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 vie, 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.

In September, 1832, Luke Wall made his will, containing the following devise, which included in it his interest in the lease: "And as for and concerning all my real, freehold, and personal property, which I now possess or am entitled to, I give, devise and bequeath the same and every part thereof unto my dear wife and my children, Margaret, Anne, Ellen, Mary, Joseph, Luke, Christopher, and Valentine, share and share alike:" and died shortly afterwards.

Mary Wall and Christopher Wall, having survived the testator, died intestate and unmarried.

This suit was instituted to administer the assets of Luke Wall, and to carry the trusts of his will into execution: and under the decree to account pronounced in it, the Master reported that the shares of Mary Wall and Christopher Wall in the lands demised by the lease of 1831, descended upon and were vested in Joseph Wall, their eldest brother and heir-at-law.

To this report exceptions were taken upon behalf of some of the younger children of the testator, upon the ground that the Master should have found that, upon the death of Mary Wall, her share in the freehold estates, which were estates pur auter vie, and devised by the testator to his wife and children share and share alike, without naming any special occupants, vested in her personal representatives. A similar exception was taken to the finding of the Master with respect to Christopher Wall's share.

Mr. Fitzgibbon and Mr. Connor, in support of the exception, cited Doe d. Lewis v. Lewis, 9 M. & W. 662, and were proceeding to argue the case, when they were stopped by

THE LORD CHANCELLOR. [SIR EDWARD BURTENSHAW SUGDEN.] I cannot permit this exception to be argued. If ever a point was closed. by decision it is this; that where a man has an estate pur auter vie, limited to him and his heirs, and devises that estate, by words which, without words of limitation, would pass the quasi inheritance as the words here would — and the devisee dies intestate, the persons to take are the heirs and not the personal representatives of the devisee. The point was so decided in this country many years since; and that decision has been followed in England; and many opinions have been given on it. I must therefore decline to hear the question argued; for I will not be auxiliary to unsettle settled opinions. The case of Doe d. Lewis v. Lewis is distinguishable. There the devise was to a man and his assigns, which, it was held, did not mean heirs: but in this case the devise is in general terms, and in words which are sufficient to pass the entire interest under the lease. If this had been a fee simple estate, it would have gone to the devisee and his heirs under the terms of this devise. The testator gives all his interest in the lands to his devisees; and both law and good sense require that they should take the same interest which he himself had. It is a settled point, and not now open to 1 See Blake v. Jones d. Blake, 1. Hud. & Bro. 227 n.; Philpotts v. James, 3 Doug. 425.- REP.

be disturbed. It was settled by a case in this country, decided upon great consideration, which has been since recognized and acted on. I shall therefore follow those authorities, and leave the error, if it be one, to be corrected elsewhere.1

1 In Philpotts d. Philpotts v. James, 3 Doug. 425 (1784), A., seised of an estate pur auter vie to him and his heirs, devised it to B (without more). B. died without leaving a valid will. Lord Mansfield and the Court of King's Bench were of opinion that B.'s heir, and not his personal representative, was entitled. B.'s heir was, however, also the heir of A., and the case may perhaps rest on the ground that B. took an interest for his own life only. See opinion of Buller, J., and also note to St. 29 Car. II. c. 3, § 12, p. 39, ante.

"It has often occurred to me in practice, says Sir W. D. Evans, to meet with a case where the estate was demised to the lessee, his heirs and assigns; and the lessee had devised it in general terms, without mentioning executors or heirs; and, after the death of the assignee, it has been a question how it should go. I have seen opposite opinions on the subject by Lord Kenyon and Mr. Fearne : the latter in favor of the heir; the former in favor of the executor, which opinion was persisted in after a communication of the opposite sentiments of Mr. Fearne. And it is no doubt the true conclusion upon the subject: for, as there is no actual designation of the person of the heir, the ground on which he could claim, as special occupant, entirely fails; and the case, therefore, reverts to the general disposition of the Statute of Frauds, that where there is no special occupant, it shall go to the executor. " Chambers, Landlord and Tenant, 563.

In Doe d. Kerr v. Cassidy, Huds. & B. 222, note (1807), and Jack d. Alexander v. Jamieson, Id. 225, note (1811), the Court of King's Bench in Ireland decided in favor of the executor. In the first case DOWNES, C. J., said, "I wished to have this case spread on the record, not from any doubt of my own, but an alleged difference of opinion among respected individuals at the bar." In the second case he said, "The same point, precisely, was decided in the case of The Lessee of Kerr v. Cassidy, and no reason has been shown why we should change our opinion. We regret that we have allowed this to be argued, which we would not have done, had we been at first aware, that the point was the same as in the former case."

But in Blake v. Jones, 1 Huds. & B. 227, note (1813), the Court of Exchequer Chamber in Ireland, affirming the judgment of the Court of Common Pleas, held for the heir.

But see Croker v. Brady, 4 L. R. Ir. 61, 653.