264. Mr. Cox, in his valuable notes on Peere Williams, 3 P. Wms. has observed, that there seems to have been no sound reason for this distinction; and it appears to be now Tit. 3. c. 1. § 55. settled, that a freehold estate may become vested in executors, as special occupants. 8. In consequence of the statute of frauds, 29 Cha.II. Idem, § 49. c. 3. § 12. an estate pour auter vie in a rent is now devisable; if not devised, it is assets by the statute 14 Geo. II. c. 20. in the hands of the heir, if he takes it as special occupant. Where there is no special occupant, it will vest in the executors or administrators of those who died possessed of it, and shall be assets in their hands. 264. n. D. 9. It is also said by Mr. Cox to have been laid 3P. Wms. down by Lord Harcourt, that if, since the statute of frauds, a rent be granted to A. for the life of B., and A. die, living B., A.'s executors or administrators shall have it during the life of B. For the statute was not only made to prevent the inconvenience of scrambling for estates, and getting the first possession, after the death of the grantee; but likewise for -preserving and continuing the estate during the life of the cestui que vie. That though by his dying without having made any such disposition, in nicety of law, the estate would have determined; yet by the -statute, that interest which passed from the grantor ought to be preserved, and should go to the executors or administrators of the grantee, during the life of the 7 Ves. 448. cestui que vie; and the statute in this case did not enlarge, but only preserve the estate of the grantee. 10. A person may be tenant by the curtesy of a Subject to rent service, where he is entitled to the reversion; as Tit. 5. C. l. Curtesy. also of a rent charge: and a seisin in law will be suf- § 11. ficient for that purpose; because in many cases it 1 Inst. 29 a. may be impossible to acquire any other seisin. Dethick v. 1 Sid. 110. 1 Inst. 30 a. vide Tit. 5. c. 2. § 9. And to 1 Inst. 32 a. 11. A rent charge was granted to a woman and her heirs, payable at two feasts in the year, the first pay ment to be made at such of the said feasts as should happen after the death of J. S. The woman married, had issue, and died. The question was, whether the husband should be tenant by the curtesy of this rent. No judgement appears to have been given: but Glynn, C. Just. thought the husband was entitled to curtesy; for though the rent was to commence in futuro, yet it was granted over presently, which proved it to be in esse; so that the wife might be said habere hæreditatem; and the seisin was not material, it being the case of a rent. 12. It is said by Lord Coke, that if a woman make a gift in tail, reserving a rent to her and her heirs, and the donor taketh husband, and hath issue, and the donee dieth without issue; the wife dieth; the husband shall not be tenant by the curtesy of the rent; for that the rent newly reserved was determined by the act of God, and no state thereof remained. But if a man be seised in fee of a rent, and maketh a gift in tail general to a woman; she taketh husband, and hath issue; the issue dieth; the wife dieth without issue; he shall be tenant by the curtesy of the rent, because it remaineth. 13. A rent service is subject to dower; so that if a husband makes a lease for years, reserving rent, marries, and dies; his wife shall be endowed of the third part of the reversion, together with the third part of the rent. So if a man makes a gift in tail, reserving rent to him and his heirs, and after marries and dies, his wife shall be endowed of this rent, because it is a rent in fee, and by possibility may continue for ever. Id. 144 b. 14. A rent charge in fee or in tail is also subject 1 Inst. 32 a. to dower; but an annuity, which is only a personal inheritance, is not. If a rent charge be granted to a man and his heirs, who dies, and his widow brings a writ of dower against the heir, and he answers that he claims the same as an annuity, and not as a rent charge; yet the widow shall recover dower out of it; for the heir cannot determine his election by claim, but by suing a writ of annuity. 3 P. Wms. 229. 15. Where a rent de novo is granted to a man and Chaplin v. the heirs of his body, and the grantee dies without Chaplin, issue, his widow shall not be endowed of it for the rent being determined by the death of the husband without issue, the widow cannot be endowed of that which is not in being. Though it is otherwise where Tit. 6. c. 3. a tenant in tail of lands marries, and dies without $5. issue, whereby the estate tail is determined, for in that case it has been shown that the wife shall be endowed. 16. It is however said by Lord Talbot, in the above case, that if a rent in esse be granted to A. in tail, remainder to B. in fee, and A. marries and dies without issue, his wife shall be endowed: or if a rent de novo be granted to A. in tail, remainder to B. in fee, and A. marries and dies without issue, his wife shall be endowed. For the estate tail in the rent shall be allowed to continue, as against the remainder man. 17. A woman will not however be entitled to dower Chaplin v. Chaplin, of a rent charge, unless her husband had the legal fra estate in it. 18. A rent charge may be granted in remainder May be after a limitation of it to a person for life; and if a granted in rent charge were granted to A. for the life of B., re Remainder. Salter v. But- mainder over; though A. should die in the lifetime ler, Yelv. 9. of B., so that the particular estate determined in interest, as to the perception of the profits; yet inasmuch as the terretenant during the time held the land discharged, it was sufficient to support the remainder. Cont. Rem. 452. ante, § 8. Wicks v. Or to commence in futuro. Gilb. 60. 19. Mr. Fearne doubted whether this holding of the land discharged would have supported a contingent remainder; but has said, that at this day there could be no room for a question of this nature; for since the statute 29 Cha. II. and 14 Geo. II. c. 20. the rent charge is holden to continue in the personal representatives of the grantee, dying in the lifetime of the cestui que vie. 20. A grant of a rent charge to A. and the heirs of his body, remainder to B. and his heirs, has been held to be good. For though it was objected that there could be no remainder of that whereof there was no reversion; yet it was held by Lord Holt that there may be a remainder of a rent de novo; for the intent of the party gives it, first a being for the whole, and then the lesser estates are carved out of it. 21. A rent charge de novo may be granted so as to commence in futuro; for this is not like the case of lands, where the livery must carry the freehold immediately; and where the abeyance, for want of distinguishing in whom the freehold is, may be of prejudice to the rights of others. But the grant of a rent de novo is not attended with the like inconvenience; for no man can have a precedent right to a thing which is created by the grant itself. 22. A rent in esse, or already created, cannot however be granted, to commence in futuro; because to such a rent there may be a precedent title; therefore the grant is not good. For such freeholds being thus split and severed, do hide the person in whom the right is; by which the party that has right will not be able to discern against whom to bring his præcipe for recovering it. Dower, 143. 23. A rent de novo may be limited so as to cease or to cease for a time only, and afterwards to revive. Thus where for a Time only. a rent de novo was granted to a man and his heirs, with a proviso, that if the grantee died, his heir within Fitz. Ab. age, then the rent should cease during his minority. Jenk. Cent. The grantee died, leaving his heir within age; the 1 Ca. 6. widow of the grantee brought a writ of dower against the terretenant; it was held in parliament that the demandant should have execution against the heir, when he came of age. 24. Rents are expressly mentioned in the statute Are within 27 Hen. VIII. c.10.: they may therefore be conveyed of Uses. the Statute to uses, and will be executed by the statute; which Tit. 11. c. 3. not only transfers the rent, but also all remedies and rights given for the recovery thereof. But that statute does not transfer collateral rights. Herle, 2 Mod. 138. 25. T. C. granted a rent charge of 2001. a year to Cook v. trustees, in trust for Mary Cook, to hold to them, their heirs, executors, administrators, and assigns, in trust for the said Mary for life; with a clause of distress, and a covenant to pay the rent charge to the trustees for the use of the wife. The Court was of opinion that this rent charge was executed by the statute of uses, by the express words thereof, which execute such rents granted for life, upon trust; and transfers all rights and remedies incident thereto, together with the possession, to the cestui que use; so that though the power of distraining was limited |