C. D. 499) (July, 1890, North, J.). In the last-mentioned case a widow, L ? an by being the administratrix of her husband, who had died insol- vent, was allowed to retain out of his estate a sum lent by her to him. This case is recognized in In re Leng, but it is difficult to reconcile the two cases. Mr. Justice North, in arriving at the decision of In re May, expressed his opinion that the rules in bankruptcy relating to such a case were not incorporated into the administration before him. Lord Justice Lindley, in In re Leng, laid down (p. 657) that, construing s. 10 of the Judicature Act, 1875, by the decisions and the express provisions of s. 1, § 6, of the Preferential Payments Act, 1888, the rules in bankruptcy as to debts and liabilities provable, must now include all rules as to priorities expressly enacted by any statute, and made applicable in the event of bankruptcy. And he held that the rule in s. 3 of the Married Women's Property Act, 1882, was one of the rules as to debts provable, which had to be observed in administering the estates of deceased insolvents. He added, " This conclusion is not inconsistent with In re May, which was not a case of proof, but of retainer by the wife as her husband's adminis- tratrix. The legislature has not yet thought proper to alter the law of retainer, and s. 3 of the Married Women's Property Act is not addressed to that subject." If this is correct, it will be seen that the administratrix is in this case allowed to retain a debt against other debts of a really superior degree. In other cases the right of retainer is only exercisable against creditors of the same degree. However, in the recent case of In re H. F. Gilbert, ex parte Gilbert (W. N. 1897, 174), a widow being executrix was allowed to retain stock-in-trade of her deceased husband in satisfaction of a debt due to herself from him. It will be seen that an argument might be based on In re Leng to show that the executor's right of retainer was taken away by the Preferential Payments Act, 1888 ; but that right SS THE REAL REPRESENTATIVE LAW, 1897. has been so repeatedly recognized in modern cases, that any judge would be slow to hold that it was abolished without ex- press mention. [See Ex parte Campbell, Campbell v. Campbell (16 C. D. 198) (December, 1880, V.-C.Bacon) ; In re Giles, Jones v. Pennefather (1896, 1 Ch. 956) ; In re Harrison, Latimer v. Harrison (32 C. D. 395) (April, 1886, Pearson, J.) ; Trevor v. Hutchins (1896, 1 Ch. 844, C.A.).] Since the decision of In re Leng, two reported cases have occurred in which the personal representative's right of retainer has been allowed, when the pre- decessor died insolvent after the end of the year 1888, namely, In re Beeman, Fowler v. James (1896, 1 Ch. 48, North, J.), and In re Giles, Jones v. Pennefather (1896, 1 Ch. 956, Keke- wich, J.), and it was not contended in either of these cases that the executor's right of retainer was abolished. The right of retainer was also allowed in In re Allen, Adcoch v. Evans (1896, 2 Ch. 345, Chitty, J.), where the death took place after the end of 1888, but it is not clear that the estate was insol- vent. And the recent case of In re H. F. Gilbert, Ex parte Gilbert (W. N. 1897, 174), may, no doubt, be added to this list ; although the date of the death of the insolvent in that case is not given. In all these cases the right of retainer was contested on other grounds, and In re Leng is not recorded to have been cited in any of them. Turning once more to the judgment of Lord Justice Lindley in In re Leng, he mentions the conflicting decisions of In re Albion Steel and Wire Company (7 C. D. 547) (Jessel, M.R., January, 1878), and In re Association of Land Financiers (16 C. D. 373) (Malins, V.-C, January, 1881), the former holding that preferential debts in bankruptcy had no preference in liquidation, and the latter that they had, and declares that the latter is now the law under the Preferential Payments Act, 1888. The position of Crown debts requires consideration. In general the Crown has a priority over other creditors of equal degree, unless such priority is taken away by statute; and there is a general rule that a right of the Crown is not taken CROWN DEBTS. 89 away by a statute unless it is expressly named in it. Besides this general priority, the statutes imposing the income-tax on property give a right of distress for it, and possibly some other statutes imposing taxes may be found to confer some special right of recovering them, and such a right may give a practical priority to a creditor possessing it. Thus in In re Henley & Co. (9 C. D. 469) (C. A., July, 1878), priority was given to a claim for property and income-tax in the liquidation of a company, on the double ground (1) of the Crown's general right to priority over creditors of equal degree, and (2) of the special right of distress given by the Acts imposing the property tax. The priority of the Crown exists even where another creditor has put in a distress, and the Crown subsequently puts in a second distress before the first distress has been completed by sale of the goods [A. G. v. Leonard (38 C. D. 622) (April, 1888, Chitty, J.)]. Moreover a surety for a Crown debt, on paying the Crown debt, is entitled to the Crown's priority, as well as all other rights and remedies of the Crown in respect of the debt [In re Lord Churchill, Manisty v. Churchill (39 C. D. 174) (June, 1888, North, J.)]. In most of the earlier Bankruptcy Acts the Crown was not specially mentioned, and it was held accordingly that the rights of the Crown were unaffected by them. The Act of 1869, however, affected some rights of the Crown, and now, by the Bankruptcy Act, 1883, s. 150, it is enacted — " Save as herein provided the provisions of this Act Abridged relating to the remedies against the property of a debtor, the rup t C y. priorities of debts, the effect of a composition or scheme of arrangement, and the effect of a discharge shall bind the Crown." The provision here alluded to and saved is s. 30, which begins with the words — " An order of discharge shall not release the bankrupt from any debt on a recognizance nor from any debt with 90 THE KEAL REPRESENTATIVE LAW, 1897. which the bankrupt may be chargeable at the suit of the Crown or of any person for any offence against a statute relating to any branch of the public revenue or at the suit of the sheriff or other public officer on a bail bond entered into for the appearance of any person prosecuted for any such offence ; and he shall not be discharged from such excepted debts unless the treasury certify in writing their consent to his being discharged therefrom." But not in The question whether these provisions were imported into Court! 8 a liquidation by s. 10 of the Judicature Act, 1875, was con- sidered in In re Oriental Bank Corporation, Ex parte the Grown (38 C. D. 643) (November, 1884, Chitty, J.), and decided in the negative, and it would follow that they are not imported into an administration by the High Court. This leaves open the question whether the law is altered on this point by the Preferential Payments Act, 1888, for if that Act embodies the section of the Bankruptcy Act, 1883, relating to a wife, s. 152, it might be held to embody the section relating to the Crown, s. 150 ; but, as the Crown is not specially mentioned in that Act, Crown rights would probably be held to be unaffected by it. This was assumed to be the law in In re Bentinck, Bentinck v. Bentinck (1897, 1 Ch. 673, Stirling, J.). There a testator died insolvent after the end of 1888, leaving considerable assets, but much greater liabilities, some by specialty, some by simple contract, and two Crown claims. One of the Crown claims was for some additional probate duty, payable under the Act 55 Geo. 3, c. 184, on another estate of which the deceased was the sole executor and residuary legatee — and it was admitted that this claim took precedence of everybody. The other Crown claim was for some residuary estate duty payable under the Act, 36 Geo. 3, c. 52, and it was admitted that the Crown was a simple contract creditor in respect of this claim. A contention was raised and negatived that the priority of the Crown was taken away by the Intestates Act, 1884, 47 & 48 Vict. c. 71, s. 3 ; but the Preferential Payments Act, 1888, was not alluded to. JUDGMENT AGAINST DECEASED. 91 Mr. Justice Stirling adopted the rule laid down with respect to the executor's right of retainer in Wilson v. Coxwell (1883) (23 C. D. 764), and directed the assets to be apportioned between the specialty and simple contract creditors, and the Crown claim to be paid first out of the share of the simple contract creditors. The position of a creditor, who has obtained judgment Execution against a debtor in his lifetime and issued a writ of execution, ^ en ^ u g " resembles that of a lessor with a power of distress. He has creditors of a right to levy execution and seize the debtor's property without further leave from the Court; so that his title is paramount to that of the executor, and he is not postponed even to funeral expenses, much less to the claims of other creditors. But it is probable that if a petition for administra- tion of the debtor's estate in bankruptcy is presented and notice thereof given to the sheriff within fourteen days after sale of the goods seized, the proceeds would go to the general estate [Wathins v. Barnard (1897, 2 Q. B. D. 521)]. And notice after business hours on the last day is good [Lole v. Betteridge (1898, 1 Q. B. 256)]. But if a creditor has only obtained judgment and not issued a writ of execution in the debtor's lifetime, he caunot issue execution without leave of the Court ; and that will not be granted without notice to the representatives of the deceased [Order XLIL, rule 23 (a), In re Shephard, Atkins v. Shephard (43 C. D. 131) (C.A. November, 1889)]. Such a creditor will then be preferred in the High Court of Justice to other creditors of the deceased, at least if his judgment has been duly registered, but postponed to the funeral and testamentary expenses and the costs of the personal repre- sentative : and, if the estate is administered in bankruptcy, he has no preference at all. In bankruptcy a judgment creditor gains no priority, unless the judgment has been actually satisfied before the bankruptcy (see ss. 45, 46 of the Bankruptcy Act, 1883). With respect to the registration of judgments the law is 02 THE REAL REPRESENTATIVE LAW, 1897. somewhat involved. The Act 1 & 2 Vict. c. 110, now called the Judgments Act, 1838, made all judgments a charge upon the debtor's land, provided that they were registered in manner prescribed by the Act ; but unregistered judgments took precedence of other claims in administration. It was then enacted by sec. 3 of the Law of Property Amendment Act, 1860, 23 t 24 Vict. c. 38, that no unregistered judgment should have any preference in administration. A little later, however, namely, on the 29th of July, 1864, the Judgments Act, 1864, 27 & 28 Vict. c. 112, was passed enacting that thereafter no judgment should affect any land until it was actually taken in execution, and providing for the registration of writs of execution, with an addition of the words (s. 3), "and no other or prior registration of such judgment statute or recognizance shall be or be deemed necessary for any purpose." A case has, however, occurred since the last- mentioned Act, in which it was held that an unregistered judgment ranked only as a simple contract debt, by reason of the Act 23 & 24 Vict. c. 38, s. 3 ; but the Judgments Act, 1864, does not appear to have been cited in this case [Van Gheluive v. Nerinchx (21 C. D. 189) (June, 1882, Fry, J.)]; while two cases, which were cited, namely, In re Turner, Turner v. Waller (12 W. K. 337) (January, 1864, Wood, V.C.), and Kemp v. Waddingham (L. E. 1 Q. B. 355) (February, 1866), were both cases under the law prior to the Judgments Act, 1864, the debtor in the last-mentioned case having died in 1862. The contention that the Preferential Payments Act, 1888, has introduced the bankruptcy rules respecting judgments into administration by the High Court, does not appear to have been raised in any case. If the Crown has recovered judgment against a debtor, the Crown takes precedence of other judgment creditors ; and the Crown has a like priority in respect of all claims which are accounted debts of record. We have seen that the rights of the Crown as a simple contract creditor in administration by the High Court have been treated as unaffected by the LIST OF LIABILITIES. 93 Preferential Payments Act, 1888, and if that is so, other Crown rights would seem to be unaffected also. One other class of debts remains to be mentioned, namely, Voluntary voluntary obligations under seal. These conferred a legal °i on f a ~ right of action, inasmuch as a seal was said to import consideration at law ; but in administration they are postponed to all creditors for valuable consideration. Voluntary promises by unsealed writing create no obligation either at law or in equity ; but if drawn in negotiable form and negotiated for value, the holder ranks as a simple contract creditor for value ; and, in like manner, if a voluntary obligation under seal be assigned for value, the holder is a specialty creditor for value. If we now attempt to place the various points which have Summary. been touched upon in a tabular form, we get a rather formidable list. 1. Debts recoverable by the Crown by distress. 2. Debts recoverable by other parties by distress. 3. Claims of execution creditors. 4. The funeral and testamentary expenses of the deceased and the costs, charges,and expensesof the personal'representative. Also costs of other parties. (For details, see pp. 40, 41.) 5. Debts of record due to the Crown. 6. Sums due to Friendly Societies from their officers. 7. Sums due to savings banks from their officers. 8. The rates, taxes, and wages mentioned in the Preferential Payments Act, 1888. 9. Debts for which judgment was recovered against the deceased. 10. Sums due from overseers to their successors. 11. Sums due to Building Societies under the Act of 1836, from their officers. 12. Sums mentioned in the Act, 57 Geo. 3, c. xxix., s. 51. 13. Judgments recovered against the personal representa- tive. 14. Specialty debts due to the Crown. 94 THE REAL REPRESENTATIVE LAW, L897. 15. Specialty debts retainable by the personal repre- sentative. 16. The share of assets due to other specialty creditors. 17. Simple contract debts due to the Crown. 18. Simple contract debts retainable by the personal representative. 19. The share of assets due to other simple contract creditors. 20. Loans to traders with a reservation of a share of profits. 21. Loans by a wife to her husband. 22. Voluntary specialties. 23. Voluntary promises by unsealed writing. The reader must remember that the foregoing is not a table of the order of liabilities, but a list of the points dis- cussed. In the discussion we have contended that items 10, 11, and 12 are ordinary debts, and that item 23 is no debt at all. Items 6 and 7 also appear to rank pari passu. With those modifications the list represents what we believe to be the order of liabilities; but there may possibly be another preferential claim of an articled clerk or apprentice under s. 41 of the Bankruptcy Act, 1883. The matter is certainly simpler in bankruptcy. There, also, there is a doubt as to the position of a claim under s. 41 of the Bankruptcy Act, 1883, but in other respects the order of liabilities is clear, and is as follows : — (1.) A lessor's claim for six months' rent, as against dis- trainable goods, but subject to s. 1, § 4, of the Preferential Payments Act, 1888. (2.) The funeral and testamentary expenses and costs. (3.) The claims of Friendly Societies and savings banks. (4.) The rates, taxes, and wages mentioned in the Prefer- ential Payments Act, 1888. (5.) All other debts except the two next. (6.) Loans to traders, with a reservation of a share of profits. RULES IN BANKRUPTCY. 95 (7.) Loans by a wife to her husband. There can be little doubt that the tendency both of legislation and decision will be to assimilate administration in the High Court to administration in bankruptcy ; but further statutory enactments will be required before such assimilation can be effected. It is, however, rather surprising to find that the practice of administering in bankruptcy the estates of deceased insolvents is falling into disuse. In 1897 only five orders were made under s. 125 of the Bankruptcy Act, 1883, and in 1896 none at all. 96 THE REAL REPRESENTATIVE LAW, 1S97. CHAPTER XIII. On the Executor's Right of Preference. Executor's It will be desirable to consider the executor's right of pre- preference f ererjce > an( ^ we may say, once for all, that an administrator has a similar right. This right was originally a right to prefer any creditor to others of equal degree. When an executor was sued at law he could support a plea of plene administravit by show- ing that before the action was commenced against him he had applied all the assets in paying creditors of the same degree as the plaintiff, or of superior degree. He was not, however, allowed payments voluntarily made to creditors of equal degree after the commencement of the action. But if another creditor obtained judgment against him pending the first action, such other creditor thereby acquired a preference. Hence, it was practically possible for an executor to prefer one creditor to another, even after action brought, by submitting to judgment in the case of the favoured creditor and resisting the action of the unfavoured one. A further rule also existed, and one which had more justice in it, namely, that an executor would be allowed a payment to a creditor of inferior degree, as against a creditor of superior degree, if at the time of making the payment he had no notice of the superior claim, or if at the time of the payment the superior claim was merely contingent, like the claim against a surety to an administration bond. Rule m If an executor was sued in equity his right was slightly equity. more extensive, for he was there allowed all payments made to creditors of equal degree with the plaintiff up to the date at ON THE EXECUTOR'S RIGHT OF PREFERENCE. 97 which the decree was made against him. The right of preference, however, was taken away in equity also, the moment a decree for administration was pronounced ; and in this respect it differed from the right of retainer, which might, and still may, be exercised after decree. But a mere order for an account under Order XV., Rule 1, does not take away the right of preference [In re Barrett, Whitaker v. Barrett (43 C. D. 70) (October, 1889, North, J.)], and it seems to follow from this that a mere order for an account made on originating summons would leave the right of preference unaffected. The Judicature Acts then supervened, and amalgamated law and equity, with a provision that in all cases of conflict between them the rules of equity should prevail (Judicature Act, 1873, s. 25, §11). It was thereupon decided by Jessel, M.R., Equity now m In re Badcliffe, European Assurance Society v. Badcliffe (7 C. D. f,revai b - 733), in 1878, that in all cases subsequent to the Judicature Acts the rule in equity prevailed upon this point, and an ex- ecutor was entitled to be allowed payments voluntarily made to creditors in the interval between the institution of an action for administration and the pronouncement of the judgment ; and this view has been affirmed by the Court of Appeal in Vibart v. Coles (24 Q. B. D. 364) (February, 1890). It is worth mentioning that in the latter case the old device was resorted to of a subsequent action by the favoured creditor and a consent by the defendant to a judge's order for judgment therein ; but, by a slip, the favoured creditor omitted to file the order as required by s. 27 of the Debtors Act, 1869. The creditor in the first action then contended that the original claim of the second creditor was merged in the judgment, and that the judgment was void against the first creditor under the Debtors Act, so that the second creditor had no claim at all ; but it was held that the first creditor could not approbate and reprobate the judgment in this way. On turning to the report of In re Badcliffe (7 C. D. 733), it Device of will be seen that Sir George Jessel, on pronouncing judgment ineffectual in that case, is stated to have added, " The only way to H 98 THE REAL REPRESENTATIVE LAW, L897. prevent such payments being made, is by the plaintiff, upon issuing the writ, immediately applying for and obtaining a receiver." On the strength of this dictum a good many applications for such receivers were made and acceded to without opposi- tion ; but in 1884 a case was contested, and evoked a derision from the V.-C. of Lancaster and the Court of Appeal, that the fact that the law gave an executor a right of preference was no ground for appointing a receiver to prevent him from exercising it [Philips v. Jones (28 Solicitors' Journal, 360)] ; and a like decision was given by Mr. Justice Chitty in Harris v. Harris (35 W. E. 710) (May, 1887) ; and this view has since pre- vailed. [See the judgment of Mr. Justice Stirling in In re Wells, Molony v. Brooke (45 C. D. 569) (May, 1890).] Is the right It will be remembered that we found that the executor's affected by r j g j lt f re t a ,iner was curiously affected by the Administration the Act ot «? j j 1869? of Estates Act, 1869 (32 & 33 Vict. c. 46) and that since that Act a testator's assets are apportioned between his specialty and simple contract creditors, and the executor's right to retain a simple contract debt is enforceable only against the latter portion of the estate. We are at once tempted to ask whether any similar rule has been adopted with respect to the executor's right of preference? If he has voluntarily paid a simple contract debt, when he had notice of a specialty claim, can the specialty creditor require the assets to be apportioned, and throw the payment made to a simple contract creditor upon the share apportioned to that class of creditors ? Strange, to say, we can find no decision upon this point. It has, indeed, been held that a simple contract creditor, who obtains judgment against an executor, thereby acquires priority over specialty creditors as well as simple contract creditors, although he only gained a priority over simple contract- creditors under the law prior to 1869 [In re Williams estate (L. E. 15 Eq. 270) (V.-C. Wickens, 1872) ; approved in In re Shibbs' estate, Hanson v. Stnobs (8 C. D. 154) ; and Smith v. Morgan (5 C. P. D. 337) (Lindley, J., 1880) ; and In re Maggi, ON THE EXECUTOR'S RIGHT OF PREFERENCE. 99 Winehouse v. Winehouse (20 C. D. 545)] ; but, on the other hand, the reasoning of the judgment in In re Jones, Calver v. Laxton (31 C. D. 440) (Kay, J., December, 1885), appears to be applicable to the executor's right of preference as well as to his right of retainer. And in the recent case of In re BentincJc, BentincJc v. BentincJc (1897) (1 Ch. 673), Mr. Justice Stirling had before him a case of an insolvent estate, which was subject to specialty claims and simple contract claims, and to a claim of the Crown, which, prior to the Administration of Estates Act, 1869, was preferred to simple contract creditors, but postponed to specialty creditors. The learned judge pointed out the conflict of principle between the cases above mentioned, and decided on preferring that of In re Jones, Calver v. Laxton (31 C. D. 440). There is certainly a conflict of principle in these cases, inasmuch as it is said that the executor's right of retainer was originally conferred to make up for the disadvantage of his position in that he could not recover judgment against himself. He was therefore considered as having got judgment, and was placed in the position of an outside creditor who had a similar claim against the' estate and recovered judgment for it. He now stands in a different position from such a creditor according to the decisions above mentioned ; a simple contract creditor thus gets priority- over specialty creditors, but the executor has no such priority. It should also be mentioned that if an executor had partly preferred one creditor before judgment for administration was pronounced, no further payment would be made to that creditor until all others had received a dividend on their debts equivalent to the proportion of his claim which had been satisfied [ Wilson v. Paul (8 Sim. 63) ; Mitchelson v. Piper (8 Sim. 64, V.-C. Shadwell, 1836)]. This rule applied to legal as well as equitable assets. 100 THE REAL REPRESENTATIVE LAW, 1897. CHAPTER XIV. Cautions for Dkawing Wills — Position of Charitable Devises. Cautious as The principal points requiring attention in making wills wills y principal debtor keep3 up right against, CO doubtfal whether limit of twelve or twenty years applies in caseof mortgage of land, GO paying a Crown debt, rights of, 89 Surplus proceeds of land, devolution of, 3, 33 T. Tail : See Estate. Title to land. how affected by action for administration, 67 Traders, loan to, under Partnership Amendment Act, 75, 79 Transfer of administration, into bankruptcy, when made, 71 Trustees for Settled Land Acts, personal representatives become, 29 administrator may be, 31 Twenty years' limit, on sale by executors under charge of debts, 52 on sale of leaseholds, 53 whether applicable to real estate now, 53 legatees not liable to refund after, 58 doubtful whether applicable to surety for mortgagor, 60 Voluntary bonds, 93 Voluntary written promises, 93 ditto in negotiable form, 93 Widow, postponement of claim by, 78 but debt retainable by her, 87 Wills, cautions for drawing, 100 V. w. LONDON: PRINTED BY WILLIAM CLOWES AND SONS, LIMITED, STAMFORD STREET AND CHARING CROSS. WM. CLOWES AND SONS, Limited, LAW PUBLISHERS, Second Edition, demy 8vo, 800 pages, cloth, 305. THE MERCHANT SHIPPING ACT, 1894. With Copious Notes and References to decided Cases, and an exhaustive Index. By T. E. 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WITNESSES (The Practice relating to), in all matters and proceedings Civil and Criminal, at, after, and before the Trial or Hearing, both in the Superior and the Inferior Courts. By Walter S. Sichel, M.A. (late Exhibitioner of Balliol College), of Lincoln's Inn, Barrister-at-Law. NEVER BEFORE PUBLISHED. Royal 8vo, calf, £1 us. 6d. net. ADMIRALTY CASES, 1648-1840. f Reports of Cases determined by the High Court of Admiralty and upon Appeal therefrom. Temp. Sir Thos. Salusbury and Sir George Hay, Judges, 1758-1774. By Sir William Burrell, Bart., LL.D., M.P., &c. Together with Extracts from the Books and Records of the High Court of Admiralty and the Courts of the Judges' Delegates, 1584-1839, and a collection of Cases and Opinions upon Admiralty Matters, 1701-1781. Edited by Reginald G. Marsdbn, of the Inner Temple, Barrister-at-Law. Third Edition, demy 8vo, cloth, i8j. CHARTER PARTIES. The Contract of Affreightment as expressed in Charter Parties and Bills of Lading. By T. E. Scrutton, M.A., LL.B., of the Middle Temple, Barrister-at-Law, Author of " The Law of Copyright," &c. "An entirely new work has long been needed, and we are glad to find it has now been supplied. . . . As a practical and accurate work it would be difficult to improve upon it." — Law Times. " Mr. Scrutton has written a book which will supply a want which has long been felt. . . . Altogether the book will be found most useful." — Saturday Review. Demy 8vo, cloth, \$s. SALVAGE, TOWAGE, AND PILOTAGE (THE LAW OF). ■ By Harry Newson, Esq., LL.B., of the Middle Temple, Barrister-at-Law, Author of "A Digest of the Law of Shipping and Marine Insurance," &c. "A useful summary of the law . . . which we can confidently recommend to the legal profession and to those practically interested in shipping." — Shipping Gazette. Demy 8vo, 930 pages, cloth, 32s. THE LAW AND PRACTICE OF COMPENSATION FOR TAKING OR INJURIOUSLY AFFECTING LANDS, under the Lands' Clauses Consolidation Acts, 1845, i860, and 1869 ; Railways Clauses Consolidation Act, 1845 ; Artisans' and Labourers' Dwellings Improvement Acts, 1868 to 1882 ; Public Health Act, 1875 ; Elementary Education Act, 1870 ; General Metropolitan Paving Act ; and other Public Acts (English, Irish, and Scotch). With an Introduction, Notes, and Forms. By the late Sidney Woolf, Q.C., and James W. Middleton, of Lincoln's Inn, Barrister-at-Law. " The book is a most complete one in its subject, and may fairly claim to be an indispensable guide-book for the compensation lawyer." — Law Journal. 27, FLEET STREET, LONDON, E.C.