(6.) Death of purchaser before completion; its effect on relative rights of his real and personal representatives, under old, and under new Law.

Upon the death of the purchaser before completion, the property contracted for, (assuming it to be freehold or copyhold of inheritance,) descends to his real representative, who is prima facie entitled to have the purchase-money paid out of the personal estate (p).

Here also, the question between the purchaser's real and personal representatives is this, viz.: whether at the time of his decease, he was, either absolutely or conditionally, under a binding contract to purchase; if absolutely bound, or if conditionally or optionally bound, and the condition upon which the liability was to become absolute be subsequently fulfilled, or the vendor's option to sell be declared, the real representative is entitled (q); and his rights will not be affected by anything subsequent to the death of the purchaser; so that if by such subsequent matter (e. g., the felling of ornamental timber by the vendor), the contract cease to be binding on the purchaser's representatives, his real representative is nevertheless entitled to the purchase-money (r.)

If, however, the contract gave the purchaser a mere option, which he had not declared at the time of his decease, or if, through want of title in the vendor or any act or omission on his part, the agreement, although intended to be binding on both parties, was, at the time of the purchaser's death, binding only upon the vendor; the real representative of the purchaser has no claim upon the personal estate for the unpaid purchase-money, and a bill filed by him against the personal representatives and the vendor, will be dismissed (s); but, upon principle, it would seem that, if he chose to pay for the estate out of his own pocket, he might enforce the contract against the vendor.

Death of purchaser before completion.

Relative rights of real and personal representatives depend on his liability to perform contract.

If not liable his real representatives had no claim on his personal estate.

(p) Broome v. Monck, 10 Ves. 597, 611.

(q) Buckmaster v. Harrop, 13 Ves. 456.

(r) 1 Jarm. on Wills, 46; and see the judgment in Broome v. Monck, 10 Ves. 597.

The relative rights of the heir and devisee of the purchaser, in cases falling within the old Law, seem to depend on the following rules.

A purchaser, upon entering into a contract for purchase, became entitled to dispose, by will, of his rights under the contract (t): if, however, the contract were not, at the date of the will, binding upon the vendor, (either absolutely, or subject to a condition or option subsequently fulfilled or declared,) the purchaser had no enforceable rights, and his will was therefore inoperative; and any interest subsequently acquired by him in the property descended on his heir (u); a clear indication, however, of the testator's intention that the devisee should take, either the particular lands, or, generally, all subsequently purchased lands, was sufficient to put the heir to his election between the descended land and any provision made for him by the will (v): if, however, at the date of the will, the contract were binding as against the vendor, the purchaser's devisee became entitled to the benefit of it, (if remaining unperformed at the purchaser's decease;) but his right to have the purchase-money paid out of the personal estate, depended, as above shown, upon the question whether the contract were binding as against the purchaser at his decease; and, if this were so, it is conceived that the devisee would, (as against the heir,) be entitled, although the contract were not binding upon the purchaser at the date of the will. If the contract were performed by the vendor in the purchaser's lifetime by a conveyance to him in fee, (or, perhaps, to the common uses to bar dower in his favour, in cases where the contract was for a conveyance to him or such uses as he should appoint (w),) the devisee, was entitled in equity, and the legal estate descended to the heir as his trustee: a conveyance to uses to bar dower, operated, however, as a revocation where there was either no written agreement (x), or an agreement to convey in fee (y), or even an agreement to convey to the purchaser, his heirs, appointees or assigns (z): the doctrine, however, is disapproved of by Sir E. Sugden (a), and although apparently well settled (b), seems open to much observation.

Relative rights of heir and devisee of the purchaser under old law.

Right of devisee as against heir depended upon contract being binding on vendor.

But will might put him to his election.

Devisee might be entitled to estate, as against vendor and purchaser's heir, and yet not to have purchase-money paid out of personal estate.

(s) Sug. 213; Green v. Smith, 1 Atk. 573; Broome v. Monck, 10 Ves. 597; Collier v. Jenkins, 1 You. 295.

(t) Sug. 194, 195; Broome v. Monck, ubi supra; Rose v. Cunynghame, 11 Ves. 550; Gaskarth v. Lord Lowther, 12 Ves. 107.

(u) Rose v. Cunynghame, ubi su-pra; Duckle v. Babies, 8 Sim. 525.

(v) Thelusson v. Woodford, 13 Ves. 209; Sug. 199.

Lands merely contracted for, passed along with lands contracted for and conveyed, under a general devise of all lands purchased by the testator (c); and lands recently purchased and conveyed, passed under a general devise of lands contracted for (d); and copyholds surrendered to the use of the copyholder's will, passed under a general devise of copyhold estates contained in a prior will and not subsequently republished (e).

And, in cases of wills falling within the operation of the late Act, the above questions between the heir and devisee are settled in favour of the latter, by the provision which makes the devise operate upon the testator's interests as they exist at the time of his death.

Cases in which conveyance to purchaser revoked devise.

Effect of devise of lands "contracted for " and " purchased."

Will passed copyholds subsequently surrendered to use of will.

Effect of 1 Vict. c. 26, on relative rights of heir and devisee of purchaser.

(w) Sug. 198.

(x) Ward v. Moore, 4 Madd. 368.

(y) Rawlins v. Burgis, 2 Ves. & B. 382.

(z) Bullin v. Fletcher, 1 Keen, 369; 2 M. & C. 432.

(a) Sug. 198; 2 Dru. & War. 497.

(b) "I cannot say I see anything like a doubt on the authorities." Per Lord Cottenham, 2 M. & C. 441.

(c) Atcherley v. Vernon, 10 Mod. 526.

(d) St. John v. Bishop of Winton, Cowp. 94.

(e) Sug. 200.

Under the old law, upon a binding contract for purchase of the inheritance by a person possessed of a beneficial term for years, the term, although specifically bequeathed by a prior will, became attendant on the inheritance; so that, on the death of the purchaser, even before conveyance, his legatee of the term was merely a trustee for his heir (f): the intervention, however, of any intermediate estate, unless held in trust for the purchaser (g), would seem to prevent the operation of the rule (h): and the rule that the term became attendant was merely one of presumption, which might be rebutted by evidence of a contrary parol declaration by the purchaser (i).

It seems probable that, in cases governed by the new law, a contract for purchase, if not completed by conveyance, would, in equity, defeat (as before) the rights of a party claiming the term under a general bequest; but would not, (except in cases coming within the operation of the 8 & 9 Vict. c. 112,) affect a specific legatee of the term: but even a specific legatee would lose the benefit of the bequest, if the term were actually merged by a conveyance of the fee to the testator, or became attendant on the inheritance, or satisfied and merged under the Merger Act (j).