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estates
autre vie has

devised.

more witnesses ; and if no such devise thereof be made, Chap. XIII. the same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee simple; and in case there be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands."

Under this section doubt arose, where no devise had Surplus of been made of such estates, as to whom the surplus of

pur such estates, after the debts of deceased owners were

to pass if not fully satisfied, should belong; and it was accordingly enacted by the 14 Geo. II. c. 20, s. 9, that “such estate pur autre vie, in case there be no special occupant thereof, of which no devise shall have been made according to the said 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.” Both the above enactments were repealed by the Wills Estates pur

autre vie devisAct, (a) which provides,(b) “ That it shall be lawful for able by will. every person to devise, bequeath, or dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which if not so devised, bequeathed, or disposed of, would devolve upon the heir-at-law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator; and that the power hereby given shall extend to . . . estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, (a) 1 Vict. c. 26.

(6) S. 3.

or of

Descent of estates pur autre vie.

a

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Cuap. X111. customary freehold, tenant-right, customary or copyhold,

any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament;" and (a) “That if no disposition by will shall be made of any estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold lands in fee-simple; and in case there shall be no special occupant(b) of any estate pur autre vie, whether freehold or customary freehold, tenant-right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator, 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."

By the thirty-fourth section of the same act, it was provided that the act shall not extend to any estate pur autre vie of any person who died before the 1st day of January, 1838.

Where a lessee of lands devised to him, his heirs and assigns, pur autre vie, demised them for the residue of the term to J S and his assigns; and J S died in

5 testate, the question was, which was entitled, the heir or the executor of JS? And the Court of Exchequer

(a) 1 Vict. c. 26, s. 6.

(b) These words include both the case where there is no special occupant named in the grant, as also the case where

the heir is named as special occupant, but the grantee dies without leaving an heir ; Plunket v. Reilly, 2 Ir. Ch. R. 385.

held, that J S having made no assignment, the case fell Chap. XIII. within the express words of the twelfth section of the Statute of Frauds (from which the sixth section of the Wills Act is copied), providing that in case there shall be no special occupant, "it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant.” “Here,” said Parke, B., " there is no special occupant, the title of the first lessee having been put an end to by the will; the land has been held under a tenancy pur autre vie to the son and his assigns, and as he died without creating any assigns, the property goes to his personal representatives.” (a) There may be a special occupant of an equitable estate Special occu

of equipur autre vie, although the legal estate be in the trustee. table estate Where leasehold estates pur autre vie were devised in pur autre vie. trust for A, his heirs, sequels in right, executors, administrators, and assigns, and A survived the devisor, and being illegitimate died without heirs and intestate, living the cestuis que vie; it was held that the devised estates passed under the Wills Act to his administrator (the nominee of the Crown).(6)

Where a testator gave a rent-charge to issue out of lands in England to A for life, and directed that after her death it should be continued, and equally divided between B, C, and D, during their lives and the lives of the longest liver, and B died before A ; it was held that the interest in the rent-charge, which passed when A died to B’s executors, was an estate pur autre vie. (c) (a) Doe v. Lewis, 9 M. & W. (b) Reynolds v. Wright, 2 D.

but see Doe v. Robinson, F. & J. 590. 8 B. & C. 296 ; 2 Man. & Ry. (C) Chatfield v. Berchtoldt, L. 249.

R. 7 Ch. 192.

862;

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CHAPTER XIV.

JUDGMENTS.

CHAP. XIV.

Lands, &c., liable to judg. ments of cestui que trust; freed from incumbrances of

persons seised

in trust.

HE tenth section of the Statute of Frauds pro

vides, “That it shall and may be lawful for every sheriff or other officer to whom any

writ or præcipe is or shall be directed, at the suit of any person or persons, of, for, or upon any judg. ment, statute, or recognizance hereafter to be made or had, to do, make, and deliver execution unto the party in that behalf suing of all such lands, tenements, rectories, tithes, rents, and hereditaments, as any other person or persons be in any manner of wise seised or possessed, or hereafter shall be seised or possessed, in trust for him against whom execution is so sued, like as the sheriff or other officer might or ought to have done, if the said party against whom execution hereafter shall be so sued, had been seised of such lands, tenements, rectories, tithes, rents, or other hereditaments of such estate as they be seised of in trust for him at the time of the said execution sued; which lands, tenements, rectories, tithes, rents, and other hereditaments, by force and virtue of such execution, shall accordingly be held and enjoyed, freed and discharged from all incumbrances of such person or persons as shall be so seised or possessed

in trust for the person against whom such execution Chap. XIV shall be sued; and if any cestui que trust hereafter shall die leaving a trust in fee simple to descend to his heir, there and in every such case, such trust shall be deemed Trust in fee

simple assets in and taken, and is hereby declared to be assets by descent, hands of beir. and the heir shall be liable to and chargeable with the obligation of his ancestors for and by reason of such assets as fully and amply as he might or ought to have been if the estate in law had descended to him in possession in like manner as the trust descended ; any law, custom, or usage to the contrary in any wise notwithstanding."

It has been decided that the tenth section of the Trusts of Statute of Frauds does not extend to trusts of chattels not within

chattels real real. That section, it will be observed, says that the statute. sheriff may deliver execution of all such lands as any person shall be seised or possessed of in trust for him against whom execution is so sued, like as if the said party had been seised of such lands, of such estate as they be seised in trust for him at the time of the said execution sued; and although the statute uses the word possessed, which would be applicable to chattels real, yet as the latter part of the section uses the word seised alone, it is considered that it was not intended to include chattels real. In Scott v. Scholey, (a) Lord Ellenborough said: “The very silence of the statute, which, while it expressly introduces a new provision in respect to lands and tenements held in trust for the person against whom an execution is sued, says nothing as to trusts of chattel interests, affords a strong argument that those interests were meant to continue in the same situation and plight in respect of executions, in which both freehold and

(a) 8 East, 467, 486.

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