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,

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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 be, 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

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.

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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 vie, 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,

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 ópinion 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