(y) See Wms. Real Prop. 293, 294, 21et ed.

(z) See Price v. Price, 35 Ch. D. 297.

(a) Ibid.; and see Corser v. Cartwright, L. R. 7 H. L. 731.

(b) Lewin on Trusts, 391, 392, 515. 6th ed.; 515, 733, 734, 10th ed.

Before 1898, the rule was that an executor took no estate or interest by virtue of his office in any of his testator's real estate; any devise of such real estate was entirely independent of the executor's assent or interference (d); and, as we have seen (e), a will of real estate, as such, did not require probate. We have noticed (f) the exceptions created by statute in the case of estates pur autre rip undevised, where there was no special occupant, and of estates held on trust or by way of mortgage. But of course a man might expressly devise his lands to his executors on trust for sale or otherwise, or so that his executors should have a power of disposing of his lands; and such devises were commonly made whenever a testator desired that any of his real estate should be sold or applied in payment of his debts. And in certain cases a power for a man's executors to sell his real estate would be implied. Thus if by will lands were directed to be sold, without saying by what persons the sale was to be made, it would be implied that the executors should have the power of selling the lands, if the proceeds of sale would be distributable by the executors, as where the sale was directed to be made for the purpose of paying debts or legacies or the testator had created a mixed fund composed of the proceeds of sale of such lands and of personalty (g). And about the middle of the last century it was decided in equity (h) that a mere testamentary charge of debts on real estate implied a power for the executors to sell the real estate so charged (i). This doctrine met with severe criticism from eminent lawyers (j); it was not only thought to be unwarranted by reason or authority, but it threw doubt on the previously received opinion that a devisee of lands charged with debts could so dispose of the same as to exonerate the purchaser from seeing that the testator's debts were paid (k). In 1859, statutory provision was made to remove the difficulties then attendant on the sale of lands charged by will with the payment of debts. Lord St. Leonards' Act (l) provides (m) that where, by any will that shall come into operation after the passing of the Act, the testator shall have charged his real estate or any specific portion thereof with the payment of his debts or of any legacy, or other specific sum of money, and shall have devised the estate so charged to any trustee or trustees for the whole of his estate or interest therein, and shall not have made any express provision for the raising of such debt, legacy or sum of money out of such estate, such trustee or trustees may, notwithstanding any trusts actually declared by the testator, raise such debts, legacy or money by sale or mortgage of the lands devised to them. But if any testator, who shall have created such a charge, shall not have devised the hereditaments charged in such terms as that his whole estate and interest therein shall become vested in any trustee or trustees, the executor or executors for the time being named in his will (if any) shall have the same power of raising the same moneys as is before vested in the trustees (n). And purchasers or mortgagees are not to be bound to inquire whether the powers thus conferred shall have been duly exercised by the persons acting in exercise thereof (o). But these provisions are not to prejudice or affect any sale or mortgage made or to be made in pursuance of any will coming into operation before the passing of the Act; nor are they to extend to a devise to any person in fee or in tail or for the testator's whole estate and interest charged with debts or legacies; nor are they to affect the power of any such devisee to sell or mortgage as he or they may by law now do (p). It will be observed that this last enactment does not expressly settle the question whether a devisee of lands charged with debts could dispose of them freed from the charge, according to the old conveyancing opinion (q). And in a subsequent case in the House of Lords, where it was held that a devisee of lands charged with debts, who was also an executor, could certainly dispose of the lands freed from the charge, Lord Cairns observed that different considerations might arise where such a devisee was not executor (r). Mr. Joshua Williams, however, appears to have had no hesitation in pronouncing for the old conveyancing opinion (s) in this case, namely, that the charge of debts enabled the devisee to give a receipt for the purchase-money exonerating the buyer from seeing to its application (t). And Mr. Dart approved of this conclusion on principle: although he advised that a prudent purchaser could scarcely disregard Lord Cairns' dictum, and recommended him, in cases not covered by Lord St. Leonards' Act, either to satisfy himself that the debts were paid, or to procure the executors' authority for payment of the purchase-money to the devisee (u). It has been held that, when executors sell real estate charged with debts under the power of sale so given by statute, the purchaser is not bound to inquire whether any debts remain unpaid, until twenty years have elapsed after the testator's death (x).

Executors formerly had no interest in their testator's real estate.

Power for executors to sell real estate might be implied.

(c) Neeves v. Burrage, 14 Q. B 504.

(d) See 1 Wms. Exors. pt. ii bk. ii.; Wms. Real Prop. 260, 21st ed.

(e) Above, p. 161.

(f) Above, pp. 216, 217, 22X.

(g) Bug. Pow. 118, 8th ed.; 1 Wms. Exors. 666, 7th ed.; Wms. Real Assets, 53-55, 77 sq.

(h) The contrary was decided at law: Doe d. Jones v. Hughes. 6 Ex. 223.

W

Statutory powers.

(i) Wrigley v. Sykes, 21 Beav. 337; Sabin v. Ecape, 27 Beav. 553.

(j) Sug. Pow. 120-122; Sug. V. & P. 662, n.; Wms. Real Assets, 81 sq.; Lewin on Trusts, 402 sq., 6th ed.; 526 sq., 10th ed.