If a man enters into a covenant with the testator to discharge the testator's land from incumbrances, the executor is the proper party to maintain an action to recover damages for whatever breaches are committed in the lifetime of the testator, such breaches constituting separate and distinct causes of action, and operating as a direct injury to the personal estate. (u) So, with regard to the breaches of a covenant to pay rent, although the covenant when annexed to an estate of inheritance descends with the land to the heir at law, yet all the arrearages that have accrued up to the death of the ancestor, are only to be sued for by the personal representative, In these cases each breach is entire, giving a separate and distinct right of action, and although the covenant is transferred with the estate, yet it is not so with the breaches and consequent right of action that have previously accrued. (x)

Covenants annexed to life estates and terms of years.-If an estate is holden during the life of another, and the grantee or assignee of such estate dies in the lifetime of cestui que vie, the estate will pass to the heir at law, or the personal representatives of the grantee pur autre vie, according as he or they may or may not be named in the deed or instrument of conveyance. If the estate pur autre vie is limited to the grantee or lessee and his heirs, the heir will take as special occupant on the death of the grantee living cestui que vie, because he is included by name in the grant. (y) If on the other hand the estate be limited to the grantee, and his executors, the personal representative will take, for, though it be a freehold, which by the common law would not go to executors, yet they may be designated by name, so as to take as special occupants. (2) And now, if the estate be granted or assigned to the party generally, without words of limitation, the personal representative will take the estate by force of the statute, (a) and be entitled to the benefit of the performance of all covenants annexed thereto. If the owner of an estate pur autre vie which has been granted to him, his heirs and assigns, bequeaths the estate to A., and his assigns, and A. dies intestate in the lifetime of cestui que vie, the premises will pass to A.'s personal representative under the statute, and not to his heir at law. (b)

All real contracts or covenants running with the land, annexed to reversions for terms of years, leases and chattel interests in land, pass of

(u) Smith v. Simonds, Comb. 64.

(x) Midgley v. Lovelace, Carth. 289.

(y) Bac. Abr. Estates for life and occupancy, Robinson, 8 B. & C. 296; 2 M.

B. 3. Doe v.

& R. 249, s. c.

(2) Bac. Abr. Estates for life and occupancy,

B. 3.

(a) 29 Car. 2, c. 3, s. 12; 1 Vict. c. 26, ss. 28, 6.

(b) Doe v. Lewis, 9 M. & W. 662. 1 Vict. c. 26, s. 6, post. 356.

course together with the estates to which they are annexed to the personal representatives of the deceased covenantee. (c) No mere words of limitation can vary the course of succession of a chattel interest. If a lease for years be made to a man and his heirs, or a term of years be limited to him and the heirs of his body, or the heirs male of his body, it will go to his executors. (d) So, if a lease for years be granted to a bishop, parson, or other sole corporation, and his successors, it passes, on the death of the lessee, to his personal representatives, and not to his successors; succession in a body politic being as an inheritance in the case of a body private. (e) No estate of freehold can be created out of a term for years. If, therefore, a lessee for years makes a lease for life, it is a chattel interest. (f) If a person holds lands as tenant by statute merchant, statute staple, or elegit, he also has a chattel interest only, which passes to his personal representative. (g) Whatever covenants, therefore, are annexed to such estates and interests in the land pass to the personal representative as the assignee in law of the covenantee, and he alone can maintain an action upon them.

Rents and rent charges. Rent annexed to a reversion, follows the reversion to which it is incident, and goes either to the heir at law or to the executor, according as the reversion may be an estate of inheritance or a chattel interest. All rents reserved by lessees on under-leases made by them, pass with the reversion of the original term to the personal representative, although the rent may be reserved to the lessee and his heirs during the term, without mentioning the executors; (h) and if a man, seized of one acre in land in fee, and possessed of another acre for a term of years, makes a lease of both, reserving rent, and dies, the rent shall be apportioned with the reversion, and the heir at law and the executor, shall each have his proportion of the rent. () And now, when the entire reversion passes to the heir, the rent incident to such reversion is apportionable between the heir and the personal representative, so that the latter shall have the proportion that was earned in the lifetime of his testator. (k)

When, however, a rent, payable for a term of years has been severed from the reversion, it will pass to the personal representative and not to the heir at law. If a man, for example, seized of land in fee, makes a

(c) Co. Litt. 46, b., 388, a.

(d) Leonard Lovie's case, 10 Co. 87 (b). Leventhorpe v. Ashbre, 1 Roll. Abr. 611.

(e) Fulwood's case, 4 Co. 65, a.

(f) Butt's case, 7 Co. 23, a.

(g) Co. Litt. 42, a; 2 Saund. 68; 2 Inst.

396.

(h) Sacheverell v. Froggart, 2 Saund. 368371; 1 Vent. 161.

(2) Gilb. Rents, 188.

(k) 3 & 4 Wm. 4, c. 22.

lease for years reserving rent, and afterwards devises the rent to a stranger, and dies, and the stranger is seized of this rent and dies, his personal representative shall have the rent, and not his heirs. (7)

If rent is granted to a person generally, without words of limitation, the rent is a freehold rent, payable during the life of the grantor, and if the latter assigns this rent, and the assignee thereof dies in the lifetime of the cestui que vie, the rent will now pass by force of the statutes to the personal representatives of the assignee. By the common law, if rent was granted to A., during the life of B., and the grantee died, living B., the rent was determined, and the grant ceased, and became void. (m) But if the rent was granted to A., and his heirs nominatim, the heir at law of the grantee took the rent pur autre vie, as a special occupant expressly named and designated in the deed. (n) The personal representatives, however, could not by the common law take the rent as special occupants, although included in the words of the grant; and if a rent pur autre vie was granted to a man and his executors by name, and the grantee died in the lifetime of cestui que vie, the rent was determined and the grant ceased. (0) To put an end to this anomaly, and the legal niceties by which it was supported, and to preserve and continue estates for life, and facilitate their transfer from one person to another, it has been enacted that estates pur autre vie shall be devisable by will, and that if no disposition by will shall be made of any estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by special occupancy, as assets by descent; and in case there shall be no special occupant of any estate pur autre vie, whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator, either by reason of a special occupancy or by virtue of the act, it shall be assets in his hands. (p) All estates pur autre vie in rents, as well as in lands or tenements, will consequently, by force of the statute, pass to the personal representative of the grantee, when the heir is not expressly named in the grant, (q) and they may maintain an action of debt for its recovery. (1)

c. 3, s. 12. The new act, however, is not to extend to any estate pur autre vie of any person who died before the 1st of January, 1838.

(q) Bearpark v. Hutchinson, 4 M. & P. 860; 7 Bing. 179, s. c. Doe v. Lewis, 9 M. & W. 664. Rawlinson v. Duchess of Montaigu, 3 P. Wms. 264, n. Ripley v. Waterworth, 7 Ves. 437, 442.

(r) Turner v. Lee, Cro. Car. 471. Brown v. Pendlebury, Cro. Eliz. 268. Pilton v. Darby,

By the common law, when a tenant for life made a lease reserving rent, and died between two rent days, the rent growing due was lost both to the executor of the lessor, and also to the remainder-man. This defect has now been remedied by statute, and the rent is made apportionable between the personal representative of the lessor and the party entitled in remainder. (s)

If a lord of a manor assesses a fine on a copyholder, for admittance, and dies before the fine is paid, his executor may bring an action for its recovery, for it is a fruit fallen, and shall not go with the inheritance to the heir. (t)

Bonds and personal covenants and choses in action.-Every right of action ex contractu, which the testator or intestate possessed at the time of his decease, is transmitted to the executor or administrator, who is alone entitled to sue upon bonds and personal covenants and contracts under seal, made or entered into with the testator or intestate, and to recover debts of record due to him, such as judgments, statutes, or recognizances, or debts due on specialties. (u) And so completely does the executor or administrator represent the testator or intestate, in respect of his personal contracts, that no words of limitation introduced into them, can take away his exclusive right of action founded upon such representation. If one man, for example, covenants to pay money to another, his heirs or executors, the executors only are entitled to sue upon the covenant. If a bond or other personal obligation under seal, be made to a man and his heirs, the executor or administrator is the only party who can maintain an action upon the instrument. (x)

If the deceased in his life time has assigned a bond or other chose in action not assignable in law, so as to transfer the equitable interest to the assignee, the action upon the instrument must nevertheless be brought in the name of the personal representative of the deceased assignor, in whom the naked legal title continues to be vested. (y)

CONTRACTS UNDER SEAL with the personal representative. If the executor or administrator takes a bond or contract under seal in his representative character, this is an obligation strictly personal to himself upon which he can recover only in his own right. (z) But if he does sue

as executor, having a good cause of action in his own right, the words "as executor" may be rejected as surplusage, and he can recover in his individual capacity. (a)

Upon a judgment recovered by an executor or administrator in his representative capacity, he may maintain an action in his own right. (6)

Some contracts under seal are however absolutely determined and put an end to by the death of one of the contracting parties. (c)

If a bond be conditioned to pay money to such person as the testator shall by will appoint, and the testator makes no express appointment, the contract to pay the money is at an end, and the personal representative has no claim whatever thereto, as he is not the appointee contemplated by the bond. (d)

SECTION II.

SIMPLE CONTRACTS-RIGHT OF ACTION OF EXECUTORS AND ADMINISTRATORS.

Simple contracts concerning REALTY.-The executor or administrator being the only representative recognised by law in respect of the personalties of the deceased, is the only party who can maintain action upon simple or parol contracts entered into with the testator or intestate, whether they be or be not made concerning land. Thus, where the plaintiff as administrator declared in assumpsit that the intestate had retained the defendant as his attorney, to investigate and procure a good title to an estate about to be conveyed to the intestate as purchaser, and assigned for breach that the defendant did not do so, but accepted a bad and defective title by means whereof the intestate in his life time was unable to sell the estate, and also sustained divers expenses, &c. It was held on demurrer that the administrator was the proper party to maintain the

(a) Dembyn v. Browne, Moore, 887. Browne v. Dunnery, Hob. 208. Hornsey v. Dimocke, Vent. 119.

(b) Crawford v. Whittal, 1 Doug. 4, n. 1. Bonajous v. Walker, 2 T. R. 128.

(c) Barford v. Stuckey, 8 Moore, 100; 1 Bing. 225, s. c. Neal v. Hanbury, Prec. Ch.

173.

(d) Pease v. Mead, Hob. 9.