Holdernesse * v. Lord Carmarthen, (z) Lord Thurlow held that an annuity of 4,000l. charged upon the post-office, until a sum of 100,000l. should be paid, in order to be laid out in land, was a mere personal annuity. In Aubin v. Daly (a) it was held by the court of king's bench, with respect to the same annuity which was the subject of Lord Hardwicke's decision in Lord Stafford v. Buckley, that the legal estate and interest in it passed by a will, not executed according to the statute of frauds, in which there. was a residuary clause bequeathing all the rest, residue, and remainder of the personal estate, of what kind and nature whatsoever, to the executors. (b) These cases of personal annuities in fee seem to form an exception to two general rules; the one that, before the new statute of wills (1 Vict. c. 26) came into operation, what would devolve upon the heir could not be devised from him but by a will attested according to the statute of frauds; and the other, that though personalty be specifically bequeathed, it will in the first instance vest in the executor, and form part of his estate. In the cases of annuities above mentioned, the foundation of the decision that they were personal property, was, that Canal * they were in no way connected with land. But where shares, &c. an inheritance is granted, which arises out of land, it is considered real property, and, à fortiori, will not go to the executor. In Buckeridge v. Ingram, (c) shares in the navigation of the river Avon, under the statute 10 Anne, were held real estate. (d). So in Howse v. Chapman, (e) a share in the Bath navigation was held to be real property, which descended to the heir; and the same was holden as to a New River share. (f) But in Bligh v. (z) 1 Bro. C. C. 377. (a) 4 B. & Ald. 59. (b) But where the testator devised his freehold estates to A. and B. and their heirs in trust, to permit his wife to hold and enjoy the same, and to receive the rents thereof for her life; and after her decease, in trust to permit his nephew, his heirs and assigns, to hold and enjoy the estates, and to receive the rents thereof for ever, but subject to the payment of 201. yearly forever, to his niece, her executors, administrators, and assigns; with the payment of which sum the testator made chargeable his said estates, in man ner and form aforesaid, immediately after (d) Portmore v. Bunn, 1 B. & C. 699, 702. (f) Drybutter ". Bartholomew, 2 P. Wms. 127; Davall v. New River Comp. 3 De G. & Sm. 394. A lease of a lighthouse, and the tolls thereof, by the Corporation of Trinity House, has been held to be a chattel real. Ex parte Ellison, 2 Y. & Coll. Ex. 528. Brent (g) the court of exchequer held that shares in the Chelsea Water Works were to be considered as personal property. And it has been usual of late years when acts of parliament are obtained for the making of navigable canals, and similar works, to procure a clause to be inserted, directing that the shares shall be deemed to be personal estate. (h) Stock in It is here necessary to notice the rights of executors and administrators with respect to property in the public funds. The the public funds: statute 1 Geo. 1, sect. 2, c. 19, after creating a capital or joint-stock, on which annuities at the rate of 5 per cent. were to be attending, declares (sect. 9), "that all persons who shall be entitled to any of the said annuities, and all persons lawfully claiming under them, shall be possessed thereof, as of personal estate, and the same shall not descend to the heir." It then enacts (sect. 11), that no method of assigning or transferring the stock other than that pointed out by the act, shall be good and available in law; and it is provided by the 12th section, that any person possessed of the stock, with the annuity attending the same, may devise the same by writing, attested by two witnesses, but that no such devisee shall receive payment, till so much of the devise as relates to the stock be entered in the proper office at the bank; and in default of such devise, the stock and annuities attending the same shall go to the executor and administrator. (h1) The other acts creating new stocks contain, almost all of them, provisions nearly similar; and these provisions have created a doubt, whether it was not the intention of the legislature that stock should, by the will, pass to the devisee, without the assent of the executor, and without, in the first instance, vesting in him, and being assets in his hands. (i) But a series of modern decisions seems now to have established that stock, having been made personal property by the statutes, is like all other personal property, assets in the hands of the executor; and consequently, that although specifically devised, it must, in the first instance, devolve upon the executor; and, till he assents, the legatee has no right (g) 2 Y. & Coll. Ex. 268. See Hayler v. Tucker, 4 Kay & J. 248, per Wood V. C. (h) See Thompson v. Thompson, 1 Coll. 381; Robinson v. Addison, 2 Beav. 515. (h1) [See Hutchins v. State Bank, 12 Met. 421, 426; Sargent v. Essex Marine Ry. Corp. 9 Pick. 202; Eames v. Wheeler, 19 Pick. 442.] (i) Pearson v. Bank of England, 2 Bro. C. C. 529; S. C. 2 Cox, 175; Bank of England v. Lunn, 15 Ves. 572, 578. to the legacy. (k) And now by stat. 8 & 9 Vict. c. 91, s. 1, it is expressly enacted, that all stock standing * and which shall hereafter stand, in the name of any deceased person, shall and may be assigned and transferred by the executors or administrators of the deceased, notwithstanding any specific bequest thereof; with a proviso that the bank shall not be required to allow the executor or administrator to transfer any stock or receive the dividends thereon, until the probate or letters of administration shall have been left at the bank for registration; and that the bank may require all the executors who shall have proved the will to join and concur in any transfer. in order to pass stock witness not attesting necessary. It is a singular result of the cases on this subject, that, notwithstanding the apparently express words of the statutes respecting stock, it was not deemed necessary before the new statute of wills (1 Vict. c. 26), that a will, in order to pass stock, should be attested by two witnesses. (1) A bequest of stock, whether the will was or was not attested by two witnesses, was considered effectual to pass the subject bequeathed to the legatee. "Under all the acts," says Lord Eldon, in Ripley v. Waterworth, (m) "stock cannot be given, except with two witnesses; yet this court often considers it given, without witnesses ;" and for the purpose of a residuary bequest, Lord Thurlow has said, the executor takes it as executor, but takes it still under the will; yet it is expressly against the statutes requiring expressly two witnesses. He reasons it thus: that the will was a direction to the executor how to apply it, though it was not (k) Bank of England v. Moffatt, 3 Bro. C. C. 260; Bank of England v. Parsons, 5 Ves. 665; Bank of England v. Lunn, 15 Ves. 569; Franklin v. Bank of England, 1 Russ. Chanc. Cas. 575; 9 B. & C. 156. See, also, Churchill v. Bank of England, 11 M. & W. 323. In that case A. being possessed of 12,058l. 6s. 8d. new threeand-a-half per cent. stock, bequeathed to E. C. a certain interest in 5,000l. parcel thereof. A judgment having been obtained against E. C., the judgment creditor obtained a judge's order under 1 & 2 Vict. c. 110, §§ 14 and 15, charging this latter sum with the judgment debt, which upon cause shown was made absolute as to so much of the dividends as were pay These or able to E. C. for her own use. Servants. tices. devised by that will. "And certainly," observed Lord Gifford, in Franklin v. Bank of England, (n) "it is now, I apprehend, too late to doubt, that this court would make a bequest of stock effectual, though the will bequeathing it were not attested by two witnesses." By the death of a master, his servant is discharged; and therefore the executors or administrators of the former can bring no action to enforce the contract of service after his death. (0) Nor has the executor or administrator, generally Appren- speaking, any interest in an apprentice bound to the deceased. The case of Baxter v. Burfield (p) was debt upon bond for performance of indentures of apprenticeship; plea, condition performed; breach assigned, that the defendant being put apprentice to the plaintiff's husband, who is dead, he refused to serve his executrix. The plaintiff was alleged to carry on the same business of a mariner, by herself and servants. Demurrer and joinder. This having been twice argued, Lee C. J. delivered the opinion of the court, that the executrix could not maintain this action; for, "First, it appears by the words of the covenant, that it was only to serve with the master, and no mention of executors or administrators. Secondly, from the nature of the covenant; for covenant between master and apprentice implies that he shall only serve the master, for he is the only person he is bound to, and so it is determined in the case of Coventry v. Woodhull. (9) And though it is said that a master has an interest in his apprentice, yet it is not such a one as a person has in lands and chattels, which is transferable, but is an interest, coupled with a personal trust, annexed to the person of the master, which cannot be assigned, and is gone, by his death, like the case of a guardian. (r) Thirdly, another reason why the apprentice is not bound to serve the executor is, because the covenant to instruct is personal, and dies with the master, and cannot extend to the executors, who may not be capable of instructing. (8) The interest the master has in his apprentice is a right to his service only, as appears by the case of Hall v. Walker: (t) Apprentices * how far (n) 1 Russ. 589. (0) Wentw. Off. Ex. 141, 14th ed. But see Jackson v. Bridge, 12 Mod. 650. (s) See Wadsworth v. Guy, 1 Keb. 820; S. C. 1 Sid. 216. (t) By this is probably meant the case (p) 1 Bott. P. L. pl. 696, 6th ed.; S. C. of Walker v. Hull, 1 Lev. 177, which is 2 Stra. 1266. (9) Hob. 134. (r) See Bedell v. Constable, Vaugh. 183. stated in the report of Baxter v. Burfield, in Strange, to have been denied by the court. assignable, is a single case, and certainly is not law; as appears by 1 Salk. 68. (u) And there was afterwards another case in this court of Herns v. Drake: (v) Debt on bond to stand to an award that an apprentice should be assigned; and the award was held bad, for an indenture of an apprenticeship is not assignable by law or equity, unless it be by custom, and then by the master during his life; and even then not without the consent of the apprentice. If, therefore, a master cannot assign during his life because his indenture is fiduciary, it is absurd to say he shall do it by his death. There is a great difference between a covenant to maintain and a covenant to instruct; for the first is a lien upon the executor, though not named, in right of the testator's assets being come to his hands; but the other is a fiduciary trust annexed to the person of the master. In Wentworth's Office of an Executor, it is said that apprenticeship is gone by the death of the master, and that he is not bound to serve the heir or executor. We, therefore, are of opinion, upon the whole, that the covenant to serve is confined to Baxter only, as there is no mention of his executors or administrators; and that the interest in the apprentice is a mere personal trust, not assignable in the life of the master, either in law or in equity, except by custom and with the consent of the apprentice; and if not assignable in his life, is not transferable to his executors; and, therefore, the plaintiff cannot maintain her action." So in Rex v. Peck, (x) Eyre J. said, “ An apprentice is a personal trust between the master and servant, and determines by the death of either of them; and by the death of either of them the end and design of the apprenticeship cannot be attained, and it may be the executor is of another trade.” (y) 66 But in the late case of Cooper v. Simmons, (2) where, by indenture an infant, with the consent of his father, bound himself. apprentice to a tradesman, his executors and administrators, such executors or administrators carrying on the same trade or business, (u) Castor v. Aicles. (v) H. T. 8 Ann. Not reported. (x) 1 Salk. 66. (y) See, also, Rex v. Eukring, Burr. Sess. Cas. 320; Rex v. Chaplin, Comberb. 324. In Rex v. Channel, 3 Keb. 519, it was held that the assignment of an apprentice by executors is not good, though the apprentice subscribes the assignment. But if the executor, at the pauper's re quest, agrees that he shall go to live with |