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1803.

CAMPBELL

SANDYS.

and the contract is therefore to be taken most beneficially for the wife and children and least beneficially for David Campbell. With respect to John the husband, so far as he was to take any thing in the lands under the contract, he is almost in the nature of a volunteer; no consideration appears to have flown from him ; it cannot be conceived to have been the intent of the parties that he should take any thing until the other objects of the agreement should have been exhausted. With respect to the 500l. the articles are clear and plain ; there can be no doubt as to that ; and yet it is expressed in language which shews that the person who prepared the settlement was not apprized of the fact, that at that time there was a son of the marriage in being; he conceived the contingency might happen, that there should be no issue born of the marriage: therefore as the drawer of the articles was ignorant of this fact, and the parties did not correct his ignorance, I think I cannot take into my consideration the fact that there was issue at the date of the articles, for the purpose of giving a construction to the words in the former part of the settlement. I also think I may with propriety refer the construction of the first part of the articles to the latter part, so far as it may tend to shew what was the view of the parties with respect to the children. Now, by the latter part of the articles, the 500l. was to be converted into real freehold or chattel interests, as should be thought fit by the father and mother ; so that it might have been laid out in the purchase of lands in fee simple ; and it is impossible to doubt that the meaning of the parties was that if a fee simple were purchased, the children should take the fee simple ; it was not intended that the father or mother should have any power over it, except in case of there being no issue of the marriage, or of there being issue which should die before twenty-one. It is manifest also that the view of the person drawing the settlement was to guard against John, who had already got a good deal of his wife's pro

1803.

CAMPBELL

V. SANDYS.

perty, the return for all which was only leases producing about 100l. per ann. subject to annuities and incumbrances. Therefore I cannot conceive it to have been the intention of the parties to give any thing to the father by the first clause, except on failure of the persons who were the first objects of the contract; and I cannot transfer from the second, and add to the first clause the provision, that if the issue shall die before twenty-one years the interest in the freehold and chattel leases should go over; and therefore with respect to the chattel interest there can be no doubt. Those are contracted to be given to the children of the marriage, and there being a possibility of more children than one, the father had a power to direct in what proportion those children should take ; but that means, in what proportion they should take the whole ; I cannot say that they were to take only for life or with limitation over. They must take the chattel interests absolutely.

There is a case which was not mentioned, but which with respect to the chattel property is almost in terms with the present ; Williams v. Jekyll, Elliott v. Jekyll, 2 Ves. 681: a lease for three lives was granted to Elizabeth Elliott, her executors, administrators and assigns; she for valuable consideration made an assignment of the premises and all her right, title, and interest in the same to a trustee to the use of her son Fohn Williams for his life, and from and after his decease to the use of his issue lawfully begotten, and for want of such issue to the use of Elizabeth Elliott, her executors and administrators during the residue of the term : John Williams died, leaving a son and a daughter, and the daughter died soon after her father, at six years of age; the question was between the son and the executor and residuary legatee of Elizabeth. I observe in this and in some other cases(a) Lord HARDWICKE seems to have

(a) Vid. Westfaling v. Westfaling, 3 Atk. 460.

v.

A lease pur

thought that a lease for lives to one, his exécutors and ad- 1803. ministrators, would make the executor or administrator a

CAMPBELL special occupant. The old authorities seem the other way,

SANDYS. and if the case were before me I should feel great difficulty in determining according to this apparent opinion of Lord

auter vie to one, HARDWICKE. The title of an executor depends on his his executors

administrators: taking upon himself the administration of the will, and

the executor therefore does not commence instanter but by his subse. does not take

as special ocquent act; and as to an administrator, ex necessitate, his cupant, Sembl. title cannot commence instanter; and therefore it should seem that the character of special occupant cannot properly belong to either. fis

Two cases are stated in Rol. Abr. tit. Occupant, G. 2 and 3. The first is an anonymous case taken from Dyer 328, bo n. 10, but which is apparently reported in 3 Leon. 35, by the name of 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"; 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, s. 12, seems to have considered that there could be no special

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1803.

CAMPBELL

V. SANDYS.

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, s. 9, therefore made such an estate in the hạnds 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 convey

I observe Mr. Hargrave in his notes on Co. Lit. (41, b. n.) 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, Jekyll, and Elliot v. Jekyll, 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 in

ance.

1803.

terest, 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.

CAMPBELL

V. SANDYS.

The case of Williams v. Jekyll, and Elliott v. Feykll, was the case of an actual conveyance: it was contended that the children did not take the absolute interest, but only as joint tenants for life, and that the limitation over tuok effect' on the death of the survivor of them ; the construction: which Lord HARDWICKE put upon the conveyance was, that being of a chattel interest, the issue took the whole absolutely as purchasers and as joint tenants, and that nothing was intended to go to Elizabeth Elliott but on failure of issue e ; for want of such issue, he construed to mean “ if there should be no issue."(a) This case therefore is decisive of the present case with respect to the chattel interests, even if the present case were a case of actual conveyance.

In the cause before me, with respect to the estates pur auter vie, which are held under freehold leases making the

(a) The decree in Williams v.Jekyll and Elliott v.Jekyll, (Reg.' Lib. B. 1755, p. 219) so far as respects this question, is to the fol. lowing effect. It directs an account of the rents and profits of the leasehold estate accrued since the death of F. Williams, and declares that what shall be coming on that account belongs to the plaintiff, the infant, except as to such rents as accrued during the life of the daughter; and as to such part, directs that it should be divided : into moieties, and declares that one moiety belonged to the plaintiff, the infant, and the other moiety was to be considered as per- , sonal estate of the daughter, and to be paid to Mrs. Jekyll as her , administratrix to be distributed. Mrs. Jekyll in taking the account to have an allowance for the fine and charges paid on the renewal; and the renewed lease being in her name it was declared that she was to be considered as a trustee of such renewed term for the benefit of the plaintiff, the infant.

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