This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
At common law, upon the death of a tenant pur auter vie during the life of the person for whose life the estate was limited, called the "cestui que vie." it was considered that the residue of the life estate still remaining could not pass to the heirs of the tenant, because it was not an estate of inheritance, nor could it pass to his executors, since it was freehold property. Accordingly, the property was regarded, during the balance of the life of the cestui que vie, as belonging to nobody, and as consequently becoming the property of the first person who took possession, called the "general ockee & St. P. Ry. Co., 37 Wis. 469. This statement is more frequently made in connection with the merger, so called, of a charge or lien.
95. 3 Preston, Conveyancing, 273.
96. Co. Litt. 338b; Chambers v. Kingham, 10 Ch. Div. 743.
97. Platt v. Sleap, Cro. Jac. 275; Pool v. Morris, 29 Ga. 374 74 Am. Dec. 68.
98. 3 Preston, Conveyancing, 285.
[Sec.35 cupant," unless the estate had been granted to the tenant and "his heirs" for the life of the cestui que vie, in which case the heir took as "special occupant," as it was called." This state of things was, however, altered by the Statute of Frauds, and by subsequent English statutes, providing that an estate pur auter vie might be devised, and that, in default of a devise, and in the absence of a special occupant, it should pass to the executor or administrator, and should be assets in his hands, general occupancy being thus abolished.1
In many states, the matter is regulated by statute, it sometimes being provided that, if not devised, the residue of the estate shall pass to the heirs as realty, and sometimes that it shall pass to the personal representatives as personalty.2 These statutes usually make no provision for special occupancy, and the fact that the estate is granted to one "and his heirs" would probably not give the right of special occupancy to the heirs when the statute expressly makes the estate personalty, since the character of property cannot be changed by the mode of its limitation. And where the statute provides that the residue of the life estate shall pass to the heir when not devised, the heir will presumably take by descent, and not as special occupant, even though there is a limitation to the grantee "and his heirs.3
99. Co. Litt. 41b; 2 Bl. Comm. 259.
The special occupant, though en titled by reason of the fact that he is heir, takes not by descent, but as the special occupant named in the limitation of the estate. 2 Blackst. Comm. 260; Challis, Real Prop. 358. But nevertheless his rights may be entirely barred by an alienation by his ancestor. Challis, Real Prop. 362.
1. Co. Litt. 41b; Blackst. Comm. 258; Challis, Real Prop. 358 et seq. See Atkinson v. Baker, 4 Term R. 229. In England, the matter is now regulated by the Wills Act (1 Vict. c. 26 ) repealing, but substantially re-enacting, 29 Car. II. c. 3, Sec. 12 (1667), and 14 Geo. II. c. 20, Sec. 9 (1741). See Challis, Real Prop, ut supra; Leake, Prop. in Land 194.
In England, two or three questions have arisen in connection with the theory of special occupancy upon which the law has perhaps never been positively settled. The most difficult question apparently was whether the right to take as special occupants extended to executors and administrators when named, as well as to heirs, and on this subject the authorities are in conflict, the negative theory being based on the ground that freehold property could not be limited to personal representatives. See Salter v. Bo-teler, Moore 664; Co. Litt. 41b, Hargrave's note; 1 Cruise's Dig. tit. 3, c. 1, Sec.Sec. 49-51; 3 Cruise's Dig. tit. 28, c. 2, Sec. 7; Ripley v Waterworth, 7 Ves. 425; Sug-den, Powers, (8th Ed.) 193 note. The question became of comparatively little importance after the passage of the Statute of Frauds, referred to in the text, since thereafter the executors or administrators took by force of the statute if they did not take as special occupants. See Challis, Real Prop. (3rd Ed.) 359, 361.
There might, it seems, be a special occupant of a rent or other incorporeal thing. Co. Litt. 41b, Hargrave's note, 388a; Bowles v. Poore, Cro. Jac. 282; Challis, Real Prop. 361; Northern v. Carnegie, 4 Drew, 587. Contra, Sugden, Powers (8th Ed.) 193-195.
In a state where there is no statute on the subject, special occupancy might possibly be recognized in case the property was limited to the heirs, though there seem to be no adjudications on the subject in this country. In the absence of such a limitation, the residue of the estate would presumably be regarded as within the statutes providing for the descent of real property, the fact that the estate is not technically one of inheritance being disregarded.