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law (g)) that where there is no special occupant (1), in whom the estate may vest, the tenant pur auter vie


de(8) Bract. I. 2, c. 9; 1. 4, tr. 3, c. 9. s. 4. Flet. I. 3, c. 12, s. 6; 1. 5, c. 5, s. 15.

(1) Whether under a grant to a man sonal estate strictly speaking; nor does and his executors, of lands pur autre vie, it become liable to that application till the executors can take as special occu- after the death of the party; and then pants, appears to be not very clearly set- not by force of any property inherent tled. In Milner v. Lord Harewood, in the estate itself, but by force of the (18 Ves. 273), Lord Eldon seems to statute, to avoid the inconvenience of say, an executor may be a special oc- general occupancy. In the life of the cupant; but in Ripley v. Waterworth, party such an estate must be consider(7 Ves. 438), the same learned Judge ed freehold estate. (Watkins v. Lee, treated that as, at all events, a doubtful Ves. 642). And when an estate pur point. Every estate pur autre vie in autre vie has been limited to a man, his the hands of an executor, (who takes heirs and assigns, if it be not devised, qua executor only), will be assets in it goes to the heir, and is liable only to his hands. (Westfaling v. Westfal- the same debts as a fee-simple would ing, 3 Atk. 466. Ripley v. Waterworth, be. (Atkinson v. Baker, 2 T. R. 230). ubi supra). And where there is no · For, an estate pur autre vie, (clearly, at special occupant, an estate hield by all events, when it is limited to a man lease pur autre vie, will go to the exe. and his heirs), is in its nature freehold; cutors or administrators of the lessee; the devise thereof is not valid unless it and in their hands such a lease was al- be attested by three witnesses, and it ways considered as personal estate, can be created and conveyed only by a at least to the extent of being assets: conveyance proper to create and transfer (Duke of Devonshire v. Kinton, 2 Vern. freehold estate. Lord Redesdale, in719): though, in other respects, it was deed, doubted whether such an estate formerly held to retain the character could be converted into a chattel inof freehold, so completely as not to be terest by any convention of the parties distributable under the intestacy of the to its creation; and whether a grant to deceased tenant pur autre vie : (Old- a man, his executors and administrators, ham v. Pickering, Carthew, 376): but could make the property liable to be this last point seems now settled defi- acted upon as a chattel interest, except nitively to the contrary, by the statute to the extent, and in the cases, for of Geo. II., and indeed Lord Eldon which the statute has specially provid(in Ripley v. Waterworth, 7 Ves. 439), ed. (Campbell v. Sandys, 1 Sch. & thought it “not a great stretch" to say Lef. 290). But Lord Hardwicke apthat the statute of Cha. II. was meant pears to have recognized the distincto apply both to testacy and intestacy. tion which may arise out of the terms

But though an estate pur autre vie, of limitation, as such terms may direct granted to a man, his executors admin- the devolution of the property, either istrators and assigns, if there is no spe

on the heir or the personal represencial occupant, is distributable as per. tatives. (Williams v. Jekyll, 2 Ves. sonal estate, it does not become per- sen. 684, and see the Duke of Devon

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 common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the like (h), (be

The doctrine of common occulpancy.

shire v. Atkins, 2 P. Wms. 382). How- estates pur autre vie (in case there be ever this may be, there is no doubt no special occupant thereof), of which that an estate pur autre vie, limited to no devise shall have been made acheirs, is within the statute of fraudu. cording to the act for prevention of lent devises, and liable to specially frauds and perjuries, or so much theredebts. (Westfaling v. Westfaling, 3 of as shall not have been so devised, Atk. 465).

shall go, be applied and distributed, in Au estate pur autre vie may be li- the same manner as the personal esmited by way of quasi entail, to the tate of the testator or intestate." heirs of the body of the tenant as spe- (3) The doctrine laid down in the cial occupants. But those who have text is believed to be sound law, though interests in the nature of such an estate- it has not been uniformly adınitted. In tail, may bar their issue and all re- Holden v. Smallbrooke, (Vaugh. 201), mainders over by any alienation during Chief Justice Vaughan contended that their lives; though not by will. (Gray an estate granted to a man and his heirs v. Mannock, 2 Eden, 341. Blake v. pur autre vie, upon the grantee's death, Luxton, Coop. 185. Blake v. Blake, must be taken by the heir, not as spe1 Cox, 266. Campbell v. Sandys, 1 cial occupant, but as heir; not of a fee, Sch. & Lef. 296. Ex parte Sterne, but of a descendible freehold; and not 6 Ves. 158).

by way of limitation, as a purchase (2) The two statutes referred to in to the heir, but by descent. For the the text, are not cited with precise consistency of which doctrine with the accuracy. The statute of Cha. II. antient law, Bracton was cited, who in makes estates pur autre vie, in the the 9th chapter of his 2nd book says, hands of executors and administra- “si fiat donatio, ad vitam donatoris, tors, assets not merely for payment of donatorio et hæredibus suis, si donadebts, but assets generally. And the torius præmoriatur hæredes ei succedent, statute of Geo. II. enacts that, " such tenendum ad vitam donatoris, et per as

(h) Co. Litt. 41. Vaugh. 201.

sisam mortis antecessoris recuperabunt, both antient and modern. In the Anoqui obiit ut de feodo.Hence, Vaughan, nymous case in 2 Freem. (pl. 200 b, p. C. J., argued, that, as the ancestor, in 155), the tenant of a frank-tenement the case supposed, would be deemed descendible, had agreed to sell to a to have died seised as of fee, though purchaser, who paid him part of the not seised in fee; and as the heir would purchase money: the vendor died and be entitled to the writ of mortdancestor, his heir entered: the vendee exhibited this amounted to infallible proof that his bill against the heir to have the conthe heir, in such case, takes by descent. tract executed. It was resolved by the

And in the Anonymous case in God- Lord Keeper Bridgman, assisted by bolt, (pl. 238, p. 172), Walmesley, other judges, that the plaintiff could not Warburton, and Foster, JJ., held, that be relieved; for that the heir was but if a rent be granted to one and his special occupant, and did not claim unheirs for the life of another man, and der his father, and therefore the covethe grantee dieth, his heir shall not be nant or agreement of his father should occupant of the rent. Warburton held not oblige him to a conveyance of the that the heir should have the rent as a land. Some doubt may be entertained freehold descended; and for that he as to the soundness of this determinacited 26 Hen. VI. Statham, Recogni- tion; (see Stephens v. Bailey, Nels. 106.

A distinction, however, was S. C. cited in 2 Freem. 199. Pool v. taken, both by Warburton and Wal- Pool, 1 Cha. Rep. 18. S. C. Tothill, mesley, who said, that although the 106); but it must be considered a very heir should take by descent, yet it should strong intimation of opinion, that an not be in the nature of a descent of in- estate pur autre vie is not taken by the heritance, (to one purpose, at any rate), heir, qua heir: for, no rule is better for if he were an infant he should not settled than that which says the liabilibe allowed his age. (See Co. Litt. 239 a, ty of real, as well as personal represenand the additions to Mr. Christian's note tatives, in respect of contracts of the at the foot of the next page).


predecessor under whom they claim, is In Low v. Barron, (3 P. Wms. 262), regulated by that of the party himself, it was held that an estate to a man and looking at the question as it stood at the heirs of his body, is no more than a his death. (Broom v. Monck, 10 Ves. descendible freehold, (even if that term 607. Rose v. Conynghame, 11 Ves. can be properly applied to it, see infra), 555. Buckmaster v. Harrop, 7 Ves. and not an estate tail within the statute 344). de donis, or such an inheritance as that In Atkinson v. Baker, (4 T. R. 231), dower can attach thereon.

it was said by Lord Kenyon, that an If any of the cases above cited are estate pur autre vie, limited to a man, inconsistent with, or go in qualification his heirs, executors, and assigns, if not of the text, still our author's positions devised, descends to the heir, as special are fully supported by several decisions, 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 f. When there is a residue left, the

to have descendible qualities, but not belonged to, or descended upon, the as an estate of inheritance.

heir at law. Lord Eldon said, “it is In Ripley v. Waterworth, (7 Ves. impossible this exception can be right 437), exceptions were taken to the Mas- in stating, that this estate descended ter's report, as to certain estates held upon the heir. I always understood on lease, to a man, his executors, ad- that this was a freehold; but the word ministrators, and assigns, for lives; descendible has been inaptly applied to the first exception was, that the Mas- it; for though the party to take in ter ought to have certified that the succession is described as heir, he does testator had a real or descendible estate not take as such, but as a special occuand interest of freehold in the said pant named in the grant." This comes leasehold estates; and that the same fully up to the rule stated in the text.

+ Mr. Christian, in his note upon and other incorporeal hereditaments, this passage, says, “ Lord Keeper Har- does not enlarge but only preserve the court has declared, there is no differ- estate of the grantee;" [and as his auence, since the 29 Car. II. c. 3, be- thority for this statement, Mr. Christween a grant of corporeal and incor- tian cites 3 P. Wms. 264]. porcal hereditaments pur auter vie ; for, [If the quotation were strictly accuby that statute, every estate pur auter rate, Lord Harcourt must be ranked vie is made devisable, and if not de- amongst those who have held that a vised, it shall be assets in the hands of grant pur autre vie, which savours of the the heir, if limited to the heir; if not realty, may be taken by the grantee's limited to the heir, it shall go to the real representative as an hereditament. executors or administrators of the But, Lord llarcourt, in the passage grantee, and be assets in their hands; cited, never uses the word “hereditaand the statute, in the case of rents ment;" 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. tion of tithes or other incorporeal heIII. c. 17, which makes leases for one, reditaments, as good and effectual to two, or three lives by ecclesiastical all intents and purposes as leases of persons, or any eleemosynary corpora- corporeal possessions.

(4) The amendment of the law in byshire and Cornwall, by the laws of this respect had also another object; the Stannaries, an estate in mines it was intended for the relief of cre- might, and it is believed still may, ditors. (Oldham v. Pickering, 2 be gained by occupancy. (Geary v. Salk. 464; S. C. Carthew, 376). Barcroft, 1 Sid. 347).

(5) In the mining districts of Der

a rent, which is always a species of in- and that the same rule applied to an-
corporeal property, and may be so li- nuities, or any other things, lying in
mited as to be an hereditament, but grant, (and see the case from Godbolt,
Lord Harcourt does not say that a cited in the last note). Nor is it clear,
rent granted pur autre vie, is an here when heirs were not mentioned, that
ditament. His doctrine, therefore, is even before the statutes, executors and
not at all opposed to that stated at the administrators, if named in the grant,
close of the last note: though it cer- might not take. There is authority
tainly goes to qualify our author's text, før holding that they might have done
which is not penned with Blackstone's so. (See Westfaling v. Westfaling, 3
usual precision. Even before the sta- Atk. 466). And, at all events, the
tutes, a grant of incorporeal property grantee of an estate pur autre vie, to
pur autre vie was not necessarily de- himself and his assigns, might, before
termined by the death of the grantee. the statutes, by assigning the estate,
Littleton, in his 379th section, and have prevented its determination by
Lord Coke in his commentary thereon, his death. (Salter v. Boteler, Moor,
inform us, that before the statutes, if 664. Crawley's case, Dyer, 186 b, in
heirs were named in the grant of a margin).-Ed.]
rent pur autre vie, they would take;

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