The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

XLIX. Cranmers Case. Hill. 14 Eliz. Rott. 938. In the Common Pleas.

* 1.1TThomas Cranmer, Archbishop of Canterbury, having a Rever∣sion in Fee of certain Lands upon a Lease for years, granted the Reversion to the use of the Grantor himself for his life; and after his decease, to the use of the Executors and Assignees of the Grantor for 20 years next after the death of the Grantor; and af∣ter to the use of Thomas his Son in tail, and afterwards to the use of the Grantor in Fee: The Grantor is attainted of Treason, and the Queen gave the said Term of 20 years to the Wife of the Grantor, who took to Husband Ed. White-Church, who let the Land to A. Thomas the Son entred, and leased the same Land to one Kirk, who upon an Ouster, brought Ejectione Firmae. This Case was Argued by the Iustices; Manwood, the puisne Iustice, conceived, That the Plaintiff ought to be barred, and that the Les∣see of White-Church, who claimed by the grant of the Queen the said Term of 20 years, ought to hold the Land against the Son of the Grantor; For the remainder limited to the Son, is not yet be∣gun in possession. And he insisted much in his Argument upon this point, That Vses limited upon any Conveyance, are governed and directed according to the Rules of the Common Law: As if a Feoffment in Fee be made unto the use of another for life, the re∣mainder to the use of the Lessee for life, and the Heirs of his body, &c. now the party hath an estate tail executed in possession, and that is according to the Rule of the Common Law. And he cited the Case of 40 E. 3. 20. Where Land was given by Fine to A.B. and C. and to the Heirs of the body of C. and for default of such Issue, the remainder to the right Heirs of A. C. died without Issue; B. dy∣ed, and afterwards A. died; his Heir brought a Scire facias out of the said Fine: And by Iudgment of the Court, the Scire facias did not lie, for the Fee was vested in the Father of the Deman∣dant, although that ex vi verbi, the remainder was limited not to the Father, but to his Heirs: But where Vses are limited in other

manner than according to the Rules of the Common Law, there they shall not be ruled and governed by the Rules of the Common Law: As if Lands be given to the use of one for life, and to the use of such Lessees to whom the Tenant for life shall de∣mise the same for years or life, rendring Rent, the remainder over to a stranger in tail, and afterwards the Tenant for life makes a Lease for years, or life, and dieth; such a Lease shall bind him in the remainder, although that the Lessor had not but for life, and be now dead: for the Vse limited here to the Lessees, which would be, was limited contrary to the Rules of the Common Law. For by the Common Law, such Leases made by Tenant for life, are de∣termined by his death: And in this Case, This Lease for 20 years, after the death of the Grantor, was limited according to the Rules of the Common Law, and therefore it shall take effect accordingly, as if it had passed in possession, and not in use, as if the Convey∣ance had been of the Land it self, and that Land had been granted to the Grantor for 20 years after his death, that Interest had been vested in him to sell, forfeit, or otherwise to dispose at his pleasure, and shall not accrue to the Executors as a purchase. 19 E. 2. Fitz. Covenant, 25. Land was Leased to one for life, and after his de∣cease, to his Executors and Assigns for 10 years; the Lessee as∣signed the Term; And, by Herle, it is a good Assignment; For it is in the Election of the Lessee to Devise that Interest, or to assign it in his life-time. And see 39 E. 3. 25. A Lease was made to one for life, and a year over. 17 E. 3. 29. Lessee for life, so as after his death, the Land remain to his Executors for 8 years; Lessee for life died; He who had the Freehold of the Land was impleaded, who rendred the Land, and the Executors of the Lessee for life prayed to be received; scil. (where as Executors do hold the Term;) which proves, that they had the Term as Executors to the use of the Testator, and so Assets, therefore the same was be∣fore in the Lessee for life. But by Dyer, in his Argument, That Case doth not prove it, and certain••y it is not Assets; For al∣though the Executor have the same Term by purchase, yet they have it as Executors, for that is a good name of purchase, which Harper concessit: And Manwood argued further, and he Cited 19 E. 3. Fitz. Covenant, 24. Land was let for life, and if the Les∣see died within 12 years, that his Executors should hold the same until the end of the 12 years; The Lessee for life died, and the Executors entred, and the Executors of the Lessee for life brought Actions of Covenant, which proved, that the Executors had the Term as a Chatel vested in the Testator, and not in their own Rights as Purchasors, by the name of Executors. See 22 Ass. 37. Land demised to A. ad totam vitam suam; Et ulterius conces∣si••, that if the Lessee obierit infra 20 annos proxime sequent. the said Lessee potuit legare & dare praedict. tenementa alicui personae us{que} ad terminum praedict. 20 annorum, &c. and Dyer cited the Case, 16 E. 3. Quid juris clamat, 22. Land was leased to one for

life, and if the Lessee died within the Term of 20 years, that his Executors or Assigns should have it until the end of the said 20 years, and a Quid juris clamat was brought against the Lessee for life without any mention of any other Estate. To which the De∣fendant pleaded the special matter, and demanded Iudgment upon that Fine, if he should be driven to Attorn, where he is supposed Te∣nant for life only; And it is there said, That that special matter is but a Protestation to save the Term to his Executors. And upon such a Fine, such Tenant hath been driven to Attorn: And by Dyer, If the Lessee doth not make such protestation, yet his special interest is not impaired by it; yet it is but reason that it be entred for the more manifestation of it. 32 E. 3. Quid juris clamat, 5. A Lease to W. for life, and 20 years over, he may grant the same Term or any part of it: And he cited the Case between Parker and Gravenor, 3. & 4 Mar. Dyer, 150. Where a Lease for life was made, and by the Indenture of Lease Provisum fuit, That if the Lessee died with∣in the Term of 60 years, that then his Executors and Assigns should have and enjoy the said Lands pro termino totidem annorum, which did amount to the number of 60 years, to be accompted from the date of the Indenture. And it was the Opinion of the Court, That that was not any Lease: But they all agreed, That a Lease for years in remainder might be upon a Lease for life in the same person. See 40 E. 3. A Lease was made for life, and half a year after; the Lessee died, and Waste is brought against the Executors, sup∣posing that the Testator held for years; and the Writ was holden good: And there it is said by Kirton, That the Executors could not have that Term, unless it were in the Testator; and there the Term is not limited to any person. And see 11 H. 4. 187. Annuity granted to one for life, and 20 years after. And 50 E. Ass. 1. A Lease for life, and 3 years over to his Executors. And then here in our Case, This Vse being limited in Order, according to the Rules of the Common Law, shall vest in the Grantor to give or forfeit, and then by the Attainder it was forfeited to Queen Mary: and if so, then the Plaintiff shall be barred. Harper, Iustice, to the contrary; And that the Interest in the Remainder for years limi∣ted to the Executors and Assigns of the Grantor is in abeyance, and not in the Grantor, and then it cannot be forfeited: But if this Vse had been limited to the Grantor himself, then all had been in him to give, &c. But here in our Case, the Remainder for years is limited and appointed to the Executors, &c. Also, Vses shall not be ruled in such manner as Lands; but the Law shall rule the possession obtained by use in another manner, than the possession obtained by the Order of the Common Law: As in the Case of Amy Townsend, Plow. Com. 111, 112. Where the Husband sei∣sed in the right of his Wife, made a Feoffment in Fee to the use of himself and his Wife for life, with divers remainders over; Now is not the Wife remitted, as she should be by Conveyance at Com∣mon La: as if the Husband discontinueth the Land in the right

of his Wife, and the Discontinuee giveth the Lands to the Husband and Wife, and to a third person, she is remitted to the whole, and the third person hath not any thing. Dyer, to the same intent; And here we ought to intend and consider, That it was the pur∣pose of Cranmer, to advance his Executors with this Term unto their own use and benefit, and not to leave the same in himself. And I do conceive, That the use is in abeyance until the Executors are made, or an Assignee appointed; for he may make an Assignee who shall have the Term: For Assignee may be made two ways, 1 By grant of an Estate which is in the Grantor before; 2 A person nominated and appointed by another to take any thing, &c. And it shall be also intended, That Cranmer was purposed to make other Provision to leave to his Executors Assets to perform his Will; and not that that Term should be applyed to that purpose, for then he would have shewed it in the Conveyance by words; scil. as to pay his Legacies, and perform his last Will: And the Cases put by my Brother Manwood, do not go to the Point; For I agree, Where Lands are given to one for life, the remainder for years, and doth not say to whom, it cannot be intended to any other but to the Lessee for life; or otherwise it shall be void. And also where Land is given to one for life, and for two years after to his Execu∣tors or Assigns, or Heirs, all is in the Lessee, for all is as one gift: But where it is given to one for life, and after his death, the re∣mainder to his Executors, I do not see any reason that that re∣mainder should be any Assets in the hands of the Executors; Or that if the Lessee dieth Intestate, that his Administrator should have it; and therefore the Executors shall have the same as a pur∣chase: But Cranmer might have given the same, or appointed one in the mean time to receive it, and in the mean time it shall be in abeyance. Also if Lands be Leased to B. for life, the remain∣der for years to his Heirs, the same remainder for years is in abey∣ance until the death of the Lessee, and then it shall vest in the Heir as a Purchasor, and as a Chattel, and shall go to the Executor of the Heir, &c. and the Tenant for life cannot meddle with it, for it is not in him: Also, Vses shall not be raised as Lands; i.e at the Common Law, but shall be raised by the Statute, and as Vses were raised in the Chancery before the Statute. And therefore if this Conveyance had been before the Statute, he could not have compelled the Feoffees to dispose of that Interest at his pleasure, &c. And then Cranmer the Son shall have the Land by force of the entail limited unto him; For the Estate for years is gone, because no assignment of it is made, nor any Executors who can take it, and the Estate for life is determined by the death of Cranmer; and the Feoffee to an Vse cannot have it, for there is not any Conside∣ration whereof he should have any Vse; for by the Limitation, no∣thing was left in the Feoffee: And so I conceive, that the Plaintiff shall recover. See the Case, 14 Eliz. in Dyer.

Notes

• * 1.1

  Dyer 309, 310. 2 Len. 5. 1 Len. 196. 1 And. 19. More Rep. 100. Office of Ex∣ecutors, 118. 119.