In Ontario by virtue of the Devolution of Estates Act, R.S.O. 1914, c. 119, upon the death of the owner of the equity of redemption in lands (whether testate or intestate, and notwithstanding any testamentary disposition) his interest devolves to and becomes vested in his personal representative as trustee for the persons by law beneficially entitled thereto, and, subject to the payment of his debts, and so far as such interest is not disposed of by deed, will, contract or other effectual disposition, it is distributed as if it were personal property not so disposed of (k).

So long as the equity of redemption remains vested in the personal representatives of the mortgagor or other owner of the equity of redemption, an action for foreclosure or sale is properly constituted if the personal representatives and not the persons beneficially entitled are made defendants (I).

It is further provided by the Devolution of Estates Act, ss. 5 and 6, as follows:

5. Subject to the other provisions of this Act in the administration of the assets of a deceased person, his real property shall be administered in the same manner, subject to the same liability for debts, costs and expenses and with the same incidents as if it were personal property, but nothing in this section shall alter or affect as respects real or personal property of which the deceased has made a testamentary disposition the order in which real and personal assets are now applicable to the payment of funeral and testamentary expenses, the costs and expenses of administration, debts or legacies, or the liability of real property to be charged with the payment of legacies.

(k) See s. 3 of the statute quoted in chapter 13, Persons entitled on Death of Mortgagee, Sec. 123. See also s. 13 of the same statute, referred to in Sec. 123, providing for the vesting in the persons beneficially entitled of real property not disposed of, divided among the persons beneficially entitled or conveyed by the personal representative within three years after the death of the owner.

(l) Plenderleith v. Smith, 1905, 10 O.L.R. 188; see chapter 24, Action for Foreclosure or Sale, Sec. 234. As to service of notice of exercising a power of sale upon the "heirs" of the mortgagor, see chapter 31, Sale under Tower of Sale, Sec. 339.

6. Subject to provisions of section 38 of The Wills Act the real and personal property of a deceased person comprised in any residuary devise or bequest shall, except so far as a contrary intention appears from his will or any codicil thereto, be applicable rateably, according to their respective values, to the payment of his debts, funeral and testamentary expenses and the cost and expenses of administration.

It will be observed that although under s. 5 the real property of a deceased person is subject to the same liability for debts as if it were personal property, that is, as regards the creditor's remedies, the section does not "alter or affect the order in which real and personal assets are now applicable to the payment" of debts, that is, as regards the beneficiaries of the estate.

So far as the beneficiaries are concerned, the personal estate of a testator not specifically bequeathed is the primary fund for the payment of his debts unless such estate is exonerated by express words or necessary implication (m). The rule was formerly applied, subject to some exceptions, even in the case of a mortgage debt but in this respect it has been reversed by the statute commonly known as Locke King's Act, being s. 38 of the Wills Act (n). The rule has also been modified in Ontario by the provisions now contained in s. 6 of the Devolution of Estates Act quoted above, which renders the real and personal property of a deceased person comprised in any residuary devise or bequest applicable rateably according to their respective values to the payment of his debts (o).

Subject only to the change effected by s. 6 of the Devolution of Estates Act (p) and to Locke King's Act, the real and personal estate of a deceased person is applicable in payment of his debts, so far as he has not indicated an intention to the contrary, in the following order (q):

(m) Ancaster (Duke of) v. Mayer, 1785, 1 Bro. Ch. 453, 1 W. & T.L.C. Eq. 1, 18 R.C. 176.

(n) See Sec. 163, infra.

(o) Scott v. Supple, 1893, 23 O.R. 393. It was held that Locke King's Act was not superseded by, but should be read together with, the Devolution of Estates Act. Mason v. Mason, 1887, 13 O.R. 725. In accordance with this decision s. 6 of the Devolution of Estates Act is now expressed to be subject to s. 38 of the Wills Act.

(1) The general personal estate, or residuary personalty, not specifically bequeathed or expressly or impliedly exonerated (excluding a fund to be retained to meet pecuniary legacies).

(2) Real estate devised in trust for (not merely charged with) the payment of debts.

(3) Real estate descended, whether possessed by the testator at the date of his will or acquired afterwards.

(4) Real or personal property charged with the payment of debts and devised, or specifically bequeathed subject to such charge, rateably inter se. Where part of the property charged lapses, the lapsed share contributes rateably, and is not liable until after descended estate.

(5) General pecuniary legacies pro rata and demonstrative legacies in so far as there is a deficiency in the designated fund.

(6) Specific and residuary devises, and specific bequests, not charged with debts, rateably inter se. When, however, a specific bequest is made which has been charged with a debt in the lifetime of the testator, then, although the real estate is charged with the payment of debts, the property specifically bequeathed must first be applied in payment of the particular debt charged upon it.

(7) Real and personal estate appointed by will under a general power of appointment. Where, however, a power of appointment is exercised by a general bequest the property subject to the power passes as forming part of the bequest, and not as on an express exercise of the power, and is therefore not necessarily postponed to other assets of the Testator. (8) Widow's paraphernalia, is now capable of existing.

(p) Re Hopkins Estate, 1900, 32 O.R. 315.

(q) See 1 W. & T.L.C. Eq. pp. 31, 32, in the notes to Ancaster (Duke of) v. Mayer, supra; Williams, Real Property, 21st ed., p. 282, note; Maitland, Equity and the Forms of Action, pp. 207, 208.