A writ of error being brought, the first error assigned was, Because this rent granted to one and his heirs during his life and two others, is not descendible to the heir, nor shall the heir be occupant thereof. But ALL THE COURT held these limitations to be good enough; and that the heir shall have this rent as a party specially nominated, and as heir by descent, although it be not properly an estate descendible. Vide Lit. 168, 189; 19 Edw. 3, "Account," 36; Dyer, 233; and 16 Eliz. Dyer; 11 Hen. 4, pl. 2.1

EJECTMENT. Upon a special verdict the case was, That the Bishop of Worcester made a lease to Sir William Whoorwood for the life of him and two of his sons; Sir William Whoorwood let the land to John Mallet at will, rendering rent, and after died; Mallet the lessee holds himself in, but mentions not how he claims, as occupant or otherwise: William Whoorwood (one of the sons of Sir William Whoorwood) being one of the cestui que vie, entered as occupant, and let it to the plaintiff; and the defendant, by the command of Mallet the lessee, ousted him.

The question was, Whether Mallet were the occupant, without claiming it as occupant? or, Whether the other may enter by occupancy?

It was adjudged for the defendant, that the lessee was occupant; for he being in possession, the law casts the freehold upon him, unless he waives it and it is not requisite that he claim as occupant, unless there be a disclaimer in it; for being for his advantage, the law shall adjudge it in him as occupant. Wherefore it was adjudged for the defendant.2

ST. 29 CAR. II. c. 3, § 12 (1676). And for the amendment of the law in the particulars following; (2) be it further enacted by the authority aforesaid, That from henceforth any estate pur auter vie shall be devisable by a will in writing, signed by the party so devising the same, or by some other person in his presence and by his express directions, attested and subscribed in the presence of the devisor by three or more witnesses; (3) and if no such devise thereof be made,

8

1 The rest of the case is omitted.

2 See Chamberlain v. Ewer, 2 Bulst. 11.

3 In Doe d. Jeff v. Robinson, 2 Man. & R. 249 (1828), A., seised of an estate to him and his heirs for the life of B., devised it to C., without using words of inheritance. Held, that C. took the estate for his own life only. But see Serjeant Manning's note to the case. Hagarty v. Nally, 13 Ir. C. L. 532, follows Doe d. Jeff v. Robinson; and

the same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occupancy as assets by descent, as in case of lands in fee simple; (4) and in case there be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands.1

LOW v. BURRON.

CHANCERY. BEFORE LORD TALBOT, C. 1734.

[Reported 3 P. Wms. 262.]

THE bill was for an account of the rents and profits of divers messuages and lands in Warrington, in Lancashire, on this case; John Casson, seised of an estate for three lives in the premises, by his will dated the 12th of January, 1684, devised them to his daughter Mary Mollineux for life, remainder to her issue male, and for want of such, remainder to one Low, under whom the plaintiff claimed. Mary Mollineux, by lease and release conveyed the premises, in consideration of her marriage with Edward Burron, to the use of herself and her intended husband, and the heirs of their bodies, remainder to the heirs of her husband Burron. In 1705 Mary died without issue, and the plaintiff, claiming under the person in remainder, now brought this bill for an account of the rents and profits.

The questions were, first, One having an estate for three lives, and devising it to A., in tail, remainder to B., whether this remainder was good? 2dly, supposing it to be good, whether A. by such lease and release could bar it?

As to the first it was said, and so agreed by the court, that the limitation of an estate pur autre vie to A., and the heirs of his body, makes no estate-tail in A., for all estates-tail are estates of inheritance, to which dower is incident, and must be within the Statute De Donis; whereas in this kind of estate, which is in no inheritance, there can be no dower, neither is it within the Statute, but a descendible freehold only.

Also the Lord Chancellor held plainly, that this was a good remainder to B. on A.'s death without issue, it being no more than a description, who should take as special occupants during the lives of these three cestui que vies. As if the grantor had said, "instead of a

see note to Barron v. Barron, Drury, temp. Nap., 384, 393. Cf. cases cited in note, ante, p. 38, to Co. Lit. 41 b.

1 This clause applies to incorporeal hereditaments. Bearpark v. Hutchinson, 7 Bing. 178 (1830).

See 14 Geo. II. c. 20, § 9, post, and 1 Vict. c. 26 (Wills Act) §§ 2, 3, 6.

wandering right of general occupancy, I do appoint, that after the death of A., the grantee, they who shall happen to be heirs of the body of A. shall be special occupants of the premises; and if there shall be no issue of the body of A., then B. and his heirs shall be the special occupants thereof." And that here can be no danger of a perpetuity; for all these estates will determine on the expiration of the three lives. So, if instead of three, there had been twenty lives, all spending at the same time, all the candles lighted up at once, it would have been good; for, in effect, it is only for one life (viz.), that which shall happen to be the survivor. For which reason, it were very improper to call this an estate-tail, since at that rate it would not be liable to a forfeiture, or punishable for waste, the contrary whereof is true.

2dly, the Lord Chancellor said, that though by a lease, or by a lease and release, A. might bar the heirs of his body, as in some respects claiming under him, yet he inclined to think A. could not bar the remainder over to B., who was in the nature of a purchaser, and would be no way subject to the encumbrances of A. any more than if the estate pur autre vie had been limited to A. for life, remainder to B. for life; in which case plainly A. could not bar B. especially by this conveyance of lease and release, which never transfers more than may lawfully pass; whereas the conveying away or barring the remainder limited to B. (admitting it to have been a good remainder) is doing a wrong to B. and depriving him of an estate, which was before lawfully vested in him. Nay, indeed, it seemed to him, as if no act which A. could do, would be capable of barring this limitation over to B. in regard there could be no common recovery suffered thereof, it being only an estate for lives; and his Lordship said, that this (as he remembered) was determined in the case of Sir Hardolph Wasteneys in the House of Lords, upon an appeal from this court.

But notwithstanding all this, yet, it appearing that the right of the plaintiff, and of those under whom he claimed, had accrued so long since as the year 1705, now near thirty years ago, during all which time the defendant's possession had been unmolested, and the Statute of Limitations being pleaded, (though it was urged, that the plaintiff had not the lease in his possession, and that the defendant in his plea had set forth, that the lease had been renewed: and though it was moreover insisted, that however the plaintiff might be disabled from bringing an ejectment, he might yet bring a bill in equity;) the Lord Chancellor declared, he would grant no relief in the case of so stale a demand, and therefore allowed the plea.1

ST. 14 GEO. II., c. 20, § 9 (1741). And whereas, by an Act made in the twenty-ninth year of King Charles the Second, intituled, An Act for prevention of frauds and perjuries, amongst other things, it is enacted, that estates pur auter vie, whereof no devise should be made,

1 It is now settled that a quasi tenant in tail of an estate pur auter vie can bar remainders by a deed. See Fearne, C. R. 495 et seq.

should, in case there should be no special occupant thereof, go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and should be assets in their hands: and whereas doubts have arisen, where no devise has been made of such estates, to whom the surplus of such estates, after the debts of such deceased owners thereof are fully satisfied, shall belong; be it enacted by the authority aforesaid, that such estates pur auter vie, in case there be no special occupant thereof, of which no devise shall have been made according to the said Act for 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 estate of the testator or intestate.1

RIPLEY v. WATERWORTH.

CHANCERY. 1802.

[Reported 7 Ves. 425.]2

IN a suit for the administration of the estate of the testator, William Marsh Mears, the Master reported that certain lands had been conveyed to the testator, his executors, administrators, and assigns, to hold for three lives and the life of the survivor and for a further term of twentyone years. The Master certified his opinion that the testator had a chattel interest in these estates. Several exceptions were taken to the Master's report by the heir, of which the second was, that the Master ought to have certified that the testator had a real or descendible estate and interest of freehold in the lands aforesaid, and that the same belonged to, or descended upon, the heir at law.

The residuary legatees contended that these lands passed by the will (which was not attested by three witnesses), and were to be applied as directed by the will. In this they were opposed by the next of kin.

Mr. Mansfield and Mr. R. Smith, Mr. Richards and Mr. Hollist, the Solicitor-General and Mr. Bell, for different parties in support of the exceptions.

The Attorney-General, Mr. Fonblanque, and Mr. Whishaw, for the report.

THE LORD CHANCELLOR. [LORD ELDON.] As to the other question, it is singular, that it falls to me to decide it for the first time. It is impossible, that the exception can be right in stating, that it descended upon the heir. I always understood, that this was a freehold; though the word "descendible" has been inaptly applied to it; for though he is described as heir, he does not take as such, but as a special occupant named in the grant. An opinion of Mr. Booth, treating upon 1 See 1 Vict. c. 26 (Wills Act) §§ 2, 3, 6.

2 A short statement is substituted for that in the report, and only that part of the case which treats of estates pur auter vie is given.

what have been inaptly called entails and contingent remainders, notices the impropriety of that: every person named or described by the term heirs, "&c., being merely a special occupant: that description ascertaining the person to take, not by descent, but as named in the grant as special occupant. It was never doubted, that it was in a sense a freehold estate. It must be taken, either that the executor may be special occupant, or not. If the reasoning to prove, that he cannot, is sound, it follows, that a grant to A., his executors and administrators, must be construed, as if those latter words were not inserted. If so, it is directly within the Statute of Frauds and the other Statute together; for then there is no special occupant whatsoever; and the Statute of Frauds will directly attach; and it will go to the executor or administrator, because there is no special occupant; and at least is personal estate to the extent of being assets. In the case in Salkeld [Oldham v. Pickering, 2 Salk. 464; s. c. Carth. 376], the question arose in a court of law between the Statute of Frauds and the other Statute, whether the court would compel him to do more than to pay the debts. The decision, as far as it goes, is, that the court would not interfere farther. Yet I doubt, whether an executor or administrator ever takes anything as such, that he would not be bound to apply as personal estate of the testator. That doubt is founded upon this; that, when the last Statute passed, it did not recognize that case as well decided; treating it only as raising a doubt; reciting expressly, that doubts had arisen. It is clear, that after that Statute, if an executor or administrator is incapable of being a special occupant, they cannot hold for their own benefit any part of the personal estate taken under the Statutes. It is equally clear, that, as far as the party dies intestate, it is not by force of the will, but of the Statutes, that the distribution is to be among the next of kin; and unless the doubts recited by the Statute are ill founded, the consequence is clear, that the exception, as taken, cannot be allowed; for it would prove, that, if this had arisen before the last Statute, and the executor was incapable of being special occupant, it would have gone to the executor to the intent to pay the debts; and then the question would have arisen here, whether there was any trust for the heir. It would be very difficult to maintain that; and either the executor must have kept it himself, or it must have been laid hold of in a scramble. In the case in Peere Williams,1 in the note, it is said, it is distributable in Chancery. That fortifies the doubt, that this court has always considered, that what an executor or administrator takes as such is clothed with a trust of that kind; and that confirms the proposition, that it is not to go to the heir. The Statute of Geo. II. orders a distribution, if this court would not: if it would, there are two authorities to take it from the heir.

An ulterior and different question is, whether if this is taken from the heir, it is to go as the personal estate undisposed, or with that which is disposed of; and not by the mere effect of the disposition, but by

1 2 P. Will. 282, note a.