Personal representatives' assent to devise of real estate.

(i) Sect. 2 (2). (k} Sect. 2(3). (l) Sect. 3 (1).

It is not the writer's purpose to make an exhaustive comment on this Act: but its most important results may be indicated. The first of these is to assimilate the devolution of the legal estate in freehold lands held in fee to that of a chattel real (n), and to subject such lands to the same liability to their deceased owner's funeral and testamentary or administration expenses and debts as his chattels incurred at common law, though without interfering with the order in which the assets are applicable in payment of such expenses and debts (o).

Effect of the Act.

(m) Sect. 3 (2).

(n) There is this distinction, however: - Pending the appointment of an administrator, the chattels of a person dying intestate vested formerly in the ordinary, and afterwards in the judge of the Court of Probate and now appear to vest in the judges of the High Court of Justice who have succeeded to the jurisdiction of the judges of the Probate Court; Stats. 21 & 22 Vict. c. 95, s. 19: 36 & 37 Vict. c. 66, ss. 11,12, 16, 31, 34: Pinney v. Hunt, 6 Ch. D. 98; Wms. Pers. Prop. 475, 16th ed.: but the freehold estates in fee simple of a person dying intestate appear still to vest in the heir pending the appointment of an administrator. In John v. John, 1898, 2 Ch. 573, 576, North, J., held that since the commencement of the Land Transfer Act, 1897, real estate devised to a man's executors descends to the heir pending probate of the will. But this appears to have been an oversight. Where executors are appointed, they derive their authority and right to represent the testator from the will, not from the Court in which the will is proved. And the Act provides that real estate shall vest in the legal personal representatives in the same manner as chattels real vest in them, and applies to real estate the law with respect to dealing with chattels real before probate. Chattels real vest in the executors appointed by their owner's will immediately on his death; and the executors can dispose of them before probate; Graysbrook v. Fox, Plowd. 275, 281; Hensloe's Case, 9 Rep. 38a; Woolley v. Clark, 5 B. & A. 744; Brazier v. Hudson, 8 Sim. G7. And it has since been decided that the law is now the same with regard to real estate; Re Pawley and London and Provincial Bank, 1900, 1 Ch. 58. But were this not so, it does not appear that real estate devised would descend to the heir pending probate. When an administrator has been appointed, his title to the real estate relates back to the intestate's death; Be Pryse, 1904, P. 301, 306.

(o) See Re Jones, 1902, 1 Ch. 92; Re Vickerstaff, 1906, 1 Ch. 762; Be Belts, 1907, 2 Ch. 149. The order is as follows: 1. The general personal estate not expressly or impliedly exempted.

2. Lands expressly devised to pay debts, whether the inheritance or a term carved out of it, be so limited.

Then the personal representatives are invested with the same powers of disposition over such lands as they have at common law with respect to chattels real (p); but with the important distinction that such powers are not exerciseable by some or one only of several joint personal representatives without the authority of the Court. And it has been decided that, where a testator appoints several executors, his real estate vests in all of them immediately on his death; so that if any one of them do not prove the will and do not renounce probate, the others cannot dispose of the real estate without his concurrence (q). Where, however, the testator appoints general executors and also special executors (as of his assets in a colony or foreign country) his real estate in England vests in his general executors only, who can sell and convey the same without the concurrence of the special executors (r). The Act makes it equally necessary for executors to assent to a devise of land, whether specific or residuary (s), as to a specific bequest of personalty. And the executors' assent is sufficient to vest in the devisee the legal estate in the devised lauds, without any formal conveyance, as in the case of assent to the specific bequest of a chattel real (t). But where lands are not devised bat suffered to descend, the legal personal representatives must convey the same to the heir (u). Having regard to the provisions of the Act with regard to the powers of several executors to sell or transfer real estate and the right of the heir or devisee to require a transfer of the same (0), and the above-mentioned decision (w), the question is raised whether all those appointed executors (save such as have renounced probate) must not join in assenting to a specific devise (x). It seems clear that they must all join in a conveyance of the real estate to the devisee or heir. Where the personal representatives convey the real estate to the heir or devisee, subject to a charge for the payment of any money which they are liable to pay (y), and have previously issued the usual statutory advertisements for creditors, the charge does not extend to debts of which they had no notice at the time of conveyance (a).

3. Estates which descend to the heir, whether acquired before or after the making of the will: see Re Pullen, 1910, 1 Ch. 564.

4. Real or personal property devised or bequeathed, either to the heir or a stranger, charged with debts, and disposed of, subject to such charge; He Salt, 1895, 2 Ch. 203; Re Roberts, 1902, 2 Ch. 834; Re Kempster, 1906, 1 Ch. 446; Re Balls, 1909, 1 Ch. 791, 794.

5. General pecuniary legacies.

6. Specific legacies and real estate devised, whether in terras specific or residuary, pro rata.

7. Real and personal property over which the testator had a general power of appointment, and which he has appointed, either by his will or by deed, in favour of a volunteer. See 2 Jarm. Wills, 622, 4th ed.; Wms. Real Prop. 282-285, 21st ed. The Act does not give to an executor or administrator any right of retainer out of real estate; Re Williams, 1904, 1 Ch. 52.