The administrator of Bartlett had no right of action, except with respect to property merely personal, which may have remained on the premises when this suit was brought; nor had he a right of action with respect to such personal property, unless the Tanners converted it to their own use. Leases of land of a chattel quality are chattels real, and go to the administrator; in other words, all interests for a definite space, measured by years, months or days, are deemed chattels, interests, and, independently of statutory provisions, Northern Bank v. Roosa, 13 Ohio, 334, 30 Ohio St. 285, go to the administrator; but he has no interest in a lease, like this, for a freehold term. See authorities cited in the last paragraph.
b. For one's own life and pur autre vie.
(1 ) Pur autre vie: Direct and Indirect Creation.
3 Hill (N. Y.), 441. - 1842.
[Reported herein at p. 13.]
Beardsley, J., in
5 Denio (N. Y.), 414. - 1848.
[Reported herein at p. 575.]
¹ For a special limitation as to number of lives in N. Y., see N. Y. R. P. L., §35 - ED.
(2.) Pur autre vie: Effect of Death of First-taker in Possession. (a.) General and special occupants.
4 DURNFORD AND EAST (EnG.), 229. - 1791.
Detinue to recover certain deeds.
One Foster being seized of a life estate in certain lands conveyed them to one Williams and his heirs, who took in trust for W. Atkinson, his heirs, executors and assigns. Atkinson received the deeds of the premises. On his death they came into the possession of his heir-at-law Baker. Plaintiff, as administrator of Atkinson, brings this action to recover them. Defendant demurred insisting that plaintiff was not entitled to the deeds, the defendant being a special occupant of the estate. It was further stated that prior to the statute, 29 Car. 2, c. 3, every estate pur autre vie of which there was no special occupant marked out by the grant, belonged to the person who first took possession of it. "But this being found inconvenient, that statute was passed to remedy it; and it enables the proprietor to devise it, and enacts, That if no devise be made it shall be chargeable in the hands of the heir, if it comes to him by reason of a special occupancy, as assets by descent, as in case of land in fee simple; and in case there is no special occupant, it shall go to the executor or administrator and be assets in their hands." In case of a surplus, if not devised and there be no special occupant, by 14 Geo. 2, c. 20, § 9, such surplus is distributed as personalty. "Now these statutes only apply in cases of abstract possession; but here there is a special occupant."
On the other side it was urged among other points that though the heir is favored over the devisee, "Yet he is not favored under the statute of frauds," and that if this estate vested in the heir it would only be liable to specialty debts, whereas if the administrator were entitled, he would hold it for all the creditors of the intestate."
Lord Kenyon, Ch. J. - The law on this subject has been truly stated by the defendant's counsel. If an estate pur autre vie be limited to a man, his heirs and assigns, and if it be not devised, it goes to the heirs, under the statute of frauds, and is liable to the same debts as a fee simple is. Where it is granted to a person, his executors, administrators, and assigns, the executors take it subject to the same debts as personalty of any other description is; and by the 14 Geo. 2, it is distributable. Now in this case, before the plaintiff can recover the deeds in question, she must show a title to the estate in respect of which she claims the deeds; but she objects to the defendant's retaining them, because his title, if any, is only-equitable and cannot be inquired into in a court of law. Now, this court either has or has not a right to inquire in whom the equitable title is vested; and in either way of considering the question there must be judgment against the plaintiff. If it be so doubtful a point that we cannot decide it in a court of law, the plaintiff must seek redress in equity; because the rights to these documents must follow the title to the estate, and if we can examine into the title the defendant, who is the heir at law of the tenant pur autre vie, must have judgment. The estate in question was conveyed to Williams, his heirs and assigns; and it appears by the deed of trust, which, as being a declaration in writing, is valid by the statute of frauds, that Williams held the estate in trust for Atkinson, his heirs, executors, administrators, and assigns. The first limitation is to the heirs; and in the ordinary course of this species of property it goes to the heir at law, because it is a real estate. Then it is urged, that we ought to exclude the heir, in order to let in a more numerous class of creditors; but however convenient it might be if such were the law, when we are deciding according to law, we must take care not to infringe one of its first rules; and here the heir at law is entitled to the estate as a special occupant; and has consequently a right to detain the possession of those documents which belong to the estate.
Judgment for the defendant.
(b.) The modern statutes.
3 Hill (N. Y.), 441. - 1842.
[Reported herein at p. 13.]
1 For the present New York Statute see the New York Real Property Law, § 24. In Michigan the executor takes the residue. In Massachusetts and several other states the estate pur autre vie is realty after the death of the first taker and descends to his heir in the same manner as a fee-simple. Pub. Stat. Mass. (1882), chap. 125, § I.
For the mode of ascertaining the death of the cestui que vie or of a life tenant in N. Y., see Code Civ. Proc, §§ 2302-2319. For the statutory presumptions as to the death of a person on whose life an estate in real property depends, see § 841 Id. - Ed.