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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 conveyance. 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, 5. 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 interest, different in its nature from a lease pur auter vie to a 1803. man and his heirs, expressly avoiding any declaration of CAM what his opinion would have been on the case before him, if the lease had been of the latter description.

MPBELL

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 ;: 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.

1803. heir special occupant, I cannot have the authority of the

decision of Lord HARDWICKE in Williams v. Feykill and CAMPBELL

Elliot v. Feykyll, because he has expressly said he was not SANDYS.

called upon to determine in that case what ought to be the construction of the settlement, if the estate had been an estate pur auter vie limited to one and his heirs.: whether he considered the lease before him as creating a mere chattel interest, I will not pretend to say ; he had great knowledge of the law, and particularly the law of estates ; and he appears to have conceived that a lease pur auter vie to a man and his heirs required a different consideration. Such a lease is clearly a freehold, capable of a limitation in nature of an estate tail; and Lord HARDWICKE's reasoning does not go directly to a limitation of such a lease, but endeavours to avoid it: and his reference to the case of Forth v. Chapman seems father to shew that he thought the words in

an actual conveyance “ for want of such issue” might as to · such property be construed as creating an estate tail. I have

therefore been compelled to consider whether the words
which have been used in these articles (mere minutes as in-
structions for a deed to be subsequently executed) ought
to be construed as intended to give a quasi estate tail to the
children for the sake of the limitation to the father, as the
estate in question is capable of such a disposition. The
word “ issue” is ambiguous; it may mean either “ chil-
“ dren,” or “ issue in infinitum;" In the present case I think
it impossible upon the words “ to the issue of the said John
and Anne," not to say that the word“ issue" was used as sy,
nonymous to a child and was not meant to express issue in-
definitely. The issue were to take in such shares as fohn .
Campbell should appoint, which could not apply to issue in-
definitely, nor did the power of appointment extend to any
limitation of estate ; and the next clause, which disposes of
the property in default of appointment, uses the word “ chil-
dren” as describing the same persons before described by the

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word “ issue,” and the subsequent words “ for default of 1803. “ such issue,” must therefore, I think, receive the same con- cho struction. In Elliot v. Jekyll, the word is simply “issue,"

SANDYS. the word there is not explained at all; there is nothing to SANT give it any particular interpretation: and it is therefore capable of the general meaning of all issue in infinitum. But in this case I think I cannot consider the word “ issue" as meaning issue in infinitum, I think it must be confined to children, and that the whole interest to be conveyed by the intended settlement was intended to be thereby vested. absolutely in such children, and the limitation over to have been intended in default of children, for I think I must put the existence of a child at the date of the articles, out of my consideration.

But it has been contended that the interest was suspended by the power of appointment, and therefore nothing vested in the child. In Madoc y. Jackson, 2 Bro. C. C. 588, Lord THURLOW thought that a power of appointment could not be held to suspend the vesting of an interest given in default of appointment. It is true (as observed in 4 Ves. jun. 792) that was not the point decided in the case, though from the report it would be supposed otherwise; but that certainly was the opinion of Lord Thurlow; and there are other cases which shew that a power of appointment of this description will not suspend the vesting of the interest.(a) But this power was only to limit proportions; and that only in the event of the existence of more children than one ; consequently, the power never arose at all, there having been only one child capable of taking under the settlement; and the instrument is to be considered as if the power had not been inserted. On the whole, I think it must have been intended to give the complete and absolute interest in the property to

(a) Cunningham v. Moody, 1 Ves: 174; Doe v. Martin, 4 T.R.94.

1803. the children; that John Campbell was not intended to take CAMPBELT any thing but in default of children, that is, in case there

should be no child. I think this is the fair construction, as SANDYS.

well as to the leasehold for lives, as to the chattel property; and that the equitable right to the absolute property was therefore vested in David Campbell the younger, and passed by his will.

It has been contended that if this had been a quasi estate tail the will would have operated to bar the quasi estate tail and limitation over. It is not necessary for me to decide this point; but it has been so much argued, and on the authority of a dictum of Lord KENYON, that I think it may be useful to state what has occurred to me upon it. I think the point ought to be very well considered before any person ventures to make a decision according to that dictum. The whole law on the subject is founded on the principles applied to the case of a fee-simple conditional at common law; that the party had a power of alienation, the effect of which would be to devest the estate under which the person claiming as heir of the body, or by virtue of a limitation over, was to take. If that estate was devested, the right of the issue, and of the remainder-man in default of issue, was destroyed, because the estate on which it was to depend was also destroyed. I can find no decision that at all warrants Ld. KENYON's dictum ; I find that he only stated it as somea : thing that Lord NORTHINGTON threw out in Grey v. Mannock; I have not found any note of that case. On the other hand in Blake v. Blake,(a) it was never considered that as will could have such operation ; for I find, from my note of that case, that though the estate was devised, the argument did not turn on the will ; nobody conceiving that the estate would pass by it, if the quasi estate tail subsisted af.

(a) 3 P. Wms. (Coxe's Edit.) 10. note (1).

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