EJECTMENT. The cause was tried before Maule, J., at the last assizes at Carmarthen, when a verdict was taken for the plaintiff by consent, with liberty to the defendant to move to enter a verdict or a nonsuit, according to the opinion of the court upon the facts of the case, which were as follows: William Lewis, the grandfather

not of a fee, but of a descendible freehold, and not by way of limitation, as a purchase, to the heir, but by descent; though some opinions are that the heir takes it by special limitation as when an estate for life is made, the remainder to the right heirs of J. S., the heir takes it by special limitation, if there be an heir when the particular estate ends. But I see not how, when land or rent is granted to a man and his heirs, pur auter vie, the heir should take by special limitation after the grantee's death, when the whole estate was so in the first grantee, that he might assign it to whom he pleased; and so he who was intended to take by special limitation after the grantee's death, should take nothing at all.

"But to inherit as heir a descendible freehold, when the father or other ancestor had not disposed it, agrees with the ancient law, as appears by Bracton, which obiter in argument is denied in Walsingham's Case.

"Si autem fiat donatio sic, ad vitam donatoris donatorio et hæredibus suis si donatorius præmoriatur hæredes ei succedent, tenendum ad vitam donatoris, et per assisam mortis antecessoris recuperabunt qui obiit ut de feodo.'

"Here it is evident that land granted to a man and his heirs for the life of the grantor, the grantee dying in the life of the grantor, the heirs of the grantee were to succeed him, and should recover by a writ of mordancester in case of abatement (which infallibly proves the heir takes by descent) who died seised as of a fee, but not died seised in fee." Id., 201.

"I observe in this [Williams v. Jekyl, 2 Ves. Sr. 681] and some other cases, Lord Hardwicke seems to have thought that a lease for lives to one, his executors and administrators, would make the executor or administrator a special occupant. The old authorities seem the other way, and if the case were before me I should feel great difficulty in determining according to this apparent opinion of Lord Hardwicke. The title of an executor depends on his taking upon himself the administration of the will, and therefore does not commence instanter, but by his subsequent act; and as to an administrator, ex necessitate, his title cannot commence instanter; and therefore it should seem that the character of special occupant cannot properly belong to either.

"Two cases are stated in Rol. Abr. tit. Occupant, G. 2 and 3. The first is an anonymous case taken from Dyer 328, b. n. 10, but which is apparently reported in 3 Leon. 35, by the name of the Lord Windsor's Case. Rolle, in his Abridgment, certainly represents that case as having determined that if a lease be made of land to a man and his executors, pur auter vie, the executor shall be special occupant, although it be a freehold. On the contrary, Comyn, in his Digest, Estates, F. 1, tit. Occupant, states the case in Dyer as having decided that the executor shall not have the land as special occupant; for an occupant has the freehold, which an executor cannot take; and he refers to the second case stated in Rolle's Abridgment as an authority for this point. That case, which was long subsequent to Lord Windsor's Case, is certainly in conformity to the opinion of Comyn, and according to Salter and Butler, Moore, 664,

of the defendant, being possessed of a lease granted to him by one Nathaniel Morgan, to hold to him the said William Lewis, his heirs and assigns, for the lives of three persons named in the lease, one of

Cro. Eliz. 901, Yelv. 9; and the law seems to have been understood by Peere Williams, 3 P. W. 264, note D, as so settled, though Peere Williams does not appear satisfied with it. It is observable, too, that the Legislature, in framing the English Statute of Frauds, 29 Car. 2, c. 3, § 12, seems to have considered that there could be no special occupant to take on the death of a person holding pur auter vie, except his heir; and the Statute by its provisions did not convert an estate pur auter vie, which is in its nature freehold, into a chattel for want of a special occupant, though it gave the estate to an executor or administrator, nor did it authorize a devise of such an estate as a chattel. An executor or administrator, taking an estate pur auter vie by force of the Statute, is still tenant of the freehold, and the person against whom a præcipe must be brought, even in the case of an administrator pendente lite. The authority of Parliament could so vest a freehold; but could the mere convention of parties have the same effect? and could the convention of parties proceed further than the Legislature had done by the Statute of Frauds, and convert a freehold into a chattel interest, to be acted upon as a chattel interest, in specie? In Oldham v. Pickering, Carth. 376; 1 Salk. 464, and other books, it was held that an administrator taking an estate pur auter vie under the Statute of Frauds, took only for payment of debts, and debts being paid, held as special occupant by force of the Statute, and was not compellable to distribution. The English Act, 14 G. 2, c. 20, § 9, therefore made such an estate in the hands of an executor or administrator distributable as personal estate; though to be conveyed, I apprehend, by a freehold conveyance, for the Statute gives no other conveyance. I observe Mr. Hargrave, in his notes on Co. Lit. (41 b. n. 4) seems not to have been satisfied with Westfaling v. Westfaling, and the authority there relied on in Dyer, 328 b. But Lord Hardwicke appears, in deciding the case of Williams v. Jekyl and Elliot v. Jekyl, to have conceived that an executor, if not an administrator, might take lands granted for lives to one, his executors and administrators, as special occupant, independent of the Statute, and by virtue of the words of the grant; which he seems to have considered as making the estate a sort of chattel interest, different in its nature from a lease pur auter vie to a man and his heirs, expressly avoiding any declaration of what his opinion would have been on the case before him, if the lease had been of the latter description.". - Per LORD REDESDALE, in Campbell v. Sandys, 1 Sch. & L. 281, 288-291 (1803).

"The general doctrine as to estates pur auter vie is plain enough. As to lands, if there is a lease to A. during the life of B., and A. dies living B., any person (at common law) who got possession of the land might hold it during the remainder of B.'s life as general occupant. But if the lease is to A. and his heirs during the life of B., then general occupancy is not permitted, and upon the death of A. the heir of A. would take. Now an heir, strictly speaking, can take by descent only an estate of inheritance, and it is, therefore, inaccurate to speak (though the expression is frequently used) of a descendible freehold not of inheritance. The heir in the case put takes not by descent; it is true he takes it because he fills the character of heir; but he takes not as heir by descent, but as special occupant.

"Then comes another question. Suppose a lease of land pur auter vie to A., his executors and administrators. Then this question has been raised: A. dies, leaving the cestuis que vie living; does A.'s executor take as special occupant, or may anybody take as general occupant? Upon this point there are authorities on both sides. One ground on which it has been contended that the executor cannot take is, that an executor takes only personal, not real estate. But I think that argument is founded on a misconception. When land is granted to A. and his executors, the executor does not take as executor by descent or devolution from his testator, but as the person described as special occupant. Another reason given is, that if there is a limitation to A. and his executors during the life of B., and A. dies living B., there must be some interval

whom was still living, by his will, dated the 25th of March, 1817, devised the premises in question to his son W. J. Lewis, and his assigns, during the residue of the lease, subject to the payment of the

before the title of the executor accrues, and that neither the executor nor administrator can take instantly. But I cannot see the force of that reasoning. If a man devises land to his executors, some interval must elapse before there is an executor completely constituted; but has it ever been held that such a devise cannot take effect? or has its validity been ever even doubted? However, that question is not necessary for me to decide here; but if it were, I should certainly hold that it is competent to an executor to take land as special occupant.

"Then another question has arisen: When the property is incorporeal, such as rent, tithes, &c., in that case can there be a special occupant? And there are dicta which tend to the conclusion that in such a case there cannot be a special occupant. But the effect of the authorities on the whole is in my opinion clearly this: that although as to incorporeal hereditaments there cannot be a general occupant, there is nothing to prevent special occupancy. There is no reason against it; and it seems unnecessary for any purpose of reasoning or principle to hold otherwise. And when you consider the reasoning on which it has been said that there can be no occupant, it is clear that that reasoning applies to general, not to special occupancy. The reason assigned is this: The occupant in his defence to a real action must either allege right in himself through his ancestor, which a general occupant, of course, cannot do; or else he must plead a que estate, that is, the estate of the person whose estate he has ; and to show that, he must show the deed under which he claims, which the general occupant who has no documents of course cannot do. That is the sort of technical reasoning that has been applied. But it is clear that reasoning does not apply to a special occupant. He cannot plead, it is true, that he is in of his ancestor's estate, but he can plead in the que estate; he can plead his deed, and therefore if it were necessary to decide it, there would be no doubt on my mind that there may be a special occupant of an incorporeal hereditament. And concluding, as I do, that the law is, that an executor may be special occupant of a corporeal hereditament, I should have no hesitation in coming to the conclusion that he may also be special occupant of an incorporeal hereditament.” — Per KINDERSLEY, V. C., in Northen v. Carnegie, 4 Drew. 587, 590592 (1859). See the Vice-Chancellor's remarks given at greater length in the report in 28 L. J. Ch. 930, 933-936. Cf. Challis, Real Prop. 289, 290.

"Instead of limiting the estate to the trustee and his heirs, it was sometimes limited to him, his executors and administrators, it being understood that executors or administrators may take as special occupants. Lord Hardwicke always treated this point as clear; Duke of Marlborough v. Lord Godolphin, 2 Ves. 61; Williams v. Jekyl, 2 Ves. 681; Westfaling v. Westfaling, 3 Atk. 460; 7 Ves. 446, cited from Lord Hardwicke's notes; and Lord Eldon expressed the same opinion; see Ripley v. Waterworth, 7 Ves. 425. But in the case of Campbell v. Sandys, 1 Sch. & Lef. 281, Lord Redesdale said that the old authorities seemed the other way, and if the case were before him, he should feel great difficulty in determining according to the apparent opinion of Lord Hardwicke. Lord Redesdale, in support of his opinion, referred to two cases stated in 2 Ro. Abr. tit. Occupant (G) 2 and 3; the first of which is reported in Dyer, 328 b, pl. 10, and in Leonard's third volume, p. 35, by the name of Lord Windsor's Case, and is stated by Rolle as a determination, that if a lease be made of land to a man and his executors pur autre vic, the executor shall be special occupant, although it be a freehold. He also referred to Comyn's Digest, Estates (F 1) tit. Occupant, where the case in Dyer is stated as a decision, that the executor shall not have the land as special occupant, for an occupant has the freehold, which an executor cannot take; and Comyn also refers to the second case stated by Rolle, as an authority for this point. That case,' Lord Redesdale added, which was long subsequent to the case in Dyer, is certainly in conformity to the opinion of Comyn; and according to Salter v. Butler, Moore, 664, Cro. Eliz. 901, Yelv. 9; and the law seems

rent and the performance of the covenants. W. J. Lewis, the son, having died intestate in possession of the premises, the defendant took possession of them as his nephew and heir-at-law. This ejectment was brought by the administratrix of W. J. Lewis, and the question was whether the leasehold premises belonged to the personal representative or to the heir.

to have been understood by Peere Williams, 3 P. W. 264, note [D] as so settled, though Peere Williams does not appear satisfied with it.'

"Now it is too much to say, that no point is in practice considered more clear than that an executor or administrator may take a freehold estate as special occupant. The contrary opinion seems to have arisen from the case of a corporeal hereditament, of which there may be an occupancy, and the case of an incorporeal hereditament, as a rent, of which there cannot be any occupancy, having been confounded. Rolle seems to have drawn a just conclusion from the case in Dyer and Leonard. It appears to have been taken for granted in that case, that an executor might be a special occupant, but there the tenant pur autre vie had made a lease; and the question was, whether the lessee should not be occupant. In the next case stated by Rolle, the determination was, that of a freehold rent the executor could not be special occupant. C. B. Comyn without doubt confounded these cases; for, in support of his position, that an executor cannot take a freehold as special occupant, he refers at once to the case in Dyer, and the last case in Rolle, whereas that case turned upon a corporeal, this upon an incorporeal hereditament; no two cases can be more distinct. The reason stated by Comyn, that an occupant has the freehold, which an executor cannot take,' is copied from Rolle's last case; but there the reason is, 'because that that [viz. the rent] is a freehold which cannot descend to the executor,' and not that a freehold generally may not be taken by an executor as special occupant. The case of Salter v. Butler, which is referred to by Comyn and by Lord Redesdale, was also the case of a rent, and there the claim was by an administrator, and the rent was granted to the intestate, his executors and assigns, so that he could not claim as an occupant, because the interest was not capable of occupancy, not by the grant, because he was not an assignee. As to Peere Williams, he simply refers to the second case in Rolle, to show that an executor cannot be a special occupant of a rent, although he seems to think that upon principle, an executor might be a special occupant of even a rent as well as an heir; so that if his opinion should be thought to bear upon the point, it is in favor of the executor's ability to take as special occupant. See 3 Jo. & Lat. 169.

"C. B. Gilbert has taken the precise distinctions on this head, for which he refers to Rolle's Abridgment and the case in Dyer. That learned writer lays it down as clear, that an executor may take a freehold as special occupant; 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 up by this appointment. But, he adds, that if

a rent be granted to J. S. and his executors, during the life of B., by the death of J. S. the rent is determined, because the executors cannot take as special occupants, since the nature of the thing lying in agreement is not capable of occupation; nor can they take by the grant, because then they must take as representatives, which they cannot be of a freehold; and the law will not permit people at their pleasure to vary the course of descent. Bac. Abr. tit. Estate for life, § 3; and see Savery v. Dyer, Ambl. 140. In the case of Northen v. Carnegie, 4 Drew. 587, Kindersley, V. C., expressed his opinion that an executor may be special occupant of an incorporeal hereditament; but the authorities were not fully considered."- Sugd. Pow. (8th ed.), 193–195.

Where land was conveyed pur auter vie to A., his heirs, executors, administrators, and assigns, it was held, in Atkinson v. Baker, 4 T. R. 229 (1791), that the heir took as special occupant; and in Carpenter v. Dunsmure, 3 E. & B. 918 (1854), the same was held in the case of a devise.

John Wilson now moved accordingly.

PARKE, B. It has been said that much doubt exists in the profession as to the question which has been raised in this case; but I do not see why such doubt should have existed. Originally there was a special occupant designated in the lease to William Lewis, the grandfather, his heirs and assigns; but when the grandfather devised the premises to W. J. Lewis, the son, and his assigns, he thereby defeated the title of his heirs as special occupants, and the devisee continued to hold the property to himself and his assigns for the residue of the term. The utmost that could be said is, that if W. J. Lewis the son had made an assignment of the lease, perhaps his assignee would be entitled to hold the estate as special occupant; but where, as is the case here, he makes no assignment at all, it falls within the express words of the Statute of Frauds, 29 Car. 2, c. 3, § 12, which provides that, in case there shall be no special occupant of an estate held pur autre vie, it shall go to the executors or administrators of the party that had the estate thereof. Now here there is no special occupant, the title of the first lessee having been put an end to by the will; the land has been held under a tenancy pur autre vie to W. J. Lewis the son, and his assigns; and as he died without creating any assigns, the property goes to his personal representative. It is said, however, that although there was here no express assignment by W. J. Lewis the son, the property may go to his heir, as being the assign in law; but it must be remembered that this is a devise under the Statute 29 Car. 2, c. 3, not under the Statute of Wills, relating to an estate in fee-simple; and I do not think that "assigns" can be considered as comprised under the words "heirs, executors, or administrators," used in that Statute. The word "assign" does not mean "heir;" it means a person substituted for another by an act of some kind or other; and as the devisee has not done any act to appoint any assign, the property must go to his administratrix.

ALDERSON, B., and ROLFE, B., concurred.

Rule refused.

WALL v. BYRNE.

IRISH CHANCERY. 1845.

[Reported 2 J. & L. 118.]

LUKE WALL, being entitled to the lessee's interest in certain lands, held under a lease for lives renewable forever, in 1831 obtained a renewal thereof; and thereby Robert Johnston, in whom the reversion was then vested, demised the lands to him, his heirs and assigns, for the term of three lives therein named, with a covenant for perpetual renewal.