have determined upon the decease of the grantee in the life-time of the cestuique vie, and would have merged in the estate out of which it issued.

It is laid down by Lord Keeper Harcourt, "that since the Statute of Frauds, if a rent(k) be granted to J. S., pur auter vie, and the grantee die, living the cestuique vie; the executors or administrators of the grantee shall have the rent, for the Statute was not only made for the purpose of preventing the inconvenience of scrambling for estates, and getting the first possession after the death of the grantee, but likewise for preserving and continuing the estate during the life of the cestuique vie; and it is reasonable, since the grantee might by deed have disposed of the rent during the life of the cestuique vie, that though by his dying without having made any such disposition, in nicety of law the estate would have determined, yet by the Statute, that interest which passed from the grantor ought to be preserved, and shall go to the executors or administrators of the grantee during the life of the cestuique vie, and by such construction the Statute does not enlarge but only preserves the estate of the grantee.

It was, however, contended, that the provision of the Statute of Frauds, which directs, that in case there were no special occupant of an estate pur auter vie, it should go to the executors or administrators of the party who had the estate thereof by virtue of the grant, and should be assets in their hands, was only applicable to such estates as were capable of occupancy before the Statute, and that a rent-charge, pur auter vie, which was not limited to heirs, being incapable of occupancy at common law, did not vest in the personal representatives of the grantee, but was absolutely determined by the grantee's death in the life-time of the cestuique vie. This question was settled in a case where it appeared that a rent-charge had been granted, pur auter vie, without any words of limitation(), and the grantee having died in the life-time of the cestuique vie, it was decided that the rent did not expire, or go to the heir of the grantee as a descendible freehold, but vested in the administrator of the grantee.

All doubts on this subject have been removed by the Statute(m), 1 Vict. c. 26, s. 6, which enacts, that in case there shall be no special occupant of any estate pur auter vie, whether freehold or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall

(k) Rawlinson v. The Duchess of Montague, 3 P. Wms. 264, note D.

(Bearpark v. Hutchinson, 7 Bing.

178; 4 Moo. & P. 848, S. C.

(m) 1 Vict. c. 26, s. 6, English and Irish.

go to the executor or administrator of the party that had the estate thereof by virtue of the grant.

In like manner, a rent-charge limited to a person, his executors(n) and administrators, pur auter vie, upon the death of the grantee in the life-time of the cestuique vie, without having disposed of the rent, shall vest in his personal representatives as special occupants, because, even if the grant should be construed as if the limitation to executors and administrators had not been inserted, it comes directly within the Statutes(o), for then there is no special occupant, and must devolve on the personal representatives of the grantee, for want of any special occupant.

Lands or tenements limited to a person(p), his heirs, executors, administrators, and assigns, pur auter vie, upon the death of the grantee without having aliened the interest, will go to his heirs as special occupants.

9. Leasehold estates pur auter vie were not(q) devisable before the enactment of the Statute of Frauds, nor were such estates subject, at common law, to the debts of a former owner, in the hands of a general occupant, nor were they chargeable in the hands of the heir, for the debts of his ancestor(r), as assets by descent; but an estate pur auter vie, expressly limited to executors, was considered(s) assets for the payment of all creditors.

By the Statute of Frauds(t), every estate pur auter vie was made devisable, and it was provided, that such estate 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 of there being no special occupant, that it should go to the executors or administrators of the party that had the estate by virtue of the grant, and be assets in their hands.

It was, however, decided at law, that an estate pur auter vie, granted without any words of limitation, and vesting(u) in personal representatives, in default of the designation of a special occupant, was merely assets in their hands for the payment of debts, and that the sur

(n) Ripley v. Waterworth, 7 Vesey,

438.

(0) 7 Will. III. c. 12, s. 9, Irish; 29 Car. II. c. 3, s. 12, English; 1 Vict. c. 26, s. 6, English and Irish.

(p) Atkinson v. Baker, 4 T. R. 229. (7) Gawen v. Raintes, Cro. Eliz. 804; Moor, 625, S. C.; Apleford v. Spencer, 3 Keble, 450.

(r) Raggett v. Clerke, 1 Vern. 234;

2 Ventr. 364.

(s) Ripley v. Waterworth, 7 Vesey, 445; The Duke of Devon v. Kinton, 2 Vern. 719; Westfaling v. Westfaling, 3 Atk. 460-467.

(1) 7 Will. III. c. 12, s. 9, Irish; 29 Car. II. c. 3, s. 15, English.

(u) Oldham v. Pickering, 2 Salk. 464; Carth. 476; 12 Mod. 103; Comberb. 388; 1 Ld. Raym. 96, S. C.

plus was not distributable amongst the next of kin of the grantee. This determination occasioned the passing of a Statute in England(v), by which, after reciting the doubts which had arisen on this subject, it was enacted, that estates, pur auter vie, going to executors or administrators in default of a special occupant, were to be applied and distributed in the same manner as personal estate of the intestate or

testator.

The English Statute appears to have been merely declaratory, and though no similar Act was passed in Ireland, it was always held by Irish Courts of Equity, that if lands were limited to a person and his heirs, pur auter vie, and the owner died without heirs, or if limited to J.S., pur auter vie, without ulterior designation, or to him, his executors, and administrators, and were not disposed of by the grantee, that such estate devolved upon the executors of the grantee, or in case of intestacy, upon his administrators, and were general assets in their hands for payment of debts, and that the surplus(w) constituted part of the residue of such grantee's personal estate, and was distributable amongst his next of kin.

All doubts about these matters have been obviated by the Statute(x) 1 Vict. c. 26, s. 3, which enables every person, by his will duly executed, to dispose of any estate pur auter vie, to which, at the time of his death, he shall be entitled, whether there shall or shall not be any special occupant thereof, and whether the same shall be corporeal or incorporeal; and if the same(y) shall come to the executor or administrator of the party that had the estate thereof by virtue of the grant, either by reason of a special occupancy or by virtue of this Act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate.

It is also to be observed, that by the Statute(2) 3 & 4 Will. IV. c. 104, all estates of freehold, corporeal or incorporeal, on the death of the owner are made assets to be administered in Equity, for payment of his debts due by simple contract, as well as by specialty. The mere assent of an executor will not vest the legal estate(a) in a leasehold

14 Geo. II. c. 20, s. 9, English, called Fazakerley's Act: no corresponding Act was passed in Ireland: repealed by Statute, i Vict. c. 26, s. 1, English and Irish.

(w) Ripley v. Waterworth, 7 Vesey, 438-445; The Duke of Devon v. Kinton, 2 P.Wms. 382; 2 Vern. 719; Witter v. Witter, 3 P.Wms. 99; Wellman v. Bowring, 2 Russ. 380; 3 Simons, 328.

(x) 1 Vict. c. 26, s. 3, English and Irish.

(y) 1 Vict. c. 26, s. 6, English and Irish, repealing the English Act, 14 Geo. II. c. 2, s. 9.

(z) 3 & 4 Will. IV. c. 104, English and Irish..

(a) Campbell v. Sandys, 1 Sch. & Lef. 290.

pur auter vie, in a residuary legatee, or in the next of kin of a testator, but such estate must be assigned by some assurance sufficient to transfer a freehold interest, nor can such an estate, when vested in an executor(b) in his representative capacity, be sold under an execution against the testator's goods.

10. Where lands are demised to a person, his heirs and assigns, to hold pur auter vie, the lessee may, by deed or devise, transfer the interest to another, his executors and administrators, for the same lives; and upon the decease(c) of such assignee or devisee, without having made any disposition of the property, his executors, or, in case of intestacy, his administrator, will be entitled as special occupants; and in like manner, if a lease be made to a person, his executors and administrators pur auter vie, the lessee may change the quality of the estate by assigning or devising it to another, his heirs and assigns; and upon the death of the assignee, or devisee, without disposing of the property, his heir will take as special occupant.

So if lands be granted pur auter vie, without any words of limitation, or any designation of a special occupant, the grantee, who is entitled to the whole interest, may by deed or will supply the deficiency of a special occupant, by limiting the estate either to the heirs, or to the executors of his assignee or devisee.

11. If a lease be made to a person and his heirs, pur auter vie, and the lessee by his will, duly attested, devise all his estate in the premises to another, without using any words of limitation, and the devisee die in the life-time of the cestuique vie, without disposing of the property, the leasehold shall go to the heirs, and not to the personal representatives of the devisee. Thomas James being seised of a rectory and tithes, under a lease thereof to him and his heirs pur auter vie, by his will, duly attested, devised(d) to his nephew, Meredith James, all and singular his freehold lease of the rectory and tithes; on the testator's death, Meredith James entered, and by his will, which was not attested so as to pass real estate, devised all the rest of his estate, real and personal, to his wife, and appointed her his executrix: upon an ejectment by the heir of Meredith James against his executrix, for recovery of the rectory and tithes, Lord Mansfield held, that the words of the will of Thomas James, being general, it was the same as if he had li

(b) Bac. Abr. Execution, C. 4; Johnson v. Streete, Comberb. 290; Watson's Sheriff, 179.

(c) Kendal v. Micfeild, Barnard. Cha. Ca. 48; 2 Eq. Ca. Abr. 615, pl. 1; 15 Vin. Abr. 457, Mortgage (O. 2); Pres

ton on Estates, 430, original edition; The Duke of Devon v. Kinton, 2 Vern. 719.

(d) Philpotts dem. Philpotts v. James, 3 Doug. 425.

mited the rectory and tithes to the heirs of his nephew; and as the nephew's will was insufficient to pass freehold estate, the lessor of the plaintiff was entitled to judgement.

Sir William David Evans, in a note to the twelfth section of the Statute of Frauds(e), in his Collection of the Statutes, mentions that he had seen opposite opinions of Mr. Fearne and of Lord Kenyon, as to the right to premises held under a demise to the lessee, his heirs and assigns pur auter vie, which were devised by the lessee in general terms, without words of limitation. The opinion of Lord Kenyon was that the personal representatives of the devisee were, on his intestacy, entitled, which, as Sir W. D. Evans observes, seems evidently correct, because there was no actual designation of the heir of the devisee, wherefore, there being no special occupant, the estate, by the provisions of the Statute, devolved on the personal representatives of the devisee; and it is stated(ƒ) that Lord Kenyon persisted in his opinion, after a communication of the opposite sentiments of Mr. Fearne on the subject.

The Court of King's Bench of Ireland acted(g) upon the principle recognized by Lord Kenyon; but the same question having been brought before the Irish Court of Exchequer Chamber, upon a writ of error(h) from the judgement of the Irish Court of Common Pleas, it was decided that the devise not affording any evidence of intention to alter the designation to heirs contained in the lease, the interest ought, in the absence of any such intention, to devolve on the heirs in pursuance of the original limitation; and the judgement of the Common Pleas was affirmed, by which the estate was given to the heirs, in preference to the personal representatives. This decision was undoubtedly influenced by a manuscript note of the case() before Lord Mansfield, which had not then been printed.

A tenant, holding lands to him and his heirs for three lives, assigned his interest in the premises to another and his heirs, reserving a rent of ten pounds yearly to the assignor, his executors, and administrators, with a proviso, that upon nonpayment he and his heirs might re-enter, and the assignee having covenanted to pay the rent to the assignor,

(e) Collection of Statutes, by Sir W. D. Evans, note 30, to the Statute of Frauds, sect. 12, in the first volume, 219, A.

(f) Chambers's Landlord and Tenant,

563.

(g) Doe dem. Kerr v. Cassidy, 1 Huds. & Br. 222, note; Jack dem. Alexander r. Jamieson, 1 Huds. & Br. 225.

(h) Blake v. Jones dem. Blake, 1 Huds. & Br. 227; but see Doe dem. Lewis v. Lewis, 9 Mees. & W. 662, Exch. Easter, 1842, by Parke, Baron. The preceding authorities were not noticed in this case.

(i) Philpotts dem. Philpotts v. James, 3 Doug. 125.