three classes into which a fee is distributed by the k ecutor might be There has been some controversy on the question, Whether an exwhether a lease before the statute of frauds to a man a special occu and his executors during the life of another, would pant. go to the executor as a special occupant. Mr. Hargrave has put this matter doubtingly in his notes to Coke Littleton where he says, after citing some authorities the other way, "however some have thought that executors and administrators, if named in the grant, might take an estate pur auter vie, though a freehold, even before the statutes 29 Car. 2. c. 3. and 14 Geo. 2. c. 20. by which they are now k 'Hargr. Co. Litt. 41. b. (5) Plowd. Com. 557. And see Cro. El. 805, where Popham said, that rent granted to one and his heirs for the life of I. S. shall not be devisable by the statutes 32 and 34 H. 8. for it is no fee, and he added, that the greater part of the Judges were of his pinion. But Gawdy and Fenner contra. entitled." In Westfaling v. Westfaling', Lord Hardwicke declared his opinion, that executors might take as special occupants; and be further added, that he thought it would be assets in their hands. The same opinion is intimated by him in Williams v. Jekyl". And his reason for holding such estate, so limited, to be assets, was, that he thought the executor by force of his office could take nothing without its being so. In the Duke of Devon v. Kinton (6), where A. having an estate to him and his heirs for three lives, settled it on his daughter and her husband for their lives, remainder to the use of his own executors and administrators, and after the death of his daughter and her husband, having devised the estate to his wife, died indebted by simple contract, and the question being whether the residue of the term should be assets to pay a simple contract creditor, it was so decreed; for being limited to the executors and administrators of A. it became personal estate, and he could not devise it exempt from his debts, though due by simple contract. There appears, indeed, to have been a stronger reason for saying that an administrator could not take as a special occupant, for it seems that the law will not suffer a free (6) 2 Vern. 719. but in 2 P. Williams, 360, it appears that the lease was originally granted to trustees. hold to be in suspence, and that a person to entitle himself as special occupant must enter immediately on the death of the tenant pur auter vie, which an administrator cannot do, though an executor may". 1 Whether he can take the surplus for his own be nefit; and how have changed the nature of the estate. It seems as if the framers of the statute 29 Car. 2. meant to apply the term special occupant only to the heir, and perhaps with a cautious nicety in the use far the statutes of the phrase. But the words, that in case there shall be no special occupant it shall go the executors and be assets,' seem virtually to include the case where the grant is express to the executors of the grantee, for if the executor can not take as special occupant, it is as if he had not been named, and then the statute gives it to him for want of a special occupant. If he can take as special occupant, it seems absurd to say that the statute could mean that in that character he should take for his own benefit, or in other words, that if named in the grant he should take for his own benefit, and if not named, that then the estate should be assets in his hands. If he should be held to take as special occupant, by reading the words special occupant in the statute, as if they had been such special occupant, and as applying to the heir only, whose case had just been mentioned, the case of the limitation to executors is brought fairly within the statute; and then the construction would be, that if the grant was not to the heirs, the estate should, whether executors and administrators were named or not, go to the executors or administrators as assets. But we have seen that even if such estate limited to executors and administrators were held to be out of the statute altogether, still there is both reason and authority for saying that by force of their office simply, the property coming to them must be assets in their hands. The statute of 29 Car. 2. c. 3. makes these estates coming to the heir for want of being devised (and by the same statute they can only be devised by will attested by three witnesses) assets for specialty creditors; and in the hands of the executors or administrators, where no special occupant, assets for both specialty and simple contract creditors. The statute of 14 Geo. 2. c. 20. s. 9. looking to the case where there is no devise or occupancy, and thus partially provided for by the statute 29 Car, 2. makes the surplus after payment of debts applicable and distributable as personal estate. And when the force of the words "shall be applied and distributed" are properly attended to, it is difficult not to infer that the legislature intended that the executor should not retain this surplus beyond the amount of the debts, as special occupant, but that it should pass by the residuary bequest of the personalty if not particularly devised. Supposing, then, under these circumstances a party to make a will, devising the residue of his personalty, but unattested according to the statute of frauds, and therefore not operating immediately upon the dry legal subject being still in its nature freehold, though at least to a certain extent under the above-mentioned statutes beneficially applicable as personalty, what is to become, in a court of equity, of the interest after debts paid? Is it to go to the legatee, to the heir, to the next of kin, or to be retained by the executor ? Such a case presents itself under two aspects: first, suppose that before the statute the executor was, by virtue of such express limitation to executors, a special occupant, and that, the statute having enacted if case there was no special occupant, the estate should be assets in the hands of the executor or administrator, the case might be regarded as being out of the statute where the executor was named as special occupant; in this view of it, it might become necessary to enquire what would have become of the estate in the hands of the executor, as such special occupant. We have the decided opinion of Lord Cowper upon this subject, who made no difficulty of holding it to be personal estate, though originally granted to a man and his heirs, if it was afterwards by him granted to executors, though it must be remember • 2 Vern. 719. 2 P. Wms. 380. |