on any

monies being so raised, "the person whose estate is sold, mortgaged, charged, or otherwise disposed of, and his heirs, next of kin, devisees, legatees, executors, administrators, and assigns, shall have such and the like interest in the surplus remaining after the purposes for which the monies have been raised shall have been answered, as he or they would have had in the estate if no sale, mortgage, charge, or other disposition thereof had been made, and the surplus monies shall be of the same nature and character as the estate sold, mortgaged, charged, or otherwise disposed of." In Ex parte Flamank (a), Lord Cranworth, V. C., held that money paid into court by a Railway Company for land taken under the Lands Clauses Act (7 & 8 Vict. c. 18), from a person who was in a state of mental imbecility, and who continued in that state till his death, but was not the subject of a Commission of Lunacy, was not to be reinvested in or considered as land, but to be paid to his executors; for that the effect of the 7th section of the Act was to make the contract as good as if he had been compos mentis. And his Lordship distinguished the case from The Midland Counties Railway v. Oswin (b), where Knight Bruce, V. C., had come to a contrary decision, inasmuch as his Honor's decision turned on the express terms of the local Act on which the case before him arose.

compulsory land under

sale of lunatic's

Lands' Clauses

Act.

In pursuing the complicated inquiry, of what shall be What is peraccounted personal estate, it may be advisable to consider sonal estate. the subject in the divisions employed by Godolphin and the author of the Office of an Executor, viz., first to divide the effects of the deceased into things actually in his possession, and things not so, usually called Choses in action;-and to subdivide the first class into chattels real, and chattels personal.

CHAPTER THE FIRST.

OF THE INTEREST OF THE EXECUTOR OR ADMINISTRATOR

IN THE CHATTELS REAL OF THE DECEASED.

What are chattels real.

Next presen

tation to a church.

SECTION I.

The Executor's or Administrator's Right to Chattels Real, generally.

THE general rule is, that chattels real shall go to the exe

cutor or administrator, and not to the heir. Chattels real are such as concern or savour of the realty (a); or, in other words, they are chattel interests issuing out of, or annexed to, real estates (b). Thus, while the military tenures subsisted, wardship in chivalry was accounted such an interest, and accrued to the executor or administrator, and not to the heir; because it was in respect of a tenure of land or other hereditament, and was for years, viz. during the minority, or till marriage had (c).

If one be seised in his natural capacity of an advowson in gross, or in fee appendant to a manor, and the church becomes void, the void turn is a chattel personal, like rent due, or any other fruit fallen; and if the patron dies before he presents, the avoidance does not go to the heir, but to the executor (d): And the heir in tail shall not have a pre

(a) Co. Lit. 118, b.

(b) 2 Black. Comm. 386.
(c) Godolphin, Pt. 2, c. 13, s. 2.
Wentw. Off. Ex. 126, 14th edition.
So a villain for years (as by grant
for a term from him that had the

inheritance) was a chattel real: Ibid.

(d) F. N. B. 33, P. The Queen and Archbishop of Canterbury's case, 4 Leo. 109. Stephens v. Wall, Dyer, 282, b. Earl of Lin

sentment fallen in the life of the tenant in tail, but his executor (e). Again, if the patron, whether a natural or politic person, grant the next presentation of a church before avoidance, to D., in this case, if D. dies, his executor shall have it as a chattel, and not the heir (f); for it is a chattel real, till a vacancy has happened, and afterwards the vacancy turns it into a chattel personal (g). Nor will it differ the case, if the grant is to the grantee and his heirs; for where the thing is a chattel, the word "heirs" cannot make it an inheritance (h). Likewise, if a man grants the two next presentations of a church, those are chattels, and if the grantee dies, the executor shall have them, and not the heir (i). So of an advowson granted to one and his heirs for 100 years (k). Again, if a church become void during the life of a husband, who is tenant by the curtesy, and he die before the church is filled, the husband's executor shall have the turn, and not the wife's heir (1).

And it is now settled that the executor has the same right, where a person seised of an advowson in a politic capacity dies during a vacancy. Thus, in a modern case in K. B., in error from the Common Pleas, it was held by Littledale, Holroyd, and Bayley, Justices, (Lord Tenterden, C. J., dissentiente), that where a prebendary having an advowson of a rectory in right of his prebend, died while the church was vacant, his personal representative had the right of presentation for that turn; and the judgment of the Court of Common Pleas was reversed (m). This decision of

coln's case, 1 Freem. 98. Co. Lit. 388, a. Com. Dig. Esglise, (H. 2.) Wats. C. L. 72, 4th edition. But if a king's tenant by knight service in capite died after a vacancy, the heir within age, the king presented by right of wardship: Co. Litt. 388, a.

(e) F. N. B. 34. Godolph. Pt. 2, c. 13, s. 6. (f) Godolph. Pt. 2, c. 13, s. 3: admitted by Lord Tenterden, in

VOL. 1.

Rennell v. Bishop of Lincoln, 7 B. & C. 193.

(g) Wentw. Off. Ex. 131, 132, 14th edition.

(h) Bro. Chattels, pl. 6. (i) Bro. Chattels, pl. 20. (k) Wentw. Off. Ex. 136, 14th edition.

(1) Wats. C. L. 71, 4th edit. (m) Rennell v. Bishop of Lincoln, 7 B. & C. 113. In the Common Pleas, Gaselee, J., dissented

Q Q

the K. B. was afterwards affirmed in the House of Lords (n).

But if the incumbent of a church be also seised in fee of the advowson of the same church and dies, his heir, and not his executor, shall present; for although the advowson does not descend to the heir till after the death of the ancestor, and by his death the church is become void, (so that the presentation in this case may be said to be severed from the advowson before it descends to the heir, and to be vested in the executor), yet both the descent to the heir and this fall of the avoidance happened all in one instant; and where two titles concur, the elder right shall be preferred (o). In the case of an advowson of a donative benefice where A. B., being seised, the church in his lifetime became void; then A. B. died, and the executors brought a quare impedit; after two arguments in C. B., the whole Court was clearly of opinion that the right of donation descended to the heir of A. B., and that the executor had no title, as he would have had, if it had been a presentative benefice (p). So if the parson of a church ought to present to a vicarage, if the vicarage becomes void during the vacancy of the parsonage, the patron of the parsonage, and not the executor of the deceased parson, shall present (q). And in the case of a bishop, the void turn of a church, the advowson whereof belongs to him in right of his bishopric, by his death does not go to his executor, although the church was void when

the bishop died, but the king shall present by reason of his custody of the temporalities (r).

If the testator presents, and (his clerk not being admitted before his death) then his executors present their clerk, the Ordinary is at his election, which clerk he will receive (8). Every bishop, whether created or translated, is bound, immediately after confirmation, to make a legal conveyance to the archbishop of the next avoidance of one such dignity or benefice belonging to his see as the said archbishop shall choose or name, which is, therefore, commonly called an option (t). And if the archbishop dies before the avoidance shall happen, the right of filling up the vacancy shall go to his executors or administrators (u).

The options of

an archbishop

pass to his executors, &c.

years:

All leases and terms of lands, tenements, and heredita- Estates for ments, of a chattel quality, are chattels real, and will go go to the executor or administrator; but he has no interest in the freehold terms or leases (x). The general rule for distinguishing these two kinds is, that all interests for a shorter period than a life, or more properly speaking, all interests for a definite space of time, measured by years, months, or days, are deemed chattel interests; in other words, testamentary, and of the nature, for the purposes of succession, of other chattels or

Presentment,

Co. Litt. 90, a.

(r) 2 Roll. Abr. 345, (E.) pl. 4. Co. Litt. 388, a. Wats. C. L. 73, 4th edition. But where a tenant held land of a bishop, in right of his bishopric, by knight's service, and the tenant died, the heir being within age, and the bishop, either before or after seisure, died; neither the king nor the successor of the bishop was entitled to the wardship, but his executor: Co. Litt. 90, a. and see Mr. Hargrave's note, upon this difference.

(s) Smallwood v. Bishop of Lichfield, 1 Leon. 205. S. C. Savil. 95, 118. Wats. C. L. 72, 225, 4th edit.

(t) 1 Gibs. Cod. 115. 1 Burn. E. L. 239, 8th edit. But it has been considered that such assignments have been rendered illegal by reason of the stat. 3 & 4 Vict. c. 113, s. 42. And that the archbishop's options have thus been destroyed.

(u) Potter v. Chapman, Ambl. 98. 1 Burn. E. L. 240, 8th edit.

(x) Estates for years have one quality of real property, viz. immobility, but want the other, viz. a sufficient legal indeterminate duration, the utmost period for which they can last being fixed and determined: 2 Black, Comm. 386.