as in the present case would be sufficient to pass a term in gross, yet it should not pass a trust of a term attendant on an inheritance. That a will not attested as the statute of frauds requires, should not pass any estate of which the heir, as heir, would otherwise have had the benefit. That if the devisee of the land had brought a bill against the executor and heir, to have compelled the executor to consent to this devise, a court of equity would not have decreed it for the devisee; and if so, the voluntary act of the executor's consenting would not alter the case, for at that rate it would be in the power of the executor to make it a good or a void devise, just as he should think proper. Besides, the court observed, that it was the intention of the testator in the present case, not to pass the term only, but also to convey the inheritance which was expressly disposed of by the will, to the nephew for life, remainder to his first and other sons in tail. Though as to this, it was said to be extremely hard, that because quite so much as was intended could not pass, therefore, the devisee should be deprived of that which might lawfully pass, and which was a less estate than was intended him, or, because all could not pass, therefore nothing should. However, for the above reasons, the court decreed the devisee and executor to join in assigning the term to the plaintiff, the testator's heir at law, but no costs on either side; this decree was afterwards affirmed on an appeal by the Lords Commissioners Gilbert and Raymond.

When this cause was reconsidered on the appeal before the Lords Commissioners Gilbert and Raymond", Gilbert Baron was of opinion, that this was a term attending the inheritance, and to protect the same from intermediate incumbrances, and that an unmerged term in the same person is in him in nature of a trustee to attend the inheritance, and that it would be very dangerous to all the inheritances in England, if unmerged terms should be taken to be terms in gross in the owners of the inheritances, and pass as such.

Now, in the principal case, if this should be construed a term in gross, then it was such a chattel interest as might pass by the will, though all the solemnities required by the statute were not ob served; but if it was a term annexed unto, and attending the inheritance, it could not pass by this will in any other manner than the inheritance would pass. That it had been allowed at the bar, that the term for two thousand years was annexed to the inheritance, but it was said, that the term for five hundred years was not; but no reason was given why there should be such a difference between these two terms, that one should, and the other should not attend the inheritance: and certainly it could never be said with any colour of reason, that, where a mortgagee of a term of years purchased the inheritance, that such term, when in himself and un

9 Mod. 127.

merged, should go and descend in a course different from the inheritance; for it was the constant and uniform construction in that court, that such a term shall be annexed unto, and protect the inheritance, and attend the same; and it would be a dangerous construction in equity to make the inheritance and the term separate and distinct estates in one person.

But Lord Commissioner Raymond differed from Baron Gilbert in the view which he took of this doctrine. He was of opinion, that where a term comes to an executor, by implication, as a chattel interest, or to a devisee by a general devise of all his chattels; or where it vests in an administrator, generally, for want of a will; in such cases, the heir at law would be competent to apply to this court to have the term assigned to another, to attend and protect the inheritance; but that, since it was agreed on all hands that the term passed at law, it was a question, whether that court could take it from him to whom it was devised, in favour of the heir at law, who was a volunteer as well as the devisee?

That it was true, where a term was expressly limited to attend the inheritance, there, though the testator likewise expressly devised it to another, it would not pass; but where it attended the inheritance only by construction or operation of law, or in an equitable notion, as a term brought in and

Comments on

the doctrine laid

Commissioner

Raymond in
Whitechurch v.

assigned by creditors, or terms raised for children's portions, or for other particular purposes; there, if the testator expressly devised such terms, they would pass. For where a man had a term for years, which only by intendment of law attended the inheritance, certainly he had a power to sever such a term from the inheritance; and if he should assign it to one man, and mortgage the inheritance to another, in such case the term should not attend the inheritance, but it became a term in gross; and why should not a man have the like power to do the same thing by will, if he thought fit. But as in that will there was no apparent intention, that the testator designed to pass this term as a separate interest from the inheritance, though there were sufficient words to pass it in general; it was to be considered, whether such general words should, after the death of the testator, sever that term from the inheritance, which attended and protected it in notion of equity, before such devise was made.

The distinctions taken by Lord Commissioner Ray-. down by Lord mond may be more readily understood, by being stated as follows: a term of years may have become Whitechurch. attendant upon the inheritance after all the express purposes of its creation are satisfied, by consequence and operation of law, or, after such satisfaction, it may have expressly received this ulteriour destination by actual assignment for this purpose. If a term be in the predicament first above supposed, and a person, having in himself such term un

merged, by reason of an intervening reversionary term outstanding, or by reason of the legal estate in the inheritance being in another for his benefit, expressly devises the term by a will capable only of passing chattel interest, the term will be severed from its accidental connection with the freehold, and will go to the devisee as a beneficial interest, or, in other words, will pass in equity as well as at law. But if it be not so expressly devised, the heir at law will be entitled beneficially to the term for the protection of the inheritance; or in other words, the equity in the term will descend as a part of the inheritance for want of an execution of the will sufficient to pass freehold estates.

But supposing such satisfied term to have once received an express destination to attend upon the inheritance, then it seemed to the Lord Commissioner to be immaterial whether it was expressly and by name devised by the testator, or included under a general devise of his chattels, or suffered to devolve to the executor or administrator; it being that judge's opinion, that where such express limitation had been made, it would not pass by a will unattested, though the testator expressly devised it to another.

The whole of this doctrine of the Lord Commissioner, who delivered his opinion to the effect last above-mentioned, turned upon a distinction between a term assigned upon an express declaration of

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