be paid to his executor as assignee. (r) Or, if A. covenant to grant a lease to J. S. and his assigns by Christmas, and J. S. die before that time, and before the grant of the lease, it must be made to his executors as his assigns. (s) So, if a lessor covenant to build a new house for the lessee and his assigns, the executor of the lessee shall have the benefit of the covenant as assignee. (t) But where a bond was conditioned for the obligor's paying twenty pounds to such person as the obligee should by his will appoint, and he nominated J. S. his executor, but made no other appointment, it was resolved that the executor should not have the twenty pounds, for he is only an assignee in law, and takes to the use of the testator, but that in that case the condition was in favour of an actual assignee, who takes to his own use. (u)

[169] So, it has been held, that if A. be bound to pay ten pounds to the assignee of B. the obligee, B.'s executor shall not have the ten pounds: But that if A. be bound to pay ten pounds to B. or his assignee, then the executor of B. shall be entitled, because it was a right vested in the obligee himself. (v)

So, before the provisions of the statute of frauds in regard to estates pur autre vie, (w) if a lease were granted to A. and his assigns during the life of B. it could go only to A.'s assignee in deed, and not to his executors. (x) And, on his failure to appoint such assignee, it was, in case of his death, open to be appropriated by the first occupant that could enter upon it during the life of cestui que vic.

But where on a fine the use of land was limited to A. for eighty years, with a power to A. and his assigns to make leases for three lives, to commence after the expiration of the term: A. assigned over to B.; B. died, having made his

(r) 11 Vin. Abr. 157. 1 Leon. 316.

(s) 11 Vin. Abr. 158. Off. Ex.

101.

(t) 11 Vin. Abr. 158. Lat. 261.
(u) 11 Vin. Abr. 156. Pease v.

Mead, Hob. 9. Godb. 192. Harg.
Co. Litt. 210, note 1.

(v) 11 Vin. Abr. 161. Godb. 192.
(w) Vide supra, 140.

(x) 11 Vin. Abr. 158. Off. Ex.

101.

will and appointed C. his executor: C. assigned over to D.; and D. in pursuance of the power, made a lease for life. The question was, whether D. was such an assignee of A. as to have a power to make this lease, or whether it should extend only to the immediate assignees of A.; a point the more doubtful, as there had been a descent on an executor. On its being objected, that an executor should not in some [170] cases be said to be a special assignee, the court seemed inclined to the contrary; and that D. should be considered as an assignee for the purpose of making the leases in question, as well as any person that should come to the estate under the first lessee though there should be twenty mesne assignments; and on a subsequent day judgment was given accordingly. (y)

An executor may also be entitled in respect of limitation. A contingent or executory interest, whether in real or personal estate, is transmissible to the representative of the devisee when such devisee dies before the contingency happens, and, if not before disposed of, will vest in such representative when the contingency takes place. Thus where the testator, in case his wife should die without issue by him, after her decease, which was taken to mean immediately after her decease, gave eighty pounds to his brother; and after testator's death the brother died in the lifetime of the widow, and she afterwards died without leaving any issue: It was held that the possibility devolved to the executors of the brother, although he died before the contingency happened, and the legacy was decreed accordingly with interest from the widow's death. (2) So where B., in consideration of natural love and affection for her niece, and to secure to her separate use her personal estate to trustees in trust for herself during [171] her life, and after her decease, and payment of her debts and funeral expences, in trust for the sole and separate

(y) Harg. Co. Litt. 210, note 1. Howe v. Whitebank, 1 Freem. 476. 11 Vin. Abr. 158.

(2) Pinbury v. Elkin, 1 P. Wms. 563. Fearne's Conting. Rem. 444.

L

use of her niece alone, and not for her husband, or for such persons as she should appoint, and the niece died in the lifetime of B. It was decided that the contingent interest be longed to the representative of the niece. (a) And in like manner, where legacies were bequeathed to children, to be transferred to them at their respective ages of twenty-one years, or days of marriage, and that in case any of them should die under that age, or marry without consent, his or her share should go to others at their age of twenty-one years, Lord Hardwicke C., decreed that a share accruing by the forfeiture of a child's marrying without consent vested in another child who attained twenty-one, but died before such forfeiture, so as to entitle the personal representative of such deceased child to an equal share thereof with the other surviving children. (b)

If a legacy out of the personal estate is bequeathed to A., to be paid when he is of the age of twenty-one years, and he dies before that time, his executors are entitled to the legacy; immediately, if it be payable with interest; if not, when A. would have come of age. (c) But if such legacy be bequeathed to A. at his age of twenty-one merely, or if he shall attain [172] the age of twenty-one, and he die before that period, his executors have no title. (d)

Where a testator gave all his real and personal estate after payment of debts and legacies to his wife for life, and directed that at the end of twelve months after her death, 10007. should be laid out in trust for his daughter for life, and after her decease to divide the capital amongst her children, when they should attain twenty-one, and one of the children attained twenty-one, and died in the lifetime of the

(a) Peck v. Parrot, 1 Vez. 236. (b) Chauncy v. Graydon, 2 Atk. 616.

(c) 11 Vin. Abr. 160. Brown v. Farndell, Carth. 52. Com. Dig. Chan. 3 Y. 8 Chan. R. 112. Clobberie's case, 2 Ventr. 342. Lord

Pawlet's case, 366. Anon. 2 Vern. 199.

(d) Com. Dig. Chancery, 3 Y. 8. Clobberie's case, 2 Ventr. 342. Hutchins v. Foy, Com. Rep. 2d ed.

719..

testator's widow, his representatives were held entitled to a share of the 1000l. (d)

This distinction with respect to interests arising out of personal property, as far at least as they are of a legatory nature, although it be explained, and in some degree corrected by the more modern cases, is in substance established by a series of authorities; (e) but although the legacy out of the personal property be left to A. at twenty-one, yet if interest is given before the time of payment, that circumstance is held to be evidence of an intention to vest the legacy. (f) But such presumption does not appear to be formed from that circumstance in respect to any interests but those of a legatory nature, although the fund be merely personal: for it hath not been admitted in cases of portions for younger children to be raised out of such fund at twentyone, with interest in the mean time for maintenance and education. (g)

So with respect to all interests arising out of land, the [173] rules on the subject are totally different: for whether the land be the primary or auxiliary fund, whether the charge be made by deed or will, as a portion or a general legacy for a child or a stranger, with or without interest, the general rule is, that charges on land payable on a future day shall not be raised where the party dies before the day of

23.

(d) Cousins v. Schroder, 4 Sim.

(e) 2 P. Wms. 612. Mr. Cox's note 1. Lampen v. Clowbery, 2 Ch. Ca. 155. Smell v. Dee, 2 Salk. 415. 1 Eq. Ca. Ab. 295. Barlow v. Grant, 1 Vern. 255. Stapleton v. Cheales, Prec. Chan. 318. 2 Bro. P. C. 337. 2 Eq. Ca. Abr. 548. Lowther v. Condon, Barnard. 329. Steadman v. Palling, 3 Atk. 427. Goss v. Nelson, 1 Burr. 227. Barnes v. Allen, 1 Bro. Ch. Rep. 181. Monkhouse v. Holme, ib. 298. Benyon v. Maddison, 2 Bro. Ch. Rep. 75.

May v. Wood, 3 Bro. Ch. Rep. 471. (f) 2 P. Wms. 612, note 1. Collins v. Metcalfe, 1 Vern. 462. Stapleton v. Cheele, 2 Vern. 673. S. C. Prec. Ch. 318. Atkins v. Hiccocks, 1 Atk. 501. Van v. Clark,

1 Atk. 512. Neale v. Willis, Barnard. 43. Foncrean v. Foncrean, 3 Atk. 645. S. C. 1 Vez. 118. Walcot v. Hall, 2 Bro. Ch. Rep. 305.

(g) 2 P. Wms.612, note 1. Targus v. Puget, 2 Vez. 207. Hubert v. Parsons, ib. 262. Goss v. Nelson, 1 Burr. 227.

payment. () This rule however is subject to many exceptions; as, where the time of payment is postponed from the circumstances, not of the person but of the fund. As, where a term was created for daughter's portions, commencing after the death of the father and mother, on trust to raise the portions from and after the commencement of the term, and the father died leaving a daughter, the portion was decreed to be vested, but not raisable during the life of the mother. (¿)

And where a legacy was charged upon real estate, to vest immediately on the testator's death, but to be paid to the legatee on attaining twenty-one, and the interest to be ap plied in the mean time for maintenance, and the legatee died before attaining twenty-one: it was held, that the express direction that the legacy should vest on the death of the testator, prevented its sinking for the benefit of the devisee, and that the personal representative of the legatee was entitled to the legacy. (k)

In respect to those cases where portions have been given out of land, and no time of payment expressed, it seems difficult to reconcile the determinations. According to one class

(h) Pitfield's case, 2 P. Wms. 515. 612, note 1. Lampen v. Clowbery, 2 Ch. Ca. 155. Poulet v. Powlet, 1 Vern. 204, 321. Smith v. Smith, 2 Vern. 92. Yates v. Phittiplace, ib. 416. Carter v. Bletsoe, Prec. Ch. 267. Tournay v. Tournay, ib. 290. Stapleton v. Cheales, ib. 318. Jennings v. Looks, 2 P. Wms. 276. Anon. Mosel. 68. Neeve v. Kecke, 9 Mod. 106. Gordon v. Raynes, 3 P. Wms. 134. Bradley v. Powell, Ca. temp. Talb. 193. Prowse v. Abingdon, 1 Atk. 482. Hall v. Terry, ib. 502. Van v. Clark, ib. 512. Boycot v. Cotton, ib. 555. Richardson v. Greese, 3 Atk. 69. Attorney-General v. Milner, ib. 112. Oldfield v. Oldfield, 1 Bro. Ch. Rep. 106, in note, 124, in note. Ashburne v. M'Guire, 2 Bro. Ch. Rep. 108.

(i) 2 P. Wms. 612, note 1. Lowther v. Condon, 2 Atk. 127, 130, S. C. Barnard. 327. Emes v. Hancock, 2 Atk. 507. Butler v. Duncomb, 1 P. Wms. 457. Pitfield's case, 2 P. Wms. 513. Ca. temp. Talb. 117. King v. Withers, 3* P. Wms. 414. Sherman v. Collins, 3 Atk. 319. Hutchins v. Fitzwater, Com. Rep. 716. Hodgson v. Rawson, 1 Vez. 44. Dawson v. Killet, 1 Bro. Ch. Rep. 119, 124, in note. Tunstal v. Bracken, Amb. 167. Embrey v. Martin, ib. 230. Smith v. Partridge, ib. 266. Mannering v. Herbert, ib. 575. Fawsey v. Edgar, 1 Bro. Ch. Rep. in note. Thomson v. Dowe, ib. 193, in note. Poole v. Terry, 4 Sim. 294.

(k) Watkins v. Cheek, 2 Sim. and Stu. 199.