Formerly, on the death of a mortgagor of land, the mortgage debt, like other debts (r), was primarily payable out of his personal estate, if the mortgage debt was the debt of the deceased himself, so that his heir or. devisee was entitled, as a rule, to have the land exonerated from the mortgage at the expense of the mortgagor's general personal estate (s). But this rule was reversed in England by a statute of 1854, commonly called Locke King's Act, and the statutes amending it in 1867 and 1877 (t). These statutes have in substance "been adopted in Ontario, and are now embodied in the Wills Act, R.S.O. 1914, c. 120, s. 38, as follows (u) :

38.- (1) Where any person has died since the 31st day of December, 1865, or hereafter dies, seized of or entitled to any estate or interest in any real estate, which, at the time of his death, was or is charged with the payment of any sum of money by way of mortgage, and such person has not, by his will or deed or other document, signified any contrary or other intention, the heir or devisee to whom such real estate descends or is devised shall not be entitled to have the mortgage debt discharged or satisfied out of the personal estate, or any other real estate of such person, but the real estate so charged shall, as between the different persons claiming through or under the deceased person, be primarily liable to the payment of all mortgage debts with which the same is charged, every part thereof according to its value bearing a proportionate part of the mortgage debts charged on the whole thereof.

(r) See Sec. 162.

(s) The rule was subject to some exceptions. The law prior to the passing of Locke King's Act is briefly stated, and the effect of that statute and the statutes amending it is discussed in 1 W. & T.L.C. Eq. at pp. 22 ff., in the notes to Ancaster (Duke of) v. Mayer, supra.

(t) 17 & 18 V. c. 113; 30 & 31 V. c. 69; 40 & 41 V. c. 34.

(u) The section was expressed in its present form in 1910 by 10 E. 7, c. 57, s. 38. Sub-ss. 1 and 3 are in effect the same as the English statute of 1854, and sub-s. 2, read along with the definition of "mortgage" is in substance to the same effect as the English statutes of 1867 and 1877. See, however, the definition of " real estate" in the Ontario statute.

(2) In the construction of a will to which this section relates. a general direction that the debts, or that all the debts, of the testator shall be paid out of his personal estate, or a charge or direction for the payment of debts upon or out of residuary real estate and personal estate or residuary real estate shall not be deemed to be a declaration of an intention contrary to or other .than the rule in subsection 1 contained, unless such contrary or other intention is further declared by words expressly or by necessary implication referring to all or some of the testator's debts charged by way of mortgage on any part of his real estate.

(3) Nothing herein shall affect or diminish any right of the mortgagee to obtain full payment or satisfaction of his mortgage debt, either out of the personal estate of the person so dying or otherwise; and nothing herein shall affect the rights of any person claiming under any will, deed or document made before the first day of January, 1874.

By s. 2 of the Wills Act " mortgage" is defined as including any lien for unpaid purchase money, and any charge, incumbrance, or obligation of any nature whatever upon any land or tenements of a testator or intestate, and " real estate" is defined as including messuages, land, rents, and hereditaments, whether freehold or of any other tenure, and whether corporeal, incorporeal or personal, and any undivided share thereof, and any estate, right, or interest (other than a chattel interest) therein (v).

The result of the statute is that as regards the beneficiaries of the estate of a deceased mortgagor inter se a mortgage debt is prima facie chargeable against the mortgaged land, and in view of sub-s. 2 the signification of the deceased mortgagor of a "contrary or other intention" under sub-s. 1 must be in such terms as unmistakably refer to or describe his mortgage debts or the particular mortgage debt in question (u). A mortgage debt need not however be referred to as such, if it is sufficiently identified and happens to be secured by mortgage (x).

(v) In England by virtue of the amending statute of 1877 Locke King's Act applies to leaseholds. See In re Kershaw, Drake v. Kershaw, 1888, 37 Ch.D. 674, where the text of the English statutes is set out; cf. In re Fraser, Lowther v. Fraser, [1904] 1 Ch. 1ll, 726.

If the testator directs his debts, including his mortgage debts, to be paid by his executors, without specifying the fund out of which they are to be paid, and devises and bequeaths real and personal property to his executors to be converted into money, the mortgage debts will be payable out of the mixed fund thus directed to be created and the burden of the charges must be contributed to rateably by the realty and personalty from which the fund is derived (y). So, if a testator charges his estate with payment of the mortgages upon his lands, the mortgage debts will be payable out of the residue of the estate in exoneration of a mortgaged parcel of land specifically devised (z).