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ed that when the same case was before Lord King it appeared to be in trust. In Westfaling v. Westfaling, above cited, it appears to have been also the opinion of Lord Hardwicke, that an estate pur auter vie to a man, his executors, administrators, and assigns, was assets to pay debts before the statute. And in Oldham v. Pickering', which was a case before the statute Geo. 2. (as that case is reported in Carthew) Lord Holt seemed to entertain a degree of doubt whether such an estate was not assets to pay legacies. It appears indeed to have been the opinion of the annotator upon the case of the Duke of Devon v. Atkins, in Peere Williams, first edition, that there was an equity to say, that, if the executor or administrator took it as special occupant, the effect of his character as executor or administrator, would fix upon his legal title an equity for those who claim the personal estate, to make him a trustee.
It seems, therefore, that the fate of property so circumstanced was not very well settled, independently of the statutes of Charles 2. and George 2. We perceive too, by the recital in the clause relating to this subject, in the statute of Geó. 2. c. 14. that doubts had existed after the provision by the 12th Section of the statute 29 Car. 2. c. 3. as to the
persons to take after payment of the debts, and that the clause in question of the 14th Geo. 2. was made to
" Lord Raym. 96. Carth. 376.
exclude such doubts. By this statute of George 2. therefore it was provided that the surplus should be applied and distributed as personal estate. Upon which clause the present Chancellor declared himself to have a strong inclination that the meaning was, that the residuum of such estate was to go with the rest of the personalty, where there was a will, and to the next of kin where there was an intestacy; and that the language of the statute would bear this out, for it would be extraordinary that persons claiming by bequest should not have been attended to, when even upon the statute of Charles 2. Lord Holt doubted as to legacies. The true state of the question in Ripley v. Waterworth was, whether, if notwithstanding the statutes of Car. 2. and Geo. 2. the interest in such an estate comes to the executor in the nature of a freehold, though by force of those statutes applicable to a certain extent as personalty, he is not in a court of equity so completely a trustee for the persons entitled to the personal estate, as that a will not attested by three witnesses, but disposing of the residue of the personalty, will give to the residuary legatee, after the debts paid, a title to call upon the executor for his benefit. Upon this case Lord Eldon observed, that he could not adopt the principle of considering the estate as personal, to the point of giving creditors a claim upon it, and no farther. His Lordship was of opinion, that after the debts were paid, in obedience to the statute, the character of executor still remained in him, whether considered as special occupant or not: that such character raised a trust in him, and an interest in others. To the extent of giving an interest 10 all, who were in a situation to claim the personal estate, it was personal estate.
47 Vez, Jun. 425.
It is to be observed, that in such a case the heir could have no title; for he could only take as special occupant, and if as special occupant, still as occupant, and there could be no occupancy without a previous vacancy, whereas the estate in the case supposed would be full of the executor. If the executor has it, the great question is, how he has it? is it freehold or personal estate'? Is that which one statute has made personal to the extent of being assets, and therefore subject to be sold as such upon a fieri facias', and by another statute distributable under administration out of the spiritual court, still to be considered as in the nature of freehold in the hands of the executor, against any persons claiming the personal estate? There is besides great difficulty in saying what shall become of such an estate with this changeling sort of character belonging to it, in case of the death of the executor, if he takes it as special occupant in the nature of a freehold. Such a case would be surrounded with difficulties! But as the statute uses only the expression pur auter
? Atkinson v. Baker, 4 T.R. 231. s See Oldercon v. Pickering, 1 Lord Raym. 96. Comb, 291. 17 Vez. Jun. 445. 451.
vie, not distinguishing between the grant to a man's heirs, and to his executors, in imposing the necessity for three witnesses to validate a devise of it, the residue in the case above alluded to would not pass strictly by the will. But Lord Eldon was of opinion, that in a court of equity the estate was to be considered as belonging to those who take personal estate by an equity attaching upon the character of executor as executor. And he resembled it to the case of stock which can be disposed of cnly by a will with two witnesses (7); but that according to Lord Thurlow, where it is not so bequeathed, it devolves upon the executor in trust for those who are entitled to the personal estate, under the residuary bequest; the will operating as a direction to the executor how to apply it, though it was not devised by that will".
Upon the whole, therefore, as the question now stands, upon the authority of the much reasoned case of Ripley v. Waterworth, in equity at least, an estate granted to a man, his executors, administrators, and assigns, though devisable as to the legal interest only by a will with three witnesses, is personal estate, or in the nature of personal estate,
" Vez. Jun, 448. 452.
(7) By 33 Geo. 3. c. 28. 8. 14. and 35 Geo. 3. c. 14. s. 16. it is provided that all persons possessed of any share or interest in the fuods, or any estate therein, may devise the same by will in writing, attested by two or more credible witnesses.
in the hands of the executor, and the benefit as to the surplus belongs to the legatee under the will as such, though the will is not attested, so as to pass it at law. In a word, it is personal estate as to those claiming as creditors and representatives. But yet the essential character of the estate as a freehold remains, as to other persons who can only take the legal interest in it by a conveyance applicable to freehold property.
Powers to be erecuted by Will.
Powers of apo
rections as to the mode in which such will
WHERE a power is given or reserved by deed to pointment to be be executed generally by a will, without any
words rally by will, without any die expressing or importing the manner in which such
will is to be executed ; if the subject of such power is to be executed, is real estate, the power will be ill executed by any must be execur will not signed by the testator, and not attested by tested according three witnesses by the subscription of their names
in his presence, according to all the circumstances required by the statute to give effect to a devise of lands. Lord Macclesfield, 'in Longford v. Eyre", much doubted whether the will in that case would have been a good appointment, had it not been executed pursuant to the statute; because, said his
1 P. Wms. 741.