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to be, that the executors and administrators were entitled, as special occupants, provided the estate consisted of corporeal hereditaments; for although the heir might be a quasi special occupant of incorporeal, it seems clear that executors or administrators could not, nor could there be any general occupant (c).
It was held generally, that an estate pur autre vie was not devisable And in order to remedy this, and to prevent as well the inconvenience of scrambling for estates, and getting the first possession after the death of the grantee, as also for preserving and continuing the estate during the life of the cestui que vie, it was enacted by the Statute of Frauds, (29 Car. II. c. 3, s. 12,) that "from henceforth any estate pur autre vie shall be devisable by a Will in writing, signed by the party so devising the same, or by some "other person in his presence, and by his express directions, "attested and subscribed in the presence of the devisor by "three or more witnesses. And if no such devise thereof "be made, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occu
pancy, as assets by descent, as in case of lands in fee "simple. And in case there be no especial occupant thereof "it shall go to the executors or administrators of the party "that had the estate thereof by virtue of the grant, and shall "be assets in their hands."
A question has arisen, viz., to whom the estate pur autre vie would go, if limited to a man, his heirs, executors, and administrators; and it was argued in favour of creditors generally, that the administrator was entitled; but the Court decided for the heir (d). In another case (e), where a tenant
(c) The authorities on this subject will be found collected in Sugden on Powers, p. 98, n. 4th edition, and in a note of Messrs. Morley and Coote, to their edition of Watkins on Conveyancing, p. 69, 70. See also Mr. Cox's note (D) to Low v. Burron, 3 P. Wms. 264, and the observations of Tindal, C. J., in
Bearpark v. Hutchinson, 7 Bingh. 187.
(d) Atkinson v. Baker, 4 T. R. 229. This was the case of a deed: But the same has also been held in the case of a Will: Carpenter v. Dunsmure, 3 E. & B. 918.
(e) Doe v. Steele, 4 Q. B. 663.
Executors of grantee pur autre vie of a
in fee conveyed lands to "H., her heirs and assigns, to hold to H. and her assigns during the life of G.;" it was held that, after H.'s death, G., who was her heir, was entitled to hold for his life as special occupant, and that the land did not pass to H.'s executors by the words in the habendum "to H. and her assigns," but that these words must be disregarded, as being repugnant to the words in the premises. A question has been raised upon the construction of this statute, whether, if a rent be limited to a man, his executors rent entitled: and administrators, pur autre vie, and the grantee die, living cestui que vie, and without having disposed of it in his lifetime, it is not determined, notwithstanding the statute; on the ground that it was intended to apply to those estates only in which executors or administrators, if named, might take as special occupants, and consequently not to incorporeal hereditaments (f). The better opinion appears to be, that the statute nevertheless gives the estate to the executors or administrators (g); but to avoid the doubt, it has been usual to limit the rent to the grantee, his executors and assigns, for a certain number of years, determinable on the death of the cestui que vie.
Since these remarks were written, the Court of Common Pleas has, it should seem, settled the point. In Bearpark v. Hutchinson (h), it was held by that Court, after taking time to consider, that where a rent-charge was granted to a man during the life of another, without further words, and the grantee died during the life of the cestui que vie, the right to the rent-charge vested in the personal representative: And Tindal, C. J., in delivering the judgment of the Court, observed, with respect to the objection that the statute is limited to such estates as were capable, before the statute, of occupancy, that "special occupant of rent"
(f) See Watk. on Convey. 73, note by Morley and Coote.
(g) Ibid. See Cox's note (D.) to Low v. Burron, 3 P. Wms. 264. Kendal v. Micfield, Barnard. Chan.
Ca. 46. Jenison v. Lexington, 1 P.
(h) 7 Bingh. 178. S. C. 4 M. & P. 848.
was a legal phrase, in common use and possessing a known meaning, before the statute, as descriptive not of the person who should enter and occupy, but who should receive or take rent; and that, therefore, the sounder construction of the second branch of the statute was to make it include the grantee of rent, since such estates were held in common parlance to be the subject of special occupancy.
de bonis non of grantee :
of estates pur
If the executor should die intestate, it may be doubted administrator whether the estate would, under this statute, go to his administrator, or to the administrator de bonis non (i). Under the above statute, the owner of an estate pur autre devise it to several in succession, so as to designate vie may who shall occupy till cestui que vie dies, and to leave no interval or chasm (k). But a question may arise, as to what shall become of the estate, if it be only partially devised, i. e. if it be devised for a period which expires before the estate pur autre vie ends: In Doe v. Robinson (1), the Court of K. B. decided, that the residue, whereof there is no devise, belongs to the representatives of the devisor. There the tenant of lands which had been granted "to him and his heirs," pur autre vie, devised them to A. B. without saying more, and A. B. died, living cestui que vie: And it was held, that the heir of the devisor was entitled as special occupant (m). In that case, the Court held that the words used were not sufficient to pass the whole interest. If the devise had been of the whole term itself, or of the whole interest of the devisor, to A. B., without more, the representative of A. B. would have been entitled, notwithstanding
(i) Oldham v. Pickering, Carth. 376. Ripley v. Waterworth, 7 Ves. 445, 451.
(k) 3 P. Wms. 262.
(1) 8 B. & C. 296. S. C. 2 Mann. & R. 249.
(m) It should seem, that in the case of a Will, made after the year 1837, the whole interest would pass to the devisee under the words of the bequest used in Doe v. Robin
son, by reason of the stat. 1 Vict.
devise of the without words
by grantee pur autre vie heirs.
to him and his
no words of limitation were used in the devise (n). Whether the real or the personal representative would have been the person to take, is a point on which the authorities appear to be conflicting. In Doe v. Lewis (o), where the estate had been demised to the grantee, his heirs and assigns, for lives, and he devised the premises, during the residue of the lease, to W. J. L., and his assigns, who died intestate, it was held by the Barons of the Exchequer, that the estate did not go to the heir of W. J. L., but to his personal representative; for that the devise by the original grantee defeated the title of his own heir as special occupant, and his devisee, W. J. L., took the estate to hold to him and his assigns for the residue of the term; and on the death of W. J. L., as there was no devise of the estate, nor special occupant thereof, it passed to the executors or administrators of W. J. L. (“the party that had the estate thereof”), within the express words of the Statute of Frauds. But in Wall v. Byrne (p), where a lessee of lands which had been demised to him, his heirs and assigns, pur autre vie, devised all his real freehold and personal property to his wife and children, share and share alike; and one of the children, who survived the testator, died intestate; it was held by Sugden, Lord Chancellor of Ireland, that the heir-at-law of such child, and not his personal representative, was entitled to his share of the estate pur autre vie. And the learned Judge said, that if ever a point was closed by decision, it was this; that where a man has an estate pur autre vie limited to him and his heirs, and devises that estate by words, which, without words of limitation, would pass the quasi inheritance, and the devisee dies intestate, the persons to take are the heirs, and not the personal representative of the devisee: That the point was so decided in Ireland many years since (q), and that decision had been followed in England (r);
(n) Williams v. Jekyl, 2 Ves. Sen. 681.
(0) 9 M. & W. 662.
(p) 2 Jones & Lat. 118.
(9) Blake v. Jones dem. Blake,
1 Hud. & Bro. 227, n.
(r) See Phillpotts v. James, 3 Dougl. 425.
and many opinions had been given upon it; and he must, therefore, decline to hear the question argued. His Lordship distinguished the case of Doe v. Lewis, on the ground that there the devise was to a man and his assigns, which, it was held, did not mean heirs; whereas in the case before him the devise was in general terms, and in words which were sufficient to pass the entire interest of the testator under the lease to his devisees; and that both law and good sense required that the devisees should take the same interest which he himself had. This distinction, however, does not appear to reconcile the two decisions satisfactorily, nor to afford any answer to the reasoning on which the Court of Exchequer proceeded.
By stat. 1 Vict. c. 26, s. 3, (which, however, does not 1 Vict. c. 26. extend to any Will made before Jan. 1, 1838,) estates pur autre vie may be disposed of by Will, executed as required by that Act, whether there shall or shall not be any special occupant thereof, and of whatever tenure they shall be, and whether the same shall be a corporeal or incorporeal hereditament (s).
And with respect to the estate, pur autre vie, of any deceased person, who shall not have died before the 1st day of January, 1838, the same Statute, (after repealing the above-mentioned statutes of Car. II. and Geo. II.) proceeds to enact, by sect. 6, that if no disposition shall be made thereof by Will, and in case there shall be no special occupant thereof, it shall go, (whether freehold or customary freehold, tenant right, customary or copyhold (t), and of any other tenure, and whether a corporeal or incorporeal hereditament,) to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator, either by reason of special occupancy, or by virtue of this Act, it shall
(s) See this enactment, verbatim, Preface.
(t) The statute of Car. II. does
not extend to copyholds: Zouch v.