By the Devolution of Estates Act, 1886, which applied only to the estates of persons dying on or after the 1st of July, 1886, it was provided that (a) all estates of inheritance in fee simple, or limited to the heir as special occupant, in any tenements or hereditaments in Ontario, whether corporeal or incorporeal, (b) chattels real in Ontario, and (c) all other personal property of any person who had died domiciled in Ontario, which was vested in any person, should on his death, notwithstanding any testamentary disposition, devolve upon and become vested in his legal personal representatives from time to time, and subject to the payment of his debts; and that so far as the property was not disposed of by deed, will, contract or other effectual disposition, it should be distributed in the same manner as personal property not so disposed of (q).

(l) Attorney-General of Ontario v. Mercer, 1883, 8 App. Cas. 767, reversing 5 Can. S.C.R. 538.

(m) Coote, Law of Mortgages, 8th ed., vol. 1, p. 665; cf. Re Raycraft, 1910, 20 O.L.R. 437; In England by 4 & 5 W. 4, c. 23, ss. 3, 5, re-enacted by 13 & 14 V. c. 60, ss. 46, 47, it was provided that no lands vested in any person upon any trust or by way of mortgage should escheat or be forfeited by reason of the attainder or conviction for any offence of such trustee or mortgagee except as regards any beneficial interest of such trustee or mortgagee. See now the provisions of the Trustee Act, 1893, 56 & 57 V. c. 53, mentioned below.

(n) Downe (Viscount) v. Morris, 1844, 3 Hare 394; cf. Lewin, Law of Trusts, 12th ed., pp. 277-279.

(o) 13 & 14 V. c. 60, ss. 15, 19, replaced by the Trustee Act, 1893, 56 & 57 V. c. 53, ss. 26, 29.

(p) R.S.O. 1914, c. 121, ss. 6, 9. See chapter 19, Discharge or Reconveyance, Sec. 186, for the text of the provisions as to mortgagees. As to the escheat of the interest of a cestui que trust or a mortgagor, see chapter 17, Persons entitled on Death of the Mortgagor, Sec. 161.

In 1910 (r) these provisions of the Devolution of Estates Act were superseded by the provision which is now contained in R.S.O. 1914, c. 119, s. 3, as follows:

3.- (1) All real and personal property which is vested in any person without a right in any other person to take by survivorship shall, on his death, whether testate or intestate, and notwithstanding any testamentary disposition, devolve to and become vested in his personal representative from time to time as trustee for the persons by law beneficially entitled thereto and, subject to the payment of his debts, and so far as such property is not disposed of by deed, will, contract or other effectual disposition, the same shall be administered, dealt with and distributed as if it were personal property not so disposed of.

(2) This section shall apply to property over which a person executes by will a general power of appointment as if it were property vested in him.

(3) This section shall not apply to estates tail or to the personal property, except chattels real, of any person who, at the time of his death, is domiciled out of Ontario.

In the same year (s) there was enacted a provision, specially applicable to property vested in trust or by way of

(q) 49 V. c. 22, ss. 2, 3, 4. Clause (a) was amended in 1902 so as to make the statute applicable to "all estates of inheritance in fee simple, and all estates held by the deceased for the life of another, in any tenements or hereditaments in Ontario whether corporeal or incorporeal." 2 E. 7, c. 1, s. 3.

(r) 10 E. 7, c. 56, s. 3, adopting in substance the language of the English Land Transfer Act, 1897, s. 1.

(s) 10 E. 7, c. 56, s. 8, adopting in substance the language of the mortgage, which is now contained in the Devolution of Estates Act, R.S.O. 1914, c. 119, s. 8, as follows:

8. Where an estate or interest of inheritance in real property is vested on any trust or by way of mortgage in any person solely the same shall on his death, notwithstanding any testamentary disposition, devolve to and become vested in his executor or administrator in like manner as if the same were personal estate vesting in him and, accordingly, all the like powers for only one of several joint executors or administrators as well as for a single executor or administrator and for all the executors and administrators together to dispose of and otherwise deal with the same shall belong to the deceased's executor or administrator with all the like incidents but subject to all the like rights, equities and obligations as if the same were personal estate vesting in him, and for the purposes of this section the executor or administrator of the deceased shall be deemed in law his heirs and assigns within the meaning of all trusts and powers.

The effect of these statutes is to render unnecessary and inoperative any devise of mortgaged land so far as the legal estate is concerned as that estate now devolves on the personal representative of the mortgagee notwithstanding any testamentary disposition.

It is further provided by the Devolution of Estates Act, s. 7, as follows:

7. When any part of the real property of a deceased person vests in his personal representative under this Act such personal representative, in the interpretation of any Act of this Legislature, or in the construction of any instrument to which the deceased was a party, or under which he is interested, shall, while the estate remains in him, be deemed in law his heir, as respects such part, unless a contrary intention appears; but nothing in this section shall affect the beneficial right to any property, or the construction of words of limitation of any estate in or by any deed, will or other instrument.

English Conveyancing Act, 1881, s. 30, except that in the English Act the words "a chattel real" occur instead of "personal estate" and the opening words are "where an estate or interest of inheritance, or limited to the heir as special occupant, in any tenements or hereditaments, corporeal or incorporeal, is vested on any trust, or by way of mortgage.'" As to the English legislation, see 18 R.C. at pp. 241-243.

It is further provided by the Devolution of Estates Act that real property not disposed of, conveyed to, divided or distributed among the persons beneficially entitled thereto, by the personal, representative within three years after the death of the deceased person shall, subject to the Land Titles Act in the case of land registered under that Act, at the expiration of that period be thenceforward vested in the persons beneficially entitled thereto under the willor upon the intestacy or their assigns without any conveyance by the personal representative. The vesting of the property under the statute may, however, be postponed, or, in some circumstances, defeated after having taken place, by the registration or successive registrations of a caution or cautions by the personal representative (t). If the will has not been proved or registered or, in the case of intestacy, if letters of administration have not been granted, no title to lands will vest in the persons beneficially entitled, or in any purchaser from them unless and until the consent in writing of the Treasurer of Ontario to the vesting of such title, or a certificate of the registrar of the proper surrogate court showing that a statement has been filed under the Succession Duty Act, has been registered (u).