law (g)) that where there is no special occupant (1), in whom the estate may vest, the tenant pur auter vie may de(g) Bract. l. 2, c. 9; 1. 4, tr. 3, c. 9. s. 4. Flet. 1. 3, c. 12, s. 6; l. 5, c. 5, s. 15. (1) Whether under a grant to a man and his executors, of lands pur autre vie, the executors can take as special occupants, appears to be not very clearly settled. In Milner v. Lord Harewood, (18 Ves. 273), Lord Eldon seems to say, an executor may be a special occupant; but in Ripley v. Waterworth, (7 Ves. 438), the same learned Judge treated that as, at all events, a doubtful point. Every estate pur autre vie in the hands of an executor, (who takes qua executor only), will be assets in his hands. (Westfaling v. Westfaling, 3 Atk. 466. Ripley v. Waterworth, ubi supra). And where there is no special occupant, an estate held by lease pur autre vie, will go to the exe. cutors or administrators of the lessee; and in their hands such a lease was always considered as personal estate, at least to the extent of being assets: (Duke of Devonshire v. Kinton, 2 Vern. 719): though, in other respects, it was formerly held to retain the character of freehold, so completely as not to be distributable under the intestacy of the deceased tenant pur autre vie: (Oldham v. Pickering, Carthew, 376): but this last point seems now settled definitively to the contrary, by the statute of Geo. II., and indeed Lord Eldon (in Ripley v. Waterworth, 7 Ves. 439), thought it "not a great stretch" to say that the statute of Cha. II. was meant to apply both to testacy and intestacy. But though an estate pur autre vie, granted to a man, his executors administrators and assigns, if there is no special occupant, is distributable as personal estate, it does not become per sonal estate strictly speaking; nor does it become liable to that application till after the death of the party; and then not by force of any property inherent in the estate itself, but by force of the statute, to avoid the inconvenience of general occupancy. In the life of the party such an estate must be considered freehold estate. (Watkins v. Lee, 6 Ves. 642). And when an estate pur autre vie has been limited to a man, his heirs and assigns, if it be not devised, it goes to the heir, and is liable only to the same debts as a fee-simple would be. (Atkinson v. Baker, 2 T. R. 230). For, an estate pur autre vie, (clearly, at all events, when it is limited to a man and his heirs), is in its nature freehold; the devise thereof is not valid unless it be attested by three witnesses, and it can be created and conveyed only by a conveyance proper to create and transfer freehold estate. Lord Redesdale, indeed, doubted whether such an estate could be converted into a chattel interest by any convention of the parties to its creation; and whether a grant to a man, his executors and administrators, could make the property liable to be acted upon as a chattel interest, except to the extent, and in the cases, for which the statute has specially provided. (Campbell v. Sandys, 1 Sch. & Lef. 290). But Lord Hardwicke appears to have recognized the distinction which may arise out of the terms of limitation, as such terms may direct the devolution of the property, either on the heir or the personal representatives. (Williams v. Jekyll, 2 Ves. sen. 684, and see the Duke of Devon The doctrine of common occu pancy. vise it by will, or it shall go to the executors or administrators, and be assets in their hands for payment of debts; the other that of 14 Geo. II. c. 20, which enacts, that the surplus of such estate pur auter vie, after payment of debts, shall go in a course of distribution like a chattel-interest (2). By these two statutes the title of common occupancy is utterly extinct and abolished; though that of special occupancy, by the heir-at-law, continues to this day; such heir being held to succeed to the ancestor's estate, not by descent, for then he must take an estate of inheritance, but as an occupant specially marked out and appointed by the original grant (3). But, as before the statutes there could no shire v. Atkins, 2 P. Wms. 382). How- An estate pur autre vie may be li- (2) The two statutes referred to in the text, are not cited with precise accuracy. The statute of Cha. II. makes estates pur autre vie, in the hands of executors and administrators, assets not merely for payment of debts, but assets generally. And the statute of Geo. II. enacts that, "such estates pur autre vie (in case there be no special occupant thereof), of which no devise shall have been made according to the act for prevention of frauds and perjuries, or so much thereof as shall not have been so devised, shall go, be applied and distributed, in the same manner as the personal estate of the testator or intestate." (3) The doctrine laid down in the text is believed to be sound law, though it has not been uniformly admitted. In Holden v. Smallbrooke, (Vaugh. 201), Chief Justice Vaughan contended that an estate granted to a man and his heirs pur autre vie, upon the grantee's death, must be taken by the heir, not as special occupant, but as heir; not of a fee, but of a descendible freehold; and not by way of limitation, as a purchase to the heir, but by descent. For the consistency of which doctrine with the antient law, Bracton was cited, who in the 9th chapter of his 2nd book says, "si fiat donatio, ad vitam donatoris, donatorio et hæredibus suis, si donatorius præmoriatur hæredes ei succedent, tenendum ad vitam donatoris, et per as common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the like (h), (be (h) Co. Litt. 41. Vaugh. 201. sisam mortis antecessoris recuperabunt, qui obiit ut de feodo." Hence, Vaughan, C. J., argued, that, as the ancestor, in the case supposed, would be deemed to have died seised as of fee, though not seised in fee; and as the heir would be entitled to the writ of mortdancestor, this amounted to infallible proof that the heir, in such case, takes by descent. And in the Anonymous case in Godbolt, (pl. 238, p. 172), Walmesley, Warburton, and Foster, JJ., held, that if a rent be granted to one and his heirs for the life of another man, and the grantee dieth, his heir shall not be occupant of the rent. Warburton held that the heir should have the rent as a freehold descended; and for that he cited 26 Hen. VI. Statham, Recogni zance. A distinction, however, was taken, both by Warburton and Walmesley, who said, that although the heir should take by descent, yet it should not be in the nature of a descent of inheritance, (to one purpose, at any rate), for if he were an infant he should not be allowed his age. (See Co. Litt. 239 a, and the additions to Mr. Christian's note at the foot of the next page). In Low v. Barron, (3 P. Wms. 262), it was held that an estate to a man and the heirs of his body, is no more than a descendible freehold, (even if that term can be properly applied to it, see infra), and not an estate tail within the statute de donis, or such an inheritance as that dower can attach thereon. If any of the cases above cited are inconsistent with, or go in qualification of the text, still our author's positions are fully supported by several decisions, both antient and modern. In the Anonymous case in 2 Freem. (pl. 200 b, p. 155), the tenant of a frank-tenement descendible, had agreed to sell to a purchaser, who paid him part of the purchase money: the vendor died and his heir entered: the vendee exhibited his bill against the heir to have the contract executed. It was resolved by the Lord Keeper Bridgman, assisted by other judges, that the plaintiff could not be relieved; for that the heir was but special occupant, and did not claim under his father, and therefore the covenant or agreement of his father should not oblige him to a conveyance of the land. Some doubt may be entertained as to the soundness of this determination; (see Stephens v. Bailey, Nels. 106. S. C. cited in 2 Freem. 199. Pool v. Pool, 1 Cha. Rep. 18. S. C. Tothill, 106); but it must be considered a very strong intimation of opinion, that an estate pur autre vie is not taken by the heir, qua heir: for, no rule is better settled than that which says the liability of real, as well as personal representatives, in respect of contracts of the predecessor under whom they claim, is regulated by that of the party himself, looking at the question as it stood at his death. (Broom v. Monck, 10 Ves. 607. 555. 344). Rose v. Conynghame, 11 Ves. Buckmaster v. Harrop, 7 Ves. In Atkinson v. Baker, (4 T. R. 231), it was said by Lord Kenyon, that an estate pur autre vie, limited to a man, his heirs, executors, and assigns, if not devised, descends to the heir, as special occupant: thus holding such an estate cause, with respect to them, there could be no actual entry made, or corporal seisin had; and therefore, by the death of the grantee pur auter vie, a grant of such hereditaments was entirely determined), so now, I apprehend, notwithstanding these statutes, such grant would be determined likewise; and the hereditaments would not be devisable, nor vest in the executors, nor go in a course of distribution. For these statutes must not be construed so as to create any new estate, or keep that alive which by the common law was determined, and thereby to defer the grantor's reversion; but merely to dispose of an interest in being, to which by law there was no owner, and which therefore was left open to the first occupant †. When there is a residue left, the to have descendible qualities, but not belonged to, or descended upon, the as an estate of inheritance. In Ripley v. Waterworth, (7 Ves. 437), exceptions were taken to the Master's report, as to certain estates held on lease, to a man, his executors, administrators, and assigns, for lives; the first exception was, that the Master ought to have certified that the testator had a real or descendible estate and interest of freehold in the said leasehold estates; and that the same heir at law. Lord Eldon said, "it is impossible this exception can be right in stating, that this estate descended upon the heir. I always understood that this was a freehold; but the word descendible has been inaptly applied to it; for though the party to take in succession is described as heir, he does not take as such, but as a special occupant named in the grant." This comes fully up to the rule stated in the text. + Mr. Christian, in his note upon this passage, says, "Lord Keeper Harcourt has declared, there is no difference, since the 29 Car. II. c. 3, between a grant of corporeal and incorporeal hereditaments pur auter vie; for, by that statute, every estate pur auter vie is made devisable, and if not devised, it shall be assets in the hands of the heir, if limited to the heir; if not limited to the heir, it shall go to the executors or administrators of the grantee, and be assets in their hands; and the statute, in the case of rents and other incorporeal hereditaments, does not enlarge but only preserve the estate of the grantee;" [and as his authority for this statement, Mr. Chris tian cites 3 P. Wms. 264]. [If the quotation were strictly accurate, Lord Harcourt must be ranked amongst those who have held that a grant pur autre vie, which savours of the realty, may be taken by the grantee's real representative as an hereditament. But, Lord Harcourt, in the passage cited, never uses the word "hereditament;" he is speaking, to be sure, of statutes give it to the executors and administrators, instead of the first occupant; but they will not create a residue, on purpose to give it to either (i). They only meant to provide an appointed instead of a casual, a certain instead of an uncertain, owner of lands which before were nobody's (4); and thereby to supply this casus omissus, and render the disposition of law in all respects entirely uniform; this being the only instance wherein a title to a real estate could ever be acquired by occupancy (5). [ *261 ] *This, I say, was the only instance; for I think there can In cases where (i) But see now the statute 5 Geo. III. c. 17, which makes leases for one, two, or three lives by ecclesiastical persons, or any eleemosynary corpora (4) The amendment of the law in this respect had also another object; it was intended for the relief of creditors. (Oldham v. Pickering, 2 Salk. 464; S. C. Carthew, 376). (5) In the mining districts of Der tion of tithes or other incorporeal he- byshire and Cornwall, by the laws of and that the same rule applied to an- a rent, which is always a species of in- |