OCCUPANCY. This term in English Law signifies the taking possession by any person of any thing which has no owner (Bracton, fol. 8, 5), and the general doctrine, as stated in Bractoma, is derived from the Jes Gentient of the Roman lawyers, as explained in the Digest' (lib. 41, tit. 1, s. I, 3, 5, etc.). That use of the term which will be here explained has reference to the occupation of land.
An estate per eater vie, or for the life of another person or persons, had formerly some peculiar qualities incident to it. If a man had an estate in land for his own life, such estate was of course determined by his death. But if he had an estate in land for the life of another person, and he or his assignee died before such person, the estate was not determined, and yet there was nobody to take it, inasmuch as it could not go to the heir, nor, being a freehold interest, to the executor or administrator. Such an estate belonged to the first person who could take possession of it, and he was entitled to hold it as gcueral occupant till the expirstiou of the life for which it was originally granted. But if the original grant were to A and his heirs, for the life of B, and A died during the life of B, the heir of A took the estate as special occupant—that me, as a person designated in the original grant. Sometimes the heir was said to take the estate as a descendiblo free hold, though the estate is admitted not to be an estate of inheritance, and therefore not subject to courtesy or dower,—it not being perceived that to say an estate is not an estate of inheritance and yet is descend ible, is a contradiction, for descent huplies an heir who takes as heir. Still it appears from Bracton (fol. 26 6, 62 i), that if Lands were given to a man and his heirs for the life of another person, the heir could recover the land by lei assise of snort traneestor, because the ancestor died seised as of fee, and a man could claim by an assise of snort d'aneestor any Land of which his ancestor was seised as of a fee (art de feodo); and hence it has been concluded that the heir took not as special occupant, but that he took a deseendible freehold. This subject of occupancy, general and special, is discussed at great length and with considerable acuteness by Vaughan, Justice. (Vaughan, Holden T. Smallbrooko.) In the case of eopyhold, when there was no special occupant, the lord took the estate; for the lord, having the freehold, was also con sidered to have the possession ; and therefore "vacancy," the necessary condition to any other person's title by occupation, was wanting. In the case of a rent or other incorporeal hereditament, when there was no special occupant, inasmuch as there could be no entry, there could of course 1,e no possession or title by general occupancy.
It is state' by Bracton, that if land was given to a man for the life of another without any mention of his heirs, the land on the death of the donee did not Immediately revert to the donor, unless the donee died intestate, or unless, though he made a will, he had made no mention of his interest in the land as of a term of years, but that if he had disposed of it in his will as of a chattel, such disposition was valid. (Bracton, fob 27 a; see Doe dem. Blake, 6 T. It., 291.) This power of disposing of a freehold interest in land must have fallen into disuse after the time of Bracton ; for it is quite inconsistent with the doctrine of general occupancy as stated by Littleton, and also with the general rule of law, which prevented freehold interesta in land from being disposed of by will, before the Statutes of Wills passed in the reign of Henry VIII. But the Statutes of Wills were limited to estates in fee simple, and no power to devise estates .par (cuter vie existed at law before it was given by the Statute of Frauds.
Since the passing of the Statute of Frauds (29 Car. II. c. 3), general occupancy (with, perhaps, one exception, hereafter mentioned) has ceased to exist. By that statute (s. 12) a man was enabled to devise an estate par aster vie by a will in writing, executed as therein men tioned, and attested by three witnesses; and if no such devise thereof was made, the estate was chargeable in the hands of the heir, if it should come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee-simple ; and in case there should be no special occupant thereof, it was declared that it should go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and should be assets in their hands—that is, should he liable to the payment of the testator's or intestate's debts. By the 14 Gee. II. c. 20, s. 9, which recites "that doubts had arisen, where no devise bad been made of such estates, to whom the surplus of such estates, after the debts of such deceased owners thereof were fully satisfied, should belong " it was enacted, " That such estates, per aster rie, in case there was no special occupant thereof, of which no devise should have been made according to the said Act (29 Car. II.
c. 3), or so much thereof as should not have been devised, should go, be applied, and distributed, in the same manner as the personal estate of the testator or intestate." These two statutes provided for the case both of a devise being made of an estate per miter vie, and also for the case of the land coming to the heir as special occupant where no devise was made. But an estate pus aster rie may be limited either to a man and his heirs, or to a man, his executors and administrators, or to a man simply without mentioning either heirs, executors, or adminis trators. The Statute of Frauds appears to contemplate the heir only as special occupant, and if there was no devise according to the statute, and no special occupant, which would happen when the estate was limited simply to the grantee, the estate went to the executor or administrator for the payment of debts, and after payment of debts the surplus was distributed, under the act of George 11., in the same manner as the testator had directed the distribution of his personal estate, or it went, in case of an intestacy, to the next of kin of the intestate. But when no devise was made according to the statute, and the estate was limited to the grantee, his executors and administrators, inasmuch as the heir could not in that case be special occupant, the question arose, if the executor or administrator could be such occupant, and if he could, the further question arise, who was to have the estate after payment of debts / The proper construction of the two statutes seemed to be that the heir only could be special occupant, and that he alone could take as such. If, then, the land were not devised according to the Statute of Frauds, and there was no special occupant, by reason of the limitation being simply to the graRtee, or to him, his executors, amp adiniuietraters, the executor or admihistrator would take it under the Statute of Frauds, and distribute it, after payment of debts, under the statute of George II. The executor or administrator took the estate as a freehold, which it is, but in trust for the persons entitled under a will, which was sufficient to pass personal estate, or, in cases of intestacy, in trust for the next of kin. (See the opinions of Lord Itedesdale, in Campbell rt. Sandpit, 1 Sch. and Let, 288 ; and the opinions of Lord Eldon, in )Vaterworth, 7 Ye., 425.) If a man dies intestate who is seised of an estate for another's life, and the limitation iv such that the estate cannot go to his heir as special occupant, the estate seems open to a general occupancy until an administrator is appointed : but such administrator seems to have a title by relation.
Neither the Statute of Frauds nor that of George II. applied to copy holds. and therefore not to estates per aster ric in copyhold lands.
Estates per eater vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or incorporeal hereditament, are now devisable by a will,in writing executed,in the manner prescribed by the statute of I Vic. c. 26, which repeals, among other clauses, that part of the Statute of Frauds which relates to estates per auter rie, and also the 9th section of 14 Gee. II. o. 20. Aud if no disposition by will is nuule of any estate par eater tie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of free hold land in fee simple ; and in case there shall be no special occupant of any estate per aster tie, it shall go to the executor or administrator; and if the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of that Act, it shall be assets in his hands, and shall go and he applied and distributed in the name manner as the personal estate of the testator or intestate. This statute settles a number of questions, some of which have been already referred to, which were of frequent occurrence, with respect to estates our autEr a ie.
On the subject of occupancy, the reader may consult Puffendorf, ' Law of Nature and Nations,' iv., c. 6.