Devolution of lands on death is a fact of title which is constantly brought before the conveyancer. As the law on this subject has lately been altered it is deserving of special consideration. We will begin by giving a short summary of the law in force before the 1st of January, 1898, when the Land Transfer Act, 1897 (a), took effect.

Devolution on death before 1898.

Dower and curtesy.

Dower.

(a) Stat. 60 & 61 Vict. c. 65; see sect. 25.

(b) Stat. 3 & 4 Will. IV. c. 105, s. 14.

(c) See Wms. Real Prop. 322 sq., 390, 21st ed.

The first thing to be remembered in considering who were rightly entitled to succeed to lands on a former owner's death is the law of dower and curtesy. For the purpose of the investigation of title, it may still be necessary to have regard to the old law of dower, which continued to regulate the dower of all widows who were married before or on the 1st of January, 1834 (b). It will be remembered that, at common law, the wife's dower was paramount to every alienation by the husband, whether in his lifetime or by will, of any lands on which the claim had attached: but that in modern times the wife's claim was generally prevented from attaching by the assurance of lands on a purchase to uses to bar dower (c). The dower of women married after the 1st of January, 18-34, is governed by the Dower Act (d).

This statute deprives the widow of dower out of any land, of which her husband has absolutely disposed in his lifetime or by will (e); and postpones her right to dower to all partial estates and interests and all charges created by any disposition or will of the husband, and all debts, incumbrances, contracts and engagements to which his land shall be subject or liable (f). It enables the husband to bar his wife's right to dower out of any land by declaration to that effect contained in any deed of his or by will (g), or to restrict her right to dower by his will (h); and it also deprives the widow of dower out of any land, in which her husband has devised any estate or interest for her benefit, unless a contrary intention be declared by his will (i). The general effect of these provisions is that a widow can only claim dower out of lands, which her husband has suffered to descend; and even out of such lands her right to dower may be barred, restricted or postponed (k). But it must not be forgotten, in advising on title, that on the death of a tenant of freeholds in fee intestate or on the death of a tenant in tail, his widow may still be entitled to dower.

(d) Stat. 3 & 4 Will. IV. c. 105.

(e) Sect. 4.

(f) Sect. 5. The opinion has been expressed that, notwithstanding the above words, the widow's dower is paramount to the claims of her late husband's creditors, who have not in his lifetime obtained a charge on his lands; Romilly, M.R., Spyer v. Hyatt, 20 Beav. 621; Wood, V.-C, Jones v. Jones, 4 K. & J. 361. In neither of these cases, however, was the expression of this opinion necessary to the decision. Spyer v. Hyatt was a case of freebench; and it had been previously decided that the Dower Act has no application to freebench; Smith v. Adams, 18 Beav. 499; 5 De G. M. & G. 712; so Lord Romilly's dictum was peculiarly gratuitous. Jones v. Jones was the case of a mortgage by the husband. It is submitted that, according to the ordinary meaning of the words used in the Act, a man's lands are by stat. 3 & 4 Will. IV. c. 104, made "subject or liable" to his debts after his death, notwithstanding that his creditors have no charge thereon.

(g) Sects 6, 7.

(h) Sect. 8.

(i) Sect. 9.

(k) See Wms. Real Prop. 326, 327, 21st ed.

Curtesy at common law was of course an estate commencing in the wife's lifetime on the birth of issue that might inherit (l). But as regards estates of inheritance held on trust for the wife's separate use or held by her as her separate property under the Married Women's Property Act, 1882, the husband lias no right to possession or receipt of the rents and profits during his wife's lifetime, and he can only claim an estate by the curtesy, if entitled by the birth of issue, on the wife's death and intestacy; and not in case she has disposed of the estate in her lifetime or by will (m).

Curtesy.

Subject to the law of dower and curtesy, on the death before the year 1898 of a tenant of freeholds who was also the beneficial owner, his estate devolved as follows according to its nature: - An estate in fee simple passed directly to the devisee, if it should have been disposed of by will (n), or in case of intestacy, to the heir of the last purchaser (o). In case of a total failure of the heirs of the last purchaser, the estate descended to the heir of the person last entitled thereto (p): but if there were no such heir, it escheated to the lord of the fee, and usually to the Crown, in default of any mesne lord being able to prove his title (q). It does not fall within the scope of the present work to set out all the rules for the descent of a fee to the heir of the last purchaser or person last entitled (r): but the conveyancer may be reminded of the interest given by the Intestates' Estates Act, 1890 (s), to the widow in the real estate of any man dying intestate after the 1st of September, 1890, and leaving a widow but no issue. Estates tail, if not barred in the tenant's lifetime (t), descended to the heir in tail per forma, doni (u). And where lands are subject to the custom of gavelkind or borough-English, it must not be forgotten that the descent of estates tail, as well as estates in fee simple, is regulated by the custom (x). Life estates of course cease on death: but estates pur autre fie passed, if devised, to the devisee, and otherwise either to the heir as special occupant, or if there were no special occupant to the deceased tenant's executors or administrators; and in the last-mentioned event they became distributable in the same manner as personalty (y).