answer to the writ aforesaid, &c. And the said John, Humphry, Thomas, Richard, and Alexander say, that the said John Jeffreson, the now plaintiff, ought not to have execution against them the said John, Humphry, Thomas, Richard, and Alexander and can be enforced, it is a fraudulent devise within the statute. 2 Brown. Ch. Cas. 614. Hughes v. Doulben. [h] With respect to what shall be assets by descent, it is laid down as a general rule, that though the ancestor devise the estate to his heir, yet if he take the same estate in quantity and quality that the law would have given him, the devise is a nullity, and the heir is seised by descent, and the estate assets in his hands. As where a man, seised of land in fee on the part of his mother, devises it to his heir on the part of his mother in fee, the heir is in by descent. 1 Salk. 242. Reading v. Royston. S. C. Prec. Chan. 222. 2 Ld. Raym. 829. Com. Rep. 123. S. P. 2 Leon. 11. Hinde v. [h] But it is no objection to a devise for payment of debts, that it directs simple contract debts to be paid before specialties. Cooper, 45. Millar v. Horton. By stat. 47 Geo. 3. st. 2. c. 74. it is enacted, "that from and after the pass ing of this act, when any person, "being at the time of his death a trader "within the true intent and meaning "of the laws relating to bankrupts, "shall die seised of or entitled to any “estate or interest in lands, tene"ments, hereditaments, or other real 66 estate, which he shall not by his last "will have charged with or devised, "subject to or for the payment of his "debts, and which before the passing "of this act, would have been assets "for the payment of his debts due on "any speciality in which the heirs were "bound, the same shall be assets to be "administered in courts of equity for JEFFRESON v. MORTON and others. Lyon. Dy.124. a. Plow. 545. Paramour v. Yardley, and note f. in the English translation. So where a man, seised in fee on the part of his mother, devised to his executors for sixteen years for payment of his debts, remainder to his heir on the part of his mother, it was held that the heir took by descent, for it is no more than if the devisor had made a lease for 16 years, and afterwards devised his reversion to the heir. 3 Lev. 127. Hedger v. Rowe. So where one devises to another for life, remainder to his heir in fee, the heir shall take the reversion by descent, and yet the law would have thrown the estate immediately on the heir by descent, if there had been no devise. 1 Roll. JEFFRESON of the debt aforesaid by virtue of the said recognizance, bev. MORTON cause they say that one Richard Jackson, long before the day and others. of suing out the said writ, and continually after was, and yet That R. J. is a is tenant of a dwelling-house, with the appurtenances, in the parish of St. Mary, Aldermanbury, commonly called by the name of the Axe Inn, of which said dwelling house the said tertenant, and no scire facias against him. Abridg. 626. (I) pl. 2. Preston v. Holmes. S. C. Sty. 148, 149. So where one devises land to his heir, charged with a rent issuing out of it, or with the payment of a sum of money, still the heir takes by descent. Com. Rep. 72. Clarke v. Smith. S: C. 1 Salk. 241. 1 Lutw. 793.797. S. P. 1 Ld. Raym. 728. Emerson v. Inchbird. 2 Atk. 293. Plunket v. Penson. So where on riens per descent pleaded, it appeared that the ancestor devised the lands to the heir for payment of debts, it was adjudged that the heir was in by descent, for the tenure is not altered. 2 Str. 1270. Allan v. Heber. S. C. 1 Black. Rep. 22. [i] 1 Black. Rep. 22. [i] But where a different estate is devised than would descend to the heir, the disposition by the will shall prevail; as where the estate is devised to the heir in tail. Plow. 545. So where a man, having issue two daughters who are his heirs, devises lands to them and their heirs, they take under the will, for by law they would take as coparceners, but by the will they have it as jointtenants. Cro. Eliz. 431. Anon. Bacon's Maxims, Reg. n. 21. See Reading v. Royston, 1 Salk. 242. Comyns, 123. 2 Ld. Raym. 829. But since the statute 3 W. & M. c. 14. such a devise is fraudulent against creditors by specialty, and therefore an action may be brought against the devisee as heir and devisee. An advowson in fee in gross is assets for payment of debts. Co. Litt. 374. b. Bro. Assets per Descent. 421. Sir W. Jones, 23, 24. 2 Str. 879. Robinson v. Tonge. S. C. 3 Bro. P. C. 556. 3 P. Will. 401. 3 Vin. Abr. 145. Mss. case. 3 Atk. 464, 465. Westfaling v. Westfaling. So if a rent in fee, issuing out of the heir's land, descend to him, it is assets, though the rent is extinct, for it has continuance for this purpose. Co. Litt. 374 b. So if there be a mortgage for years, the reversion in fee in the mortgagor is legal assets, and the bond creditor may have judgment against the heir, with a cesset executio until the reversion comes into possession; but where it is a mortgage in fee, the equity of redemption is not legal assets, and the heir may plead riens per descent to an action brought against him on the bond of the mortgagor. 2 Atk. 294. Plunkett v. Penson; it is however assets in equity, and the creditor may have relief there. 2 Vern. 61. Solley v. Gower. But a copyhold which descends in fee is not assets, because in notion of law it is an estate only at will, and though custom has made it an estate of inheritance, yet the tenure is ad voluntatem domini. 4 Rep. 22. a. So at the common law an estate to a man and his heirs pur autre vie is not assets in the hands of the heir, for he does not properly take the estate by descent, but as special occupant. Co. Litt. 374. b. 10 Rep. 98. a. Seymour's case. But by the statute of frauds, 29 Car. 2. c. 3. s. 12. an estate pur autre vie, which comes to the heir as special occupant, is made assets by descent, as in case of lands [i] For other authorities to the same point, see Hargrave and Butler's Co. Litt. 12. b. note (63.) Robert Yarway deceased, in the said writ named, was seised in his demesne as of fee, on the said 16th day of August, in the 12th year of the reign of our lord Charles the 2d, now king of England, &c. and that no writ of scire facias issued out of in fee simple, and devisable by a will in writing signed by the devisor, and attested in his presence by three or more witnesses. [k] A devise of such an estate is held to be within the statute of fraudulent devises, and void against specialty creditors, and the estate is liable to contribute according to its gross value. 3 Atk. 465. Westfaling v. Westfaling. So lands which descend in tail are not assets, for it must be a fee simple. 1 Roll. Abr. 269. (B.) It is laid down as a general rule, that a reversion expectant on an estate tail is not assets, for it is in the power of the tenant in tail to bar it at his pleasure. 1 Roll. Abr. 269. (A.) pl. 2. 6 Rep. 42. Mildmay's case. Ibid. 58. b. Bredimau's case. Carth. 129. Kellow v. Rowden. As where A. seised in fee limits the estate to himself for life, remainder to another in tail, reversion to himself in fee, and dies indebted by bond, the reversion in fee is not assets in the heir, during the continuance of the estate tail, and he may plead riens per descent. Carth. 129. 2 Mod. 50. Osbaston v. Stanhope. 9 Mod. 176. arg. though in Lill. Ent. 112. there is a plea of riens per descent except a reversion expectant on an estate tail; but it seems to be a bad plea. 2 Mod. 50. So where D. being seised in fee, in consideration of a marriage to be had between him and S., and of a marriage portion, settled his estate to the use of himself and the said S. for their lives; and after the death of the survivor, to the use of the heirs of the body of the said S. by the [k] See ante, vol. i. p. 260 a. note [f] [] The mistake in Jenkins v. Pritchard is noticed and corrected in the JEFFRESON v. MORTON and others. said D. to be begotten, with reversion : same manner by Lord Alvanley C. J., in Doe v. Hutton, 3 Bos. & Pull. 658, JEFFRESON the court here directed to the sheriffs of London, against the v. MORTON terre-tenants of him the said Robert; and this they are ready and others. to verify; wherefore inasmuch as no writ of scire facias issued out of the court here directed to the sheriffs of London, they is chargeable in respect of it with the payment of the bond. Thus, in the case of Kellow v. Rowden already mentioned, the reversion in fee in B. expectant on the estate tail which he was seised of was not assets; but when the estate tail was extinct, and the reversion vested in possession in the heir of the obligor, it became assets and liable to the debt. So where T. D. being seised in fee, on his marriage settled his estate on himself for life, remainder to his first and other sons in tail, reversion to himself in fee, and died indebted by bond, leaving a son who devised the reversion to C. in fee, and afterwards died without issue; Lord Hardwicke held that the reversion, having come into possession in C. the devisee, was assets to satisfy the bond, the devise being fraudulent against the creditor by the statute 3 W. & M. c. 14. and he thought that an action of debt might be maintained against the heir and such devisee. If the son had suffered a recovery, the creditor was without remedy, but if he had levied a fine only, it would have barred the estate tail, and let in the reversion, which would be liable to the specialty debts of T. D. 2 Atk. 204. Kinaston v. Clark. In this last case, and also in Kellow v. Rowden, it appears that the bond was entered into by him who had been once seised in fee in possession, and afterwards created the limitations of the estate, and was the person who died last seised of the fee, and therefore the heir, in claiming the reversion on the determination of the particular limitations, was bound to derive his title to it from the obligor; but in Smith v. Parker, 2 Black. Rep. 1230. the court of C. B. went a step further, and held that where an intermediate tenant for life, remainder to his first and other sons in tail, being in possession of his estate for life, and having the reversion in fee in him subject to intermediate estates for life, with contingent limitations to the first and other sons of each tenant for life in tail, entered into a bond and died without issue, the reversion was assets in the heir, when it vested in him in possession to satisfy the bond. The case was, that A. seised of lands in fee devised them to B. for life, remainder to C. for life, remainder to his first and other sons in tail, remainder to D. for life, remainder to his first and other sons in tail, remainder to E. for life, and his first and other sons in tail, remainder to the testator's right heirs; B. died, C. entered, and being heir at law of A. the testator, and having the reversion in fee in him expectant on the several estates in himself, and D. and E. entered into a bond and died without issue, and afterwards D. and E. died without issue, so that the contingent uses never happened, and the reversion vested in possession in F., who was the heir at law of the testator and of the obligor; and on debt against F. upon this bond as heir of C. the obligor, and riens per descent pleaded, the court was of opinion that the reversion being vested in possession in F. was assets and chargeable with the bond. The authority of this case was questioned by Lord Thurlow in The Marchioness of Tweedale v. Earl of Coventry, 1 Brown. C. C. 240., where H. devised lands to R. for life, remainder over in tail, remainder to his own right heirs, and died. R. the tenant for life entered, the said John, Humphry, Thomas, and Alexander, pray judg- JEFFRESON ment if they ought to be compelled to answer (10) to the said writ v. MORTON in form aforesaid returned, &c. And thereupon he the said John Jeffreson, the now plaintiff, for the having of speedier justice in this behalf, prays the writ and being the heir of H. had the reversion in fee expectant on the estate tail, and died indebted by bond and other specialties, and the remainder in tail being extinct, the reversion in fee vested in the heir of R. in possession, and one of the questions was whether the reversion was assets in the heir of R. to satisfy his specialty debts. Lord Thurlow did not give any judgment upon that question, but expressed himself not satisfied with the decision in Smith v. Parker. It appears from Mr. Justice Blackstone's report that no cases were cited, and therefore perhaps the court was not aware of the case of Gifford v. Barber, 4 Vin. Abr. 452, 453. MSS. Rep. S. C. cited in Cunningham v. Moody, 1 Ves. 174, 175., in which Lord Hardwicke seems to be of a contrary opinion. There D. C. being seised in fee, settled the estate on himself for life, remainder to G. C. for life, remainder to his first and other sons in tail, with several remainders over in the same manner in strict settlement, reversion to himself in fee, and died; G. C. entered, and being heir at law of D. C. was seised for life together with the reversion in fee expectant, and confessed a judgment, and died without issue; the other persons in remainder died without issue, and the reversion coming into possession in a person who was the heir both of D.C. and G. C. the question was, whether it was liable to the judgment confessed by G. C. Lord Hardwicke was of opinion it was, because, being the estate of inheritance of G. C. he might grant, incumber or lease it for any number of years, or charge it by a judgment or statute: and others. Plaintiff prays a writ of scire facias against R.J. that in Kellow v. Rowden the question was, whether the plaintiff had properly charged the defendant as immediate heir to his father, or whether he ought not to have charged him as heir to the nephew, and stated specially the intermediate descent; but it was not doubted that the reversion in fee, which took place in the second son in possession, was vested in the first son, and that he might have charged it with a statute, judg ment or recognizance, or might have made a lease for years of it, and it would have come to the brother subject to the charges or lease-That the stating of that proved the difference, and that it would not be liable to the bond of G. C. as assets by descent, because that cannot be where there is an intermediate estate, but must be where the heir takes as immediate heir to the ancestor that entered into the bond. That on a judgment, the terre-tenant of the land which was in the person who confessed the judgment is chargeable, but he is not so by his bond, unless the land came as assets by descent to the very heir of the obligor. So in Hargrave's Co. Litt. 11. b. n. (3.) there is a note of Lord Hale to this effect, (viz.) "grandfather, father, and son; grandfather dies, the father is bound in an obligation or warranty and dies before entry. Held that the son is not liable, because he shall make himself heir to the grandfather;" and 24 Edw. 3. is cited; and though the page is not mentioned, it is probably 24 Edw. 3. 47. abridged Bro. Assets per Descent 19. "By Thorp, the heir shall not render in value for the warranty of his ancestor, if the assets do not come from the same ancestor who |