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

12 P. Will. 282, note a.

the accumulated effect of the will and the Statute, or rather the Statute disposing to the same purpose of what is undevised as what is devised. It is not a great stretch, though hazardous, to say, the Statute meant to apply both to testacy and intestacy. The difficulty is, that both those cases must have been contemplated; for if the executor gets it by the Statute of Frauds, there must have been a will: if the administrator, in all probability an intestacy: and that Statute has both expressions. If the Legislature intended in all cases, either of intention to dispose, or not, to give it to the next of kin, they would probably not have used any other expression than "distributed:" not "shall go, be applied," &c. So "the personal estate of the testator " is a singular expression; for upon the construction now pressed it would have been sufficient to have said, "if the party dies intestate."

All I have said is upon the notion, that an executor cannot be a special occupant; which is a strong assertion now from the authority in Vaughan and the other considerable authorities; and Lord Hardwicke in Westfaling v. Westfuling [3 Atk. 460], treats him as capable of being So. It might be said, he is a species of special occupant; and the law in early periods might struggle against general occupancy to say, that by relation when appointed he should take from the general occupant; and considering, that the grant itself affects to give it to executors, there is not much favor due to the objection, that the executor as executor shall not take under the grant of the grantor.

But the question remains, if he does take as executor, has or has not this court considered him as taking for the benefit of those, who take the personal estate? In the case of intestacy the administrator does take for the benefit of those, who would in that case take it. Whether that reasoning will enable the court to say, that an executor, who will not be permitted in this court to take for his own benefit, shall apply it for the benefit of those, who gave him the character of executor, is new. I rather incline to hold it. The case of stock affords some analogy. Under all the Acts stock cannot be given by will except with two witnesses: yet this court often considers it given without witnesses; and for the purpose of a residuary bequest. Lord Thurlow has said, the executor takes it as executor; but takes it still under the will yet it is expressly against the Statutes requiring expressly two witnesses. He reasoned it thus: that the will was a direction to the executor how to apply it; though it was not devised by that will.

July 26th. This case is involved in great difficulty of form, as well as turning upon one or two considerable questions. The Master's report does not answer the inquiry. The Master was only to state, what the interest was. The reference also ought to have been to state, what deeds, &c., were executed; and the court ought to have reserved to itself the question as to the right to the property. The Master has reported, that this property was a chattel interest.

The considerations are very different, whether it is a chattel interest, or a freehold interest in this court clothed with a trust for persons

claiming the personal estate. I do not wonder, that in framing the second exception, great difficulty was found, what expression to apply to this sort of property; for upon the cases I have found it very difficult to determine, under what phrase to describe this interest. If I had been aware of the importance of the point upon the second exception, I should have called in the assistance of the Master of the Rolls. The question seems to me to be new: What is to become of the property in a leasehold estate for lives, originally granted to a man, his executors, administrators, and assigns, beyond the point of the payment of the debts? I take it to be thoroughly settled, that a leasehold estate for lives, if of a freehold character, when so granted, is assets for the payment of simple-contract debts; and in this respect at least this freehold is distinguished from all other freeholds. But it has never been decided in specie, what is to become of such an interest, so granted, after the debts paid. The case in that respect is new; and the point difficult; for every judge has avoided a decision upon it.

I am clearly and decidedly of opinion, that the last proposition of this exception, that these estates belonged to, or descended upon, the heir at law, cannot be maintained. In every view of it, and subject to all the difficulties belonging to the question, my opinion is, that if the executor is not a trustee for the next of kin or those taking under testament the personal estate, he has himself a better right than the heir; and, without going through all the cases, it might be made out by unquestionable authority, upon a reason analogous to those given in the species of case, that I am about to mention. Where a tenant pur auter vie had made a lease for years, and the lessor died before the under-lease expired, the cestui que vie still living, the lessee for years would in that case take the estate itself; for to occupancy there are necessary a vacant possession, and a filling-up of it by some person, who meant to occupy; and no one could enter upon the lessee for years. Therefore if he chose to say, his lease should merge in the freehold, the estate would be full of him; and he would take it as his own. So the executor being in possession of the estate, and the estate full of him, it is impossible that he can be a trustee for the heir. The heir is therefore quite out of the case; and the question is between those claiming under the testament and the next of kin, and the executor, except as to the twenty-one years; which interest is clearly personal estate; and passes by the will.

This question upon the authorities is involved in great doubt and obscurity. First, without presuming to state, which of the authorities are most conclusive, there appears to be great countenance given in many books to the same sort of difficulty in making the heir a special occupant as in making the executor one; for if this is a descendible freehold, the heir takes by descent; and, that it is so in a sense, is excessively difficult to deny upon Vaughan's very learned and able argument, alluded to in all the books upon this subject, and particularly noticed in Mr. Hargrave's note. Vaughan's expression is very

like that in Seymor's Case, 10 Co. 95. Vaughan says, "The heir hath it not as a special occupant; for if so, such heir were an occupant ; which he is not; for a special occupant must be an occupant; but he takes it as heir, not of a fee, but of a descendible freehold; and not by way of limitation, as a purchase, to the heir, but by descent," &c. He then cites Bracton, to prove, that an assize of mort d'ancestor might be maintained by the heir. Lord King seems also to think, that the question, as a question of assets, must be considered both with reference to taking as special occupant and in some other character.1 Lord Coke in Seymor's Case says, he is special occupant but in a manner. In other books it is said, that he is not only special occupant, but he takes by descent. I do not quite understand this sort of language. But with this sort of language as to the title of the heir, it is a clear fact, that long previously to the Statute of Frauds the observation of the courts was thrown upon the effect of these grants of an estate to a man and his assigns, to a man, his executors, and assigns, or his executors, administrators, and assigns. That Statute upon reading it does not appear intended to apply to such grants. From the early cases the question seems to have arisen, whether these estates were devisable; and it was held, that they were not; though they had a descendible nature about them. Upon the Statute the observation is very proper, that if the executor was considered as special occupant, as the heir was, it is very singular, that there is no express provision as to estates so granted to executors. If previously the executor was considered as being the special occupant, or “in a manner or as it were" special occupant, this Statute has not said, what is to become of the estate, in case there is such a special occupant; but only, in case there is no special occupant; and then only declares, that it shall be assets in the hands of the executor, or administrator. It is necessary therefore to inquire, what was conceived upon this subject previously to the Statute; which is to be collected from the older books. The passages are referred in the more modern books. Most of them are in Westfaling v. Westfaling; and I have found Lord Hardwicke's judgment upon that case. The Duke of Devon v Kinton, first, before Lord Cowper (2 Vern. 719), and afterwards before Lord King,' was, according to the report in Vernon, a lease, in which originally the grant was to a man and his heirs, in the sense, in which those words are used as special occupant; but in Peere Williams it appears originally granted to trustees. The heir however might be in a sense represented as special occupant of the equitable interest. The counsel seem to have been taken to be clear, that, if permitted to go to the administrator without devise, it would be assets for payment of debts generally. The Lord Chancellor states, that it is made personal estate. The difficulty upon that is, What is the nature of the estate in the executor? Is it freehold? If so, how is it assets for simple-contract debts? If it is to be considered assets for simple-contract debts, as personal 1 Duke of Devon v. Atkins, 2 P. Will. 380.