some other contradictory authorities to be found in the older Reports (u). Perhaps the only point for which the case of Sparke v. Sparke, when in K. B., is really an authority, is, that where a lease is made for 99 years, if the lessee lives so long, and if he dies within that term, remainder to his executors and assigns for 40 years, in such case this term shall not vest in the lessee, but his executors are purchasers, because it is a conditional limitation, and a mere possibility to vest; for there is a condition precedent that it shall not be a lease, unless he died within the term, which peradventure would not be, for he might survive the term (x). This case was put by the Court, and agreed upon, according to the report in Croke (y), but their judgment on the principal case was not given; and in Yelverton and Moore, this case, which was merely a supposed one according to Croke, is reported as containing the actual facts before the Court: and the report in Yelverton concludes by stating that the chief reason for their decision was, because the term to the executors is but a possibility. Since these remarks were sent to the press, the writer has had the good fortune to find some important MS. observations on the subject by Mr. Serjeant Hill, in his copy of Viner, in Lincoln's Inn Library. They are appended to tit. Executors, vol. II. p. 406, (B.) pl. 4, where the dictum of Anderson, J., that the executors should take as purchasers, is stated, according to the report of Sparke v. Sparke, in Owen, p. 125, and are as follows:-"This is not law, and was improperly inserted by Viner; for though the opinion in Owen, 125, was as here cited, yet the judgment in the principal case, which in effect is the same with that here (u) See Gravenor v. Parker, Anders. 19. S. C. Benloe, 74. Anon. 3 Leon. 32. Ante, p. 596, 597. See also Wentworth's Off. Ex. 189, 14th edition. (x) As the law is now established, the mere possibility that a life in being may endure for eighty years put by Anderson, was contrary; and Owen concludes the case in p. 126, thus ;- At last judgment was given, that the administrator should hold it (viz. the term) for forty years, as a thing vested in the testator.' And Rolle, in several parts of his Abridgment, viz., 1 Rol. Abr. 916, Y. 3, 2 Rol. Abr. 47, pl. 6, 418, pl. 6, and Lord Coke, in 1 Inst. 54, b., cite the case agreeable to that judgment; and Cro. Eliz. 666, reports the case to have been adjudged the same way, and is more full and clear than Owen; for he states the question, and that all the Justices delivered their opinion severally that the term vested in the intestate, and shall go to his executors as assigns in law, and not as a perquisite by themselves; and, therefore, Anderson must have changed the opinion he gave at another time before judgment. And yet afterwards, in Cro. Eliz. 840, the same point between the same parties, in a different action and Court, came again in question, and the Court seemed to be of a different opinion: but Croke says, the Court did not deliver any opinion certainly therein, because none was there to argue on the other part; Vid. Moor. 666, pl. 911, Yelv. 9, who both report the last case as of Mich. 44 & 45 Eliz. B. R., which was an action of debt; whereas Owen reports the case in ejectment, Mich. 40 & 41 Eliz. C. B.; and in Co. Litt. 54, b, the case is cited as of Mich. 40 & 41 Eliz. in C. B. in trespass; and in 2 Rol. Abr. 47, pl. 6, 418, pl. 6, the case is also cited as of Mich. 40 & 41 El. B., and all of them refer to the same Roll, viz., Rot. 2215; so that there can be no doubt but the case in Cro. Eliz. 840, Moor. 666, Yelv. 9, is a later and a different case from the former, though on the same point and between the said parties, and though adjudged contrary; but quære the law. In Yelverton, 9, it is admitted, that if the term. had been limited to the executors for payment of debts, it would have vested in the testator. N. B. that Lord Coke and Rolle took the law to be agreeable to the first judgment, and take no notice of the last, which it is extraordinary they should not have done, if it was adjudged as reported by Moore and Yelverton; and in 1 Roll. Abr. 916, (Y) 3, the case is referred to as of Tr. 43 Eliz., which is the same term In these cases it was several times laid down, that if a remainder be limited to a man's executors and assigns, as purchasers, there his administrator cannot take as assignee (2). (z) Owen. 125. Cro. Eliz. 840, 841. Administrator cannot take as assignee by purchase. What are chattels personal. CHAPTER THE SECOND. OF THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR IN THE CHATTELS personal are, properly and strictly speaking, things moveable; which may be annexed to, or attendant on, It is proposed to consider this subject in the usual divisions; 1. Into chattels animate. 2. Chattels vegetable. 3. Chattels inanimate. Domita natura. SECTION I. Of the Estate of an Executor or Administrator in Chattels Chattels animate may be sub-divided into such as are domestic, and such as are feræ naturæ. In such as are of a nature tame and domestic, (as horses, kine, sheep, poultry, and the like,) a man may have an absolute property, and they are therefore capable of being transmitted, like any other personal chattel, to his executor or administrator. Also hounds, greyhounds, and spaniels and the like, as they may (a) 2 Black. Comm. 387, 388. be valuable, and may serve not only for delight but profit, shall go to the executors or administrators (b). In those of a wild nature, i. e. such as are usually found at liberty and Feræ naturæ: wandering at large, generally speaking, a man can have no property transmissible to his representatives (c). industriam in But a qualified property may subsist in animals of the property per latter class, per industriam hominis, by a man's reclaiming animals fere them and making them tame by art, industry, or education, naturæ goes to or by so confining them within his own immediate power, that they cannot escape and use their natural liberty (d); and the animals so reclaimed or confined belong to the executor or administrator. Thus, if the deceased have any tame pigeons, deer, rabbits, pheasants or partridges, they shall go to his executors or administrators: So, though they were not tame, yet if they were kept alive, in any room, cage or such like place; as fish in a trunk (e). But if at any time they regain their natural liberty, the property instantly ceases, unless they have animum revertendi, which is only to be known by their usual custom of returning (f). A qualified property property may also subsist in animals feræ naturæ propter etiam in propter impoimpotentiam; as in young pigeons, who though not tame, being in the dove-house, are not able to fly out; and they shall go to the executors or administrators (g). them. The animals which a man has ratione privilegii are consi- What animals dered as incident to the freehold and inheritance, and do not (b) 4 Burn. E. L. 297. It is said, indeed, in Swinburne, Pt. 7, s. 10 pl. 8, p. 929, 7th edit. and in Noy' Maxims, p. 107, that hawks and hounds shall go to the heir with the estate. But it seems clear at this day, that they would go to the executor or administrator as chattels personal. "And why not?" says the author of the Office of Executor, (supposed to be Mr. Justice Doddridge,) "for although hounds, greyhounds, and spaniels be for the most part but things of pleasure, VOL. I. that hindereth not but they may (f) 2 Black. Comm. 392. S S are incident to the inheritance |