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make good to the objects of the settlement the amount which they would have enjoyed had the settlor's intention been properly carried out; and the present section does this, while it leaves the purchaser in the enjoyment of the land.
The effect of a charge of debts in a will where no express means exist of carrying it into effect, has given rise to considerable litigation, and some of the decisions on the subject have been criticised" with no little warmth. We think that it is a pity that the Legislature did not take this opportunity of setting at rest the controverted question with regard as well to past as to future instruments. This, however, has not been done; but a series of provisions has been enacted (secs. 14–18), giving statutory powers of sale, in certain cases, to trustees and executors under wills coming into operation after the passing of the Act. Thus, when under such a will, lands charged with debts, or the payment of a legacy or specific sum, are devised to trustees, these trustees have a statutory power of sale over the whole estate, and if there be no devise to trustees, then the executors are invested with a like power. It niust be remembered that the principles laid down by the Master of the Rolls in Robinson v. Lowater (17 Beav. 592), Wrigley v. Sykes (21 Beav. 337), and Storry v. Walsh (27 L. J. ch. 338), are not directly affected by this statute; and therefore the powers which these and similar cases ascribed to executors will coexist along with those vested in them by these sections.
By the 16th section, any sale or mortgage under the act operates only on the estate and interest, whether legal or equitable, of the testator, and does not render it unnecessary to get in any outstanding subsisting legal estate. We are not aware that it has ever been supposed that the will of a testator, entitled in equity only, could give a power over the legal estate; and the case of Doe v. Hughes (6 Exch. 223), seems to decide expressly that no power of sale over the legal estate can be ascribed by implication to executors, even when the testator
See particularly an article by Mr. Joshua Williams, in The Jurist of the 16th February, 1856 ; reprinted in a separate form in the following year.
was entitled at law; but the power given by this Act to executors, affects all the estate and interest of the testator, whether it be legal or equitable.
The powers. we have been considering are given by sections 14, 15, and 16. The operation of sec. 14 is, by the actual wording of the section itself, confined to cases where the charge is created "by any will coming into operation after the passing of this Act." Section 15 applies only to the devolution of the powers given by the last section; and sec. 16 enacts, that where such a charge is created as is described in sec. 14, but there is no sufficient devise to trustees, the powers may be exercised by the executors of o such will." We should have thought that there could have been little doubt that “such will ” meant such a will as is mentioned in sec. 14, namely, a will coming into operation after the passing of the Act; but, at any rate, the knotty point might have been easily settled by the addition of a few appropriate words. Another course, however, has been adopted; and after sec. 17, which protects purchasers from the effects of an improper exercise of the powers, we find a section (18) which contains the following nonsense :-
“The provisions contained in sections 14, 15, and 16, shall not in any way prejudice or affect any sale or mortgage already made, or hereafter to be made, under, or in pursuance of any will coming into operation before the passing of this Act ;' but the validity of any such sale or mortgage shall be ascertained and determined in all respects as if this Act had not passed." (!)
Now, putting sec. 16 out of the question, how is it possible that secs. 14 and 15, which apply only to wills coming into operation after the passing of the Act, can affect sales, &c., under wills which came into operation before the passing of the Act?
It would be a source of wonder had the profoundest and most experienced real property lawyer of the day committed this gross blunder ; but it is no source of wonder that it should have
1“ Coming into operation before the passing of this Act,” may be considered as grammatically correct in Parliament; elsewhere we should expect to find
which shall have come into," &c.
been perpetrated in the House of Commons, where the abovequoted portion of section 18 was composed and foisted into the Act.
Though Lord St. Leonards is responsible for the rest of secition 18, yet it is not happily worded. Secs. 14, 15, and 16, are not to “extend to a devise to any person or persons in fee or in tail, or for the testator's whole estate and interest, charged with debts or legacies.” The meaning no doubt is, that the sections in question are not to confer powers of sale or mortgage on trustees or executors, where the charged lands are devised in fee, &c., to any person for his own benefit; but, in order to attach any meaning at all to the words, it must necessarily be held that trustees are not persons.
5. INTIERITANCE, (Secs. 19, 20.)-These sections are intended to prevent the recurrence of an injustice which, in one reported case (Doe v. Blackburn, 1 Moo. & R., 547), arose from the provision of the Inheritance Act of 1833, that descent should always be traced from the purchaser. It is clear that the heirs of the purchaser may have become extinct, although there may be persons claiming
claiming as heirs of the person last entitled by descent. . For example, in the case we have quoted, the purchaser was a foundling who died intestate, leaving an only child, a son, who also died intestate. There were no heirs of the foundling, but there were persons
who could have claimed as beirs of the son, ex parte maternâ, if he had taken by purchase and not by descent. These persons would seem to have a right to the land, although before the recent change no such right was recognised by the law. It is said that, inasmuch sec. 20 enacts that sec. 19 “shall be read as part” of the Inheritance Act of 1833, and does not save present rights, the law of inheritance as now altered must be taken as having been the law since the 1st of January, 1834; and, consequently, that persons in possession under the old law may be evicted unless they should happen to be protected by the Statute of Limitations. It would be a curious result of the present statute were Doe v. Blackburn tried over again ; and such a result is not impossible, if some person under disability,
VOL. VIII. NO. XVI.
and not the claimant in that case, was the heir of the son, ex parte materna."
6. ASSIGNMENT OF PERSONALTY, (Sec. 21.)—This section repeals the old common-law rule—that a person cannot assign personalty to himself and others : it endeavours to effect for sonal estate that which, through the medium of the Statute of Uses, can be effected in the case of freehold estates; and, had the section been sufficient, it would in many cases have rendered two deeds unnecessary where the intention of the parties could be well expressed in one. But the section, it is said, is defective in not providing that the assignees shall take as joint tenants, and cannot safely be acted on except to the extent that it may warrant a change in the ownership of equitable choses in action, usually assigned on the appointment of new trustees, such an assignment being a mere form, and of no consequence in any way, although it is generally introduced as a verbal compliance with the usual direction following the power to appoint new trustees.
7. PURCHASERS, (Secs. 22–24.)— These sections are intended to diminish the expense and risk attendant on the purchase of land. Sec. 22 requires that the registration of Crown debts should be renewed every five years; a provision which was, through some slip, omitted from the statute 2 and 3 Vic., c. 11. By sec. 23, persons paying any purchase or mortgage money to a trustee or mortgagee, are to be discharged by his receipt; and, by sec. 24, the fraudulent concealment of a material instrument or incumbrance, or falsification of pedigree by a vendor or mortgagor, or the solicitor of a vendor or mortgagor, is made a criminal offence.
The enactment with regard to the receipts of trustees might, with advantage, have been framed in a more comprehensive manner: it is confined to the payment of purchase or mortgage money, and doubts have been entertained whether it extends to the payment by a devisee of portions and other sums charged upon
the land devised to him, inasmuch as the term mortgage
1 The former verdict would be no bar to a fresh action. Broom's Legal Maxims, 3rd Ed., 306.
seems, both by its general meaning, and by the interpretation clause (sec. 25), to be limited to cases of loan and repayment, Again, with regard to the receipts of mortgagees, the ordinary receipt clause in a mortgage with power of sale, has a wider effect than is given to a receipt by the statute, and must therefore still be retained in all such mortgages; for it not only discharges the purchaser under the power from seeing to the application of the purchase-money, but also from inquiring whether the events in which the sale is authorized have happened, and this is not the effect of the statutory receipt clause.)
It may be feared, also, that purchasers will derive no benefit from the provision intended to protect them from loss through fraudulent suppressions. No doubt, such a practice is well worthy of severe punishment; but it is said that the dread of being involved, however groundlessly, in criminal proceedings, will induce solicitors to deliver to purchasers, schedules of all documents in their possession, of whatever date, relating to the property, thus throwing upon the purchaser the onus of selecting such of them as may be material to the title.?
We believe that the fears of solicitors on this subject are groundless. No prosecution can be commenced without the sanction of the Attorney-general; and solicitors may be assured
-; that a strong prima facie case of fraud would have to be shown before such sanction could be obtained. The state of our law on this point was certainly not creditable before the passing of the Act; and in the course of the discussion in the House of Lords in 1857, on the two bills which were then brought in by Lord St. Leonards, and which have since been curtailed and compressed into the present statute, Lord Cranworth remarked that ours was the only code which did not visit such offences with condign
· Hunter, p. 69.
2 This practice appears to be countenanced by a not very felicitously framed question proposed in last Michaelmas term to the candidates for admission as attorneys. The question is as follows :-“What principle should gover the practitioner in setting forth the title to land after a contract for sale entered into ? Should all deeds affecting the title be set out in the abstract ? and what will be the consequence to the vendor and his solicitor if any be kept back?"