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 But it is to be observed, that is a case, to which none of the doctrine of this court, as applied to grants originally made to a man, his executors, administrators, and assigns, could be applied; for that is a case, in which the executor is treated as being a special occupant; and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 “ executors." I 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. If 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 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 dies in the life of B.; for though it be a freehold, which in 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 themselves, who originally had the possession, have filled it by this appointment."

And the reasoning is analogous to rents; of which, being an in-. corporeal hereditament, here could be no special occupant. Therefore if it was granted to A. during the life of B., by the death of B. there is an end of the grant: but if to the heirs, &c., then it is said, the executor should be quasi occupant: that is, he should take under the appointment and designation of the grantor, the person having a right to designate, who should take it.

Then, as to the Statute 14 Geo. II. we must look a little to the history of the law for the intention of it. First, suppose this sort of grant to A., his executors and administrators, during the life of another, not at all within the Statute of Frauds: if so, it should seem not to be within the Statute 14 Geo. II. If it is to be said in this sense to be within the former, in the words of Lord Hardwicke," that, where it is granted without mentioning the executor, the effect of the Statute is to make it go to the executors and administrators, as if they were named," then you take this circumstance, that between the two Statutes the question had arisen, what was to become of such an estate under the effect of the Statute of Frauds; and the court was of opinion, the executor or administrator as such could keep it against an application in a court of law, notwithstanding any claim of the next of kin or under a will in the spiritual court. That opinion however was doubted. Lord Holt doubted, whether legatees should not take it; and very considerable doubt was entertained in this court upon the subject. The Statute was therefore made to exclude all doubts. First, take it, where the executors and administrators were not named: the doubt was, to whom it was to go after the debts. It seems, the Legislature would have left the matter very short of a rational and prudent purpose, if they had said simply, it should go among the next of kin. How is it to go among them, supposing, there was no other claim? If one dies, he took it as personal estate: does it become real estate afterwards? If more than one: is it to be divided; and each aliquot part to become freehold? Was it intended, that in all cases, where there was a will of personal estate generally, unless executed with three witnesses, it should not touch this interest: which as to the claim of the next of kin would be personal estate? I have a strong inclination, that the meaning was, that the residuum of such an estate should go with the rest of the personalty, where there was a will; and to the next of kin, where there was an intestacy; and that the language of that Statute would bear out that; and it would be more extraordinary, that persons claiming by bequest should not have been attended to,

when upon the Statute of Charles II. Lord Holt doubted as to legacies. The question is, whether, if the executor has the interest as in the nature of a freehold, he is not a trustee in equity for the persons taking the personal estate; and a will, not attested by three witnesses, will give them a title to call upon him for their benefit; he having the interest in him; and the interest not having passed from him. I think, that is the case in a court of equity; for I cannot think, how it should he, that such a property in an executor, independent of any Statute assets for simple-contract debts, from the fact, that it is in him as executor as well as special occupant, does not give that title; because it has in him the nature of personal estate. If so, I cannot state the principle for saying, it should be personal estate to the point of giving creditors a claim upon it, and no farther. The character of executor still remains in him. He is no less executor, because afterwards he is special occupant. If the character of executor raises a trust in him, and an interest in others, to that point of giving interest to all who can claim it as personal estate, it is personal estate. This was the opinion of Lord Cowper and of Mr. Peere Williams; and it would be a whimsical state of the law, that, considering it freehold, it should be in the power of the ordinary to dispose of it ultra the debts. To the heir it could not go, for the reasons I have stated. It must therefore remain with the creditor. The opinion of Lord Hardwicke also to a very considerable extent is in favor of this. All admit, it would be assets for debts; and in Williams v. Jekyl, Lord Hardwicke says, The estate is a term for three lives, not created originally as a descendible freehold to go to the heir as special occupant, but to the lessee, her executors, administrators, and assigns; so that the executor of the first lessee must take this as a special occupant under the limitation" (2 Ves. 683).

Lord Hardwicke seems to consider it for that as personal estate. Lord Kenyon also seems to consider it personal. But if not, it must now be determined, what is to become of it. If he takes it beyond the debts as special occupant, then, if he should not have an executor, (for an administrator de bonis non is not sufficient under the original grant) would an administrator durante minore ætate take it? A second executor would be one taking it for his own benefit without any description of persons to take after his death. Then if he dies during the life, his case would fall directly within the terms of the Statute of Frauds; and it would be assets for his debts; and then under the Statute 14 Geo. II. would go to his next of kin. It would be very extraordinary, that, if such an estate was given to A., his executors, administrators, and assigns, and he should die, his executor paying the debts should hold it entirely for his own benefit; but, if that executor should die, his executor should take it under the two Statutes; and by the first Statute pay the debts, and by the other hand it over to the next of kin of the first executor.

There is very arduous difficulty in this.

But I rather think, in

equity such a freehold estate, originally granted to A., his executors, administrators, and assigns, though devisable as to the legal interest only with three witnesses, has been considered as belonging to those, who take the personal estate, by an equity attaching upon the character of executor as executor, and there is extreme difficulty in saying, the administrator should take for his own benefit. It is the same as the case of stock; which is to be disposed of by will only with two witnesses but Lord Thurlow said, where it is not so bequeathed, devolving upon the executor, it devolves upon him as executor, in trust for those, who are entitled to the personal estate. This is according to the idea of Lord Redesdale; and that is confirmed by a conversation I had with his Lordship, which produced a passage in the Legacy Act (Stat. 36 Geo. III. c. 52, § 20); for it was necessary to consider, how the duty was to be collected upon estates pur auter vie; where they happened to be personal estate; and a clause was introduced into the Statute, that they should be valued: the Legislature leaving, as they found it, how much was to be personal estate.

Upon this case therefore I am of opinion, that this interest can in no event go to the heir; that it does not belong to the administrator; and, as to the point between the next of kin and the residuary legatees, that the executor is in this court a trustee for those, to whom the testator has given the personal estate by a will sufficient to pass personal estate; and therefore he must be considered as holding it for the residuary legatees.

Declare that, with regard to the leases pur auter vie, the produce of those estates is in like manner to be considered the testator's personal estate. They remain freehold estates to the purchasers undoubtedly.'

1 "And that which hath intricated men in this matter, hath been a conception taken up, as if the occupant had for his object in being occupant, the freehold which the tenant died seised of, which is a mistake; for the subject and object of the occupant are only such things which are capable of occupancy, not things which are not, and not the freehold at all, into which he neither doth, nor can enter; but the law casts it immediately upon him that hath made himself occupant of the land or other real thing whereof he is occupant, that there may be a tenant to the præcipe." - Per VAUGHAN, C. J., in Holden v. Smallbroke, Vaughan, 195 (1668).

"In the next place I shall agree, that the occupant of a house shall have the estovers, or way pertaining to such house, the occupant of the demesne of a manor, or of other land, shall have the advowson appendant, or villain regardant to the manor or common belonging to the land, and the services of the manor not severed from the demesne before the occupancy.

"For a possessor of a house, land, demesne of a manor, as occupant, doth not by such his possession sever anything belonging to the land, house, or demesne, more than the possessor by any other title than occupancy doth; and if they be not severed, it follows they must remain as before to the possessor of that to which they pertain." - Id., 196.

"By this I hold it clear that if a man demise land to another, and his heirs, habendum pur auter vie, or grant a rent to a man and his heirs, pur auter vic, though the heir shall have this land or rent after the grantee's death, yet he hath it not as a special occupant (as the common expression is), 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,