2. Rights of wife's adminisirator to her chattels real:

those vested during coverture go to the

law, and he referred to Steed v. Cragh (o) as stating the principle.

2. The rights of the administrator of the wife to her chattels real when her husband survives. If the husband do not alien them in her lifetime, and he survive her, the law gives them to him, at least all those of which he had possession jure uxoris during the coverture, not as the administrator of his wife, but as a marital right (p). No administration to husband jure her, therefore, need be taken out by him for this purpose (q). Consequently, should the husband die without exercising his exclusive right of taking out administration to her (r), her chattels real in possession will go to his administrator, and not to the administrator of his wife (s).

mariti:

secus, of those not vested.

But to entitle the husband to the chattels real of the wife, which were not vested in her possession in her right in her lifetime, he must make himself her representative, by becoming her administrator: As if a feme sole be possessed of a chattel real, and be thereof dispossessed, and then take husband, and die before recovery of possession, this right will not survive to the husband, but go to the personal representative of the wife (t). Therefore if the husband die without obtaining letters of administration, the right will not pass to his administrator, but to the administrator of his wife (u). However such administrator will be considered in equity as a trustee for the representative of the husband (x).

(0) 9 Mod. 43. S. C. 2 Eq. Cas. Abr. 37.

(p) Secus, as to a lease whereof the wife and another were joint tenants; for it shall survive to her companion, inasmuch as he has the elder title to that of the husband: Co. Lit. 185, b.

(q) 1 Roll. Abr. Baron & Feme, (H.8.) Wrotesley v. Adams, Plowd. 122. Hauchet's case, Dyer, 251, a. Co. Lit. 46, b. Ibid. 351, a. Wan v. Lake, Gilb. Eq. Rep. 234. Bedell v. Constable, Vaughan, 185, by Vaughan, C. J., 2 Eq. Ca. Abr.

138, pl. 4. 1 Roper, 173. And the
same of an equitable term: Rex v.
Holland, Aleyn, 15, by Rolle. 1
Prest. on Abst. p. 343.

(r) See ante, p. 357, 358.
(s) Doe v. Polgrean, 1 H. Black.

535.

(t) Co. Lit. 351, a.
(u) Ante, p. 359.
(x) Ante, p. 359.

Cart v. Rees, 1 P. Wms. 381, cited in Squib v. Wyn. Humphrey v. Bullen, 1 Atk. 458. S. C. 11 Vin. Abr. 88. Elliott v. Collier, 3 Atk. 526. S. C. 1 Ves. Sen. 15. 1 Wils. 168.

If the husband be seised of an advowson in right of his wife, and the church become vacant during the coverture, the wife shall have the void presentation if she survive him, and the husband if he survive her (y), even though, by reason of her not having issue, he be not tenant by the curtesy (2): but if the church fell vacant before coverture, the husband shall not have the turn (a): i. e. it may be considered, he shall not have it as a marital right; but still it will go to him. as her administrator (b). It will be observed that the next presentations to vacant churches are not properly chattels real, but chattels personal, and, therefore, in strictness do not belong to this part of the subject of the estate of an executor or administrator.

SECTION III.

Of the Estate of an Executor or Administrator in Chattels
Real by Condition, Remainder, or Limitation.

An executor or administrator may become entitled to By condition. chattels real by condition. As where a lease for years has been granted by the testator, upon condition that if the grantee did not pay such a sum of money, or do other acts as the testator appointeth, &c., and the condition is not performed after the testator's death, now is the chattel real come back to the executor (c). So where the condition is, that the testator or his executors shall pay the money to avoid the grant, as where he mortgaged a lease for years, and before the day limited for redemption he dies, his executor is entitled to redeem at the time and place appointed (d).

Likewise a chattel real may accrue to an executor or By remainder.

(y) Co. Lit. 351, b.

(z) Wats. C. L. 71, 72.

(a) Co. Lit. 351, b.

Ch. I. § III.

(c) Wentw. Off. Ex. 181, 14th edit.

(b) See infra, Pt. 11. Bk. 11I.

(d) Ibid. Toller, 164.

Contingent

interests.

administrator by remainder. Thus a remainder in a term of years, though it never vested in the testator in possession, and though it continue a remainder, shall go to his executor. Where a lease for years is bequeathed by Will to A. for life, and afterwards to B., who dies before A., although B. never had the term in possession, yet it shall devolve on his executor (ƒ).

With respect to contingent and executory interests, it is and executory established, that contingent and executory estates and possibilities in chattels real, accompanied by an interest, are transmissible to the personal representative of a person dying before the contingency upon which they depend takes effect (g). Thus, in the case above put, where a lease for years is bequeathed to A. for life, and after his death to B. for the residue of the term, B. has only an executory interest during the life of A.; but this interest is transmissible to B.'s executors or administrators (h).

Lease for life remainder to the executors of lessee.

Lord Coke says, that "if a man make a lease for life to one, the remainder to his executors for twenty-one years, the term of years shall vest in him; for even as ancestor and heir are correlativa as to inheritance, (as if an estate for life be made to A., the remainder to B. in tail, the remainder to the right heirs of A., the fee vesteth in A., as it had been limited to him and his heirs), even so are the testators and executors correlativa as to any chattel. And, therefore, if a lease for life be made to the testator, the remainder to his executors for years, the chattel shall vest in the lessee himself, as well as if it had been limited to him and his executors" (i). And in accordance with this doctrine is the case of Sparke v. Sparke, (40 & 41 Eliz.) in the Common Pleas (k), where the lessor leased for eighty years, if the

(f) Wentw. Off. Ex. 189, 14th edit.

(g) Fearne, 554. 2 Saund. 388, n. note (9), to Purefoy v. Rogers. See post, Pt. II. Bk. III. Ch. III.

(h) Manning's case, 8 Co. 95. Lampet's case, 10 Co. 46: and see

Mr. Fraser's notes in his edition of
Coke's Reports.

(i) Co. Lit. 54, b.

(k) Cro. Eliz. 666. S. C. Owen, 125. Hal. MS. note (4), to Co. Lit. 54, b.

lessee should live so long, remainder after his decease to the executors and assigns of the lessee for forty years; and the whole Court was of opinion that this term vested in the lessee, and should go to his executors or administrators as assigns in law.

On the other hand, in a later case of Sparke v. Sparke, K. B. 43 Eliz. (1), (where the facts are stated to be that the lessor let the land to the lessee for ninety years, if he should live so long, and, further, by the same deed vult et concedit, that, after the decease of the lessee, the said land should remain to the executors and assigns of the lessee for forty years), according to the report in Croke, although the Court did not deliver any certain opinion, Popham, J., said a stronger case had been adjudged, 17 Eliz., where a lease was made to two for life, remainder to him who should survive of those two, and to his executors for forty years; they both joined in a grant for this, yet the grant was merely void, because the term was not vested in any of them: And Gaudy, J., seemed to incline, that this term did not vest in the intestate, but it was to be to the executor as a purchaser: And in the reports of the case in Moore (m) and Yelverton (n), it is said to have been adjudged that the lease never vested in the lessee, and therefore did not pass to his administrator, though it would have gone to his executor if he had made one, as a purchaser. So in Cranmer's Case (o), where the Archbishop Cranmer had made a feoffment to the use of himself for life, and after his decease, remainder for twenty years to the use of his executors, and afterwards the Archbishop was attainted; it was held that the remainder for years was not forfeited, because it was never vested in Cranmer in his lifetime. In the earlier case of Sparke v. Sparke (p), Walmsley, J., attempted to reconcile the two cases. The difference between them, he says, was, that in

32.

(7) Cro. Eliz. 840. S. C. Noy.

(m) Moor., 666. (n) Yelv. 9.

(0) Dyer, 309. S. C. 1 And. 19.

2 Leon. 5. 3 Leon. 20. Moor. 100. Bendl. 113.

(p) Cro. Eliz. 666.

Cranmer's Case it was limited by way of use, and that by the party himself; so he shows himself his own intent, that it should not vest in himself but in his executor; but in the present case the limitation was by a stranger wherein no intention appears, but that it should vest in the lessee himself. This distinction seems to be supported by two other cases, both of which are reported in Moore (q). The first is Finch v. Finch (r). The case, on special verdict, appeared to be the following: Feme sole levied a fine to the use of herself for life, and after her death to the use of her executors for five years, with remainder over; and then she married, and with her husband granted the term of five years to the plaintiff, and then she and her husband levied a fine sur conusance de droit tantum: The first question was, whether the use to the executors was good; and the Court agreed unanimously in the affirmative; and that if the possession were not disturbed, it would arise accordingly: The second question was, whether the feme could grant it during her life, and they held not; and they further held, that it could not be forfeited: In the next place, they agreed that it might be extinguished by fine, and, therefore, that the fine sur conusance de droit tantum had extinguished it. The other case is Remington v. Savage (s), where J. S. levied a fine to the use of himself for life, remainder to his wife for life, remainder to his executors for years; and then he levied a second fine to the same uses, omitting the estate for years: it was held that the term being in abeyance was extinguished (t). But the application of this distinction will not reconcile the decision of Sparke v. Sparke, in C. B., with the subsequent one in K. B., nor

(q) "This, though called a conceit in Wentw. Off. Ex. (189, 14th edit.) is the only way in which the judgment in Cranmer's case can be reconciled to Co. Lit. 54, b. and several other authorities; and this conceit was strongly urged in the argument of the case in 2 Leon.

6, 7:" MS. Serjeant Hill, in his copy of Viner, in Lincoln's Inn Library, tit. Executors (B.)

(r) Moor. 339. S. C. nom. Finch v. Bodyll, 2 And. 91.

(s) Moor. 745.

(t) Chambers on Landlord and Tenant, 167.