distress, as the proper owner of the freehold. Therefore there must be a declaration that the sisters are not entitled to the rents, which are the property of the posthumous son.

Costs of all parties out of the fund.

RICHARDS v. RICHARDS.

CHANCERY. 1860.

[Reported H. R. V. Johns. 754.]

VICE-CHANCELLOR SIR W. PAGE WOOD.1 A singular point arises in this case. The question is whether the qualified heir (if I may use that term to describe the person who is heir between the death of an intestate and the birth of a posthumous heir) is entitled to rents which are not actually received before the birth of the posthumous heir. Such questions are not of frequent occurrence, and it is singular that the point should have arisen so recently as it has done in another branch of the court.

The ancestor in this case, Edward Priest Richards, who was entitled to certain estates in tail under a settlement, and to others in fee, died on the 12th of November, 1856. His posthumous child was born on the 23d of June, 1857. There were some peculiar circumstances with reference to a portion of the rents, but they do not affect the general question. All that it is necessary to say is, that there was certain property of the deceased held, as it appears, by tenants from year to year, so that no entry could have been made by Mrs. Treherne, and the question is, Who is entitled to the rents which accrued before the birth of the plaintiff? There is a very small amount of authority on the subject. There are certain expressions to be found in the old cases which perhaps afford some ground for the argument that the right of the qualified heir is limited to the rents actually received. The case in the Year Book of 9 Henry 6, the exact words of which are given in Watkins on Descent (page 185, note), was to this effect: A man, having issue a daughter, died, leaving his wife enceinte with a son; and the question was, whether the posthumous child could recover from the daughter the intervening rents; and the decision was "that the son should not have an account or any other remedy for the intermediate rents, because the entry of the qualified heir was lawful until the son was born." It is not specified there that the rents had been actually received, but the judgment denies the right of the posthumous heir to an account or to any other remedy.

Then, in Goodtitle v. Newman [3 Wils. 516], Lord Chief Justice De Grey paraphrases the passage from the Year Book thus: "If a man has

1 Only the opinion which relates to the question of posthumous heirship is here given.

issue a daughter and dies, his wife being enciente, the daughter may lawfully enter, and if she die her heir may enter and take the profits for the tine and afterwards if the wife, being enciente by the ancestor paramount, is delivered of a son, the son may enter notwithstanding that the heir of his sister is in by descent; but he shall not have an action of account, or any remedy for the issues in the mean time before his birth, because that the entry was congeable until he was born."

It is not disputed that the posthumous heir has no remedy to recover the rents actually received before his birth; but in order to determine this case it is necessary to look into the principle on which the doctrine has been established that the qualified heir is entitled to take possession of the profits. The principle, which is very clearly stated by Watkins (page 185, note), in his comments on the case in the Year Book, seems to me to be the true one. He says, "When we consider that the daughter and her heir were justly entitled to the freehold till the son was born, it seems to follow of necessity that they were justly entitled also to the profits to enable them to discharge the services of the lands. While they were in possession of the feud they were certainly subject to the services, and the person discharging the services by right was certainly entitled to the profits."

That, I apprehend, is the real principle of the cases. The doctrine is of the strictest common law character. A Statute was passed to meet the case of posthumous children entitled in remainder. But the common law rule was, that some one must come in as heir immediately on the death, in order that there might be no vacancy of the freehold. During the period, therefore, that the posthumous heir was not in existence to perform the duties of tenant, the person on whom the law threw the burden was in consequence held entitled to that which flowed from the burden, namely, the enjoyment of the rents and profits. That principle is clearly independent of any question whether the rents are actually received before the birth or not, and one can easily see why the Legislature, when dealing with the subject, did not alter the law in this respect. Until the modern change in the law of descent, a qualified heir might have remained in possession of an estate for many years. If a son, being the purchaser of an estate, died in his father's life-time without having any brothers or sisters, he would have been succeeded by collaterals, and after an interval, possibly of many years, a sister might be born who would displace them, and she in her turn might be supplanted by a brother. It would have been singular in such a case to say that the successive takers should have no right to rents which had accrued during their respective tenancies, but which remained outstanding at their determination. The principle, therefore, I take to be that the qualified heir is entitled to the rents which accrue before the birth of the posthumous heir, whether actually received before that time or not.

Goodale v. Gawthorne, 2 Sm. & Giff. 375, seems to be the other way, but the report is very singular. Goodale is stated to have died

intestate as to certain estates, and one would have supposed that the legal estate descended. But the report goes on to say that there was a reference to the Master to inquire what rents had been received by the trustees between the death of J. Goodale and the birth of the posthumous son.

Now, it does not appear what trustees there were; but of course if the legal estate was in trustees, the whole doctrine as to the rights of the qualified heir was at an end, because it depends entirely upon strict legal principles, and had no other end than to keep the feud always full. I have assuined, that, in the present case, the lands were occupied by tenants under leases or from year to year, because, unless there was an estate for years outstanding, the qualified heir must have entered, in order to acquire any right to the rents; but as the contrary is not suggested, I presume, that, so far as any question of entry is concerned, she had duly entitled herself to them.

There are several authorities bearing incidentally on this subject, and the Vice-Chancellor, in his judgment in Goodale v. Gawthorne, refers to Doe v. Clarke, 2 H. Bl. 399, for the principle that an infant en ventre sa mere is considered as born for all purposes which are for his benefit. This clearly cannot be so for all purposes, otherwise no question as to intermediate rents could ever have arisen, and it is difficult to see how the right of entry and distress could relate back to a time anterior to the birth. The law certainly is, that the qualified heir is entitled, at any rate, to all the rents actually received, and consistently with this it cannot be said that the heirship relates back for all purposes.

Do the tenants owe a double duty? On the contrary, just as the qualified heir owes the duty to the lord, so the tenants owe their duty to the qualified heir. The tenant cannot owe a duty to the unborn heir, whom the law does not recognize as the person to perform the services incident to the estate, and therefore not as the person to enjoy the benefits of heirship. The case of Basset v. Basset [3 Atk. 203], which was relied on, really seems to be in favor of the infant. Lord Hardwicke held that case to be within the meaning of the Statute, the estate being by way of remainder, though not to a person in the position expressly contemplated by the Statute; but he distinctly notices that the Statute says nothing about descent, and lays down in the very same case the doctrine, that, in the case of estates descended, the qualified heir is entitled to the intermediate rents. The present case comes within the second branch of that decision, and I shall make a declaration that all the rents which accrued during the period of suspense became the property of the qualified heir.1

Mr. Freeling, for the plaintiff.

Mr. C. T. Simpson, for the widow and administratrix of E. Priest Richards.

Mr. Cotton, for Mrs. Treherne.

1 See In re Mowlem, L. R. 18 Eq. 9.

CHAPTER III.

OCCUPANCY.

Unit 40122

SALTER v. BOTELER.

QUEEN'S BENCH. 1602.

[Reported Moore, 664.]

In an action on the case on trover and conversion of certain cows, the defendant justified for rent pur auter vie granted to one, his executors and assigns, and showed how the grantee died intestate, living cestui que vie, and that the defendant took administration and distrained the cows for the arrears, and put them in an open pound, which was the conversion. The plaintiff demurred in law; and it was adjudged pro querente, because the administrator was not special occupant of this rent, but the rent was determined by the death of the grantee, yet the grantee could have granted or assigned it in his lifetime. And if the grant had been to the grantee and his heirs, the heir would be special occupant, as 8 Eliz. Dyer. And POPHAM said that if rent was granted pur auter vie with remainder over, and the grantee died, he in remainder would commence immediately, because the rent for life determined by the death of the grantee.1

Co. LIT. 41 b. Now it is to be understood, that if the lessee in that case [i. e., pur auter vie] dieth living cestui que vie (that is, he for whose life the lease was made), he that first entereth shall hold the land during that other man's life, and he that so entereth is within Littleton's words, viz. tenant pur auter vie, and shall be punished for waste as tenant pur auter vie, and subject to the payment of the rent reserved, and is in law called an occupant (occupans), because his title is by his first occupation. And so if tenant for his own life grant over his estate to another, if the grantee dieth there shall be an occupant. In like manner it is of an estate created by law; for if tenant by the curtesy or tenant in dower grant over his or her estate, and the grantee dieth, there shall be an occupant.2 But against the king there shall be

1 So, in case of an executor, Buller v. Cheverton, 2 Roll. Ab. 150, 151 (1628).

2 In some books it is asserted, that there cannot be an occupant of estates created by law, without distinguishing between a general and a special occupant. Cro. Eliz. 53. 1 Bulstr. 135. 2 Ro. Rep. 123. Probably the assertion was meant to be confined

Cal, civil

Code, */66.

And therefore no

no occupant, because nullum tempus occurrit regi. man shall gain the king's land by priority of entry. There can be no occupant of anything that lieth in grant,' and that cannot pass without deed, because every occupant must claim by a que estate, and aver the life of cestui que vie. It were good to prevent the uncertainty of the estate of the occupant to add these words (to have and to hold to him and his heirs during the life of cestui que vie) and this shall prevent the occupant, and yet the lessee may assign it to whom he will; or if he hath already an estate for another man's life without these words, then it were good for him to assign his estate to divers men and their heirs during the life of cestui que vie.2

AVOWRY; for that one James Strangeways was seised in fee, and granted a rent-charge of twenty pounds a year to William Rabanks, to him and his heirs during his life, and the lives of Mary his wife and of Dorothy and Mary his daughters; and that William Rabanks died in the year 1596, Mary being his daughter, who married with the defendant Peter Poore in the year 1603; and because, at Michaelmas 1597, there was twenty pounds arrear, and not paid to the said Peter and Mary his wife, for the rent so arrear the said husband distrained, and

avows.

The plaintiff pleaded the Statute of Usury; and found against him, and adjudged for the defendant.

to the former, for as to the latter the authorities seem decisive in favor of the heir's taking as special occupant if named in granting over curtesy or any other estate created by law. See 27 Ass. pl. 31. Plowd. 28, and 556, and Palm. 32. But even the doctrine against general occupancy of estates created by law comes merely from persons arguing as counsel, who neither explain why it should not be, nor cite any authorities except 15 E. 3. Fitzh. Abr. Scire facias pl. 17, which appears foreign to the purpose. Harg. note.

1 Lord Hale adds, nor of a copyhold. Hal. MSS.

See acc. 2 L. Raym. 1000, and the reason why in 6 Mod. 66. As to things lying in grant, Lord Coke in mentioning them must be understood to mean general occupancy only; for he writes in another place, that if heirs are named in the grant of a rent pur auter vie, they shall take, though formerly this was doubted. See post, 388. Dy. 186, ed. 1689, in marg. 1 Bulstr. 155. Mo. 625, 664, and Godb. 172. — Harg. note.

-----

2 When A. having a life estate (either for his own life or pur auter vie) grants it to B., a question may arise whether he intends to grant his whole interest or to make a grant only to B. for B.'s own life. See Barron v. Barron, Drury, temp. Nap., 384; Brenan v. Boyne, 16. Ir. Ch. 87; Currin v. Doyle, 3 L. R. Ir. 265; and note to St. 29 Car. II. c. 3, § 12, post, p. 39. - ED.