Page images
PDF
EPUB

Pitts and Joseph Preedy). · The raised anchor on the blade is of the same date, but the blade is undoubtedly older. Mr. W. Rolfe, the Marshal of the Admiralty's Offices, is of opinion that some portions of this Oar date from the reign of Henry VII., and in this opinion we fully concur ; possibly they existed much earlier, but unfortunately there are no Hall-marks to shew us. It is clear, however, that portions of an existing Oar, with a good deal of new material, were put together in 1798-9 by the above-named smiths, and form the Oar as we now have it; but it is equally certain that one portion of it, at least, existed in 1585, when it was borne by Jasper Swift, the Marshal of the Admiralty.

THE EDITOR.:

11.-ESTATES PUR AUTRE VIE... ::

MTHIS “ lowest estate of freehold ” has in one or

1 two recently reported cases--one of them in the House of Lords-occupied the attention of the judicature. The result of the decisions is to demonstrate that in a contest between the heir and the personal representative of tenant pur autre vie in the absence of a valid disposition (as to which, vide Co., Litt. 41b) by the tenant in favour of the heir-a disposition, which if non sui juris, e.g., an infant, he of course cannot make-or if there being no limitation in the heir's favour in the instrument creating the tenancy (as there was in Philpotts v. James, 3 Doug..425)the title of the heir of the tenant pur autre vie will be invalid as against that of the executor or administrator.

The Statute of Frauds, abolished “general occupancy" -that "scramble for the occupancy after the death of the first taker," as Mr. Justice Fry is reported to have termed it in In re Barber's Settled Estates (18 Ch. Div. 624, at p. 627). The first person who entered could, in the case of freeholds or leaseholds not limited to the heirs or personal representatives respectively of the tenant pur autre vie, hold as general occupant, except as against the Crown. The decision of Vice-Chancellor Kindersley in Northen v. Carnegie (4 Drew. 587) settled that as an executor may be special occupant of a corporeal hereditament, so he may be special occupant of an incorporeal hereditament. And there may be a special occupant of a trust or copyhold estate. (Lewin on Trusts, 574, 6th Edition ; Tudor Real Prop. Cas. 45, 1st Edition.).

The following passage from the judgment of Mr. Justice Fry in In re Barber's Settled Estates (sup.) points out the anomalous nature of the estate pur autre vie. “When an estate pur autre vie is given to a man or to him and his heirs, the most he can take is an estate for his own life, and anyone who comes in after him takes, not through him, but as occupant, of the estate. Originally anyone who pleased was allowed to scramble for the occupancy after the death of the first taker, but this was found to be so inconvenient that he was allowed to appoint by will a special occupant. But still everyone who came in after the first taker came in as an occupant, and not as deriving title through him. Such a mode of devolution is very different from that of an estate in fee simple. But still, for the sake of convenience, the Legislature and the Courts have enforced an analogy between these estates pur autre vie and estates in fee simple, and have given effect to it with regard both to the capacity and the incapacity of alienation by the first taker. With regard to the power of disposition by the first taker, there is no doubt a material difference between an estate pur autre vie and an estate in fee simple, because the first taker of an estate pur autre vie has the whole estate in him, and it might have been supposed that he could dispose of the whole. But, nevertheless, his power of disposition has been limited. By what ? By the regard paid to the intention expressed by the settlor or donor, that a particular person shall be the special occupant after the first taker.” And the learned Judge proceeded to remark that a series of decisions have permitted the creation of successive limitations of an estate pur autre vie quasi estates for life, quasi estates in tail, quasi estates in fee in remainder, and quasi executory devises over, and goes on to notice the power of alienation attaching to such estates, holding that an executory devise of an estate pur autre vie could not be defeated by the prior tenant pur autre vie upon the principle laid down by Lord St. Leonards in Allen v. Allen (2 D. & Warr. 307) that the analogy with fee simple estates ought to be supported (at pp. 627, 628).

Lord Chancellor Brady, also in Brenan v. Boyne (16 Ir. Ch. R. 87, at pp. 94, 95), is reported to have said: "As regards such estates, however they may be limited, whether to A simply or to A and his assigns, or to A and his heirs, or to A and his executors or administrators, A has the whole dominion of such estate during his life, and may dispose of it to whom and in what manner he pleases. At the common law he could do this by deed; and by the Statute of Frauds, prior to the late Wills Act, and since by the third section of that Act, he can do so by devise. In exercising this power, he may change as he pleases the limitations of the tenure. Even though his own grant be to his heirs and assigns, he can convey the estate to a 'grantee singly, by name without more, or he may convey to the grantee, his heirs and assigns, or to the grantee, his executors and administrators, thus changing the whole character of the estate, and converting the freehold into personalty.” Later on, at p. 95, referring to the doctrine òi special occupancy, he says:—"According to this doctrine, when an estate is given to A and his heirs for the life of B, the heirs of the grantee are considered to be special occupants, who will succeed to the estate, per formam doni, on his death, not, strictly speaking, as deriving the estate through him, as in the case of a fee-simple, but as succeeding to the occupancy thereof to the exclusion of any general claimants. Their estate may be in some sense treated as a remainder, but it is defeasible by the grant or devise of the tenant, as in the case of a fee-simple.” · The power of alienation of the owner of a quasi estate tail and the difference between the nature of that estate and the fee-simple conditional is noticed in Lewin on Trusts (sup.). Further, it should be added that the only application of the title of “occupancy" in the law of real property is to be found in connection with this kind of estate, and that by sect. 58 (vi.) of the Settled Land Act, 1882, a tenant" for any other life” when his interest is in possession (Re Edwards' Settlement, 76 L.T. Rep. 774) has the powers of a tenant for life under the Settled Land Acts (et vide sect. 30 (1) of the C. & L.P. Act, 1881).

The nature and incidents of the estate pur autre vie having been thus referred to, it remains to notice some of the decisions bearing upon the special subject of these remarks, viz., the devolution of the undisposed of interest of the first taker. The words of the 6th section of the Wills. Act, 1837, are “that in case there shall be no special ,,occupant of any estate pur autre vie ..... it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant." ...In the recent case of Mountcashell v. More-Smyth (1896), .A.C. 158, the peculiarity, according at any rate to one construction of the documents upon which the case arose, was that while the legal estate was vested in the two trustees and their heirs, there were no words of limitation in the case of the equitable interest of the infant tenant pur autre vie. It was contended on behalf of his heir-at-law that by

ution of

the 6th

che no specia

a kind of attraction the devolution of the equitable estate, which on account of his infancy he could not alter, followed the limitation of the legal . estate and passed to the grandfather as heir to the deceased infant. The House of Lords, affirming the Court of Appeal in Ireland (1895, Ir. Ch. 44), held the personal representative entitled under sect. 6, Lord Davey laying down that it was for those who say that an estate pur autre vie ought to go to the heir to shew some further intention to throw it upon a special occupant. Further holding that if it is to go to the heir in any deed at all events the word “heir” must be used for the purpose of designating the special occupant. This was a case arising under agreements and conveyances inter vivos, but Mr. Justice Romer in the more recent case of In re Sheppard; Sheppard v. Manning (66 L.J. Ch. 445), the case of a disposition by will of an owner of an estate in fee-simple, -and so distinguishable from Lord St. Leonards' decision in Wall v. Byrne (2 Jo. & Lat. 118), a case where the testator was lessee of lands demised to him, his heirs and assigns pur autre vie,--the heir neither having been mentioned in the devise before him, nor it being otherwise shewn that the heir was intended to take, held the personal representative of the tenant pur autre vie entitled (cf. Doe di Lewis v. Lewis, 9 M. & W. 662). "" ; The above decisions appear to have driven one more nail into the coffin of the heir whose condition in view of recent legislative and judicial activity seems to be growing more and more precarious.

" W. P. Pain.

« PreviousContinue »