tor could be made at law a special occupant, nor did it decide that the next of kin were entitled to any furplus. It seems to me, therefore, that the cafe in 2 Vern. 719, and Sel. Caf. in Chan. 71, which are in truth the fame cafe, are the only decifions on the fubject upon which it can be contended that a freehold leafe, conveyed in trust for a man, his executors, and adminiftrators, is to be deemed perfonal estate, independent of the provisions by the ftatutes of 29 Cha. II. and 14 Geo. II, and upon that cafe it might be properly deemed affets for payment of debts confidering the executor as a special occupant in equity, without determining that the conveyance changed the freehold intereft into a chattel, and confidering the executor as taking a freehold, for I apprehend the convention of parties cannot convert a freehold into a chattel, to be acted upon in fpecie, though by a conveyance of a freehold to a trustee, in truft to fell the benefit of a freehold in the shape of produce by fale, in the hands of the trustee, and confequently in the fhape of money, may be vefted in another as personal estate, whilst the freehold remains in fpecie, or freehold and disposable as fuch, in the hands of the truftee. Even the legiflature, by the ftatute of frauds, did not convert a freehold estate per autre vie, where there was no fpecial occupant into a chattel, though it gave the estate to an executor or administrator, and, on the contrary, in Oldpan v. Pickering, Carth. 376, 1 Salk, 464, and other books, it was held that the administrator took only for payment of debts, and debts being paid, hẹ held as special occupant, and, without being compellable to make diftribution, and therefore the 14 Geo. II. c. 20, 9, made fuch an estate in the hands of an executor or administrator, under fuch circumftances diftributable as perfonal estate, still however I conceive the action can only convey to a purchaser or the next of kin by a freehold conveyance, for the ftatute does not fay that any other conveyance fhall be effectual; in the report of Westfaling and Westfaling. 3 Atk. 466, Lord Hardwicke is stated to have said, that if a lease per autre vie, was made to A, his executors and adminiftrators, the executor fhould take as fpecial

S.

occupant. But he is alfo flated to have relied on the paffage in Rolle, which does not truly represent the cafe in Dyer, and which is followed by a contradictory decifion. So that I think that doctrine cannot be relied upon; and I obferve Mr. Hargrave has doubted the authority in Co. Lit. 416,.4. In Williams and Jekyl, v. Elliot and Jekyl, 2 Vez. 681, the fame idea feems to have been prevalent in Lord Hardwicke's mind, but he reasons the case expressly on the ground of occupancy of a freehold, and he takes pains to declare that he determined that cafe on the nature of the original lease, viz. to the leffee, his executors, adminiftrators, and affigns. In the cafe in Dyer, 328, the original leafe feems to have been in the fame form, but livery of feifin was made accordingly. The reasoning in Vaughan, 199 to 201, is ftrong, to show that an executor or adminiftrator cannot take a freehold eftate per autre vie, by force of the original grant, and in many other cafes the fame idea feems to have prevailed, and I can find no decifion exprefsly to the contrary. I therefore ftill feel confiderable doubt whether a leafe for lives granted to a man, his heirs and affigns, can be conveyed to another, his executors and adminiftrators, fo as to make an executor or administrator take by force of the convey-. ance as an affignée, and therefore as a fpecial occupant, and if fuch conveyance can be made, I ftill think that the executor or adminiftrator can take only as occupant, and confequently can take only a freehold, and confequently takes that which can be difpofed of only by a freehold conveyance.

PRECEDENTS

OF

ASSIGNMENT S.

PURCHASES.

Partics.

I. ASSIGNMENTS TO PURCHASERS.

Alignment of a Leafe purchafed before a Mafter in
Chancery.

THIS INDENTURE OF SIX PARTS, made, &c. BETWEEN H. I. of -, in the county of, furviving executor of the laft will and teftament of C. 1. late of, deceased of the first part, B. R. of ——, P. I. late of, and W. D. of, executors of the laft will and teftament of B. R. late of --, of the second part, C. 1. of, adminiftrators of the goods and chattels, rights and credits of C. E. (formerly W. B. E.) his late wife deceased, who was the administratrix of the goods and chattels, rights and credits of B. G. late of, her former husband, deceased, and also adminiftratrix of

the goods and chattels, rights and credits of B. S. PURCHASES. fpinfter, an infant deceafed, one of the children of the faid B. G. and C. E. of the third part, of -,&c. one other of the children of the said B. G. and E. his wife, and adminiftrator of the goods and chattels, rights and credits of the faid G. B. his late father, deceased, left unadministered by the faid E. C. deceased. AND alfo adminiftrator of the goods and chattels, rights and credits of the faid S. B. his fifter, deceased, left unadministered by the faid E. C. of the fourth part, W. 1. of &c. and E. his wife, B. T. of -, and B. A. an infant under the age of twenty-one

of

years, (that is to fay) of the age of

years, or

thereabouts, which faid f. E. B. T. and B. A.

are three other of children of the faid B. G. and Recital of leafe

E. B. of the 5th part, and C. 1. of ——, of the
WHEREAS, by indenture bearing date

6th

the

part.

day of, 17-, the wardens and commonalty of the mystery of mercers of the city of --, did demife to A. G. all that, &c. &c. To HOLD from the feaft day of the annunciation of the Bleffed Virgin Mary, then last past before the date thereof, for the term of years under fuch rents and covenants as therein mentioned.

from the mercers company.

AND Of building

whereas, the faid A. G. expended and laid out the three meffuages, fum of- and upwards, in and about new building three meffuages or tenements, on the aforefaid premises according to his covenant in the faid recited indenture of leafe. AND whereas, by seve- which by ral mefne conveyances and affignments in the law mefne, conveyand otherwise, the said recited indenture of leafe vested in B. G. and leafed premises, and the meffuages or tene

ances became

PURCHASES. ments and buildings thereon erected or built by the faid A. G. as aforefaid, with the appurtenances afterwards became legally vefted in the faid B. G. deceased, for the remainder of the faid term of years thereby demised. AND whereas, by one other indenture, bearing date the day of,

Leafe for 99 years.

Indenture of fettlement on

B. G.

then

R. R. fpinfter, and R. E. fpinster, did demife
unto the faid B. G. deceased, all thofe two pieces
of land, with their and every of their appurte-
nances, to hold from the -
day of
next enfuing the date thereof for the term of
years, under fuch rents and covenants as therein.
mentioned. AND whereas, the faid B. G. ex-
pended and laid out the sum of — and upwards in
the erecting, building, and completing two brick
and four timber meffuages or tenements on the faid
demised premises, in pursuance and performance
of his covenant in the faid laft recited indenture of
leafe. AND whereas, by indenture tripartite, bear-

marriage of faid ing date the 3d day of
tween the said B. G. deceased,
and addition of B. G. of

and county of

and made beby his then name

in the parish of

of the first part,

the faid C. E. by her then name and addition of F. E. of the said parish of and county of

--, aforefaid, fpinfter, of the fecond part, C. I. efq. of the third part. [After reciting to the effect hereinbefore recited.] AND also that a marriage was intended to be then shortly had and folemnized between the faid B. G. and E. F. it was witneffed, that in confideration of the faid intended marriage, and for other the confiderations therein mentioned, he, the faid G. B. did affign unto the faid C. T. and C. I. all that the faid or