XV. Sale 7. If the present or any succeeding incumbent of the said Presentation rectory should at any time hereafter during his incumbency

of Next

to Parsonage.

If present or succeeding incumbent be

Right of presentation where ecclesiastical patron dies during a vacancy.

Presentation

of an advowson collative on death of bishop.

Appointment in right of office.

Repington v. Governor of Tamworth School, 2 Wils. 150; 7 B. &
Cr. 151.

The right of presenting, when vested, being a chattel, and it being an established rule that a corporation sole cannot take a chattel by succession (Fulwood's case, 4 Rep. 64 a, except by custom, as by the custom of London a bond to the chamberlain for orphanage money will pass to the successor, Byrd v. Wilford, Cr. El. 464, or in the case of the crown), it follows that, where an advowson presentative is vested in an ecclesiastical person, and he dies during a vacancy, his executor, or, in the case of a bishop, the crown, and not his successor, shall present. Thus where a prebendary, who had the advowson of a rectory in right of his prebend, died during the vacancy of the church, his personal representative was held entitled for that term: Rennell v. Bishop of Lincoln, 7 B. & Cr. 113, reversing judgment in C. P. 11 J. B. Moore, 139; affirmed in the House of Lords, Mirehouse v. Rennell, 1 M. & Sc. 683; 7 Bligh, 241.

But when a bishop dies, a church being vacant in his life, the crown, and not the bishop's executor or administrator, shall present, taking the void turn as part of the temporalities; and where a tenant by knight service, in capite, with an advowson appendant, which had become void in his life, died, his heir within age, the King presented, and not the executor or administrator, who would have been entitled if the land had been holden of a subject: Co. Litt. 388 a. But these exceptions are referable to the prerogative, and do not show that the void turn remains parcel of the advowson; for though the Queen omits to present in the one case till she restore to the bishop his temporalities, or in the other till the heir, being of age, obtain his livery, still the presentation for that term remains in the crown: Fitzh. N. B. 33 (N. 0); 7 Bligh, 280.

Another exception, founded on the prerogative, or rather, perhaps, in analogy with the rule as to donatives, is, that when the Queen dies, leaving a church void, her successor shall present, as she is entitled to the temporalities where the predecessor died sede vacante. See 7 Bligh, 308.

These cases of advowsons must be distinguished from other rights of appointment which are annexed to an office, for if a person holding an office, in right of which he presents to another office, dies during a vacancy, his successor and not his executor shall appoint to the office, as in the case of exigenter: Scroggs v. Coleshill, Dyer, 175. The reason is, that it is a personal thing annexed to the judge of the Court who is to appoint the officers of the Court; and if the office becomes vacant, and the judge dies, his executor can have nothing to do with the appointment, for it belongs to the judge to appoint the officers of the Court. The office of a judge is not like an advowson, which is a thing that descends, and is capable of being conveyed from one person to another, and the presentation of which is the fruit of the

XV. Sale

of Next

of the said rectory be created a bishop, whereby the right of presentation to the same rectory may devolve to the crown, Presentation then the said [purchaser] shall have the first or next turn or to Parsonage. right of presentation to the said rectory, after the crown (d). IN WITNESS, &c. (e).

advowson: Per Littledale, J., 7 B. & Cr. 165. If the office were an office of profit and saleable, it would perhaps be otherwise.

made a bishop, purchaser to have the next presentation.

and trustee must present nominee of

The mortgagee of an advowson, whether appendant or in Mortgagee gross, has the legal right to present; but, until foreclosure, a Court of Equity will compel him to present the nominee of the mortgagor: because the mortgagee can make no profit by pre- mortgagor, senting to the church, nor can he account for any value in &c. respect of it to sink or lessen his debt: Mackenzie v. Robinson, 3 Atk. 559; Jory v. Cox, Pr. Ch. 71; Hungerford v. Clay, 9 Mod. 1; Amherst v. Dowling, 2 Vern. 401. So a trustee must present the clerk of the cestui que trust: 2 Atk. 483; 2 W. Blacks. Rep. 1053. It is obvious therefore that an advowson can only be made available as a security to a mortgagee, or an annuitant, by means of a power of sale.

incumbent.

(d) This being the rule of law on the subject, ante, p. 466, n., As to proit is mentioned on an honourable principle, that the purchaser viding for may be aware of it, and provide accordingly. When it is promotion of probable the incumbent will be promoted to a bishopric, and sometimes when it is not probable, it is usual to insert a provision, should that event happen, to make a proportionable deduction from the purchase-money, to be ascertained by two arbitrators, or their umpire; or to re-pay the purchase-money, with interest at five per cent.

(e) Although under an agreement for a next presentation, Stamp. equity would compel the vendor to present the purchaser's nominee, the agreement does not require an ad valorem stamp: Wilmot v. Wilkinson, 9 Dowl. & R. 620; 6 B. & Cr. 506.

Pre of a

son

on d

bisho

point -ight

ce.

The

sell, and the purchaser agrees

Tential preliminary to the

1. It estate pour autre vie, Limited #TIL the case of a condiLitt. 19 a.; from which was evidently borrowed: * Bac. Abr. 543. Estates with the statute de donis Tons as have interests in bar their issue and all re2 2 estate pour autre rie, in the stry speaking tenants in tail such as a conveyance by the esma into the immediate remainde man GLA to renew the least, and al

to Iunt Without the concurrence of the PSTATE OF AVAI by a agreement, either to Lor↑ Burrow, 3 P. Wms. 262; 2 Eq. HARP in 2 Tern. 225; Norton v. Tasteners & Channel, 3 Bro. P. C. 30;

1 Ath 24t. I v. Blake, 1 Cox, 266; 17 But not by devise: Saltern Samir. 1 Sch & Lef. 281. the settlement was of lives tail on whose will 8. so that his estate

held that he could

j.. VAL 1 AL 3570, Campbel ▼ 1 x : Bal & B so rez-Walk fat ever, and the ewar the question arose had died with r was quent, and on that groune Levi L Stat W pe tur the remainderman by his vill - Will 4 & 1 Vict c. 26, s. 5. extends the al real and personal estate which the at the time of his death, and which were his her at law or customary her, & wrz 2018 trator; and the clause further depower thereby

ver shall extend to estates pour

e stal not be any special occurs a

Frauds, by which the

Statute of Wills, dising power over shall be entitled to devolve upon adminis

Cause in the

the there shall

governed,

secal own

Estate for Life or pour autre vie.

to purchase, ALL that the estate for life, without impeachment XVII. Sale of of waste, of the vendor (b), of and in that messuage or tenement and hereditaments with the appurtenances, situate, &c. [describe parcels], for the sum of £.

2. The vendor, shall at his own cost, make and deliver To make and unto the purchaser, or his solicitor, an abstract of the title to

the premises (c).

deliver abstract.

3. If it shall appear to the satisfaction of the purchaser's If title good, solicitor that the vendor has a good title to an estate for to make conhis life in the said premises, then the vendor and all other necessary parties shall, on or before the

day of

now next, convey and assure unto the purchaser, or as he shall direct, the said messuage and premises, for the (d) life

veyance.

of the vendor, free from all incumbrances (e); And, at the And deliver same time, deliver unto the purchaser all the title deeds and title deeds. writings in the possession or power of the vendor, relating to

the said premises.

4. The said conveyance shall be prepared by and at the Preparaexpense of the purchaser [continue, ut ante, p. 405].

tion of conveyance.

Wife's estate

estates pour autre vie has never yet been decided. When a married pour autre vie. woman has a freehold in an estate pour autre vie, either absolutely, or quasi in tail, (not held by statute or otherwise to her separate use, ante, p. 215,) a conveyance by herself and her husband, acknowledged by her, is necessary: Duke of Grafton v. Hanmer, 3 P. Wms. 266, note; Perk. s. 613; Harg. n. Co. Litt. 121 a; 2 Bl. Com. 355; 5 Cru. Dig. 200; Wms. n. 2, Saund. 175 f. (3); Gilb. Uses, 40, 244.

ESTATE FOR
OTHER LIVES.

(b) If the estate be held for the lives of other persons, say, "the estate of him the vendor, for the lives of [nominees], Reference to granted and demised by an indenture, bearing date the lease.

day of

18-, and expressed to be made between [lessor], of &c., of the one part, and the vendor (or [lessee], of &c.), of the other part; of and in ALL THAT, &c."

(c) Here insert any stipulations as to commencement of title, delivery of requisitions, &c. as may be required, vide ante, Precedents I., II., &c.

(d) "for the lives of the said [nominees], and the [survivors ESTATE POUR and] survivor of them.'

AUTRE VIE.

LEASEHOLD.

(e) If held by lease, say, "But subject to the rent, covenants, conditions, and agree- Subject to ments, reserved and contained in the said indenture of rent and lease."

Parties.

Recital of

XVI. CONTRACT for SALE, by a TENANT IN Tail, IN REMAINDER, of the NEXT PRESENTATION to a RECTORY in the event of the Tenant in Tail being entitled in possession on its falling vacant; with COVENANT to REFUND the PURCHASE-MONEY, in the event of the Tenant in Tail not so becoming entitled, &c.

ARTICLES OF AGREEMENT made the

day of

18-, BETWEEN [tenant in tail], of the one part, and [purchaser], of the other part. WHEREAS the said [tenant

title to advow in tail] is entitled in tail male general to the advowson

son as tenant

in tail in remainder.

Purchaser

one of his

or right of patronage and
and parish church of

in the diocese of

presentation of and to the rectory in the county of —, and with the appurtenances, in remainder, expectant on the decease of [tenant for life]; AND WHEREAS the Rev. [incumbent] is the present incumbent of the said rectory and parish church of and is now of the age of years or thereabouts. NOW THESE PRESENTS WITNESS, that in consideration of the sum of £ -by the said [purchaser] to the said [tenant in tail], paid at or before the execution of these presents, the receipt of which sum of £- - he, the said [tenant in tail], doth hereby acknowledge, HE, the said [tenant in tail], hereby covenants and agrees with the said [purchaser], in manner following, that is to say :

1. In the event of the death of the said [tenant for life], in the lifetime of the said [tenant in tail], and also by death, resignation, cession, deprivation, avoidance, or otherwise of the said rectory and parish church of in the lifetime

of him the said [tenant in tail], and after the decease of the
said [tenant for life], he the said [tenant in tail] will sell and
assure unto, and at the expense of the said [purchaser], the
now first and next presentation to the said rectory and parish
church of
with the appurtenances, for all the now

first and next vacation or avoidance of the same. 2. It shall be lawful for the said [purchaser] his executors, may present administrators, or assigns, in the event of the decease of the said [tenant for life], in the lifetime of the said [tenant in trust to resign tail], and also of such avoidance as aforesaid of the said in favour of rectory in the lifetime of the said [tenant in tail], and after one of purchaser's sons, the decease of the said [tenant for life], by virtue of these

sons or a

stranger, in