Gillis v. Brown , 5 Cow. 388 ( 1826 )

Curia, per Woodworth, J.

The husband of the demandant had not an estate, that could descend to his heirs. It was pur auter vie. By the English statute, (29 Car. 2, c. 3, sec. 12,) such an estate descends to the heir, if it comes to him as a special occupant. It was enacted to prevent the mischief, which previously existed, that where no special occupant was designated by the grant, it belonged to the person who first took possession. (4 D. & E. 229.) This act enables the proprietor to devise the estate; but when no devise is made, it is chargeable in the hands of the heir, if it comes to him by reason of a special occupancy as assets by descent, as in case of lands in fee simple; and if there be no special occupant, it shall go to the executor and be assets. Our act, (1 R. L. 365, s. 4,) declares that estates of this description shall be deviseable; and if no devise be made, they shall go to the executor or administrator, to be applied and distributed as- part of the personal estate. The consequence is, the demandant is not entitléd to dow er; and the tenant is entitled to judgment.

Judgment for the tenant.