atkins case WESTFALING versus WESTFALING and other march a advowson in gross  will not pass by the word land but by the word tenement and hereditament it  will Herbert Rudhall Westfaling decease have several kind of estate of  inheritance consist of freehold and copyhold and also the advowson in gross of  Linton and likewise estate per auter vie and be possess of a considerable  personal estate some of the estate be in settlement and other subject to his  disposition and be so seize make his will and thereby devise all his leasehold  land situate at Hampton bishop to trustee and their heir on trust to permit  the defendant Philip Westfaling to receive the rend during his life and after  hisdeath the first and other son of Philip to receive the rend thereof and for  want of such issue to the defendant Herbert Westfaling and his heir and by his  will devise to the trustee all his freehold land not under settlement and  whereof he be any way seize or possess of or any way interest in law or equity  either in possession reversion or remainder which he have any power to devise  or dispose of and also all and singular his leasehold estate and land  whatsoever except only such as be herein before devise that they shall by  mortgage or otherwise of all or any part of the leasehold or freehold estate  secure to his daughter atkins er p pound and interest and subject to this to  Herbert Westfaling for life remainder to his first and other son in tail male  the testator at the time of his death be indebt in large sum of money by  specialty and otherwise the bill be bring by the testator daughter for her  legacy and by James clarke a creditor by simple contract for a account of the  personal and real estate of the testator and that the personal estate may be  apply in a course of administration and if not sufficient that the real asset  may be sell and apply in such proportion order and priority as in justice to  all the defendant it ought to be apply for payment of the testator debt Mr  brown for the plaintiff argue that by the word all his freehold land the  advowson though a incorporeal inheritance will pass and cite two case how  versus conney Leon where it be hold a reversion pass by the word land and  style similar case where by the word feesimple land a portion of tithe be hold  to pass but if it do not pass by the will he insist it be asset to pay debt  Lord Hardwicke mention the case of Robinson versus tongue p W Michaelmas term  determine by Lord chancellor atkins king and afterward affirm in the house of  lord that in equity a advowson descend upon the heir be asset for payment of  debt of the ancestor because here you may pray a sale but at law it be not  extendible Vid vin Abridg title asset p Mr Evans of the same side say that in    light b a advowson be hold to be asset Lord Hardwicke say but it be not hold  by Lord coke to be asset to pay debt but to support a warranty and the reason  be that the total estate pass Mr brown then insist that the devise of the  estate pur auter vie to Philip Westfaling be within the statute of W m for  relief of creditor and that they be asset for payment of debt and that they be  comprise under the general word estate a person have power to dispose of by  his last will and that whatever will have be asset in the hand of the heir  shall be so in the hand of the devisee here be a estate limit to the late Mr  Herbert Rudhall Westfaling for three life he have a power to devise it away if  he do not it will have be asset in the hand of his heir and therefore it shall  be so in the hand of the devisee Mr solicitor general for Philip Westfaling  whether the estate devise to he be to be consider as asset will depend upon  the construction of the statute of fraudulent devise before the statute of h c  of will and pound h c no land be devisable which give a power that every man  who have land tenement and hereditament may devise but be plain confine to  feesimple and not intend to life estate for they be capable of be seize by the  first occupant the next alteration in respect to will be by the statute of  fraud and perjury Ch c S which give a power of devise estate per auter vie as  well as estate in feesimple under the same ceremony and if there be no devise  the same shall be Chargeable in the hand of the heir if it shall come to he by  reason of a special occupancy as asset by descent and if no special occupant  it shall go to the executor or administrator of the party that have the estate  thereof by virtue of the grant and shall be asset in their hand atkins the  owner of land may have devise they so as to disappoint his heir or specialty  creditor till the statute of fraudulent devise W m c the mischief recite there  be that person may dispose of their land tenement and hereditament by will or  appointment in such manner as to the defraud their creditor the statute mean  by land tenement and hereditament the thing and not the interest the person  have in they I be aware the general word or have power to dispose of will be  insist on by the other side to take in all estate he have a power to dispose  of but plain estate for life be not in the meaning of the legislature for the  case put by the statute of fraud be a descent to the heir by reason of a  special occupancy but the power of devise such estate be not take away Lord  Hardwicke say they be make in the nature of personal asset and it be such a  power to dispose as a testator have over personal asset and all the  determination be upon this foot atkins er p Mr solicitor general insist second  that the advowson do not pass by the will especial as it be a advowson in  gross because this be a incorporeal inheritance the word of the will be land  tenement and leasehold estate and the word land will not carry the inheritance  all his freehold land seem to be in opposition to other sort of estate and  land have never be construe to take in the interest a man have in any estate  Lord Hardwicke I apprehend it have be hold that the word land will pass the  demesne of a manor and as a manor can be separate from it therefore it will  pass likewise Mr solicitor general then say suppose a man have rentcharge  rentservice and land and he devise his land this be in contradiction to his  other tenor and they will not pass by the word land Mr parrot of the same side  as to the case cite by Mr brown out of style that a portion of tithe pass by  the word land there be nothing belong to the testator in this place but these  tithe and therefore rather than the will shall be ineffectual it be hold they  pass but the rule of law be if there be estate which proper pass by the word  of the will it shall not be extend to such estate that do not proper pass by  the word atkins Mr Noel counsel for the defendant Herbert Westfaling in state  the case of Robinson versus tongue say it be a equitable estate in the  advowson that descend on the heir at law and can not be come at without the  interposition of this court but there be no case can be cite where a court of  law have determine a legal interest in a advowson to be asset Mr Wilbraham of  the same side say there be no authority that by the devise of all freehold  land a advowson will pass in hob it be hold that by a devise of tenement it  will pass but not of land only as it do not pass then under the will the  question be whether as it be a bare descent from ancestor to the heir it shall  be asset to pay debt if it shall be your lordship opinion that the case of  Robinson versus tongue be something particular as be the trust of a advowson  and that it do not extend to a legal interest in advowson then it do not  affect the case a advowson yield no sort of profit to the owner I do not know  in what manner a court of law can extend a advowson if the owner of it have no  other estate to say that this court have a power of sell a advowson unless it  determine first that it be asset be beg the question and therefore unless this  point be first settle the court have no jurisdiction as be a mere legal right  as to the estate pur auter vie be asset he cite the duke of Devonshire versus  Hilton vern and Oldham versus Pickering salk where by the declaration of Lord  chief justice holt in that case it seem as if he think the statute of fraud  and perjury have stamp they asset for payment of debt if this be a full  declaration that they be asset then they can not be devise away on the that of  April this cause stand for judgement Lord chancellor there be two question  which be question of law first whether a part of the estate of Herbert Rudhall  Westfaling call the advoson of Lenton pass by his will or if it atkins do not  whether it be to be consider as asset by descent as be a advowson in gross the  second question be whether estate pur auter vie be within the statute of  fraudulent devise and liable to pay the debt of the testator as to the first I  be extreme clear it do not pass by the will there be no authority that a  advowson will pass by the word land though it will by the word tenement and  hereditament haslewood v pope p W be then not devise this bring it to the  question whether as subsist in a legal estate and no trust it be asset and I  be clear of opinion it be and so determine in Robinson versus tongue it be  pretty extraordinary how it come ever to be doubt whether it be asset in the  case of a debt by specialty where there be judgement against the heir it be to  recover to the value of the land it be lie down by Fleta lib cap and   light  that a advowson be asset to satisfy a warranty and there be no negative word  that it be not asset to satisfy a bind debt and seem to be a distinction  without a difference to say it be not the notion of its not be asset seem to  have be take up from a say of Lord chief justice Anderson in the case of clear  versus peacock cro Elizabeth his atkins er p word be although it may be hold  and be asset in a formedon yet it be not asset in debt for it be not of a  annual value and so can be devise but three judge Walmsley Beamond and Owen  hold that it be well devisable for the body of the act be that land tenement  and hereditament may be devise and this be a hereditament if it may be extend  for the kin which go upon the same reason and foundation what colour be there  to say it shall not be so in the case of bind creditor soon after the case of  clear versus peacock there come case which strong import the contrary opinion  sir will Jones and so it stand till the case of Robinson versus tongue in the  house of lord march it have begin say the authority go no further than where  there have be a trust of a advowson but do not extend to a legal interest in a  advowson this argument be quite cut up by the root by the determination in the  house of lord atkins in the minutebook of that day it be take down that the  question propose to be ask of the judge be whether a advowson in fee be asset  it must have be defective take by the clerk for the question intend be whether  a advowson in fee in gross be asset for there can ten no doubt as to a  advowson appendant to a manor because the manor itself be asset Robinson v  tongue p W bro p c stram Kynaston v clarke atk what be appendant must be asset  likewise the judge who give their opinion be Lord chief justice eyres baron  price and baron comens and Lord Raymond be consult upon it afterward declare  himself of the same opinion I be therefore of opinion it be asset by descent  to satisfy specialty debt the second question be as to the leasehold estate  per auter vie devise to Philip Westfaling it have be insist for the plaintiff  that if the personal estate and that e real estate descend be not sufficient  to satisfy the debt that the leasehold estate be liable on the construction of  the statute of fraudulent devise which make a devise void against creditor I  be of opinion the statute do make it void there be two statute to be consider  first the statute of fraud and perjury c and for the amendment of the law in  the particular follow be it enact that from henceforth any estate pur auter  vie shall be devisable by a will in write sign by the party so devise the same  or by some other person in his presence and by his express direction attest  and subscribe in the presence of the devisor by three or more witness and if  no such devise thereof be make the same shall be Chargeable in the hand of the  heir if it shall come to he by reason of a special occupancy as asset by  descent as in case of land in feesimple and in case there be no special  occupant thereof it shall go to the executor or administrator of the party who  have the estate thereof by virtue of the grant and shall be asset in their  hand the effect of this statute be to make these estate devisable which be not  so by the statute of h of will atkins then come the three and four of W m c  for relief of creditor against fraudulent devise Lord Hardwicke read the  preamble and the first enact clause that all will c of manor message land  tenement or hereditament c whereof any person at the time of his decease shall  be seize in feesimple in possession reversion or remainder or have power to  dispose of the same by his last will or testament shall be deem as against  bind or specialty creditor to be fraudulent and clear absolute and utter void  frustrate and of none effect it depend upon these word whereof any person be  seize in fee or have power to dispose of most clear testator have a power to  dispose such power be give they by a antecedent statute Ch then what ground be  there for the court to make a limit strain construction and narrow than the  word upon a statute make for prevent fraud Mr solicitor general be principal  objection be that to construe estate pur auter vie if it shall come to the  heir as a special occupant to be asset will be to make a partial and imperfect  provision under the statute as it do not take in other estate dur auter vie  where the heir be not make the special occupant atkins er p now as to that it  be but a precarious and doubtful argument to construe one thing not to be  within the statute because another be not suppose there be casus to let go in  the act there be no reason why what be express within the statute shall not  have its effect it be true indeed the case suppose by the statute be where  there be no special occupant and no devise but then the statute direct it  shall go to the executor or administrator of the party that have the estate  thereof by virtue of the grant and shall be asset in their hand and have the  same effect as if it have be grant to the grantee his executor or  administrator and in this case the executor be as a special occupant for that  purpose how do the law stand before the make of the statute as to a lease pur  auter vie to a his executor or administrator b Abr let g pl if a man lease to  another and his executor land for the life of I S and beneficiary and vie die  the executor shall be a special occupant notwithstanding it be a freehold note  Carth but since the statute Geo c S it shall seem that a estate pur auter vie  when limit to executor must be consider not as freehold but as personal estate  to all intent vide William v Jekyl Ves term Rep atkins if a man take a estate  as a executor it be asset for he can take any thing as a executor of a  testator without be so and Lord Cowper be of that opinion in the case of the  duke of Devonshire versus Kinton vern for he say he take it that before the  statute of fraud and perjury if a estate pur auter vie come to a executor or  administrator it will be asset and decree it accord now if before the statute  of fraud and perjury grant a estate pur auter vie to a his executor or  administrator will have make it asset can devise it to they prevent its be  liable certain not for the reason before mention that take as executor they  must take it as asset therefore I be of opinion that a estate pur auter vie  though it be devise will be liable to debt by specialty to contribute in a  method of distribution accord to the gross value Lord Hardwicke declare that  the advowson of Linton not be comprise in the devise of the testator will  ought to be consider as real asset descend to the defendant Herbert Westfaling  the testator heir at law subject to the testator debt by specialty and order  the same to be sell and the money arise by such sale to be apply in payment of  so much of testator debt by specialty as his personal estate will not extend  to satisfy and in case the testator personal estate and the money arise by  sale of the advowson shall not be sufficient to satisfy the testator debt then  his lordship declare the residue of the testator debt specialty be well charge  on the testator freehold estate whereof he be seize in fee either in law or  equity and also on his leasehold e state pur auter vie devise by his will and  ought to be bear proportionable in average between those estate and his  lordship do declare that the equity of redemption of the estate in mortgage  ought to be consider as part of the testator real estate which pass by the  testator will to his trustee and further order that the freehold estate in fee  and leasehold estate or a sufficient part thereof to be settle and apportion  by the master between the estate accord to the respective gross value thereof  be sell and that the money arise by such sale be apply in the first place in  payment of the testator debt by specialty as shall not be satisfy by the other  fund before mention acquire step and in case any specialty creditor shall  exhaust any part of the personal estate then his simple contract creditor be  to stand in their place and receive a satisfaction pro tanto out of the money  arise by the sale aforesaid and that the residue of the purchasemoney be apply  in payment of what shall be find due for principal and interest of the  plaintiff mary legacy of pound and atkins other the legacy secure on the  testator real estate and if there shall be any surplus thereof the same to be  lie out in land to be settle to the same use respective as the land from  whence it arise ought to have be settle or go Reg lib b fol atkins er p