(5.) Death of vendor before completion: its effect on relative rights of his real and personal representatives, under old, and under new Law.

Upon the vendor's death, the unpaid purchase-money forms part of his personal estate (s); the profits of the land from his death up to the time fixed for completion belong to his real representatives (t).

If he die before conveyance, the legal estate, of course, descends on his heir or devisee; if he die without an heir, and intestate, a conveyance of the legal estate may be obtained under the provisions of the Trustee Act, 1850 (u).

In cases governed by the old law, as it existed before the passing of the new Wills Act (v), (and which, it must be remembered, is still binding in all cases where the will has not been made or re-published, etc, on or since the 1st of January, 1838,) the contract for sale, (assuming it to be binding as against the vendor,) is, in equity, a revocation of a prior devise of the property; the legal estate passes to the devisee, but merely as a trustee; and the purchase-money belongs to the personal estate. And even if the estate be devised in trust for sale, and then be agreed to be sold by the testator, the purchase-money will not belong to the legatees of the proceeds of sale (w).

Purchase-moneys go to personal, and interim profits to real representative.

Legal estate descends to heir or devisee: -conveyance of, under Statute, if no real representative.

Under old law, contract revoked prior devise in equity.

(p) s. c.

(q) Bowles v. Rogers, 6 Yes. 95, n.

(r) Ex parte Cooper, 3 Mon. D. & De G. 717.

(s) Sug. 192; see Lord Hatherton v. Bradburne, 7 Jur. 1100; 13 Sim. 599: where the question was whether the consideration payable for a mining licence was purchase-money or rent.

(t) Lumsden v. Fraser, 12 Sim. 263.

(u) 13 & 14 Vict. c. 60; or, formerly, under the 4 & 5 Will. IV. c. 23; see Re Lowe's estate, 2 Ph. 690.

(v) 1 Vict. c. 26.

In such cases, the question between the real and personal representatives seems to be this, viz., whether the vendor at the time of his death was, either absolutely or contingently, under such an agreement as Equity would enforce against him (x): if so, the property, (as between his real and personal representatives,) forms part of his personal estate from the time fixed for completion; whether such time be specified in the contract, or have to be determined by the occurrence of some collateral event, or depend upon the mere option of the purchaser (y); but, unless and until such event occur or such option be declared, the estate (in the case of intestacy) belongs to the heir (z), or, in the case of a devise, (either after (a), or, it is conceived, before the contract,) to the devisee, unless the contract evidence a contrary intention: which inten-tion is not evidenced by a special reservation of the rent and profits, until completion, in favour of the vendor, his heirs, executors, and administrators (b).

And it has been held that when a railway or other public company, in exercise of its compulsory power, gives due notice of its intention to take land, mere acquiescence by the purchaser in such notice, will, (unless he be non compos, or under some other personal disability) (c), be considered equivalent to a contract; and the purchase-money will belong to his personal representatives (d): but this appears to be open to doubt (e).

Although devise wa3 in trust to sell.

Relative rights of vendor's real and personal representatives, de-pended on his liability to perform the contract.

Notice by railway company acquiesced in, whether equivalent to contract by owner.

(w) Arnold v. Arnald, 1 Bro. C. C. 401; Newbold v. Roadknight, 1 Russ. & M. 677.

(x) See Knottys v. Alcock, 7 Ves. 558; Sug. 213.

(y) Lawes v. Bennet, cited 14 Ves. 596.

(z) Townley v. Bedwell, 14 Ves. 591.

(a) Sug. 204.

(b) Shadforth v. Temple, 10 Sim. 184.

(c) Midland Counties Railway v. Oswin, 1 Coll. 74, 80.

If, at the vendor's death, there be a binding contract as against the purchaser, but no binding contract have been entered into by the vendor, the rights of his heir or devisee are, of course, unaffected.

If the contract were binding upon both parties at the time of the vendor's death, no subsequent act or matter can alter the relative rights of his representatives (f): so that, if the purchaser subsequently act so as to lose his right under the contract, the estate belongs in Equity to the next-of-kin of the vendor (g).

If the contract (originally binding) be rescinded or abandoned by both parties in the lifetime of the vendor, there seems to be ground to contend that the rights of the devisee are restored (h); if, however, it were held that the devisee could not take, the heir would be entitled beneficially.

If, during the vendor's lifetime, the purchaser alone abandon the contract, or act so as to relieve the vendor from his liability to convey the estate, it seems that the property would be considered real estate at his decease (i); but unless the vendor have acquiesced in the vacation of the contract, there would seem to be a difficulty in maintaining the rights of the devisee against the heir; except in cases coming within the new law.

If, during the vendor's lifetime, he himself abandon the contract, or if, through want of title or for any other reason, the contract, at the time of his death, be capable of being enforced only against and not by him, the right of the personal representatives would seem to depend upon whether the purchaser do or do not choose to enforce specific performance (j); the case being, in effect, similar to those in which the purchaser has, ab initio, a mere option to purchase.

Rights of vendor's representatives, unaffected by a contract binding only on the purchaser.

If contract binding on both parties at vendor's death, relative rights of his representatives are unaltered by subsequent events.

Whether, if contract is mutually rescinded before death, de-visee's rights are restored.

Effect of its ceasing, during vendor's life, or to be binding on himself: or upon the purchaser.

(d) Ex parte Hawkins, 13 Sim. 5C9; and see Richards v. Att.-Gen. of Jamaica, 13 Jur. 197.

(e) See Adams v. Blackwall Railway Company, 14 Jur. 679, C.

(f) Bennet v. Lord Tankerville, 19 Ves. 179; and see Tebbott v.

Voules, 6 Sim. 40.

(g) Curre v. Bowyer, 5 Beav. 6.

(h) Sug. 202; but the point is doubtful, see 7 Ves. 558; 19 Ves. 179.

(i) Sug. 213; 1 Jarm. on Wills, 49.

A general devise, of all his real estates, by the vendor, after the contract, will, prima facie, and in the absence of any limitations or other matter inconsistent with such an intention, pass the legal estate in the property contracted to be sold (k); but, although the estate be devised expressly by name, the devisee, as a general rule, takes merely as a trustee for the purchaser, and the purchase-money forms part of the personal estate (l).

But in a late case, where a testator devised, by special description, lands subject to a mere option of purchase, to A. for life with remainder over, it was held that the purchase-money was subject to the same limitations as had been declared of the lands (m).

And the law, as above stated, appears to be unaltered by the 1 Vict. c. 26 (a); which, however, removes all doubt as to the devisee's right in cases where the contract is rescinded or abandoned by the vendor, or is not binding on him; and also is in favour of the devisee's beneficial interest in cases similar to Knollys v. Shepherd (o).

Effect of general devise upon real estate contracted to be sold;- devisee takes merely as trustee.

Specific devisee, when beneficially entitled.

Effect of 1 Vict. c. 26, on relative rights of vendor's representatives.

(j) See 1 Jarm. on Wills. 50.

(k) Wall v. Bright, 1 Jac. & W. 494.

(l) Knollys v. Shepherd, 1 Jac. & W. 499, cited.

(m) Brant v. Vause, 1 Y. & C. C. C. 580; see judgment.

(n) Farrar v. Lord Winterton, 5 Beav. 1; Moor v. Raisbeck, 12 Sim. 123; Midland Counties Railway Company v. Ostein, 1 Coll. 74, 80; Ex parte Hawkins, 13 Sim. 569.

(o) Ubi supra; see Sug. 211.