Devolution of real estate held in trust or mortgage after 1881.

(d) Re Spradbery's Mortgage, 14 Ch. D. 514.

(e) Stat. 44 & 45 Vict. c. 41, s. 30,

(f) These appear to be his general, and not his special, executors; Re Parker's Trusts, 1894, 1 Ch. 707; cf. below, p. 232.

Copyholds.

Before 1898, freeholds in fee were liable to be applied in payment of the tenant's debts after his death either because, in the case of specialty debts, he had bound his heir to their payment, or because he had by will devised his real estate in trust for or charged with payment of his debts, or under Statute 3 & 4 Will. IV. c. 104 making-real estate equitable assets for the payment of the deceased owner's debts generally (k). Copyholds in fee were liable to their deceased owner's debts either by virtue of an express charge of debts thereon or under the same statute (l). Estates tail in freehold or copyhold were not liable to the tenant's debts after his death (excepting certain Crown debts), unless during his lifetime a judgment had affected the lands, or he had been adjudged bankrupt (m). Life estates are of course not liable to the tenant's debts after they have determined by his death or otherwise (n). Estates pur autre vie were subject to the deceased tenant's debts, if devised, either by virtue of an express charge or under the last-mentioned statute; and if not devised, under the Wills Act, replacing with regard to freeholds the Statute of Frauds in this respect (o). And equitable estates were subject to the like liability as estates at law (p). "When the heir was specially bound to pay his ancestor's debt, the creditor had the remedy of suing the debtor's heir or devisee personally in an action of debt or covenant: but in order to have the debtor's lands applied in payment of debts after his death the creditor was obliged to take proceedings in equity for the administration of the debtor's estate, when a sale or mortgage of the lands would be decreed, if necessary, to raise money to pay the debt (q). And the same proceedings were necessary to secure the benefit of an express charge of debts on real estate or of the statute of 3 & 4 Will. IV. c. 104 (r). Where the heir was specially bound or the lands were made assets by the statute, the debts were not a specific lien on the lands (s); so that if the lands were aliened for valuable consideration by the heir or devisee before any creditors' proceedings were instituted, the creditor could not follow the lands in the hands of the alienee (t), who was not bound, even if he had notice of the deceased owner's debts, to see to the application of the purchase money (u). And where lands were devised on trust for or charged with payment of debts, the devisee was also enabled to dispose of them, before the institution of any creditors' proceedings, discharged from all liability to the testator's debts; as it was considered that the testator, both in the ease of a trust to pay debts and of a charge of debts, had made his devisee a trustee for the payment of his debts, and from the nature of such a trust a purchaser from the devisee was exonerated from the duty of seeing to the application of the purchase money (v). And a mortgagee from a devisee or heir, before creditors' proceedings, was in the same position as a purchaser (x). But after an order had been made for the general administration of the deceased debtor's estate, in creditor's proceedings duly registered as lis pendens (y), the heir or devisee could not dispose of the lands descended or devised to him free from the creditors' claim (z). Whether he could so dispose of such lands after creditors' proceedings had been instituted and duly registered as a lis pendens, but before an order for administration had been made therein, depended on the nature of the proceedings. If they sufficiently indicated an intention to enforce payment of the debts out of the lands descended or devised, and the heir or devisee were made a party thereto, a purchaser or mortgagee from him would be bound thereby; unless the circumstances were such that the purchaser or mortgagee was entitled to suppose that the sale or mortgage was made to raise money to pay the debts, as where the lands were devised charged with debts to one who was also appointed executor (a). The case of a trust or power to sell for payment of debts would appear to be similar; although after an order for administration, the trustees must exercise their powers under the direction of the Court (b). So an executor, in exercise of his general power to alien his testator's assets, may well dispose of the testator's leaseholds, notwithstanding that creditors' proceedings are pending, at any time before an order for administration is made (c).

Liability of real estate to deceased owner's debts.

(g) Re Hughes, W. N. 1884, p. 53; Hall v. Bromley, 35 Ch. D. 042.

(h) Stat. 50 & 51 Vict. c. 73, s. 46, passed 16th September, 1887; see Re Mills' Trusts, 37 Ch. D. 312; 40 Ch. D. 14.

(i) Stat, 57 & 58 Vict. c. 46, s. 88.

(j) Wms. Real Prop. 565, 21st ed.

(k) Ibid. 280 - 284.

(l) Ibid. 474.

(m) Ibid. 289, 290, 475.

(n) Ibid. 290, 475.

(o) Stat. 7 Will. IV. ft 1 Vict, c. 26, ss.3,6; Wms. Real Prop. 132, 133, 473, 474. 2lst ed.

(p) Ibid. 293.

(q) Wms. Real Prop. 284, 21st ed.; Wms. Real Assets. l6.

(r) Wms. Real Prop. 284, 2lst ed.

(s) Re Moon, 1907, 2 Ch. 304.

(t) Spackman v. Timbrel!, 8

Sim. 253; Richardton v. Horton, 7 Beav. 112: Kinderley v. Jerris 2 Bear. 1, 22; Bug. V. & P 655 - 657; Price v. Price, 35 Ch. D. 297; Re Atkinson, 1908, 2 Ch. 307: Worthington & Co., Ltd. v. Abbott, 1910, 1 Ch. 588, 591. 599.

(u) Jones v. Noyes, 4 Jur. N. S. 1033.

(v) Sug. V. & P. 658, 660; Wms. Real Assets, 50, 51, 62.

(x) Ball v. Harris, 4 My. & Cr. 264; Eland v. Eland, ib. 420; British Mutual Investment Co. v. Smart, L. R. 10 Ch. 567; Price v. Trice, 35 Ch. D. 297; Re Atkinson, 1908, 2 Ch. 307.