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1. § 1.
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.
(ƒ) Godolph. Pt. 2, c. 13, s. 3: admitted by Lord Tenterden, in
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
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 (0). 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 (s). 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.
All leases and terms of lands, tenements, and heredita- Estates for ments, of a chattel quality, are chattels real, and will
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
(r) 2 Roll. Abr. Presentment, 345, (E.) pl. 4. Co. Litt. 90, a. 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.
૨ ૨ 2
Term for a cer-
A. B. so long
lease for life made by lessee for years:
lease for A.'s life, and if he die within a
certain time to
his executor for
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 101., &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 rest of that 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.
(z) 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 partici, pating 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 staple, statute merchant, and by elegit.
A lease for years made to
one and his
heirs shall go
to the executor of the devisee:
Since an estate of freehold or inheritance cannot be derived 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). So if a lease for years be made to a bishop, parson, or other sole corporation, and his successors, yet it will go to 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).
A lease for
years made to
tion and his successors will
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 (ƒ).
(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