respecting Dower, and An Act respecting the conveyance of Real Estate by Married Women; and provided (2) that her husband. is a party to and executes such power of attorney or the deed or other instrument executed in pursuance thereof, where the power is for the sale or conveyance of her real estate. Section 22 is treated of in considering Con. St. U. C. ch. 85, as to conveyances by married women. SECTIONS 23 & 24. As to a power 23. In case a power of attorney for the sale or management of of attorney real or personal estate, or for any other purpose, provides that provided expressly to be the same may be exercised in the name and on the behalf of the executed after heirs or devisees, executors or administrators of the person decease of executing the same, or provides by any form of words that the constituent. same shall not be revoked by the death of the person executing the same, such provision shall be valid and effectual to all intents and purposes both at law and in equity, according to the tenor and effect thereof, and subject to such conditions and restrictions, if any, as may be therein contained. As to things attorney after out such spe- The Imp. Act A power was revoked at law by the 24. Independently of any such special provision in a power of attorney, every payment made and every act done under and in pursuance of any power of attorney, or any power, whether in writing or verbal, and whether expressly or impliedly given, or an agency expressly or impliedly created after the death of the person who gave such power or created such agency, or after he has done some act to avoid the power or agency, shall, notwithstanding such death or act last aforesaid, be valid as respects every person party to such payment or act, to whom the fact of the death, or of the doing of such act as last aforesaid was not known at the time of such payment or act bonâ fide done as aforesaid, and as respects all claiming under such last mentioned person. The Imperial Act 22 & 23 Vic. c. 35, s. 26, is by no means so extensive as this section, and extends only to trustees, executors and administrators. A power of attorney was, at law at least, revoked by death of the donor thereof, though acted on bond fide with equity, in cer out knowledge of the death (a); but this rule has not pre- death of the vailed in all cases in Equity, especially where a valuable donor, but in consideration has passed; and, as against persons claiming tain cases, acts under the donor of the power, acts bond file done, haye bona fide done were upheld. been held upheld after death of the donor (b). The Act would not protect in cases where the donor of The Act does of the power himself had but an interest determinable by not protect his death, as in the case of a tenant for life. SECTION 25. where the interest of the donor determined by his death. 25. Where an executor or administrator, liable as such to the As to liability rents, covenants or agreements contained in any lease or agree- of executor or ment for a lease granted or assigned to the testator or intestate administrator in respect of whose estate is being administered, shall have satisfied all such liarents, covebilities under the said lease, or agreement for a lease, as may have nants, &c. accrued due and been claimed up to the time of the assignment Imp. Act 22 hereinafter mentioned, and shall have set apart a sufficient fund and 23 V. c. to answer any future claim that may be made in respect of any 35, s. 27. fixed and ascertained sum covenanted or agreed by the lessee to be laid out on the property demised, or agreed to be demised, although the period for laying out the same may not have arrived, and shall have assigned the lease, or agreement for a lease, to a purchaser thereof, he shall be at liberty to distribute the residuary personal estate of the deceased, to and amongst the parties entitled thereto respectively, without appropriating any part, or any further part (as the case may be) of the personal estate of the deceased, to meet any future liability under the said lease, or agreement for a lease; and the executor or administrator so distributing the residuary estate, shall not, after having assigned the said lease, or agreement for a lease, and having where necessary, set apart such sufficient fund as aforesaid, be personally liable in respect of any subsequent claim under the said lease, or agreement for a lease; but nothing herein contained shall prejudice the right of the lessor, or those claiming under him, to follow the assets of the deceased into the hands of the person or (a) Co. Litt 52 b; per Lord Ellenborough, 4 Camp. 272; Houstoun v. Robertson, 6 Taun. 448; see also, Re Jones 3 Drew. 679. (b) Campbell v. Anderson, 4 Bligh, N. R. 513; Exparte MacDonnell, Buck 399; Bailey v. Collett, 18 Bea. 179; see also Kiddill v. Farnell, 3 S. & G. 434. The former law as to contingent liabil ities, before debts notice. persons to or amongst whom the said assets may have been distributed. In Williams on Executors (a), referring to the liability of an executor, before the Act, as to contingent claims and the question whether he could safely pay legacies, or deliver over a residue where there was an outstanding covenant of his testator, or bond with a condition, or the like, which had not been, but might be broken, it is said, "it would seem when such liabilities exist, an executor is not bound to part with the assets either to a particular or residuary legatee without a sufficient indemnity; and that a Court of Equity will not compel him to do so without such indemnity, or without impounding a sufficient part of the residuary estate for that purpose; for otherwise, if the contingent covenants, &c., should afterwards be broken, the executor would be liable, according to the above decision (b), to answer the damages de bonis propriis, without any fault in him." and payment "Authorities appear to demonstrate that the mere cirof legacies cumstance of want of notice of a debt or claim against the of which exe- estate of the deceased, will not excuse an executor from cutor has no the payment or satisfaction of it, if the assets were originally sufficient for the purpose, notwithstanding that in igorance of it, he has bond fide handed over the assets to legatees or parties entitled to distribution. But it seems to have been considered in some cases, that lapse of time may operate as a waiver of the right of the creditor or claimant, by way of laches on his part, so as to preclude him from complaining of the insufficiency of the assets (c)." Protection 31. If, however, the executor or administrator proceed in under ss. 27, compliance with sec. 27, he will be entitled to the same protection as if he had administered under decree of the Court (d); and in many cases he might find it advisable to ask advice of the Court, under sec. 31. If compelled to pay (a) 6 ed. 1246. (b) Pearson v. Archdeaken, 1 Al. & Nap. 23. tee to refund, a claim of which he had no notice, after having distributed, Executor can he has a remedy over against the legatees to refund; and compel legathe creditor himself may follow the assets in the hands of and the crethe legatees without proceeding against the personal rep-low the assets. resentative (a). This section is retrospective in its operation (b). ditor can fol This section not extend. The Act extends apparently only to the case of the personal retrospective, representative himself having assigned the lease to a pur- Cases to chaser (c), and thus it would not take in the case where which it does the testator or intestate being lessee, and having covenanted, had himself assigned the lease; nor the case wherein the lessee's interest should have been specifically bequeathed, and have become vested in the legatee on the assent of the executor; nor where it has been transferred on distribution of the estate. Where the testator or intestate is not lessee, but assignee Where testaof the lease, there is no necessity for applying the provi- tor is an assignee, no sions of the Act, as in such case, not being liable on any necessity for privity of contract, but merely by privity of estate, and so applying this section; but liable only for breaches of covenants running with the land during the continuance of privity of estate, the executor or administrator is relieved from future responsibility simply by assigning the estate. This, of course, would not suffice where the testator or intestate is lessee, and has covenanted, for though on assignment the privity of estate would be discharged, yet the privity of contract would remain, and the covenant could be sued upon, even though the lessee should have accepted the assignee as his tenant (d). Where, however, the testator or intestate, having been if the testator an assignee of the lessee, has assigned the lease, and so has on becoming assignee have become relieved from liability for future breaches of cove- covenanted to nant, it may yet be that the personal representative would indemnify his assignor, be liable for such breaches, if the testator had, (as is not and has afterwards assign (a) 2 Wms. Exrs. 1344. See post remarks under s. 27. (¿) In re Green, 2 De Gex, F. & J., 121; Smith v. Smith, 1 Dr. & Sm. 384; Dodson v. Sammell, 1 Dr. & Sm. 575; 9 W. P. 887. (c) Dodson v. Sammell, 9 W. R. 887. (d) See notes to Spencer's case, 1 Smith, Lg. Ca.; Montgomery v. Spence, 23 Q. B. U. C. 39. ed, will this unusual), on the assignment covenanted with the lessee to Act apply indemnify him; on such a liability it is not clear that this quoad that covenant? section would apply. If after com there should If the personal representative comply with the Act, and assign the lease to a purchaser, and, where there may be future claims for fixed sums to be laid out on the land, set apart a fund to meet them, he may distribute without repliance with gard to future claims not fixed or unascertained under the the act, and lease, and without being personally liable for such claims. distribution, If, however, after distribution, there should be a breach of be a breach any of the testator's or intestate's covenants in the lease, of a covenant not provided for by the fund as not being of a fixed or asand further certained character, as, for instance, a covenant to repair, assets come and the representative should have notice of such breach, in, the claim on the cove- it would seem he could not distribute further assets which may have come to his hands since the first distribution had regarded before further before breach, without regard to the claim under such distribution. breach. of testator, nant must be As to liability of executor Imp. Act 22 & 23 V. c. 35, s. 28. SECTION 26. 26. In like manner where an executor or administrator, liable as such, to the rent, covenants or agreements contained in any in respect of rents, &c., in conveyance on chief rent or rent-charge, (whether any such rent conveyances be by limitation of use, grant or reservation,) or agreement for on rent charge such conveyance, granted or assigned to or made and entered into with the testator or intestate, whose estate is being administered, shall have satisfied all such liabilities under the said conveyance, or agreement for a conveyance, as may have accrued due and been claimed up to the time of the conveyance hereinafter mentioned, and shall have set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum covenanted or agreed by the grantee to be laid out on the property conveyed, or agreed to be conveyed, although the period for laying out the same may not have arrived, and shall have conveyed such property, or assigned the said agreement for such conveyance as aforesaid, to a purchaser thereof, he shall be at liberty to distribute the residuary personal estate of the deceased to and amongst the parties entitled thereto respectively, without appropriating any part or any further part (as the case may be) of the personal estate of the deceased, to meet any |