Buller v. Vol. 3. 466. Irish Rep. F. 1. dies, the executors shall be special occupants, though it be a frank tenement. In the next paragraph Roll inserts a case directly contrary. If a man grants a rent to another, his executors and assigns, for the life of J. S., and after the grantee dies, making an executor, the executor shall not be a special occupant; because it is a frank tenement, which cannot descend to the executor. 54. Lord Hardwicke is reported by Atkins to have cited the first of these cases, and to have assented to it. Lord Redesdale has expressed strong doubts as to this point; and has justly observed, that the title of an executor depends on his taking upon himself the administration of the will, therefore does not commence instanter, but by his subsequent act. As to an administrator, ex necessitate his title cannot commence instanter. It should therefore seem that the character of special occupant cannot proTit. Estates, perly belong to either. That, on the contrary, Lord Chief Baron Comyn, in his Digest, states the case in Dyer as having decided that the executor shall not have the land as special occupant; for an occupant has the freehold, which an executor cannot take; and refers to the second case stated in Roll as an authority for this point. That case, which was long subsequent to the case in Dyer, was certainly in conformity to the opinion of Comyn; and according to Salter v. Butler, Moo. 664. Cro. Eliz. 901. Yelv. 9. the law seemed to have been understood by Peer Williams as so settled; though he did not appear satisfied with it. V. 3. 264. note D. Tit. Estate for Life, 3. 55. It is however held by some, that an executor or administrator may take a freehold estate as special occupant, upon the authority of the following passage in Bacon's Abridgement, supposed to have been written by Lord Chief Baron Gilbert :-" If a lease be made of land to J. S., his executors and assigns, during the life of B., the executors of J. S. shall be the special occupants if he die in the life of B.; for though it be a freehold, which in due course of law would not go to executors, yet they may be designed, by the particular words in the grant, to take as occupants; and such designation will exclude the occupation of any other person; because the parties Vide Ripley themselves, who originally had the possession, have. Waterfilled it up by this appointment." worth, infra. v. Baker, 56. In a modern case it was held by Lord Atkinson Kenyon and the other judges, that if an estate 4 Term R. pour auter vie be limited to a man, his heirs, exe- 229. cutors, administrators, and assigns; it descends to the heir as a special occupant, in preference to the executors. . quasi Tenants 1 Inst. 44 a. infra, ch. 2. 57. Archbishops and bishops were formerly con- Ecclesiastical sidered as tenants in fee simple of the lands which Persons are they held in right of their churches. As to rectors, for Life, parsons, and vicars, Lord Coke says, that for the Id.341 a.& b. benefit of the church, and of their successors, they Lit. § 648. were in some cases esteemed in law to have a fee simple qualified; but to do any thing to the prejudice of their successors, in many cases the law adjudged them to have in effect but an estate for life. Since the several statutes by which all eccle- Tit. 32. siastical persons and corporations are restrained from alienation, except by leases for three lives or 21 years, they are generally considered as quasi tenants for life only. 58. In consequence of this principle it is enacted by the statute 28 Hen. VIII. c. 11. § 6., that in case any incumbent, before his death, hath caused any of c. 2 & 5. his glebe lands to be manured and sown, at his own proper costs and charges, with any corn or grain, that then all the said incumbents may make and declare their testaments of all the profits of the corn growing upon the said glebe lands so manured and gown. ALTHOUGH tenants for life are entitled to rea- ante, c. 1. sonable estovers, yet they are prohibited from $17. destroying those things which are not included in the temporary profits of the land; because that would tend to the permanent and lasting loss of the person entitled to the inheritance. Volun Kinds of 2. This destruction is called waste. It is either Different voluntary, which is a crime of commission; or per- Waste. missive, which is a matter of omission only. tary waste chiefly consists, 1. In felling timber trees. 2. Pulling down houses. 3. Opening mines or pits. 4. Changing the course of husbandry. 5. Destroying heir looms. VOL. I. K Felling 1 Inst. 53 a. 3. The first kind of waste consists in felling timber trees, except for estovers; because they are not 11 Rep. 48 b. deemed part of the annual produce of the land, but belong to the owner of the inheritance: and therefore the tenant for life has only a qualified property in them, as far as they afford him shade and shelter, and a right to take the masts and fruit. But all tenants for life have a right to cut down coppices and underwoods, at seasonable times, according to the custom of the country; for no advantage can arise to a tenant for life from woods of this kind, but by the sale of them. 11 Rep. 48 a. 1 Saund. 322. n.5. 4. In the case of leases for lives, where the timber is included, if the lessor fells the trees, the lessee may maintain an action of trespass against him, and will be entitled to recover damages adequate to the loss the sustains; because the lessee has, by his lease, a particular interest in the trees, such as the mast and fruit of them, and shade and shelter for his cattle; and may lop them, if they be not thereby injured. But the interest of the body of the trees remains in the lessor, as parcel of his inheritance; who may punish the lessee in an action of waste, if he fells or damages any of them. So that both the lessor and lessee have an interest in the trees; therefore if a stranger cuts them down, each of them shall have an action against him, to recover his respective loss. Idem. 5. Where the trees are excepted in the lease, which Foster v. is usually done, the lessee has no interest whatever Spooner, Cro. Eliz. 18. in them; and the lessor may have an action of trespass against him, if he either fells or damages them. The lessor has also a power, as incident to Godb. 173. the exception, to enter upon the land, in order to Jackson v. fell and take away the trees; though this power, for the greater caution, is often expressly reserved. Heydon v. Cator, 5 Ves. 688. |