became and was due and owing from the defendant to the said Silas Dollen, and was still in arrear and unpaid; and that afterwards, and after the plaintiff became possessed as aforesaid, and before suit, a further large sum of the aforesaid rent of 121., to wit, the sum of 127., for one year's rent, became and was due and payable from the defendant to the plaintiff as administratrix as aforesaid, and still was in arrear and unpaid, contrary to the said covenant: and the plaintiff, as such administratrix as aforesaid, claimed 501.

The defendant pleaded,-first, that the said Susannah Collins was not possessed of the said demised premises for a term, as in the declaration alleged, secondly, that the said Susanna Collins did not assign *and transfer the said reversion to the said Silas Dollen and

*762] Zebulon Page, as in the declaration alleged,-thirdly, for defence

on equitable grounds, that, in and by the said deed in the declaration mentioned in that behalf, the said Susanna Collins assigned and transferred the said reversion unto and to the use of the said Silas Dollen and Zebulon Page, in trust, after the decease of the said Susanna Collins, for Christian Batt, the wife of the defendant, for the term of her natural life; that the rent for which this action is brought accrued after the decease of the said Susanna Collins; and that he, the defendant, before action, paid the said rent to the said Christian Batt, with the consent of the said Silas Dollen and the plaintiff respectively.

The plaintiff joined issue on each of these pleas.

The cause was tried before Willes, J., at the last Spring Assizes for the county of Somerset, when the facts which appeared in evidence were as follows:-On the 6th of March, 1845, Susanna Collins,-the nature of whose interest in the premises did not very distinctly appear,granted to William Batt (the defendant) a lease of certain premises at Ashill, in the county of Somerset, for twenty-one years from the 25th of December then last; reddendum to the lessor "her executors, administrators, and assigns," during the first seven years of the term the yearly rent of 17., and during the last fourteen years the yearly rent of 121., payable quarterly. The lease contained a covenant by the lessee, for himself, his heirs, executors, administrators, and assigns, with the lessor, "her executors, administrators, and assigns," to pay the rent to her, "her executors, administrators, and assigns," to pay taxes, to repair, &c., and also a covenant that the lessee, his executors, administrators, and assigns, should and would at the expiration of the term *763] peaceably give and yield *up possession of the said hereditaments to the lessor, "her executors, administrators, and assigns, or to whom she or they should direct and appoint."

On the 14th of August in the same year, Susanna Collins, by lease and release and grant, conveyed the premises, "together with all rights, &c., thereto belonging or appertaining; and all reversions and remainders, rents and profits thereof; and all the estate, right, title, interest, use, trust, term and terms of years, property, possibility, claim, and demand whatsoever, both at law and in equity, of her, the said Susanna Collins, of, in, or to the same; and also all deeds, evidences, and writings whatsoever relating to the said hereditaments and premises, now in the possession or power of the said Susanna Collins," to the use of Silas Dollen (the husband of the plaintiff) and Zebulon Page, their heirs and assigns for ever, upon trust to pay and apply the rents,

issues, and profits of the said hereditaments and premises unto, or to permit and suffer the same to be received by, the said Susanna Collins and her assigns for and during the term of her natural life; and, from and after her decease, in trust for Christian Batt (the wife of the defendant) and her assigns for and during the term of her natural life, provided she so long continued a widow, in case of the death of the said William Batt, her said husband; and, from and after her decease, in trust for the said William Batt and his assigns for and during the term of his natural life; and, from and after the several deceases of the said Christian Batt and William Batt, or in case the said Christian Batt should survive her said husband and marry again, then in trust for John Collins Batt (son of the said William Batt and Christian his wife), his heirs and assigns for ever, subject nevertheless to and charged with the payment of a sum of 51. apiece to each of his brothers and sisters who should be then *living; and, in case the said John Collins Batt should depart this life in the lifetime of his said father or mother, [*764 then in trust, as to the before-mentioned hereditaments and premises, for all and every the child and children of them the said William Batt and Christian his wife, equally between and amongst them, share and share alike, as tenants in common, and not as joint-tenants; and, in default of all such issue, then in trust for the said William Batt, his heirs and assigns for ever. The deed also contained a clause empowering each of the trustees "to receive and retain his trust expenses.

Zebulon Page, one of the trustees, died in 1851; and, in December of that year Susanna Collins also died, having in her lifetime, but after the execution of the deed of gift above set out, executed an assignment (for, as was said, a valuable consideration) of the premises in question to one Winter. Winter claiming to be entitled to the premises under this assignment, Silas Dollen, the surviving trustee under the deed of August, 1845, and the defendant, consulted Messrs. Trenchard, solicitors, of Taunton, and they, by arrangement with the solicitor acting for Winter, caused a case to be stated for the opinion of counsel. The opinion proved in favour of the claim of Winter: but the defendant declined to be bound by it, and defended an action brought by Winter, and succeeded in establishing the deed of August, 1845, Winter failing to prove that the assignment under which he claimed was made for a valuable consideration.

Messrs. Trenchard's bill of costs against Silas Dollen, as trustee, upon this occasion, amounted to 197. 138. 11d. Dollen sent, Messrs. Trenchard's bill to Batt, who declined to pay it, alleging that the charges were exorbitant. Dollen, being pressed for payment, handed over to Messrs. Trenchard the title-deeds of the trust property, telling them that they should hold them as *security; and he gave notice to Batt's under-tenant to pay rent to him (Dollen), and was pro[*765 ceeding to enforce his demand when he died.

After the death of Silas Dollen, Messrs. Trenchard demanded the amount of their bill from Mrs. Dollen, his widow and administratrix ; and, as the only means of putting herself in funds to meet that demand, the present action was brought to recover four years' rent under the lease, three accruing in the lifetime of Silas Dollen, the surviving trustee under the deed of August, 1845, and one since his death.

It appeared that Silas Dollen had never interfered with the property

or received any rent, but that the rent had been always received by Batt from the under-tenant, Dollen saying that he might as well keep it; and there was evidence, that, after the death of Dollen, the plaintiff had said that she meant to do precisely as her husband had done.

On the part of the defendant it was contended that the plaintiff was not entitled to recover, inasmuch as there was no evidence to show that the reversion in Susanna Collins was a chattel reversion, so as to pass to the plaintiff as administratrix of the surviving trustee; and also that the third plea was proved.

A verdict was found for the plaintiff, which by consent of her counsel was taken for the amount of Messrs. Trenchard's bill, subject to taxation; and leave was reserved to the defendant to move to enter a nonsuit, if the court should be of opinion that the plaintiff failed to prove the title put in issue by the first and second pleas; or to enter a verdict for the defendant on the third issue, on the ground that the evidence sustained the third plea; or to reduce the damages to 127., the amount of one year's rent under the lease, on the ground that the third plea was *766] proved as far as regarded the rent accruing in the *lifetime of the trustee Silas Dollen, with power to the court to make any amendments in the declaration which they might think necessary and proper; and leave to the defendant to add a general plea of payment.

Kingdon, in Easter Term last, obtained a rule calling upon the plaintiff to show cause why the verdict on the third plea should not be set aside, and instead thereof a verdict be entered for the defendant, pursuant to the leave reserved, on the ground that there was evidence for the jury in support of the whole of that plea; or why the damages should not be reduced to 127., on the ground that the whole of the third plea was proved, except as to the last year's rent; or why a nonsuit should not be entered, pursuant to the like leave, on the ground that the plaintiff failed to prove the title put in issue by the first and second pleas,the plaintiff to be at liberty to contend, if necessary, upon the argument of the rule, that judgment should be entered for him on such third plea non obstante veredicto.

Prideaux now showed cause. This action is brought to recover four years' rent under a lease granted by Mrs. Susanna Collins, to the defendant,-three of which accrued in the lifetime of Silas Dollen, the fourth since his death. It was objected on the part of the defendant, that the declaration is framed as upon a chattel reversion, whereas there was no evidence that it was a chattel interest. That, however, is an illegitimate inference from the decisions that the words "during the term" in the reddendum are of such force and efficacy that the words. "executors and administrators" may be rejected as surplusage, and the rent will go to the person entitled to the reversion. The lease *767] *contains a covenant to pay the rent, and at the expiration of the term to yield up the premises, to the lessor, "her executors, administrators, and assigns." It is true, the assignment from Mrs. Collins to the trustees purports to deal with the property as if it were a freehold of inheritance. It is, however, a mere grant, which will convey a chattel interest as well as a freehold. However reserved, the rent follows the reversion. The leading case upon this subject is Sacheverell v. Froggatt, 2 Wms. Saund. 367 a, 2 Lev. 13, Sir T. Raym. 213, 1' Vent. 148, 161, 2 Keble 798, 819, 833, 839. There, one seised in fee let for years,

reserving rent during the term, to the lessor, his executors, administrators, and assigns, and the lessee covenanted to pay it accordingly, and the lessor devised the reversion, and died: it was held that the reversion was good to continue the rent during the whole term, and that the devisee should have an action of covenant for the non-payment of it. In the note (7) in 2 Wms. Saund. 371, it is said: "In the report of this case in 1 Vent. 161, Lord Hale delivers the opinion of the court pretty much at length, and lays down some useful rules respecting the reservation of the rent. He said, that, where the reservation of the rent is general, the law directs according to the intent [interest ?] and the nature of the thing demised. As, if tenant in tail makes a lease for years, rendering rent to him and his heirs, the rent shall go to the heir in tail along with the reservation; for, the law uses all industry imaginable to conform the reservation to the estate. So, where tenant for life, the remainder over to several by limitation of uses, with power to make leases, demises, rendering rent to him, his heirs and assigns, it shall be adjudged to him in remainder: Whitlock's Case, 8 Co. Rep. 70 b. So, if lessee for one hundred years make a lease for fifty years, rendering rent to him and his heirs during the term, it shall go to the executor. So, where a [*768 *copyholder by license leases, rendering rent to him and his wife during their lives, and to his heirs, where by the custom the wife has her free-bench, the wife shall have the rent as incident to the reversion, though not party to the lease; for, the reversion, if possible, will attract the rent to it. So, if tenant in tail to him and the heirs male of the body of his father, lets the land, rendering rent to him, his heirs and assigns, the rent shall go to the heir male of the body of his father, though he be not heir to the lessor; for, it is incident to the reversion: Cother v. Merrick, Hardr. 91, 95. But a man may reserve a rent to himself for his life, and a different rent to his heir: Co. Litt. 213 b, 214 a." [BYLES, J.-You are quite safe if you make the reservation to the lessor, his heirs, executors, administrators, and assigns.] Yes; and it is at least doubtful, if you do not. In Wooton v. Edwin, 12 Co. Rep. 36, one Hawes, seised in fee of a messuage, &c., demised for a term, reserving rent to himself and his assigns, and it was adjudged that by this reservation the heir should not have the rent, for that the reservation was made to the father, his executors and assigns, and not to his heirs, &c.:" and the court said that, in a case of replevin, inter Richmond and Butcher, the case was that Butcher avowed for rent, as heir to his father, upon a demise made by his father of certain lands for twentyone years, by these words "reddendo et solvendo proinde durante prædicto termino 21 annorum præfato (fratri), executoribus et assignatis suis, 107. legalis monetæ Angliæ, &c., at festam, &c. ;" and it was adjudged, that, by this reservation, the heir should not have the rent, for that the reservation was made to the father, his executors and assigns, and not to his heirs, &c. That case is perhaps not law at the present day; but it is an authority to show that the inclination of the courts then was, that, if you reserve the rent expressly, you must *do [*769 it correctly. [WILLIAMS, J.-The only question here is, whether, looking at the lease, we must not presume that the rent is reserved according to the real quality of the estate.] The reversion is by the language of the lease admitted to be a chattel reversion; and, if so, the plaintiff, as administratrix, is entitled to recover the whole four years'

rent: but, as to the three years which accrued in the lifetime of Silas Dollen, that, at all events, would be personalty. Then, as to the other branches of the rule, there was no evidence of any payment made, nor of any assent on the part of the trustee or of the plaintiff to the defendant receiving and retaining the rent, so as to negative the right of the trustee or his personal representative to look to the rent for repayment of the necessary disbursements on account of the trust.

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Kingdon, in support of the rule.-There is no evidence that this was a chattel interest; and, at all events, if the lease afforded any such, it is rebutted by the deed of the 14th of August, 1845, which treats the interest as freehold. No doubt the use of the word "heirs" or 66 ecutors" is not conclusive: the rent follows the reversion. The rule is well laid down in 1 Williams's Executors, 5th edit. 730: "When a man seised in fee makes a gift in tail, or lease for life or for years, reserving rent, the whole rent which becomes due after his death shall go with the reversion (as an incident thereof) to his heir, and not to the executor; for, since during the continuance of the particular estate the reversioner loses the profits of the land, the rent ought to be paid to him as a compensation for the loss: Co. Litt. 47 a; Cother v. Merrick, Hardr. 95; 3 Bac. Abr. 62, Executors (H. 3): and, though the rent should be expressly reserved to the lessor, his executors and assigns, without naming the heir, the executors cannot have it, being strangers *to *770] the reversion, which is an inheritance: Co. Litt. 47 a. Whether the heir shall have it, though not mentioned, or it shall altogether determine by the lessor's death, the cases are discordant: see notes (2) and (3) to Šacheverell v. Froggatt, 2 Saund. 367 6, where all the authorities are collected. But, if the rent be reserved during the term to the lessor, his executors, administrators, and assigns, the heir or devisee shall have it: Ibid. On the other hand, if a lessee for years makes an underlease, reserving rent, the rent accruing after his death shall go to his executor or administrator, and not to his heir, even though the reservation. were to him and his heirs, during the term, without mentioning the executors: 2 Wms. Saund. 371, n. (7) to Sacheverell v. Froggatt. In these cases, if the personal representative sues the underlessee for rent due since the death of the testator or intestate, it must be alleged that he had a chattel interest; otherwise it shall be intended that he was seised in fee, and then the rents belong to the heir, and not to the executor or administrator: Norris v. Elsworth, 1 Freem. 463." The nature of the interest is not controlled by the use of the word " executors." Primâ facie, where a man grants a lease, the presumption is that he is seised in fee; though the lessee would not be estopped, even where words denoting a freehold interest are used, from showing that it was a chattel interest only. Thus, in Doe d. Strode v. Seaton, 2 C. M. & R. 728,† a lessee for years covenanted to pay the rent to the lessor, his heirs and assigns, and also to deliver up possession of the demised premises at the expiration of the term to the lessor, his heirs and assigns: in an action of ejectment brought by the devisee of the lessor against the assignee of the lessee, after the expiration of the term, to recover possession of the premises, it was held that the assignee was not estopped by such covenant from showing that the lessor was only tenant *for life of the premises demised. It being urged in argument *771] there that the defendants could not be allowed to set up the