Formerly, however, the legal estate in the mortgaged land devolved according to the ordinary rules applicable to property held absolutely and not by way of mortgage. If a mortgagee of freehold died intestate or did not devise the mortgaged land, the legal estate descended to the heir at law, although the mortgage debt devolved on the executor or administrator (e). In such a case the heir held the legal estate as trustee for the executor or administrator and was bound to convey it accordingly. The mortgagee might by his will devise the legal estate to one person and bequeath the mortgage debt to another, in which case the devisee became a trustee, first, for the executor, and after his assent for the legatee. Frequently, in order to avoid the inconvenience arising from the separation of the legal estate and the right to the mortgage debt, testators expressly devised all legal estates vested in them by way of mortgage to their executors, so as to enable the latter effectually to deal with the mortgages without recourse to any other persons. A general devise of real estate would pass the legal estate in land held by way of mortgage in the absence of a contrary intention appearing from the will (f).

The inconvenience arising from the separation of the legal estate and the right to the mortgage debt, where the mortgagee died intestate or did not devise the mortgaged land to his executor, was remedied, in Ontario by the provision of the statute 14 & 15 V. c. 7, s. 8, which, as amended by 32 V. c. 10, s. 2, is now contained in the Mortgages Act, R.S.O. 1914, c. 112, s. 10, as follows:

10. Where a person entitled to any freehold land by way of mortgage has died, and his executor or administrator has become entitled to the money secured by the mortgage, or has assented to a bequest thereof, or has assigned the mortgage debt, such executor or administrator, if the mortgage money was paid to the testator or intestate in his lifetime, or on payment of the principal money and interest due on the mortgage, or on receipt of the consideration money for the assignment, may convey, assign, release or discharge the mortgage debt and the mortgagee's estate in the land; and such executor or administrator shall have the same power as to any part of the land on payment of some part of the mortgage debt, or on any arrangement for exonerating the whole or any part of the mortgaged land, without payment of money; and such conveyance, assignment, release or discharge shall be as effectual as if the same had been made by the persons having the mortgagee's estate (g).

(e) Hunter v. Farr, 1864, 23 U.C.R. 324; Doe dem. Slason v. Hanson, 1857, 8 N.B.R. (3 Allen) 427.

(f) In re Stevens' Will, 1868, L.R. 6 Eq. 597, 18 R.C. 238, and editor's notes at p. 240; cf. 21 Halsbury, Laws of England, p. 182 note(q).

Under this statute the mortgagee's estate is not vested in his personal representative, but the latter may, nevertheless, in certain circumstances, convey, assign, release or discharge such estate as if it were vested in him (h).

When a tenant in fee simple dies, without having alienated his lands in his lifetime or by his will (either of which prevents escheat) and without leaving any blood relation to succeed him as his heir, such lands will fall into the lord of whom they were held (i), that is, in Canada to the Crown in right of the Dominion of Canada in the case of Alberta (j), Saskatchewan, the Northwest Territories and Manitoba (k), and in right of the province in the case of any of the other provinces

(g) As to the history of this provision, see Dilke v. Douglas, 1880, 5 O.A.R. 63, at pp. 70, 71.

(h) As to discharge, see chapter 19, Discharge or Reconveyance, Sec. 185.

(i) Williams, Real Property, 21st ed., p. 56.

(j) Trusts and Guarantee Co. v. The King, 1916, 54 Can. S.C.R. 107, 32 D.L.R. 469, affirming 15 Can. Ex. R. 403, 26 D.L.R. 129. See article by Walter S. Scott in 37 C.L.T. 764 (November, 1917).

(k) Lefroy, Canada's Federal System, pp. 725-6, citing the report of Sir Alexander Campbell, 25th August, 1885, upon the Manitoba statute 47 V. c. 26, respecting escheats and forfeitures of estates of insolvents: Hodgins, Provincial Legislation, 1867-1895, at pp. 838-9, 853, 856.

(l). Lands vested in any person upon any trust or by way of mortgage are subject to escheat in so far as they have not been exempted by statute (m). The opinion has been expressed that a lord who is in by escheat would be bound by an equity of redemption, if not by a trust (n). It is now provided in England (o) and in Ontario (p) that where there is no heir or personal representative of a trustee or mortgagee who has died intestate as to land or where a trustee or mortgagee has died and it is uncertain who is his heir or personal representative, the court may, subject to the conditions mentioned in the statute, make an order vesting the land in such person or persons, in such manner, and for such estate as the court may direct.