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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, 6. Wentw.Off. Exch. 136, 14th 454,) viz., that if a term de novo be edit. 1 Prest. on Estates, 32. See post, limited in trust for H. in tail, but Pt. III. Bk. III. Ch. 11. $ 11. (B.) In if T. die without issue male in the Leonard Lovie's case, Coke, C. J., life of H., then H. to have no took a difference between a devise farther benefit, but the benefit of a term in gross, and a devise of a thereof to go to C. in tail, &c., the term de novo out of the inheritance, limitation to C. is good, is perfectly viz., that in the former case the term consistent with Lord Coke's docshall vest absolutely in the devisee, trine. Mr. Serjeant Hill, in a note and if he die without issue, shall in his copy of Viner, in Lincoln's go to his executors, but that in the Inn Library, Devise B. b. pl. 5, latter case it shall cease on failure after observing, that if one posof issue. Lord Keeper Finch, in sessed of a term of years devises Burgis v. Burgis, 1 Mod. 115, said, it to one and the heirs male of his he did deny Lord Coke's opinion in body, it had been held, that on the Leonard Lovie's case, which saith, death of the devisee the term would that in case of a lease settled to one go to the executors, and not to the and the beirs male of his body, heir, and such a decision was good when he dies, the estate is deter- law, says, “it is very different from mined. And Lord Nottingham, in the case in 10 Co. in which Lord the Duke of Norfolk's case, 3 Cas. Coke gave his opinion, though it is in Chanc. 30, said, it was Lord confounded therewith by the auCoke's error in Leonard Lovie's thorities cited by Viner, from Mod. case to say, that if a term be de- and Sel. Cases in Chancery, which, vised to one and the heirs male of however, are nothing to the purhis body, it shall go to him or his pose for which they are cited, beexecutors no longer than he shall ing cited in opposition to the opihave heirs male of his body; for nion of Lord Coke in 10 Co., which these words are not a limitation of was mistaken by Lord Finch, or the time, but an absolute dispo- more probably by the reporters," sition of the term. So Fearne, Note (F.) by Mr. Fraser to 10 Co. Cont. Rem. 463, observes, that the 87, a. Vide Preston on Estates, decision in the Duke of Norfolk's
page 33. Touchstone, 445, ed. case seems to contravene the opi. Preston. nion of Lord Coke. That, however, (9) Leventhorpe u. Ashbre, 1 does not appear to be so; for the Roll. Abr. 611, (L.) pl. 1. Donn v. decision in that case (vide 2 Swanst. 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 A lease for estate for life is given to the ancestor, followed by a subse. A. for life,
years given to quent limitation to his heirs general or special, the subse- and afterwards
to his heirs quent limitation, as in the case just stated, vests in the general or spe
cial, will go to ancestor, and the heir takes not by purchase. So in the his executors. 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 devise 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 (I), 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. (2) 2 Ves. Sen. 233.
(k) 2 Ves. Sen. 646.
Leases of incorporeal hereditaments.
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 (0). 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 (9). So where W. H., being tenant from year to year to Lady H., died, leaving his widow in possession; and J. H. some time
Estate of tenant from year to year goes to his executor, &c.
(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 ejectment, unless it were shown that some other person, and not the widow, was the executor or administrator of the tenant; and that it was not incumbent on the landlord to show that the widow was either executrix or administratrix : Rees v. Perrot, 4 C. & P. 230.
(9) 3 T. R. 13.
et vastum goes
afterwards took out administration to the deceased, but the widow continued in possession, paying rent to Lady H. with the knowledge of J. H., who never objected to such payment or made any demand of rent; it was held, that there was no evidence of a determination of the tenancy from year to year by operation of law, and that the administrator was entitled to recover possession from the widow (r).
The title accrued to the Crown upon attainder of felony, Annum diem where the party held not of the King, viz., the annum diem to the execu
tors of a granet vastum, that is, power not only to take the profits for a year, but to waste and demolish houses, and to extirpate and eradicate woods and trees, is but a chattel ; and, therefore, though granted to one and his heirs by the King, yet shall go to the executor and not to the heir (s). If a lease be made to several for a term of years, and one Leases held in
joint tenancy of the joint tenants dies, his interest accrues to the survivors, do not pass to
the executor, and his executors or administrators shall take none (t). It may
be advisable here to remark, that even when a term Terms for for years is specifically devised, it will, in the first instance, the executor vest in the executor, by virtue of his office, for the usual though specifi
cally devised : purposes to which the testator's assets shall be applied, and the legatee has no right to enter without the executor's special assent (u). If the testator had a term for years, this vests in the he cannot
a executor or administrator, and he cannot refuse it though it waive a lease
though it be be worth nothing; for the executorship or administratorship worth nothing. is entire, and must be renounced in toto, or not at all (.x).
Generally speaking, the Courts of Equity follow the rules Equitable inteof law in their construction of equitable interests; and,
years vest in
rests in terms.
(r) Doe v. Wood, 14 M. & W. 682.
(8) Wentw. Off. Ex. 132, s. 36, 14th edition. Godolph. Pt. 2, c. 13, s. 5. (1) Co. Lit. 182, a.
See ante, p. 574 et seq.
(u) See infra, Pt. III. Bk. III. Ch. Iv. S III.
(2) Billinghurst v. Spearman, 1
Salk, 297. Bolton v. Canham,
consequently, the beneficial interest in a term, where the person entitled to it has no higher interest in the estate, is treated as a chattel interest, and is transmissible to the per
sonal representatives in the same manner as the legal estate. Terms attend. There is, however, a particular sort of term, usually called ant on the inheritance. a “Term attendant upon the inheritance," the beneficial
interest in which is regarded in equity in a peculiar way; and considered as completely consolidated with the freehold and inheritance, so as to follow the fee in all the various modifications and charges to which it may be subjected by the acts of law or of the owner (y). The consequence is, that this interest is not looked upon in equity as a chattel; it is not assets in the hands of the executor or administrator, nor liable to the simple contract debts of the deceased, but is, together with the fee, real assets. This subject will be pursued in the proper stage of this Treatise (2).
When estates pur autre vie go to executor, &c.
By the common law, if lands had been limited to A. for the life of B., and A. had died in the lifetime of B., estate arose by general occupancy: for as the lands could not go to the heir for want of words of inheritance, nor to the executor or administrator in respect of the estate being freehold, there was no legal owner; wherefore the law gave it to the first person who could enter: and in the hands of such general occupant, the estate was not subject to the debts of the grantee pur autre vie (a). If, however, the estate was limited to A. and his heirs during the lifetime of B., and A. died in B.'s lifetime, the heir was held to be entitled, not as heir (6), but as special occupant. In like manner, if the estate was limited to A. and his executors and administrators during the life of B., the more established opinion (although contrary to some high authority) appears
(y) See an excellent note upon this 'subject by Messrs. Morley and Coote, in Watk. Convey. 45,
(a) Raggettv. Clerke, 1 Vern. 233.
(b) And therefore there is no estate by the curtesy issuing out of such an estate : Stead v. Platt, 18 Beay. 50.
(2) Post, Pt. iv. Bk. 1. Ch. I.