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personal property (y). Thus not only a term for one's own life, or for the life of another, is deemed a freehold; but if a man grant an estate to a woman dum sola fuit, or durante viduitate, or quamdiu se bene gesserit, or to a man and woman during the coverture, or as long as the grantee shall dwell in such a house, or so long as he pays 10., &c., or until the grantee be promoted to a benefice, or for any like uncertain time; in all these cases the lessee has an estate of freehold in judgment of law (2); while a lease for 10,000 years is not a freehold, but a chattel interest.

If an estate be limited to A. B. and his assigns during C. D.'s life, it is a freehold interest; but if it be limited to A. B. and his assigns for a certain number of years, if C. D. shall so long live, it is a chattel, and will go to his executors or administrators.

If a lessee for years of a carve of land grants to another a rent out of the said carve for the life of the grantee, that is a good charge during the term, if the grantee so long live; but in such case the grantee hath but a chattel (a).

A. made a lease to B. for life by indenture, in which was a proviso, that if the lessee died before the end of sixty years then next ensuing, his executor should have and enjoy, as in the right and title of the lessee, for term of so many of the years as amounted to the whole number of sixty, so that the commencement of the said sixty shall be accounted from the date of the said indenture: The lessee made two executors, and died: One of them entered into the land: And the

(y) 1 Preston on Estates, 203. On the other hand, an estate of freehold may be defined to be " an estate in possession, remainder, or reversion, in corporeal or incorporeal hereditaments, held for life, or for some uncertain interest, created by Will, or by some mode of conveyance, capable of transferring an estate of freehold, which may last the life of the devisee or grantee, or of some other person." See

Watk. on Conveyancing, by Morley and Coote, p. 63.

(2) Co. Litt, 42, a. So where A. leases to B., till A. makes J. S. baily of his manor; adjudged a freehold: Ibid. Hal. MSS. See also Beeson, App. Burton, Resp. 12 C. B. 647.

(a) Butt's case, 7 Co. 23, a. Saffery v. Elgood, 1 Adol. & Ell.


opinion of the Court was, that no lease for years was made by this proviso in the lessee, nor by remainder in his executor; because nothing of the said term was limited to the lessee for life as remainder to him and his executors (b).

There are certain interests in land, which, although of an uncertain duration, and, therefore, in that respect participating of the nature of freehold, are nevertheless chattels, These are interests created by the statute law, and are securities for the payment of debts, namely, estates by statute merchant, statute staple, and by elegit, the possessors of which are said to hold their lands as freehold, but whose interests are really chattel, and will go to their executors and administrators (c).

Estates by statute merstatute staple, chant, and by elegit.

one and his

heirs shall go

Since an estate of freehold or inheritance cannot be derived A lease for years made to out of a term for years, no words of limitation can alter the nature of the latter with respect to the purposes of succession. Thus if a lease for years be made to a man and his heirs, it shall not go to his heirs but his executors (d).

go to

to the executor of the devisee:

years made to a sole corporation and his successors will

So if a lease for years be made to a bishop, parson, or A lease for other sole corporation, and his successors, yet it will the executors of the lessee; because a term for years being a chattel, the law allows none but personal representatives to go to his exesucceed thereto, nor can this mode of succession be altered by any limitation of the party (e).


devised to a man in tail

Again, it is a principle of law, that a limitation of a per- lease for years sonal estate to one in tail vests the whole in him. Therefore, where a term for years is devised to one and the heirs of his shall go to his body, or to the heirs male of his body, the term, at the death of the devisee, shall go to the executor and not to the heir (f).

(b) Gravenor v. Parker, Anders. 19. S. C. cited in Lloyd v. Wilkinson, Moor. 480: sed quære; and see post, p. 621.

(c) Co. Litt. 42, a. 2 Saund. 68, f. note to Underhill v. Devereux. Watk. on Conveyancing, by Morley and Coote, 63. See also Wentw. Off. Ex. 133, 4, 5, 14th edition.

(d) Co. Litt. 46, b. So if a ter

mor for years grant a rent out of
the land to A. and his heirs, the
same shall go to the executor and
not to the heir; for being derived
out of a chattel, it must be itself
a mere chattel: Partus sequitur
ventrem: Wentw. 136, 14th edit.

(e) Co. Litt. 46, b. Fulwood's
case, 4 Co. 65, a.

(f) Leonard Lovie's case, 10 Co.


So if a lease for years is given to A. and the heirs male of his body, and for default of such issue, to B. and the heirs male of his body, these words give to A. the absolute property in the whole estate and interest transmissible to his personal representatives (g). In a modern case, the testator devised his real estates to A. for life, without impeachment, &c., with remainder to trustees to preserve contingent remainders, with remainder to the heirs of the body of A.:

87, b. Wentw. Off. Exch. 136, 14th edit. 1 Prest. on Estates, 32. See post, Pt. III. Bk. III. Ch. II. § II. (B.) In Leonard Lovie's case, Coke, C. J., took a difference between a devise of a term in gross, and a devise of a term de novo out of the inheritance, viz., that in the former case the term shall vest absolutely in the devisee, and if he die without issue, shall go to his executors, but that in the latter case it shall cease on failure of issue. Lord Keeper Finch, in Burgis v. Burgis, 1 Mod. 115, said, he did deny Lord Coke's opinion in Leonard Lovie's case, which saith, that in case of a lease settled to one and the heirs male of his body, when he dies, the estate is determined. And Lord Nottingham, in the Duke of Norfolk's case, 3 Cas. in Chanc. 30, said, it was Lord Coke's error in Leonard Lovie's case to say, that if a term be devised to one and the heirs male of his body, it shall go to him or his executors no longer than he shall have heirs male of his body; for these words are not a limitation of the time, but an absolute disposition of the term. So Fearne, Cont. Rem. 463, observes, that the decision in the Duke of Norfolk's case seems to contravene the opinion of Lord Coke. That, however, does not appear to be so; for the decision in that case (vide 2 Swanst.

454,) viz., that if a term de novo be limited in trust for H. in tail, but if T. die without issue male in the life of H., then H. to have no farther benefit, but the benefit thereof to go to C. in tail, &c., the limitation to C. is good, is perfectly consistent with Lord Coke's doctrine. Mr. Serjeant Hill, in a note in his copy of Viner, in Lincoln's Inn Library, Devise B. b. pl. 5, after observing, that if one possessed of a term of years devises it to one and the heirs male of his body, it had been held, that on the death of the devisee the term would go to the executors, and not to the heir, and such a decision was good law, says, "it is very different from the case in 10 Co. in which Lord Coke gave his opinion, though it is confounded therewith by the authorities cited by Viner, from Mod. and Sel. Cases in Chancery, which, however, are nothing to the purpose for which they are cited, being cited in opposition to the opinion of Lord Coke in 10 Co., which was mistaken by Lord Finch, or more probably by the reporters." Note (F.) by Mr. Fraser to 10 Co. 87, a. Vide Preston on Estates, page 33. Touchstone, 445, ed. Preston.

(g) Leventhorpe v. Ashbre, 1 Roll. Abr. 611, (L.) pl. 1. Donn v. Penny, 1 Meriv. 20.

By codicil, reciting the after-purchase of a leasehold estate, he devised the same to the trustees named in his Will, "for such estate and estates and in such manner and form" as his real estates were given by Will: It was held that A., taking an estate tail in the real estates under the Will, was nevertheless entitled to the absolute interest in the leasehold bequeathed by the codicil (h).

With respect to the limitation of real estates, where an estate for life is given to the ancestor, followed by a subsequent limitation to his heirs general or special, the subsequent limitation, as in the case just stated, vests in the ancestor, and the heir takes not by purchase. So in the limitation of leasehold estates, generally speaking, if a term for years be devised to one for life, and afterwards to the heirs of his body, these words are words of limitation, and the whole vests in the first taker, and is transmissible to his executor.

Thus, in Theebridge v. Kilburne (i), where a term was limited in trust for S. for life, and immediately from and after her decease, to the heirs of the body of S. lawfully to be begotten, if the term should so long endure, and in default of such issue, then to B.; Lord Hardwicke expressed himself of opinion that the whole term vested in S. Again in Garth v. Baldwyn (k), where real and personal estates were devised to trustees, in trust to pay the profits to G. during his life, and afterwards to pay the same to the heirs of his body, Lord Hardwicke held, that the personal estate vested absolutely in G. by this limitation. So in Lord Verulam v. Bathurst (1), where a testatrix bequeathed a leasehold house and 30001. stock to trustees, in trust to permit her daughter to receive the rents and interest for life for her separate use, and, from and immediately after her daughter's decease, she gave the rents and interest to the heirs of the body of the daughter lawfully begotten, but in case her daughter should

(h) Brouncker v. Bagot, 1 Meriv. 271. (i) 2 Ves. Sen. 233.

(k) 2 Ves. Sen. 646.

(1) 13 Sim. 374.

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Leases of incorporeal hereditaments.

Estate of tenant from year to year goes to his executor, &c.

happen to die without any lawful issue living at the time of her decease, she gave the house and the stock over; it was held by Sir L. Shadwell, V. C., that the daughter took the property absolutely.

However, if there appears any other circumstance or clause in the will, to show the intention that these words should be words of purchase, and not words of limitation, then it seems the ancestor takes for life only, and his heir will take by purchase to the exclusion of his executor (m).

The chattels real which go to the executor or administrator are not confined to terms or leases of lands, but extend to chattel interests in incorporeal hereditaments, such as leases for years of commons, tithes, fairs, markets, profits of leets, corodies for years, and the like (n).

In the case of a tenancy from year to year as long as both parties please, since the death either of the lessor or lessee does not determine it, the interest of the tenant is transmissible to his executor or administrator (o). Therefore due notice to quit must be given to the latter before the lessor or his representative can recover in ejectment (p); and the executor or administrator of the lessee may maintain ejectment; and it has been held no objection that the demise in the declaration was stated to be for seven years (q). So where W. H., being tenant from year to year to Lady H., died, leaving his widow in possession; and J. H. some time

(m) See Fearne, Cont. Rem. 490, et seq. 7th edition. Doe v. Lyde, 1 T. R. 393. Knight v. Ellis, 2 Bro. C. C. 570. Ex parte Sterne, 6 Ves. 156. Post, Pt. III. Bk. III. Ch. II. § II.

(n) Wentw. Off. Ex. 131, 14th edition. Godolph. Pt. 2, c. 13,

s. 3.

(0) Doe v. Porter, 3 T. R. 13. James v. Dean, 11 Ves. 393. S. P. S. C. 15 Ves. 241.

(p) Parker v. Constable, 3 Wils. 25. But where a tenant from year

to year died, and a regular notice
to quit was served on the widow,
who remained in possession, it was
held by Littledale, J., that the
landlord might recover in eject-
ment, unless it were shown that
some other person, and not the
widow, was the executor or admi-
nistrator of the tenant; and that
it was not incumbent on the land-
lord to show that the widow was
either executrix or administratrix :
Rees v. Perrot, 4 C. & P. 230.
(q) 3 T. R. 13.

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