THE ASSETS.
As it is of very little use for a man to find himself legatee of an estate, out of which there is nothing to pay his bequest, so also is it an equal evil if notwithstanding the existence of property to constitute an estate the assets, or the produce of that property be either uncollected or wasted, so that the legatees derive no benefit from them. One of the first things, therefore to be considered, is, whether there be any assets; and next, whether the executor has collected them for distribution. From the various nature of property arising out of the complex state of society, and the different periods and the different circumstances at which, and out of which that state of society and its customs arose, the legislators of the country in their care to secure the safe possession and the right appropriation of property, have endowed it with peculiar privileges, and made it subject to certain contingences according to its kind. Hence it is that the heir-at-law takes the whole of a property in fee tail, or entailed freehold, as it is called in popular language, to the exclusion of every one else; hence it is on the other hand, that by the custom of gavel kind which prevails in the county of Kent, all the children of a proprietor are considered as heirs-at-law and inherit in equal proportions; hence it is that copyholds are subject to different rules to freeholds; and hence it is, also, that the several portions of a man’s property, after his death, are often liable to different contingencies, and have obtained the different denominations of assets. These have been usually distinguished by the several terms of real, personal legal, and equitable, assets. They may be more broadly divided into assets, derived from real property, and those arising from personalty; the real and equitable being chiefly dependant on the former, and the legal, and personal from the latter of these two species of property.
REAL ASSETS.
Though real assets more often partake of an equitable character, that is, are subject to distribution according to the custom of a court of equity, yet, there are also real assets which are of a legal nature or subject to the rules of the common law. Until within a few years, real estate could not be touched for the satisfaction of debts of common specialty or simple contract; but that system is now obviated, and funds which have descended to the heir in fee simple, that is unentailed freeholds, and even an advowson so descended, may be appropriated to the benefit of specialty creditors. An estate pur autre vie, or an estate held upon the life of another, when there is no special occupant, goes, according to the statute of frauds, and if does not it descend to the heir through occupancy, will fall to the executor and be assets in his hands for the satisfaction of claims, and by the 14 Geo. II., c. 20 will be appropriated like any other chattel interest. An estate pur autre vie in incorporeal hereditaments—as a rent, for instance, granted by one person to another, during the life of a third party, and the grantor of which dies during the life-time of the person who holds the property—goes to the executor.
“A., tenant for three lives to him and his heirs, assigned over his whole estate in the premises by lease and release to B., and his heirs, reserving rent to A., his executors, administrators, and assigns, with a proviso that on non-payment, A., and his heirs might re-enter, and B. covenanted to pay the rent to A., his executors and administrators; the rent was held payable to A.’s executors and not to his heir, on the ground that there was no reversion to the assignor, and the rent was expressly reserved to the executor.” So that in the case of the heir having entered, he would have been only trustee for the executor.
If a testator be a lessee, his executor will take the fish, rabbits, deer, and pigeons, as accessory chattels partaking of the nature of their principals, the land, the warren, the park, and the dove house. If an executor succeeds to a lease of land for years, the assets are comprised in the clear profits; but a reversion of a term forms assets, according to its utmost value. And if he renew the lease, that will form assets as well as the old lease. Should an executor be possessed of a term in right of his office, and he purchase the reversion of the freehold, he is accountable for the assets of the term, although it be extinguished; and so also if the executor of the lessee, surrender the lease, it shall be considered as assets, notwithstanding the term is extinguished. A person held a term in right of his wife as executrix, and he purchased the reversion; the term was extinct so far as she was concerned, but it was considered with respect to a stranger, that is, any other person, as assets in her hands. But where an individual, on the marriage of his son, settled a lease for years, on him for life, and on his wife, and then on the issue of the marriage; and the son covenanted to renew the lease, and to assign it on the same trust; and he renewed the lease in his own name, but made no assignment to the trustees and died; the lease was held to be bound by the agreement on the marriage, and that it was not assets, nor liable to his debts, nor of course to his legacies. Neither is a lease for years granted on condition of being void on non payment of rent, which occurs, and the lessee afterwards dies. As little so is a term in the hands of the executor of a cestui que trust.
A term for years held by a testator, cannot be relinquished by his executor, when he has assets, unless he relinquishes the office altogether; but he is bound to continue tenant as long as the term continues, or as long as his funds hold out, if they will not continue the whole term.
A leasehold in Ireland is considered as personalty in the property of an English testator dying in England. A lease granted to A. and his executors, and accordingly to the executors after the death of A., becomes assets. If a lessor also, covenant to renew a lease at request of the lessee, who, however, dies within the term without making the request, but it is made by his executors, the lessor is bound to renew for the legal rights of the deceased survivor to his representatives, whom the law presumes to be another self, and therefore implied although not named.
The grant of the next presentation to an advowson during the life of the grantee does not convey the presentation to his executors if he die before the church becomes vacant, for it is equal to a lapsed legacy.
If rent be reserved on a lease for years, and the rent be in arrear at the time of the lessor’s death, it is assets in the hands of the executor. Trees felled during his life on land held by a lessee, without impeachment of waste, are assets to his executor after his death; but unless they are severed during the term, they belong to the lessor as owner of the freehold.