SECT. 3.

missioners,

1833, p. 10.

medying this inconvenience attending estates pur autre vie. But the 29 Car. 2, c. 3, made these estates directly devisable, and also provided that if there should be no devise of an estate pur autre vie, it should be chargeable in the hands of the heir, if it should come to him by reason of special occupancy, as assets by descent; and in case there should be no special occupant, it should go to the executors or administrators, and Report of Real be assets in their hands. This clause in the Property Comstatute is considered to have been passed to put an end to general occupancy. But it was doubted whether it was intended to continue estates which, when there was no special occupant, determined, because they were not liable to general occupancy. The statute does not mention copyholds, or incorporeal hereditaments; it does not refer to executors or administrators as special occupants; and it makes no provision for the Zouche v. Forse, surplus remaining after payment of debts. And upon the construction of the statute, it is held not to extend to copyholds, because it could not be intended to prejudice the right of the lord; on the contrary, with respect to rents and other incorporeal hereditaments, it has been determined, that where there is no special occupant, or quasi occupant, the estate is continued during the lives for which it was granted, and may be devised; and, if not devised, goes to the executors or administrators. Though it did not provide for the distribution of the surplus as personal estate; and there

7 East, 186.

Bearpark v. Hutchinson, 7 Bing. 178.

fore the 14 Geo. 2, c. 29, was passed. For a more full elucidation of this subject, the reader is referred to the 4th Report of the Real Property Commissioners, 1833. It is believed that what has been here stated is sufficient to explain the object of the words of this clause, viz. that the testamentary power thereby given shall extend " to estates pur autre vie, whether there shall or shall not be any special occupant thereof; and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament."

SECT. 3.

An opinion formerly prevailed, that neither Contingent, excontingent remainders, nor any other contingent ecutory, and future Interests. estates or interests in land could pass by a will Fearne's Cont. made previous to their vesting: but modern de- Rem. 8th ed. p. 366, et seq. cisions have established the power of testamentary disposition of contingent and executory estates and possibilities accompanied with an interest; and of such as would be descendible to the heir of the object of them dying before the contingency or event, on which the vesting or acquisition of the estate depended. [Selwyn v. Selwyn, 2 Burr. 1131; 1 Black. Rep. 222, 251; Moor v. Hawkins, 2 Eden, 342; 1 H. Black, R. 33; Roe d. Perry v. Jones, 1 H. Black. R. 30; Perry v. Phelips, 1 Ves. J. 251.] But these decisions do not appear to reach those cases, where neither the contingent interest itself is transmissible from any person until the contingency

38

SECT. 3.

Lord Langdale's speech in the House of

Lords, Feb. 23,

1837.

Rights of Entry.

Goodright v.
Forrester, 8
East, 566.

Contingent, Executory, and Future Interests.

decides him to be an object of the limitation, nor the person or persons to or amongst whom the contingent or future interest is directed, is or are in any degree ascertainable before the contingency happens. As if an estate be limited to two sisters and the survivor of them, and, after the death of the survivor, to such other person as the survivor may give it by will: whilst the two sisters are both living it cannot be known which will survive; and a will made by one of them, in the expectation of surviving, would fail, though she should afterwards actually survive, and be competent to dispose of the property. This the legislature has now remedied by the clause under our consideration.

It has been formally decided that a right of entry is not devisable. As where a tenant for life levied a fine, by which the estate of the remainder-man was devested, and turned into a mere right. Lord Ellenborough, C. J., said, "such right of entry is not devisable. For such right is certainly not assignable by the common law; nor does it fall within the words of 32 Hen. 8, c. 1, which are "having manors, lands, tenements, or hereditaments;” nor of the statute 34 & 35 Hen. 8, c. 5, s. 4, which are 66 having a sole estate or interest in fee simple of and in any manors, lands, tenements, rents, or other hereditaments, in possession, reversion, or remainder." If the devise of the testator were stated upon record in any pleadings at common law, what

description of interest, falling within these words,
could he be stated to have had at the time of the
devise? The opinion of Lord Eldon, in The
Attorney-General v. Vigor, 8 Ves. 282, was cer-
tainly against it; and the case of Roe v. Griffiths,
1 Black. Rep. 606; Goodtitle v. Wood, Willes,
211; and Roe v. Jones, 3 T. R. 94, do not show
that such a right of entry is devisable; as in
those cases the devisors devised all the interest
they had ever had. And Lord Thurlow, 1 Ves.
Jun. 255, supposed, in order to bring executory
interests within the statutes of wills, that they
must have been considered as executed by the
statute of uses; which is a very different interest
from a right of entry for the purpose
of re-vest-
ing a devested estate. In Corbet's, case, 1 Co.
85 b. "For the construction of wills this rule
was taken by the justices in their arguments;
that such an estate, which cannot by the rules of
the common law be conveyed by act executed in
his life, by advice of counsel learned in the law,
such estate cannot be devised by the will of a
man who is intended by the law to be inops con-
silii:" from whence it may be inferred that out
of that interest, in which, by act executed in a
man's life, it is not possible to create any estate,
no estate can be created by his will. And in
Butler and Baker's case, 3 Co. 32 a, it is said,
"Without question, that which a man cannot dis-
pose of by any act in his life shall not be taken
of his manors, &c., whereof he may de-

for any

SECT. 3.

SECT. 3.

After-acquired

dale's Speech in

vise two parts by authority given him by the statute." And in Lord Mountjoy's case, Godbolt, 17, it is laid down "that the statute of wills, 32 Hen. 8, that it shall be lawful, &c. to devise two parts, &c. respects only such things as are devisable but a right of entry, according to the terms of the statute and the authority of that case, is not devisable. For these reasons, we are of opinion that there must be judgment for the defendant. And whatever mischief or hardship may attend the decision of this case, or may be expected to arise from the application of the same rule to other cases, it is an inconvenience which can, if our judgment be well founded, only be remedied by positive law. And the propriety of applying such a remedy, whereby the same rights of entry and action which belong to the heir may be extended to the devisee, is a question particularly fit for the consideration of the legislature." This remedy is now applied by this Act.

As the law stood previously to this act Property. a will did not pass any real estate which the See Lord Langtestator was not entitled to, both at the date House of Lords, of his will, and at the time of his death; it Feb. 23, 1837. had no effect upon any real estate which might Cowp. 90, 305, 11 Mod. 121; have been acquired in the intermediate time. It Bunker v. Cook, 3 Bro. P. C. 19, is probable that the rule, in this respect, arose Butler & Baker's partly from the construction given to the word case, 3 Co. 30 b. See Lord Eldon's "having" in the Statute of Wills, which had observations, 2 adopted the doctrine then current respecting a Ves. jun. 427. devise, considered as an appointment to uses,