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. 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. Westfaling [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

That Statute

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. 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.

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estate, and the effect of the Statute is to be laid out of the question, upon what principle is it personal estate to the extent of paying simplecontract debts, and no farther? It is difficult to know, how a principle of law can work that distinction; though a Statute might. But the Statute is laid out of the question; and upon the whole reasoning it is intimated, that it would be so, because it is personal estate. In what sense personal? Upon the executor's death who would take it? If he dies without an executor, would it go to the administrator de bonis non? Would it go to the representative of the executor? That is left in doubt. Would it be freehold estate in the man, who first got possession? That is left in doubt. But the clear opinion of Lord Cowper was, that, whatever was the nature of the interest, it was, independent of the Statute, assets for all creditors generally. It does not rest upon that authority only: that case coming afterwards before Lord King; and the account of Lord Cowper's opinion in the argument of Lord Talbot being, not only that the estate was assets, but that it was distributable. The difficulty upon this case is, that, when it is said, the premises are personal estate as naturally as if limited originally to executors, that involves as much difficulty as the question, What is to become of the estate, if granted originally to the executor? and all the doubts, that I before stated, occur upon that. What is to become of it, if the executor dies without a representative? Is the administrator de bonis non to have it: the executor of the executor, &c.? All that is left undetermined by the language of these cases.

The case of Oldham v. Pickering, in a great many books, was also a case long before the Statute of Geo. II., and therefore does not at all determine, what would have been the opinion of the court, if it had been subsequent to that Statute. That was an original lease to a man and his assigns pur auter vie. There was no assignment of it: therefore it is directly within the Statute. The judges were of opinion, the Statute made it assets for debts: but beyond that they left it just where it was. But it is to be observed, that is a case, to which none of the doctrine of this court, as applied to grants originally made to a man, his executors, administrators, and assigns, could be applied; for that is a case, in which the executor is treated as being a special occupant; and this court has considered him with reference to that, and also as being personal representative. It was their own by force of the Statute, not the grant; and therefore that had nothing to do with the question, if that grant had originally contained the word "exeI am not surprised, that great difficulty occurred to them upon the point, what would become of it after the debts paid. It is not easy to determine that in case of the death of the executor. In Carthew, Lord Holt even doubts, whether it would not be assets for legacies; and if so, it is very difficult to say, it would not for the residue; which is in the nature of legacy. By the note in Peere Williams to The Duke of Devon v. Atkins, which note being in the first edition of that book is of some authority, it seems to have been

the opinion of the author of that note, that there was an equity to say, if the executor or administrator took it as a special occupant, the effect of his character as executor or administrator, should fix upon his legal title as such an equity for those, who claim the personal estate, to make him a trustee.

In Westfaling v. Westfaling it appears from Lord Hardwicke's notes, that several points were made. It was heard in May, 1746; and his Lordship took time till the 13th of April, 1747, to consider. The Duke of Devon v. Kinton was cited; and there is a reference" Quod vide;" which I understand as a hint to himself to refer to the original case. Great stress was laid upon that decision. The case was argued very fully; and it was insisted, that an estate pur auter vie to a man, his executors, administrators, and assigns, was assets for debts before the Statute. Lord Hardwicke says, there are four questions: two of law, and two of fact. First, as to the advowson, he held an advowson in gross to be assets by descent at common law for specialty debts, upon the authority of Co. Lit. 374 b, Sir Thomas Jones, Robinson v. Tonge, 3 Bro. P. C. 556; 3 P. Will. 398, before Lord King: in which the general question was referred by the Lords; and all the Judges. agreed, that an advowson in fee-simple is assets in the hands of the heir for the debts of the ancestor. Secondly, as to the lease pur auter vie ; he held such a lease to A. and his heirs, was within the Statute of Fraudulent Devises as to specialty creditors: plainly within the words and meaning; and he agreed with Lord Cowper, 2 Vern. 719: and he farther declared, that a lease pur auter vie, where there is no special occupant, though devised, is by the Statute of Frauds assets in the hands of the executor to pay debts generally; for that Statute in effect made him special occupant in all such leases, as if inserted therein. Lord Hardwicke then refers to 2 Roll. Ab. 151, and Lord Cowper's judgment in The Duke of Devon v. Kinton, and the reasoning of Lord Holt in Oldham v. Pickering, and in Carthew. In the case in Roll.'s Abr. it seems held, that an executor might be a special occupant; and a case immediately follows, in which it is said the executor shall not be a special occupant, because it is a freehold which cannot descend to the executor. Lord Redesdale in an opinion I have seen says, great confusion has arisen upon that by not referring to a case in Dyer; from which it is collected, that the executor is treated clearly as having a freehold estate. But still, if a freehold, it is in contemplation of this court a freehold that has got into the executor; and the question is, whether he holds it as freehold for his own benefit in this court. the executor is to be considered as special occupant, the Statute takes no notice of him as such. I do not know how to state the principle, that the executor is to be considered a special occupant, better than it is expressed in Bacon's Abridgment (2 Bac. Ab. 277); which has brought all the subject together; and which is very well filled up, as to the late cases, by Mr. Gwillim :

If

"If a lease be made of land to J. S., his executors and assigns,