part of the said [vendor], and for the considerations aforesaid, the said [vendor] doth hereby for himself, his heirs, executors, and administrators, covenant, promise, and agree with and to the said [purchaser], his heirs and assigns, by these presents, that he the said [vendor] or his heirs, and all other necessary parties, shall and will at his and their proper costs and charges, at or before the next court to be holden in and for the manor of Black Acre aforesaid, surrender, or cause and procure to be surrendered, into the hands of the Lord or Lady of the said manor, by the rod, according to the custom of the said manor, All the said copyhold or customary tenement, lands, hereditaments and premises to which the said [vendor] was admitted at the said court holden in and for the said manor, on or about the said

day of 1801, as herein-before is mentioned and recited, with their appurtenances (except as in the said admission is excepted), to the use of the said [purchaser] his heirs and assigns, to be holden for and during the lives of the said and at the will of the Lord or Lady of the said manor, according to the custom of the said manor, by the rents, heriots, works, burthens, customs, suits, and services therefore due, and of right accustomed. AND THIS INDENTURE vendor assigns further witnesseth (d), that in pursuance and further perform

2nd witness:

the leaseholds.

(d) Although the subject matter of this part of the present precedent is not of the same nature as that comprised in No. x., it may be as well, before we proceed further with the work, to recur to the subject of occupancy and estates pour autre vie adverted in the notes to that form, at pages 95 to 98. ante.

Estates pour autre vie were not devisable by the Statutes of Wills, 32 H. 8. c. 1., and 34 & 35 H. 8. c. 5. (for those statutes only extended to estates in fee simple,) and such estates so continued until the Statute of Frauds, 29 C. 2. c. 3., by the twelfth section of which they were rendered devisable in the same manner as fee simple estates.

Upon the death of a tenant pour autre vie, in the life time of the cestui que vie, supposing no party to have been named in the original grant to take upon the death of the tenant, the estate did not revert to the grantor, for his grant was absolute during the life of the cestui que vie : it did not escheat to the chief lord of the fee, for an escheat can only take place of the whole fee; as there were no words of inheritance in the grant it could not go to the heir; and the estate being of a freehold nature, the personal representatives, namely the executors or administrators, could not be entitled; and in this state of circumstances the title by occupancy arose as adverted to in the note at page 96. ante.

L

When, however, in the grant the "heirs" of the tenant were named

ance of the said agreement on the part of the said [vendor], and for the considerations aforesaid, he the said [rendor]

to take the estate in case of his death, during the life of the cestui que vie, the heir, as observed in the note last referred to, took as special occupant.

Notwithstanding that the Statute of Frauds had allowed of the devise of estate pour autre vie in the same manner as freehold estates, the words left room for doubt in one very important point, namely, whether the residue of a testator's estate would go to the grantor as a special occupant. The effect of the words of the statute is as follows; "that an estate pur autre vie should be devisable by will, executed in the presence of three or more witnesses; and if no such devise was made, it should be chargeable in the hands of the heir, if it should come to him by special occupancy, as assets by descent: and in case there should be no special occupant, it should go to the executors or administrators of the party that had the estate thereof, by virtue of the grant, and should be assets in their hands."

These words, it will be observed, speak of the heir as special occupant, but merely speak of the executor or administrator in such characters respectively, and not as special occupants; nor is any provision made, as before remarked, as to who should be owner of any surplus, supposing any to remain after the application of the estate as assets under the statute.

The statute 14 G. 2. c. 20. was therefore passed to remedy this defect, and it enacts, sect. 9. "that such estates pur autre vie, in case there shall be no special occupant thereof, of which no devise shall have been made according to the said act for the prevention of Fraud and Perjuries, or so much thereof as shall not have been devised, shall go, be applied, and distributed in the same manner as the personal estate of the testator or intestate."

Upon these statutes the learned Editors of Watkins's Conveyancing, (ch. 4.) Messrs Morley and Coote, have the following observations. "On a consideration of the wording of these statutes, it seems clear, from the circumstance of the statute of Frauds using the words 'executors or administrators' in the declaration of the parties to whom the estates should go, in the event of there being no devise according to that statute, and no special accupant, and of the statute of the 14 of G. 2. providing, that in such event the surplus shall be distributed in the same manner as the personal estate of the testator or intestate,' that both statutes contemplated the case of an intestacy of the leaseholds for lives, at the came time that there might be a valid disposition of the personal estate by will: but the latter statute omitted to provide in express terms for that event; or, in other words, to state whether the surplus should in such case go according to the personal estate disposed of by the will, or as undisposed of personal estate; nor was provision made for the surplus which might be in the hands of an executor or administrator as special occupant. In the case of Ripley v. Waterworth, 7 Ves. Jun. 425., 18 Ves. 273., both points were considered. Lands had been limited to a man, his executors, administrators, and assigns, pour autre vie : he died, having published his will, (not attested according to the statute of Frauds)

HATH bargained, sold, assigned, transferred, and set over, and by these presents DOTH bargain, sell, assign, transfer, and

and appointed an executor, and made a residuary bequest of his personal estate. There were three distinct claimants, the heir at law, the residuary legatee, and the next of kin; and it should seem a claim was made on behalf of an administrator for his own benefit. For the heir at law it was urged, that it was real estate, viz. a descendible freehold, that it would not pass by an unattested will, and an executor could not at common law take as special occupant; and, therefore, the heir at law was entitled. For the residuary legatees and next of kin it was urged that an executor might at common law take an estate pour autre vie, as special occupant; and that even prior to the statute of Frauds, it was assets in his hands; and that it would be strange if (the statute providing, where there is no special occupant, it shall go to the executor) it should not go to the executor, where it is expressly given to him; and that the executor would as special occupant take it as personal estate, chargeable with debts, and subject to application as personal estate, after debts paid.

The Lord Chancellor was of opinion, it could in no event go to the heir; that it did not belong to the administrator; and that, as between the next of kin and residuary legatee, the executor was in equity a trustee for those to whom the testator had given the personal estate by a will sufficient to pass personal estate, and therefore he must be considered as holding it for the residuary legatee. Lord Eldon compared the case with that of stock, which, by the several acts creating it, is disposable by will attested by two witnesses: but which Lord Thurlow said, if not so bequeathed, yet devolving upon the executor, should devolve upon him in trust for those who are entitled to the personal estate."

Speaking upon the subject of the invalidity of a limitation at common law of an incorporeal hereditament to executors or administrators, as special occupants, the same writers observe: "A question has been raised since the statutes whether, if a rent be limited to a man, his executors and administrators, pour autre vie, and the grantee die, living the cestui que vie, and without having disposed of is in his lifetime, it is not determined, notwithstanding the statutes; and we certainly think it would be difficult to contend, the executor or administrator could, since the statutes, be better enabled to take the rent as special occupants, named in the deed, than before the statutes; for the statutes can hardly be considered as having the effect of enabling a grantor to create an estate of occupancy unknown at the common law. But then it is asked, why cannot the grantee devise it, or the executor or administrator, in case of intestacy, take it by force of the statutes? And to that it is objected, the statutes were intended to apply to those estates only in which executors or administrators (if named), might take as special occupants at common law, and consequently not to incorporeal hereditaments. (2 Blackstone's Com. 260.) To this latter objection is opposed the opinion of Lord Keeper Harcourt, as stated by Mr. Cox, in his no. (3 Peere Wms. 265.) viz. that the statute is not only made to prevent

set over unto the said [purchaser], his executors, administrators and assigns, The said plots or parcels of ground, and

the inconvenience of scrambling for estates, and getting the first possession after the death of the grantee; but likewise for preserving and continuing the estate during the life of the cestui que vie and it is reasonable, since the grantee might, by deed, have disposed of the rent during the life of the cestui que vie, that though by his dying without having made such disposition, in nicety of law the estate would have determined, yet, by the statute that interest which passed from the grantor ought to be preserved, and shall go to the executors or administrators of the grantee during the life of the cestui que vie; and the statute in this case does not enlarge but preserve the estate of the grantee.' And this we think the better opinion: but, to avoid the doubt, it is usual to limit the rent to the grantee, his executors, administrators and assigns, for a certain number of years determinable on the death of the cestui que vie."

This view of the law, as laid down by the learned Editors and annotators last referred to, is borne out by a recent case in the Common Pleas (Bearpark v. Hutchinson, 7 Bing. 178.) in which arent charge was granted to a party without words of limitation; and it was decided that, upon the death of the grantee intestate, living the cestui que vie, the estate pour autre vie was assets in the hands of the administrator, within the statute 29 C. 2. c. 3. s. 13.

If therefore the estate would be assets in the hands of the administrator when not named in the grant, they must be so in the hands of the administrator or executor especially named in the deed. Tindal, C. J., in delivering judgment said, "although there could not be a general occupancy of a rent before the statute, nor in strictness a special occupancy, because there could be no occupancy of any thing which lay in grant, yet upon the authority of Lord Coke and other early writers, it is said there might be a quasi special occupancy; and as the statute is remedial, it is the soundest construction of the second branch of the section, to hold that it includes not only such estates pour autre vie as are so in strictness, but also all such as are, in common parlance, held to be the subject of occupancy."

By the recent statute 1V. c. 26. all questions as to the power of disposition of estates pour autre vie are set at rest, for by the 3d sect. all such estates are devisable, and by the 6th sect. the estates are rendered assets in the hands of the executor or administrator, and are directed to be applied and distributed in the same manner as the personal estate of the testator or intestate.

A question has, however arisen, whether, where there is a tenant pour autre vie, and he conveys away his estate to A B, but without using any words of limitation, and the party to whom he so conveys dies in the life-time of him, the tenant pour autre vie, the estate would revert to the original tenant pour autre vie, or pass by the will of the alienee, if he made one, or to his representatives if he died intestate. The words of the 6th sect. of the act are these: "That if no disposition

all and singular other the premises comprised in and demised or expressed to be demised by the herein-before in

by will shall be made of any estate pour autre vie, of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in fee simple: and in case there shall be no special occupant of any estate pour autre vie, whether freehold or customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator either by reason of a special occupancy, or by virtue of this Act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate."

Perhaps, upon consideration of the words of the section," the party that had the estate thereof by virtue of the grant," it will be considered that they settled this question; for the alinee may, it is presumed, be considered as taking the estate by virtue of the grant. In Williams v. Jekyll, and Elliott v. Jekyll, 2 Ves. 681, the Lord Chancellor (Hardwicke) said, that he had no doubt at all that a plain assignment by the tenant pur autre vie, during the term, without saying more, would have passed the whole.

There is, however, a conflicting decision of the Court of Queen's Bench namely, that of Doe v. Robinson, 8 Barn. & Cress. 296., in which lands were limited to A, his heirs and assigns, pour autre vie; A devised the lands to B without words of inheritance; and the Court were of opinion that B took only an estate for life, and decided, that upon B's death, living cestui que vie, the lands devolved upon A's heir as special occupant.

Before quitting the subject of occupancy, attention is drawn to the following able and elaborate note extracted from Sir Edward Sugden's Treatise on Powers, sixth edition, vol. i. p. 245. Speaking of the limitation to bar dower in which the remainder to the trustee is limited to him and his heirs, (as referred to at page 96 ante) that learned writer says, "Instead of limiting the estate to the trustee and his heirs, it is 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. Jekyll, 2 Ves. 681; Westfaling v. Westfaling, 3 Atk. 460; 7 Ves. Jun. 446., cited from Lord Hardwicke's notes ;) and Lord Eldon has expressed the same opinion; (see Ripley v. Waterworth, 7 Ves. Jun. 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 & 3 ;