Death of the purchaser.

(i) Above, pp. 228 sq., 531.

(k) Above, pp. 229, 235, 533.

(l) Above, pp. 228 sq., 534.

(m) Above, pp. 528, n. (t), 529, n. (u), 531, n. (m),and the authorities there cited; Rawlins on Specific Performance, 83.

(n) But if the contract were under seal and bound the vendor's heirs, his heirs or devisees might be sued thereon at law: see above, p. 223; Wms. Conv. Stat. 234, 235.

(o) Above, pp. 505, 506.

(p) Since the Wills Act, 1837, lands purchased after the date of a will pass under a genera] devise therein contained: previously they did not: Sug. V. & P. 183-189; stat. 7 Will. IV. & l Vict. 0. 26, ss. 3. 23, 24.

(q) Above, pp. 222, 223, 506. Stat. 60 & 61 Vict. c. 65, ss. 1, 2; above, pp. 228, 229. (s) Re Somerville and Turner's Contract, 1903,2 Ch. 583; above, pp. 229, 233 - 235.

(t) Above, pp. 222, 223.

Formerly, if one contracted to buy land and died pending completion, his heir or devisee, in the case of real estate, or his specific devisee in the case of leaseholds, was entitled to have the purchase money paid out of the deceased purchaser's general personal estate (y). But now, under the Acts amending Locke King's Act (z), the heir or devisee, or the specific devisee of leaseholds (a), or other chattels real (b), must take the hereditameuts so purchased charged with the vendor's lien for payment of the purchase money, which is, as between the heir or devisee and the persons entitled to the purchaser's personalty, to be satisfied out of the estate purchased; unless the purchaser, being a testator of the property bought (c), should have signified a contrary intention within the meaning of the Acts. But these Acts do not affect the vendor's right to obtain payment of the purchase money out of all the purchaser's assets, real or personal (d). It is to be observed that the Acts apparently do not apply where the lands purchased are not subject to any vendor's lien, as may be the case if the parties so agree (e).

Purchaser's heir or devisee now takes subject to the vendor's lien.

(u) Fry, Sp. Perf. Sec. 217, 3rd ed. And it appears that where the purchaser's personal representatives sue for specific performance of a contract to buy real estate, as being entitled thereto under the Land Transfer Act, 1897, they should still make his heir or devisee a party as being the person beneficially entitled and being interested in securing a proper inquiry into the title: Rawlins, Spec. Perf. 83.

(x) Orme v. Broughton, 10 Bing. 533; Sug. V. & P. 238: 2 Dart, V. & P. 9.54, 5th ed.; 1084, 6th ed.; 998, 7th ed.

(y) Broome v. Monck, 10 Ves. 597, 614, 620, 621; Hood v. Hood, 3 Jur. N. S. 684.

(z) Stat. 40 & 41 Vict. c. 34, extending the provisions of 17 & 18 Vict. c. 113, and 30 & 31 Vict. C. 69, to the case of any testator or intestate dying after the 31st December, 1877, seised or possessed of or entitled to any land or other hereditaments of whatever tenure which shall at the time of his death be charged with any lien for unpaid purchase money, unless in the case of a testator he shall within the meaning of these Acts have signified a contrary intention; and providing that such contrary intention shall not be deemed to be signified by a charge of or direction for payment of debts upon or out of residuary real and personal estate or residuary real estate. By stat. 30 & 31 Vict. c. 69, s. 1, a general direction that the debts of the testator shall be paid out of his personal estate is not to be deemed a declaration of such contrary intention without words expressly or impliedly referring to the debt charged on the land.

(a) Re Kershaw, 37 Ch. D. 674.

(b) Re Fraser, 1904, 1 Ch. 111, 726.

The right of a deceased purchaser's heir or devisee to succeed to real estate, contracted to be purchased by but not conveyed to him in his lifetime, depends upon the like condition as determines the question of the conversion of the property into personalty in the vendor's hands; that is to say, whether the contract was specifically enforceable against the purchaser at the time of his death. If this were so, the heir or devisee is absolutely entitled to the property; and he was formerly so absolutely entitled to have the purchase money raised out of the dead man's personalty that if the contract had been specifically enforceable against the purchaser at his death, but was not performed owing to some cause subsequently occurring, the heir or devisee was entitled to have the purchase money raised and applied in the purchase for him of other lands (./'). But this was not the case where the contract failed to be performed owing to the vendor's want of title; for that proved that the contract was not specifically enforceable against the purchaser when he died (g). This doctrine of allowing the heir or devisee to have the purchase money raised and laid out in buying other lands appears to be only applicable, under the present law, where the heir or devisee does not take the estate purchased subject to the vendor's lien (h).

Test of the property devolving as land on the purchaser's death.

(c) See Re Cockeroft, 24 Ch. D. 94, 100.

(d) See stat. 17 ,V. 18 Vict, c. 113.

(e)See Re Cockcroft, ubi sup.

(f) Whittaker v. Whittaker, 4 Bro. C. C. 31; Broome v. Monck, 10 Ves. 597, 590, 006 - 608, 614;

Garnett v. Acton, 28 Beav. 333: Hudson v. Cook, L. R. 13 Eq. 417; ted qu. whether this last case was rightly decided; the purchaser had entered into a con-tract which was not absolute, but voidable by the vendor in certain events,

The burthen of the contract on the purchaser's death before completion devolves upon his legal personal representatives, who are the proper persons to be sued by the vendor either in equity for specific performance of the contract or at law for damages for its breach (i); but the purchaser's heir or devisee becoming entitled to the purchased land was, and apparently still remains, a necessary party to proceedings at suit of the vendor for specific performance of the contract, as having an interest in seeing that the inquiry into title is properly conducted (k).