(r) Sub-s. 2 makes provision for the appointment of local guardians of infants in outer counties. As to an order of a judge in lieu of the consent or approval of the Official Guardian, see Be-langer v. Belanger, 1911, 24 O.L.R. 439.

(s) This section confers the power to sell for payment of debts without the concurrence of the beneficiaries. Re Ross and Davies. 1904, 7 O.L.R. 433.

It is provided by the Trustee Act, R.S.O. 1914, c. 121, ss. 44, 45 and 47, as follows:

44. Where there is in a will a direction, express or implied, to sell, dispose of, appoint, mortgage, encumber or lease any land, and no person is by the will or otherwise by the testator appointed to execute and carry the same into effect, the executor, if any, named in such will may execute and carry into effect every such direction in respect of such land, and any estate or interest therein in the same manner and with the same effect as if he had been appointed by the testator for that purpose.

45. Where from any cause a court of competent jurisdiction has committed to a person, who has given security to the satisfaction of such court for his dealing with such land and its proceeds, letters of administration with a will annexed which contains an express or implied power to sell, dispose of, appoint, mortgage, encumber or lease any land, whether such power is conferred on an executor named in the will or the testator has not by the will or otherwise appointed a person to execute it, the administrator may exercise the power in respect of such land in the same manner and with the same effect as if he had been appointed by the testator for that purpose.

(t) The other sub-sections make provision as to the consent of the persons beneficially interested in the case of a sale for the purpose of distribution only. As to the power of the Official Guardian to consent on behalf of non-concurring heirs or devisees, see In re Bradley's Estate, 1903, 6 O.L.R. 397. The section is intended to make it clear that personal representatives have power to sell for purposes of distribution where there are no debts as well as where there are debts, and the consent of the beneficiaries is not necessary unless the sale is for purposes of distribution only. Re Ross and Davies, 1904, 7 O.L.R. 433. The original of this section was 54 V. c. 18, s. 2, passed in 1891, which provided that where infants are entitled "and there are no debts," the approval of the Official Guardian should be necessary. The inconsistency of this section with the predecessor of the present s. 19 was pointed out in Re Fletcher's Estate, 1895, 26 O.R. 499, at p. 504. In 1900 by 63 V. c. 17, s. 17, the words "and there are no debts" were struck out'. In 1910 the section was revised and put in its present form.

47.- (1) Subject to the provisions of The Devolution of Estates Act where, by any will coming into operation after the eighteenth day of September, 1865, a testator charges his land, or any specific part thereof, with the payment of his debts or with the payment of any legacy or other specific sum of money, and devises the land so charged to a trustee for the whole of his estate or interest therein, and does not make any express provision for the raising of such debt, legacy or sum of money out of such land, the devisee in trust, notwithstanding any trusts actually declared by the testator, may raise such debt, legacy or money by a sale and absolute disposition, by public auction or private contract, of such land or any part thereof, or by a mortgage of the same, or partly by one mode and partly by the other, and in any mortgage so executed may agree to such rate of interest and such period of repayment as he may think proper.

(2) The powers conferred by this section shall extend to every person in whom the land devised is for the time being vested by survivorship, descent or devise, and to any person appointed under any power in the will or by the Supreme Court to succeed to the trusteeship vested in such devisee in trust.

(3) If a testator who creates such a charge does not devise the land so charged in such terms that his whole estate and interest therein become vested in a trustee the executor for the time being named in the will, if any, shall have the like power of raising money as is hereinbefore conferred upon the devisee in trust; and such power shall from time to time devolve upon and become vested in the person in whom the executorship is for the time being vested.

(4) Any sale or mortgage under this section shall operate only on the estate and interest of the testator.

(5) Purchasers or mortgagees shall not be bound to inquire whether the powers conferred by this section, or any of them, have been duly and correctly exercised by the person acting in virtue thereof.

(6) This section shall not 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, or affect the power of any such devisee to sell or mortgage (u).

Where a testatrix, after a direction to pay her debts, devised land to her executor and trustee and his executors and administrators, upon trust to retain for his own use for life, and directed that after his decease his executors or administrators should sell the land and divide the proceeds among her children, it was held that this was a devise of the land out and out as to the legal estate, and the words "his executors and administrators" being equivalent to "heirs and assigns" the executor had the right by virtue of the Trustee Act to mortgage the entire fee for debts; and that the mortgagee in such a mortgage, made within eighteen months of the death, was exonerated from all enquiry (v). The Devolution of Estates Act does not apply to a case where the executor derives his title to the land from, and acts under the will and the provisions of the Trustee Act (w).

(u) See Re Ross and Davies, 1904, 7 O.L.R. 433. S. 47 is a consolidated and revised edition of R.S.O. 1897, c. 129, ss. 16 to 20, which were a copy of the English statute 22-23 V. c. 35, ss. 14 to 18. For a full discussion of the statute, see Farwell on Powers, 3rd ed., pp. 99 ff.; Armour, Devolution of Land, pp. 280 ff.

The devisee of real estate under the will of a testator subject to the Devolution of Estates Act has a transmissible interest in the lands during the three years after the death of the testator, pending which time they are vested by the act in the legal personal representatives. Where real estate devised by a will so subject to the Devolution of Estates Act, of which letters of administration with the will annexed had been granted during the three years succeeding the testator's death, but as to which no caution had ever been registered, was during such period mortgaged by the devisee in good faith, it was held that the mortgage was operative between the devisee and the mortgagee when made, and became fully so as to the land and against the personal representatives when such period expired, in the absence of any warning that it was needed for their purposes (x).

It is provided by the Settled Estates Act, R.S.O. 1914, e. 74, as follows:

(v) Mercer v. Neff, 1898, 29 O.R. 680, following In re Bailey, Bailey v. Bailey, 1879, 12 Ch.D. 268; In re Tanqueray-Willaume and Landau, 1882, 20 Ch.D. 476.

(w) Mercer v. Neff, 1898, 29 O.R. 680.

(x) Re McMillan, McMillan v. McMillan, 1893, 24 O.R. 181. As

2.-(1) In this Act

(a) "Court" shall moan the Supreme Court.

(e) "Settled estate" shall mean land and all estates or interests in land which are the subject of a settlement.

(f) "Settlement" shall mean a statute, deed, agreement, will or other instrument, or any number of such instruments, under and by virtue of which land or any estate or interest in land stands limited to or in trust for any persons by way of succession, including any such instruments affecting the estates of any one or more of such persons exclusively.

» 14.-(1) The Court, if it deems it proper and consistent with a due regard for the interests of all parties entitled under the settlement, and subject to the provisions and restrictions in this Act (y), may

(a) from time to time authorize a mortgage of the whole or any part of any settled estate for the purpose of raising money to repair, build or alter any existing building

Upon the estate, or otherwise to build upon or improve the same; or for the purpose of raising money to pay off and discharge wholly or in part any encumbrance thereon.

(2) Such mortgage shall be authorized wherever the Court is of opinion that the interests of the estate or any part thereof or of the persons entitled to the estate or any part thereof require, or will be promoted by such mortgage (z).