any purpose:(c) leases bequeathed, and, by the assent of the executor, vested in the legatee:(d) shares in a newspaper, and of the profits of printing it subsequent to the death of the owner of the shares, (e) a debt which an executor owes to his testator.(f) On the last kind [ *150 ] of *assets it may be mentioned, that if a bond or simple contract debt is owing by A. to B., who appoints A. his executor, at law the debt is by this means extinct, in the sense, that the action is gone; but at law the debt is still assets; (g) and the debt is not extinct in equity,(h) where it is part of the testator's personal estate,(i) and is assets to pay debts,(j) and legacies,(k) and may itself be by the testator bequeathed, (1) and will pass in a bequest of the residue. (m) Also, where the residue was undisposed of, the executor has been held to be a trustee of the debt for the testator's next of kin.(n) And, farther, the testator's heir at law is entitled to have mortgaged lands exonerated out of a debt owing by the executor.(o)

[ *151 ]

*CHAPTER IX.

OF PERSONAL AND REAL ASSETS.

Or assets there are assets per descent, and assets enter maines of an executor. (a) Assets enter maines, or in the hands, of an executor, appear to be called also personal assets; (b) and to be applicable to pay simple contract debts, and also debts of a higher degree, as by bond or covenant, which binds the testator's heir at law, and by statute, judgment, or recognizance. (c) Assets per descent appear to be called also

(c) Lord Townshend v. Windham, 2 Ves. 1.

(d) Chamberlain v. Chamberlain, 1 Ch. Cas. 256, cited 3 East, 125, 127.

(e) Gibblett v. Read, 9 Mod. 459. See also Cooke v. Colcraft, 2 W. Bl. 856.

(f) Askwith v. Chamberlain, 1 Ch. Rep. 138, Toth. tit. Debt, p. 53; Nichols v. Chamberlain, 3 Ch. Rep. 89; Brown v. Selwin, Cas. T. Talb. 240, 241; Simmons v. Gutteridge, 13 Ves. 262.

(g) Woodward v. Lord Darcy, Plowd. 186; Holliday v. Boas, 1 Rol. Abr. 920; Wankford v. Wankford, 1 Salk. 306, Cas. T. Holt, 311; Cheetham v. Ward, 1 Bos. & P. 630; Freakley v. Fox, 9 B. & C. 130, 4 Mann. & Ryl. 18.-Bro. Abr. tit. Dette, 65, Executors, 114, 118; Mo. 507; 1 Brownl. & G. 62. See also Fryer v. Gildring, Mo. 855, and Caweth v. Philips, 1 Ld. Raym.

605.

(h) Field v. Clerk, 1 Ch. Rep. 242; Anon. 2 Freem. 52, Ca. 58. See Matthew v. FitzSimon, 4 Bro. P. C. ed. Toml. 11.

(i) Askwith v. Chamberlaine, Toth. tit. Debt, p. 53; Errington v. Evans, 2 Dick. 456.

(j) Brown v. Selwin, Cas. T. Talb. 240, 241; Freakley v. Fox, 9 B. & C. 134.

(k) Nichols v. Chamberlain, 3 Ch. Rep. 89, Nels. 44; Brown v. Selwin, Cas. T. Talb. 242.

(1) Cas. T. Talb. 242.

(m) Phillips v. Phillips, 1 Ch. Cas. 292, 2 Freem. 11; Brown v. Selwin, Cas. T. Talb. 240; both cited 1 West Cas. T. Hardw.

163.

(n) Carey v. Goodinge, or Goodwyn, 3 Bro. C. C. 110; Berry v. Usher, 11 Ves. 87, 90.

(0) Fox v. Fox, 1 West Cas. T. Hardw. 162, 2 Eq. Cas. Abr. 502, 1 Atk. 463. (a) Termes de la Ley, v. Assets; 2 BL Com. 244, 510.

(b) 2 Bl. Com. 340; 2 Ves. jun. 70. (c) 2 Bl. Com. 511.

Real assets; (d) and at the common law, and except under the doctrine of marshalling assets, and the case of Crown debts, not to be applicable to pay simple contract debts, but only debts of a higher degree, as by bond or covenant, which binds the testator's heir at law, and by statute, judgment, or recognizance.(e)

These different kinds of assets may form the subjects of,

THE following kinds of property are personal assets, (ƒ)—an estate pur auter vie in freehold (g) land, and limited to the testator merely, or to him, his executors and administrators: (h) a rent-charge pur auter vie, and limited to the grantee merely, *without naming his heirs, [ *152 ] executors, or administrators:(i) an estate pur auter vie by a lease limited to A. and his heirs, and in a settlement made by A. converted into personal estate, and afterwards devised by him:(j) the right of the next presentation to a church, which is full, and which right has been granted to a person, who dies possessed of it:(k) timber growing on the estate of a lunatic, and cut under an order of the Court of Chancery, founded on the master's report, that it would be for the benefit of the lunatic, and sold, the produce of the sale being paid into the Bank on account of the lunatic: (1) damages recovered by an executor in an action of trespass: (m) all personal property, which devolves to executors, and is assets. (n)

(d) 2 Bl. Com. 340; 2 Ves. jun. 70. (e) See the Statutes, 47 G. III. c. 74, and 1 W. IV. c. 47; and Butl. Co. Litt. 191 a, D., vi. 9.

See also Chapter XI., on Property held to be personal estate of a person deceased,

(5) Neither sect. 12 of Stat. 29 C. II. c. 3, nor sect. 9 of Stat. 14 G. II. c. 20, extends to Copyholds; Zouch v. Forse, 7 East,

186.

(h) Stat. 29 C. II. c. 3, s. 12; 14 G. II. c. 20, s. 9; Duke of Devonshire v. Atkins, 2 P. W. 381, Sel. Ca. Ch. 71; Oldham v. Pickering, 2 Salk. 464, 1 Ld. Raym. 96; Ripley v. Waterworth, 7 Ves. 425,441, 447.

SECTION II.

OF REAL ASSETS.

THE following kinds of property, descended from a person seised in fee, are Real assets,-freehold land:(0) ancient demesne land:(p) gavelkind land:(9) Borough English land:(r) land descended from an ancestor, between whom and the heir there is an intermediate descent:(s) lands descended on the part of the father and of the mother:(t) a trust estate in fee-simple:(u) *tithes in the hands of laymen: (v) advow[ *153 ] son in fee appendant to a manor:(w) advowson in fee in gross; (x) which, whether the descent is of a trust estate,(y) or the legal estate, (2) a Court of Equity will decree to be sold, for the payment of judgment and specialty debts.(a)

An estate pur auter vie, limited to the ancestor and his heirs, is likewise real assets. (b)

A reversion in fee descended is, when assets, real assets, and offers several distinctions.

The Courts of Law and of Equity hold to be assets, a reversion in

(0) Anon. 2 Dyer, 124 a., Ca. 38; Emerson v. Inchbird, 1 Ld. Raym. 728; Wilson v. Armorer, 1 Lev. 287, 3 Salk. 157, 1 Rol. Abr. 269, A. pl. 3. Of lands in Ireland or Scotland, see Evans and Ascough's case, Latch, 234, cited arg. 1 Vern. 419, and Bligh v. Earl of Darnley, 2 P. W. 622.

(p) Fitzh. Abr. tit. Assets par disc. 1; Bro. Abr. tit. Assets per disc. 11; 1 Rol. Abr. 269, A., pl. 1; 3 Vin. Abr. 141.

(q) Co. Litt. 376 b.; Hob. 25; Cro. Jac. 218; W. Jo. 88; Hawtrie v. Auger, or Anger, 2 Dyer, 239 a., Mo. 74.

(r) Jo. 88; 14 Vin. Abr. 245.

(s) Anon. 3 Dyer, 368 a., Ca. 46; Dennye's case, Noy, 56, 14 Vin. Abr. 245; Bowyer v. Rivitt, W. Jo. 88, 14 Vin. Abr. 245; Jenks' case, Cro. Car. 151; Holley v. Weeden, 2 Ch. Cas. 175, 1 Vern. 400.

(t) Co. Litt. 376 b.; 2 Co. 25 b.; 3 Co. 14 a.; Hob. 25; W. Jo. 88; 14 Vin. Abr. 245.

(u) Stat. 29 C. II. c. 3, s. 10; 2 Freem. 115; King v. Ballett, 2 Vern. 248. See Creed v. Colville, 1 Vern. 172, Lady Grey v. Colvile, 2 Ch. Rep. 143, and Goffe v. Whalley, 1 Vern. 282.

(v) Co. Litt. 159 a. (w) 3 Atk. 465.

(x) At law, this advowson seems to be assets to make a lineal warranty a bar in formedon; Bro. Abr. tit. Assets per disc. 4, 21; Co. Litt. 374 b., cited 3 Atk. 461, 464; but, at law, it is perhaps not assets to pay debts. See Doct. & St. Dial. 2, ch. 26, ed. 1709, p. 229; Cro. Eliz. 359; Savile, 119; 2 Atk. 206; 3 Atk. 461, 464; Jacob, 221; 7 B.

and C. 150. It is clear that an advowson
may be extended, in the sense, be valued;
Fleta, lib. ii., c. 71, s. 10, p. 158, ed. 1685;
Britton, 185, 186, ed. 1640; Cro. Eliz. 359,
360; Co. Litt. 374 b., where the passages in
Fleta and Britton are cited by Sir E. Coke,
as authorities, that an advowson is "valua-
ble," and to support his opinion that an ad-
vowson is assets to make a lineal warranty a
bar in formedon. But neither Fleta nor Brit-
ton says that an advowson is assets; and Sir
E. Coke does not say that it is assets to pay
debts. In Anon. Savile, 119, it is said,
"Each thing which the law gives to the exe-
cutors shall be said to be valuable, and, con-
sequently, shall be assets. By recovery in
Quare impedit, they shall recover damages,
which shall be assets, And as an advowson
shall be assets in the heir, so a presentation
shall be in the executors. 99
On the right of
an executor, or heir, or other party, in certain
cases to present to a church, see Bro. Abr.
tit. Chattels, 6, 20; 11 Vin. Abr. 145, pl.
16; Shep. Touchst. 432; Holt v. Bishop of
Winchester, 3 Lev. 46, 3 Salk. 280, and Ren-
nell v. Bishop of Lincoln, 3 Bingh. 223, 7
B. & C. 113, 9 Dowl. & Ryl. 810.

(y) Robinson v. Tonge, 3 Vin. Abr. 145, 2 Eq. Cas. Abr. 509, 1 Bro. P. C. ed. Toml. 114, 3 P. W. 398, 401, cited 2 Atk. 206, and 3 Atk. 464.

(z) Westfaling v. Westfaling, 3 Atk. 460, 461, 464, cited 7 Ves. 447.

(a) Jacob Rep. 221.

(b) Stat. 29 C. II. c. 3, s. 12; Marwood v. Turner, 3 P. W. 163, 166; Westfaling v. Westfaling, 3 Atk, 460.

fee expectant on a term of years; (c) and also a reversion *in fee expectant on an estate for life. (d) And, in the last in- [ *154 ] stance, a Court of Equity will, during the estate for life, decree the reversion, descended to the heir at law, to be sold, for the payment of the ancestor's specialty debts.(e)

At law, if a person seised of a reversion in fee, expectant on an estatetail, enters into a bond wherein he binds his heirs, this reversion descended from the obligor to his heir is, before it is fallen into possession, so far not assets, that the heir may plead riens per descent. (f) But, after it is fallen into possession, it may be assets. (g) And if a reversion in fee, expectant on an estate for life and contingent uses in tail, descends to the heir of the donor, in equity it is, before it is fallen into possession, the donor's assets, which the Court will decree to be sold for the payment of his specialty debts. And it is probable also the same decree may be obtained, in the stronger case of a reversion in fee expectant on an estate-tail, or entail which is vested. (h)

On a reversion being assets at law, Sir T. Plumer has made the following observations:-"There are three cases of reversions. If it be a reversion dependant upon a term of years, the law does not consider the term as any thing; and judgment is given against the heir, if he plead riens per descent. But if the creditor takes out an elegit, he is stopped by the term, which is a good defence for the lessee in ejectment, and so there is a cesset executio during the term. If it be a reversion after an estate for life, the heir must plead specially, stating that he has no assets, except this, and setting forth what it is: the creditor [ *155 ] may then take judgment quando acciderit. In the case of a reversion after an estate-tail, the authorities say that the heir may plead generally riens per descent; distinguishing this from the plea in the case of a reversion after an estate for life. The plaintiff may then reply that there is this reversion descended to the defendant, and he may then have a judgment quando acciderit, the same as in the case of a reversion after an estate for life.”(i)

The law of inheritance offers a distinction between a fee-simple in possession, and a fee-simple in reversion expectant on an estate-tail. And with reference to the descent of the former fee, or fee in possession, there is an important difference between a seisin in law and actual seisin. If A. is seised in fee of land, of which no other person is seised or

(c) Smith v. Angell, 2 Ld. Raym. 783, 7 Mod. 40, 1 Salk, 354; Villers v. Handley, 2 Wils. 49; Tyndale v. Warre, Jacob, 217, 218; Bushby v. Dixon, 3 B. & C. 298, 5 Dowl. & Ryl. 126. See also Osbaston, or Osberston, v. Stanhope, 2 Mod. 50, 3 Salk. 180, 1 Freem. 160.

(d) Rook v. Clealand, 1 Ld. Raym. 53, 1 Lutw. 503, 507; Smith v. Angell, 2 Ld. Raym. 784, 785, 786, 7 Mod. 42.-Jacob Rep. 216, 218. Rent reserved on a lease for life, and as incident to the reversion descended to the heir of the lessor, seems to be assets on voucher of the heir. Bro. Abr. tit. Assets per disc. 17, 23.

222.

(e) Tyndale v. Warre, Jacob, 212, 221, See Fortrey v. Fortrey, 2 Vern. 134. VOL. VIII.-L

(f) Terling v. Trafford, cited 6 Co. 42 a., 58 b., and Jacob Rep. 216, 1 Rol. Abr. 269, A. pl. 2; Kellow v. Rowden, 3 Mod. 257; Round v. Kello, S. C., 1 Freem. 498; Kinaston v. Clark, 2 Atk. 206; Smith v. Parker, 2 W. Bl. 1232; Tyndale v. Warre, Jacob, 217.

(g) Kellow v. Rowden, 3 Mod. 253, 1 Freem. 498; Godolphin v. Abingdon, 2 Atk. 57; Kinaston v. Clark, ib. 204, and stated from MS., 2 Cruise Dig. 2d ed. 447; Countess of Warwick v. Edwards, 1 Dick. 51; Tyndale v. Warre, Jacob, 218. See also Marchioness of Tweedale v. Earl of Coventry, 1 Bro. C, C. 240.

(h) Tyndale v. Warre, Jacob, 212.
(i) Jacob Rep. 217, 218.

possessed; or if A. is seised in fee of land, of which no other person is seised, and of which another person is in possession for a term of years, for an uncertain chattel estate, or at will; A. is seised in fee-simple in possession. If the land, of which no other person is seised or possessed, descends from A. to B., the heir at law, then, immediately on the death of A., B. is seised in law only; and, after B. has entered on the land, he is actually seised of it. If the land, of which no other person is seised, and of which another person is in possession for a term of years, or for an uncertain chattel estate, descends from A. to B., the heir at law, then, immediately on the death of A., B. is actually seised of the land.(j) This difference between the two seisins is of much importance; because, if the heir dies seised in law only, the ancestor, from whom the descent came to him, continues to be the stock of descent; but if the heir dies actually seised, then he himself is the stock of the next descent, agreeable to the maxims, seisina facit stipitem, and possessio fratris de feodo simplici facit sororem esse hæredem.(k) In each of the mentioned cases, where the heir dies actually seised, he dies actually seised in fee-simple in possession; and because he is so seised, he himself is the *stock of descent. And in a case where a reversion in fee, [ *156 ] expectant on the estate of a tenant from year to year, descended to A., who, without receipt of rent, died seised, a Court of Law held that, by reason of the possession of the tenant from year to year, A. died actually seised, and that the land was assets to satisfy a bond debt of A.() When the fee-simple, which descends to the heir, is not a fee. in possession, but a fee in reversion expectant on an estate-tail, then if he, who is seised in tail, is either another person or the heir himself, such heir is not, during the continuance of the entail, actually seised in feesimple in possession;(m) and it follows that, when the reversion falls into possession, he himself cannot, on the ground that while the entail continued he was actually seised in fee-simple in possession, be the stock of descent. But he may be the stock of descent for other reasons. For if he is seised of the freehold, the law allows the heir in fee in reversion expectant on the entail to make, by certain acts done by him, an alteration or change in the freehold and the reversion, and by this means to make himself the stock of descent. (n) But if the heir has not so changed the freehold and reversion, or at least the reversion, he will not be the stock of descent. (0) That stock may be the donor of the entail. (p) And a consequence is, that if, when the reversion falls into possession, and is then claimed by descent, the heir, who took by descent the reversion, is not the stock, from whom the present heir must make title to the land, such land will not be assets of that intervening heir of the re

(5) Litt. S. 8; Co. Litt. 15 a, 29 a.; Bushby v. Dixon, 3 B. & C. 298.

(k) Litt. S. 8; Co. Litt. 14 b., 15 a., 15 b., 29 a.; 2 Bl. Com. 209, 227; Bro. Abr. tit. Discent, 30; Goodtitle v. Newman, 3 Wils. 516; Doe v. Keen, 7 Durn. & E. 386. (1) Bushby v. Dixon, 3 B. & C. 298, 5 Dowl. & Ryl. 126.

(m) Co. Litt. 14 b., 29 a.

(n) Stringer v. New, 9 Mod. 363.

(0) Bro. Abr. tit. Discent, 30; Co. Litt. 14 b.; 1 Rol. Abr; 628, pl. 6, 7, 8, 9; 3 Mod. 257; Cunningham v. Moody, 1 Ves. 174; Doe v. Hutton, 3 Bos. & P. 643.

(p) Kellow v. Rowden, 3 Mod. 253; Giffard v. Barber, 4 Vin. Abr. 452, 2 Eq. Cas. Abr. 706; Jenkins v. Prichard, 2 Wils. 45, by mistake "said to be adjudged for the defendants, 3 Bos. & P. 658. See a correct report of the same case in Watk. on Desc. 113, n., 3d ed., 144, n.