case, we may judge from these remarks that the executor or administrator would have been bound to distribute the surplus after payment of debts amongst the next of kin, simply because the title vested in the personal representative. Before this case, however, it had been determined that though the estate became assets in the hands of the executors, its nature had not been changed by the Act. Being a freehold estate, it remained so, not acquiring the characteristics of a chattel, and so not being distributable as personalty within the Statute of Distributions (n).

In consequence of this decision the Act of 14 Geo. 2 cap. 20, sec. 9 was passed which recited the Statute of Frauds, and that doubts had arisen where no devise was made of such estates, to whom the surplus of such estates, after the debts were paid should belong, and enacted "that such estates pur autre vie, in case there be no special occupant thereof, of which no devise shall have been made according to the said Act for the prevention of Frauds and Perjuries, or so much thereof as shall not have been so devised shall go, be applied and distributed, in the same manner as the personal estates of the testator or intestate." The first case that arose under this Act was Ripley v. Waterworth (0) already referred to. In that case lands had been limited to a man, his executors, administrators and assigns pur autre vie. He died having made his will and appointed an executor, and made a residuary bequest of his personal estate. The will was not attested as required by the Statute of Frauds so as to pass the estate in question. There were four claimants to the estate, the heir-at-law, the residuary legatee, the next of kin, and the executor for his own benefit. The heir-at-law argued that it was real estate, a descendible freehold, that it would not pass under the will, that an executor could not take as special occupant, and therefore that he, the heir-at-law, was entitled. The residuary legatee and next of kin argued, that the executor took as special occupant and that it became personalty in

(n) Oldham v. Pickering, 2 Salk. 464.

(•) 7 Ves. 425.

his hands and distributable as such. Lord Eldon decided that it did not go either to the heir or executor; and that as between the next of kin and the residuary legatee the executor was trustee, in equity, for those to whom the testator had given the personal estate by a will sufficient to pass personal estate, and therefore that the estate went to the residuary legatee (p).

The Act of George the Second applies only where the heir does not take as special occupant and there is no devise; and as the Devolution of Estates Act applies only to estates limited to the heir as special occupant, the law as interpreted by Lord Eldon in cases within the Act of George the Second will remain the same. It is worthy of remark that in such cases the heir not being entitled to take because not named in the grant is not deprived of any estate by the Act.

In comparing the English legislation with our present Act there are many things apparent in the latter to indicate that real property, while retaining its character of realty, is yet to be distributed amongst the next of kin and not amongst the heirs at law. For instance, the use of the word "distribution," a technical word, indicates an intention to treat lands as personalty (q). Again, land not disposed of is to be "distributed as personal property not so disposed of is hereafter to be distributed." Some slight change in the course of distribution is made by subsequent sections of the Act, and the inference to be drawn from this wording is that whereas personal property was formerly distributed according to a well ascertained course, hereafter it shall take a slightly different course, and the realty shall be distributed as personalty is hereafter to be distributed. The ninth section, too, declares that the personal representative shall have power to deal with realty "with all the like incidents, but subject to all the like rights, equities and obligations as if the same were personal

(p) See also Fitzroy v. Howard, 3 Russ. 230; Watkins v. Lea, 6 Ves. 642; Duke of Devon v. Atkins, 2 P. Wms. 381.

(q) See remarks by Lord Eldon in Ripley v. Waterworth, 7 Ves. at p. 440.

property vested in them." And we may add Lord Eldon's opinion, or doubt, than an executor or administrator taking as such must distribute what he takes as personalty.

Notwithstanding this it is evident that the law of tenures and estates has not been changed. The Act applies to estates of inheritance in fee simple, or limited to the heir as special occupant. And so we must still limit land to a man and his heirs, and an estate pur autre vie to the heir as special occupant in order to bring an estate within the Act. In the grantee's lifetime an estate in fee simple is such an estate at common law. In the hands of his executors it retains its character of an estate in fee simple, and is to be conveyed as such and limited again to the heirs of a purchaser or of those entitled in the course of distribution. The land in the hands of the executors is still subject to dower and curtesy. And the whole scope of the Conveyancing and Law of Property Act passed in the same session, as far as it deals with limitations of estates, confirms this view. Note also the Statute Amendment Act of the same session (r), sections 24 and 25 of which speak of investments on mortgages of land held in fee simple.

That land is to be distributed as personalty, however, we have the authority of the Chancellor in the first case decided under the Act (s), where it was held that the widow of an intestate may elect to take an absolute one-third interest in the land in lieu of dower.

Without impugning the correctness of this decision, which does not enter very fully into the construction of the Act, we may be allowed to point out some very serious. difficulties in the way of holding that land is distributable amongst the next of kin as personalty.

The first is a broad one, and the one most likely to suggest itself. It is that without even the formality in the Act of an express repeal of inconsistent enactments, a very great amount of real property statutory law must be

(r) 49 Vict. cap. 16.

(s) Re Reddam, postea, Occ. N.

repealed by implication. Writing from memory and a cursory mental glance, the whole of the Real Estate Succession Act, as far as it relates to the law of descent, is impliedly repealed, the greater part of the Short Forms Acts, as we shall presently see, is rendered useless, the Partition Act is repealed as far as partition amongst the obsolete race of heirs-at-law is concerned, the Dower Act undergoes very considerable modifications, the law of escheat is defunct, the equitable doctrine of conversion is probably extinct, and the whole body of real property law, by mere implication, undergoes the most extraordinary changes, the extent of which it is impossible to foresee, and which, indeed, is to be determined by judicial opinion only, and without the guide of those certain limitations for the protection and guidance of the owners of land which they have a natural right to demand without undergoing the expense and anxiety of a law suit to ascertain those rudimentary principles, which, upon such a radical change as this, should have been written clearly and distinctly for their guidance.

When we compare the extent of these ruins with the former (which we may perhaps be allowed to call the lesser) defect in the law, we may be pardoned for saying that it should be demanded of the Legislature that such a vast and radical change should not be attributed to it unless expressed in the most unambiguous and unequivocal terms.

There are grounds for believing that the Legislature did not intend, or at least were not aware of their intention (if the paradox is admissible) that realty should be distributable as personalty. By the Statute Amendment Act (t) passed in the same session, it is enacted as follows:"Where a person dies in possession of, or entitled to, real estate in Ontario, intestate as to such real estate, without any known heirs, the Attorney-General may apply to the High Court for an order for the making of such inquiries as may be necessary to determine whether or not Her Majesty is entitled to any portion of the real estate of the

(t) 49 Vict. cap. 16, sec. 14.

deceased on account of his dying intestate and without heirs; and any judgment or order given upon such enquiry shall, unless reversed on appeal, be final and conclusive." And (2) "Where the Attorney-General is entitled to apply under the preceding subsection, he may bring an action, either in his own name, on behalf of Her Majesty, or in the name of Her Majesty, to recover possession of the real estate of the deceased, and shall be entitled to judgment and process to recover possession, unless the person claiming adversely shows that the deceased did not die intestate as to such real estate, or that he left heirs, or that some other person is entitled to the said real estate." Why should the Crown be defeated, it may be asked, by showing that there are heirs, if in fact heirs no longer succeed to the inheritance? It is impossible to harmonize this enactment with the Devolution of Estates Act unless we hold the heirs to be entitled, not immediately by descent as formerly, but mediately through the administrator after payment of debts. It is possible of course to go through the heroic process of forcing upon the word "heirs " a new meaning when speaking of estates in fee simple, but such a course would be entirely unwarranted.

In the same session, too, was passed the Conveyancing and Law of Property Act (u), to which we have already referred, and which deals with estates and tenures as if no change were made in the ultimate persons entitled to an estate in fee simple upon an intestacy. In dealing with the clauses of the Act relating to conveyances we meet with serious difficulties. By section 13, in a conveyance for valuable consideration there shall be deemed to be included the following implied covenants :-" Covenants for right to convey; Quiet enjoyment; Freedom from incumbrances; and Further assurance; according to the tenor and effect of the several and respective forms of covenants for the said purposes set forth in the schedules to The Revised Act respecting Short Forms of Conveyances, and therein numbered 2, 3, 4 and 5, respectively, subject to directions in

(u) 44 Vict. cap. 20.

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