Atkinson, Administratrix v Baker
| Jurisdiction | England & Wales |
| Judgment Date | 20 May 1791 |
| Date | 20 May 1791 |
| Court | Court of the King's Bench |
English Reports Citation: 100 E.R. 989
IN THE COURT OF KING'S BENCH
Willes, 506.
Referred to, Whitehead v. Morton, 1887, 19 L. R. Ir. 446.
atkinson, Administratrix, against baker. Friday, May 20th, 1791. If an estate pour auter vie be limited to a man, his heirs, executors, administrators, and assigns, and be not devised, it descends to the heir as a special occupant. [Willes, 506.] [Referred to, Whitehead v. Morton, 1887, 19 L. R. Ir. 446.] This was an action of detinue to recover certain indentures of bargain and sale and release, and a certain memorandum in writing. The declaration alleged, that T. Foster, being seised for his own life of a certain freehold estate, conveyed it by lease and release to H. Williams, his heirs and assigns. That Williams, by a memorandum in writing, and signed by him according to the form of the statute, acknowledged the consideration-money in the above conveyance to be the proper money of W. Atkinson, the plaintiff's intestate, and that the name of Williams was made use of in the conveyance in trust for W. Atkinson, his heirs, executors, administrators, and assigns. That Williams delivered the deeds and memorandum to W. Atkinson, who thereby became possessed of them, and who afterwards died intestate; on which administration was granted to the plaintiff, who thereby became lawfully possessed of the deeds, &c. and, being so possessed, afterwards lost them ; and that they came into the possession of the defendant, who is the heir at law of W. Atkinson, and who still detains them. To this declaration there was a general demurrer and joinder. Johnson in support of the demurrer, insisted that the plaintiff was not entitled to the deeds, the defendant being a special occupant of the estate. Prior to the statute 29 Car. 2, c. 3, every estate pour auter vie, of which there was no special occupant marked out by the grant, belonged to the person who first took possession of it. But this being found inconvenient, that statute was passed to remedy it; and it enables (a)2 the proprietor to devise it, and enacts, that if no devise be made, it shall be chargeable in the hands of the heir, if it come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee-[230]-simple ; and in case there be no special occupant, it shall go to the executors or administrators, and be assets in their hands. As doubts arose to whom the surplus of such estates should go...
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