Applica tion of property in payment of debts. Lands 7. *The real and personal property of a deceased person comprised in any residuary devise or bequest shall (except so far as a contrary intention shall appear from his will or any codicil thereto) be applicable ratably, according to their respective values, to the payment of his debts. R. S. O. 1887, c. 108, s. 7. 290. In furtherance of the same object, sections 4, 5 and 6 of chapter 1 of the Ontario Statutes of 1902 enact as follows: 4. The lands of a deceased person which shall become vested in which vest his heir or devisee under the thirteenth section of The Devolution in benefiof Estates Act shall continue to be liable to answer the debts of ciary under Rev. such deceased person as they would be if vested in the personal Stat.c.127, representative of the deceased, and in the event of a bona fide sale s. 13, to thereof for value, by such heir, or devisee, he shall be personally liable for the debts due to the creditors of such deceased person to the extent of the proceeds of such lands, and in case the sale shall not have been bana fide, then to the extent of the actual value of said lands. remain liable to debts. Beneficiary to be personally liable for debts of deceased to extent of estate. Bona fide from bene 5. Any bona fide purchaser for value of any lands of any deceased purchaser person which have become vested in his heir or devisee as aforesaid, ficiary without notice of the claims of any unpaid creditors of the deceased person, through whom such heir or devisee shall claim, shall be entitled to hold such lands freed and discharged from the claims of protected. such creditors. without notice of debts Property over which deceased exercised general 6. Property real and personal, over which a deceased person has a general power of appointment, which he may exercise for his own benefit without the assent of any other person, shall be assets for the payment of his debts, where the same is appointed by his will, powers of appointand, under an execution against the personal representatives of such ment to be deceased person, such assets may be seized and sold after the deceased person's own property has been exhausted. assets. *The Devolution of Estates Act, R. S. O. c. 127. vests the real as well as the personal estate of a deceased person in his personal representatives for the purpose of paying his debts; but, except in the case of a residuary devise specially provided for by section 7, 3 W. & M. the order in which different classes of property are applicable to the payment of debts has not been changed by the Act. Re Hopkins Estate, 32 O. R. 315. c. 14. 7. Lineal and collateral warranties at common law, with all Warranties abolishtheir incidents, are abolished, but the liability of the executors, or ed. administrators, or devisees, of any person who shall have made any 4 & 5 Anne c. 3. covenant, is unaffected by this section. 291. A testator by his will directed his executors to pay his debts, funeral expenses and legacies thereinafter given out of his estate, and proceeded: "My executors are hereby ordered to sell all my real estate, after the payment of all my just debts and funeral expenses, and all my property and personal effects, money or chattels, are to be equally divided between my children and their heirs, that is, the heirs of my son G. and daughter E., now deceased, and my son J., Mary or Hannah, or their heirs. Should any of my said. heirs not be of age at my death, my executors are to place their legacies in some of the banks of Ontario until the said heirs are of age." Held, (1) That there was no intestacy either of the real or personal estate. It is to be presumed that the testator did not intend to die intestate, and the language showed that he did not intend his heirs to take his property as real estate, as he peremptorily directed a sale, making an actual conversion of it into money, thus blending the real and personal property into a common fnnd, and then bequeathed it all to the legatees. (2) That the persons entitled to share under the will took per capita and not per stirpes upon the same principle as in the case of Abrey v. Newman, 16 Beav. 431. (3) That the grandchild of G. was not entitled to a share, the children of G. taking in their own right and not in a representative capacity. Wood v. Armour, 12 O. R. 146. given to conver 292. Where there is no absolute direction to sell, but Discretion a discretion is given to a trustee to sell or not, there is no transfer no conversion; but the property remains of the character it pos- in sessed at the death of the testator until the trustee has seen fit in his discretion to change it by an execution of the power. In re Trustees of Will of Ann Parker, 20 Chy. 389 Assets defined. Functions of executor istrator as CHAPTER III. PERSONAL PROPERTY DEVOLVING ON EXECU- 293. It now becomes necessary to consider the various kinds of personal property which may devolve upon an executor or administrator, otherwise called "assets." 294. By assets, in the hands of an executor or administrator, is meant sufficient property, from the French assez, to make him chargeable to a creditor and a legatee or party in distribution, as far as such property extends. 295. The general rule as to what shall be said to be assets in the hands of an executor or administrator to charge him is thus laid down: All those goods and chattels, actions and commodities, which were of the deceased in right of action or possession as his own, and so continued to be to the time of his death, and which after his death the executor or administrator doth get into his hands as duly belonging to him in the right of his executorship or administratorship, and all such things as do come to the executor or administrator in lien or by reason of that, and nothing else, shall be considered to be assets in the hands of the executor or administrator to make him chargeable to a creditor or legatee. 296. We have seen (paragraph 247) that in Onor admin tario before the Devolution of Estates Act, only personal to person- property went to the executor or administrator. As since alty. that Act all property real and personal devolves upon the personal representative, it is necessary to explain the Administrator to give security *Sub-sec. (4) of section 4 of the Devolution of Estates Act provides as follows: (4) Where any person applies to be appointed an administrator, and the administration applied for is a general administration, the application, and the affidavit in support thereof, shall show the particulars of the real estate of the deceased, and the value or probable value thereof; and the amount of the security to be given shall have reference to such real estate. value as well as to the value of the other estate of the deceased. O., 1887, c. 108, s. 4. to cover R. S. functions of a personal representative with respect to all kinds of property. These functions as to personalty will be considered, 1. As to Chattels Personal; 2. Chattels Beal; 3. Choses in Action. Their duties as to cautioning real property have been stated in the last chapter. Their other duties with regard to real property will also appear. 297. Chattels personal are properly and strictly Chattels, personal, speaking things movable, which may be annexed to or defined. attendant on the person of the owner, and carried about with him from one part of the world to another. Such as animals, household stuff, money, jewels, corn, garments and everything that can be properly put in motion and transferred from place to place. All these and other things of the same nature generally speaking belong to the estate of the executor or admisistrator. Where a will creates a life estate in chattels, the Life estate in chattels executor is discharged when he hands over such chattels to the tenant for life. The tenant for life, and not the executor then becomes liable for them to the person entitled in remainder. Re Munsie, 10 P. R. 98. animate. 298. Chattels animate may be sub-divided into Chattels such as are domestic and such as are ferae naturae. In such as are of a nature tame and domestic as horses, kine, sheep, poultry and the like, a man may have an absolute property, and they are therefore capable of being transmitted like any other personal chattel, to his executor or administrator. Also hounds, greyhounds, and spaniels and the like, as they may be valuable, and may serve not only for delight, but profit, shall go to the executors or administrators. In those of a wild nature, i.e., such as are usually found at liberty and wondering at large, generally speaking, a man can have no property transmissible to his representative. Black. Comm. 390, 391. Qualified property 299. But a qualified property may subsist in anlin animals mals of the latter class per industriam hominis, by a feræ naturæ per man's reclaiming them and making them tame by art, indusindustry or education, or by so confining them within his triam. own immediate power that they cannot escape and use their natural liberty; and the animals so reclaimed or confined belong to the executor or administrator. Thus if the deceased have any tame pigeons, deer, rabbits, pheasants or partridges, they shall go to his executors or administrators. So, though they were not tame, if they were kept alive in any room, cage or such like place. as fish in a tank; but if at any time they regain their natural liberty, the property instantly ceases unless they have animum revertendi, which is only to be known by their usual custom of returning. Propter impotentram. Animals ratione 2 Black. Comm. 392. As to Bees. See R. S. O., 1897, c. 117. 300. A qualified property may also subsist in animals ferae naturae propter impotentiam; as in young pigeons, who, though not tame, being in the dovehouse, are not liable to fly out, and they go to the executor or administrator. 301. The animals which a man has ratione priviprivilegii. legii are considered as incident to the freehold and inheritance and did not pass to the executor or administra tor. Thus deer in a park, or doves in a dovehouse, did not go to the executor or administrator, but they will go to him now. Fish. 302. So if a man buys fish, as carp, bream, trout, etc., and put them into his pond, and dies, in this case the heir who has the water shall have them, because they were at liberty and could not be gotten without industry; but it is otherwise if they are in a tank or in a net or the like, for then they are severed from the soil. They now devolve upon the executor in both cases. |