This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
It was formerly the law that on the death of a purchaser before completion, the heir or devisee of the equitable interest acquired under the contract was entitled, prima facie, to have the purchase-money paid or re-imbursed to him out of the deceased's personal estate (s). This was altered by the Real Estates Charges Act, 1867, which amended the Real Estates Charges Act of 1854. By the Administration of Estates Act, 1925, the Real Estates Charges Acts are repealed, and it is provided (s. 35) that where a person dies possessed of or entitled to an interest in property which at his death is charged with the payment of money, whether by way of legal mortgage, equitable charge, or otherwise (including a lien for unpaid purchase -money), and the deceased has not by will, deed, or other document, signified a contrary intention, the interest so charged shall, as between the different persons claiming through the deceased, be primarily liable for payment of the charge; and every part of such interest according to its value shall bear a proportionate part of the charge. Such contrary intention will not be deemed to be signified by a general direction for the payment of debts or of all the debts of the testator out of his personal estate, or his residuary real and personal estate, or his residuary real estate, or by a charge of debts upon any such estate, unless such intention is further signified by words referring to all or some part of the charge.
Effect of Administration of Estates Act, 1925.
(p) Bennett v. Lord Tankerville, (1811) 19 Ves. at p. 179; and see-tebbott v. Voules, (1833) 6 Si. 40.
(q) Curre v. Bowyer, (1818) 5 Beav. 6, n.
(r) See Re Thomas, (1886) 34 Ch. D. 166; 56 L. J. Ch. 9.
(s) Fletcher v. Ashburner, (1779) 1 Wh. & T. L. C. 7th ed. 327; 1 Br. C. C. 497; Langford v. Pitt, (1731) 2 P. W. 629, 632; Broome v. Monck, (1805) 10 Ves. 597, 611, 615. If the executor complete, and take the conveyance in his own name, he will be a trustee for the heir or devisee. Alleyn v. A., (1730) Mos. 262.
Sect. 24 of the Wills Act, 1837, provides that every will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appear by the will. But property will not, as a rule, pass under words of specific description, which, though applicable at the death, were inapplicable at the date of the will(t). But where there was a specific devise of "my mansion and estate called Cleeve Court," followed by a residuary devise, and the testator at the date of his will had contracted to buy an adjoining estate which was afterwards conveyed to him, and he subsequently bought other small properties, it was held (parol evidence being admitted to show what was included in the description at the date of the will and the death), that the subsequently acquired properties passed under the specific devise (u). So, where there was a specific devise of "all my messuage partly freehold and partly leasehold, No. 3, C. Street," followed by a residuary devise, and the testator subsequently purchased the reversion in fee of the leasehold portion, the whole messuage was held to pass by the specific devise (x).
Effect of Wills Act, 1837, on rights of devisee of purchaser.
Where specific description is applicable at date of death, but not at date of will.
(t) Emuss v. Smith, (1848) 2 De G. & S. 722; and see Cole v. Scott, (1849) 1 M. & G. 518; 19 L. J. Ch. 63; Douglas v. D., (1854) Kay, 400; O'toole v. Browne, (1854) 3 E. & B. 572; 23 L. J. Q. B. 282; Wagstaff v. W., (1869) 8 Eq. 229; 38 L. J. Ch. 528; and as to re-publication, s. 34; Re Champion, 1893, 1 Ch. 101; 62 L. J. Ch. 372; and Wilson v. Eden, (1850) 5 Ex. 752, 766; 20 L. J. Ex. 73.
(u) Castle v. Fox, (1871) 11 Eq. 542; 40 L. J. Ch. 302.
(x) Miles v. M., (1866) 1 Eq. 462; 35 L. J. Ch. 315; Cox v. Bennett, (1868) 6 Eq. 422; Saxton v. S., (1879) 13 Ch. D. 359; 49 L. J. Ch. 128; and see Eibon v. H., (1863) 9 Jur. N. S. 511; 32 L. J. Ch. 374; Re M. R. Co., (1865) 34 Beav. 525; Re Bick, 1920, 1 Ch. 488.
The use of the pronoun "my," in the description of the thing given, is not sufficient evidence of an intention that the will shall not speak as from the date of the death (y): nor does the adverb "now" always have that effect (3). In one case a testator devised "my cottage and all my land at S.," subject to a condition that the plantations, heather, and furze should be all preserved "in their present state," and devised "all other my freehold manor, messuages, land, and real estate whatsoever and wheresoever," to trustees upon trust for sale. At the date of his will he had a small cottage with twenty-two acres of rough land held with it at S., and he afterwards entered into a contract, which was not completed at his death, to buy a large house with ten acres of garden and land adjoining the cottage and rough land. It was held that the specific devise referred to the cottage and rough land, and did not carry the property contracted to be bought. Commenting on s. 24, Lind-ley, L. J., in his judgment said - " That (s. 24 of the Wills Act) refers to the real and personal estate comprised in the will and nothing else. It does not say that we are to construe whatever a man says in his will as if it were made on the day of his death" (a).
Effect of the word "now" in a gift by will;
It seems probable that in cases governed by the Wills Act, 1837, a contract for purchase by a testator already possessed of a term in the property would defeat the rights of a party claiming the term under a general bequest; but would not (except in cases coming within the operation of the L. P. Act, s. 5), affect a specific legatee of the term: and it seems that a specific legatee will not lose the benefit of the bequest, if the term is actually merged by a conveyance of the fee to the testator, or becomes attendant on the inheritance, or satisfied and merged under the latter Act (b).
And under Wills Act, 1837.
(y) Miles v. M., sup.; Re Reeves, 1928, Ch. 351.
(z) Wagstaff v. W., (1869) 8 Eq. 229; 38 L. J. Ch. 528; Re M. R. Co., (1865) 34 Beav. 527; 13 W. R. 851; Re Champion, 1893, 1 Ch. 101; 62 L. J. Ch. 372; Re Horton, 1920, 2 Ch. 1; Theobald, 8th ed. p. 157.
(a) Re Portal and Lamb, (1885) 30 Ch. D. 50; 54 L. J. Ch. 1012.
(b) See Miles v. if., (1866) 1 Eq. 462; 35 L. J. Ch. 315; Cox v. Bennett, (1868) 6 Eq. 422; Saxton v. S., (1879) 13 Ch. D. 359; 49 L. J. Ch. 128.