afterwards took out administration to the deceased, but the The title accrued to the Crown upon attainder of felony, where the party held not of the King, viz., the annum diem et vastum, that is, power not only to take the profits for 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 of the joint tenants dies, his interest accrues to the survivors, and his executors or administrators shall take none (t). It may be advisable here to remark, that even when a term for years is specifically devised, it will, in the first instance, vest in the executor, by virtue of his office, for the usual 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). Annum diem to the execu et vastum goes tors of a gran tee. Leases held in joint tenancy do not pass to the executor, &c. Terms for years vest in the executor though specifically devised: he cannot though it be worth nothing. waive a lease If the testator had a term for years, this vests in the executor or administrator, and he cannot refuse it though it be worth nothing; for the executorship or administratorship 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, rests in terms. ant on the in heritance. 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 personal representatives in the same manner as the legal estate. Terms attend- There is, however, a particular sort of term, usually called 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 (z). 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., an 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 (b), 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, et seq. (z) Post, Pt. IV. Bk. 1. Ch. 1. (a) Raggett v. Clerke, 1 Vern. 233. (b) And therefore there is no estate by the curtesy issuing out of such an estate: Stead v. Platt, 18 Beav. 50. 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 occupancy, as assets by descent, as in case of lands in fee 66 66 66 66 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 : 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 cestui que vie dies, and to leave no vie may (i) Oldham v. Pickering, Carth. 376. Ripley v. Waterworth, 7 Ves. 445, 451. (k) 3 P. Wms. 262. (7) 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 partial devise of estates pur autre vie: devise of the whole estate, If the without words son, by reason of the stat. 1 Vict. of limitation, by grantee pur autre vie to him and his heirs. |