Equitable estates.

(k) Brazier v. Hudson, 8 Sim. 67.

(l) 2 Wms. Exors. 932-943, 946 sq., 7th ed.; Re Whistler, 35 Ch. D. 561; Re Venn and Furze's Contract, 1894, 2 Ch. 101.

(m) Wms. Exors. 679, 1372, 7th ed.; Wms. Pers. Prop. 443, 16th ed.; Re Culverhouse, 1896, 2 Ch. 251.

(n) Wms. Real Prop. 21, 21st ed.; Wms. Pers. Prop. 479 sq., 16th ed.

(o) Wms. Pers. Prop. 439-441. 479, 16th ed.; Freke v. Lord Car-bery, L. R. 16 Eq. 461; Duncan v. Lawson, 41 Ch. D. 394; Pepin v. Bruyere, 1902, 1 Ch. 24.

Formerly, when lands were held upon any trust or by way of mortgage, the legal estate therein devolved upon the tenant's death in the same manner as if he were the beneficial owner of them, but subject to the trust or the equity of redemption. Estates in fee simple so held passed therefore to the devisee or heir, according as they were devised or suffered to descend (t). In all well-drawn wills a specific devise used to be inserted of all estates held by the testator upon any trust or by way of mortgage; and this devise was usually made to the persons who were appointed executors (u). When a will contained no specific devise of estates subject to a trust or mortgage, the question frequently arose, whether such estates passed under a general devise of all the testator's real estate. The rule was, that such estates did pass under a general devise, unless a contrary intention could be collected from the expressions used in the will, or from the objects of the devise (x).

Estates held on trust or in mortgage.

The old rule as to the devolution of estates held on trust was first invaded by the Vendor and Purchaser Act, 1874 (y), enacting that upon the death of a bare trustee (z), any corporeal or incorporeal hereditament, of which he was seised in fee simple, should vest in his legal personal representative. This enactment was repealed, except as to anything duly done thereunder, by the Land Transfer Act, 1875 (a), after having been in force from the 7th of August, 1874, until the 31st of December, 1875. The same Act provided (a) that, upon the death of a bare trustee intestate, any corporeal or incorporeal hereditament, of which he was seised in fee simple, should vest in his legal personal representative.

(p) Lewiu on Trusts, 670, 6th ed.; 1006, 10th ed.; Wms. Real Prop. 184. 101, 490, 552, 21st ed.; AY Hudson, 1908, 1 Ch. 666.

(q) Wms. Real Prop. 323.

(r) Stat. 3& 4 Will. IV. c. 105, s. 2; Wms. Real Prop. 327, 21st ed.

(s) Above, p. 216.

(t) Wms. Real Prop. 192, 548, 551, 21st ed.

(u) 4 Davidson, Prec. Conv. 9, 58, 4th ed

(x) Lord Braybroke v. Inskip, 8 Ves. 417; 1 Jarm. Wills, 693 sq., 4th ed.: 647 sq., 5th ed.

When real estate held in mortgage passed on the mortgagee's death to his devisee or heir, it was necessary, on any transfer or reconveyance after such death, that his devisee or heir should convey the legal estate in the mortgaged land, and that his legal personal representatives should join in the conveyance to acknowledge the receipt of the money paid and assign or release the mortgage debt (b). By the Vendor and Purchaser Act, 1874 (c), the legal personal representative of a mortgagee of a freehold estate, or of a copyhold estate to which the mortgagee should have been admitted, might, on payment of all sums secured by the mortgage, convey or surrender the mortgaged estate, whether the mortgage were in form an assurance subject to redemption, or an assurance upon trust. But it was held that this enactment did not give the legal personal representative of a mortgagee power to convey the estate upon a transfer of the mortgage (d).

Mortgaged estates.

(y) Stat. 37 & 38 Vict. c. 78, s. 5.

(z) Different opinions have been expressed by eminent judges as to the meaning of the expression "bare trustee": but the better opinion is that it is not applicable to a trustee under a special trust who has an active duty to perform with regard to the trust property, as in the case of a trustee for sale, but rather denotes a trustee having no other duty than to convey the trust estate at the cestui que trust's direction; see Christie v. Ovington, 1 Ch. D. 279; Morgan v Swansea Urban Authority, 9 Oh. D. 582;

Re Docwra, 29 Ch. D. 693; Re Cunningham and Frayling, 1891, 2 Ch. 567; Wms. Real Prop. 181, 21st ed.

(a) Stat. 38 & 39 Vict. c. 87, s. 48, repealed by 44 & 45 Vict, c. 41, s. 30 (2, 3), as to cases of death after the 31st December, 1881.

(b) Davidson, Prec. Conv., vol. ii. pt. ii. pp. 793, 796, n., 816, 818, 4th ed.

(c) Stat. 37 & 38 Vict. c. 78, s. 4, passed 7th August, 1874. and repealed by 44 & 45 Vict. c. 41, a. 30 (2, 3), as to cases of death after the 31st December, 1881.

So the law continued until the end of the year 1881. On the death after that year of any sole trustee or mortgagee of real estate, the succession is regulated by the 30th section of the Conveyancing Act of 1881 (e), providing as follows: - "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 in any person solely, the same shall on his death, notwithstanding any testamentary disposition, devolve to and become vested in his legal personal representatives or representative from time to time (f), in like manner as if the same were a chattel real vesting in them or him; and accordingly all the like powers, for one only of several joint personal representatives, as well as for a single personal representative, and for all the personal representatives together, to dispose of and otherwise deal with the same, shall belong to the deceased's personal representatives or representative from time to time, with all the like incidents, but subject to all the like rights, equities and obligations, as if the same were a chattel real vesting in them or him; and for the purposes of this section, the personal representatives for the time being of the deceased shall be deemed in law his heirs and assigns within the meaning of all trustand powers." This enactment was held to apply to copyholds as well as freeholds (g): but the Copyhold Act, 1887 (h), now replaced in this respect by the Copyhold Act, 1894 (i), provided that it should not apply to land of copyhold or customary tenure vested in the tenant on the Court Rolls of any manor upon any trust or by way of mortgage. As is well known, trustees of copyhold lands are usually admitted tenants thereof, but mortgagees are not (j). On the death of a mortgagee of copyholds, who has not been admitted tenant on the rolls, it appears that his estate will still devolve on his executors or administrators.