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unto this vicarage, for it was a chattel vested in him. All the authorities, which I have cited are uniform, (and many others might be adduced) to shew that the right of presentation is a personal right, disconnected from the estate of the advowson, and belongs to the person of the owner; and the last applies to the case of a spiritual person, and is in point.

But on the part of the successor, it is argued, so far as his case is put upon the ground of authority, that the last case is single and unsupported; and that all the others are anomalies; that, in truth, the general rule is, that the void turn continues part of the advowson; that these exceptions have been introduced in all cases of lay patronage without any reason at all, though they have been too firmly established by authority to be now disturbed; but that the general rule still continues, and ought to be maintained, in the case of spiritual advowsons. Of course, the burthen of proving the existence of this rule lies on those who assert it; but the singularity of this argument, which was urged at your Lordships' bar, is, that whilst it treats all the cases in the reports and books as anomalies and exceptions to a supposed general rule, without the least authority for stating that they are exceptions and anomalies, it asserts the general rule, as will be found, without any authority for it; for there is no one case or dictum cited, which makes any mention of such a general rule.

But it is contended, that it must be implied that there is such a rule, from four cases, which lead to the inference that the next turn continues part of the advowson.

One was, where the incumbent was also patron, Hall v. Bishop of Winton, 3 Lev. 47., and died seised in fee of the advowson, the heir was held entitled to present, and it was said that this must be, because the turn continued a part of the advowson. But this case was decided, not on the ground of the next turn continuing parcel of the advowson, but expressly on the ground, that the descent to the heir, and the fall of the avoidance to the executor, happened in one instant, and that the more elder right should be preferred. The general nature of the interest, which arises on an avoidance, was distinctly admitted, and the right of the

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heir put upon a ground which is perfectly consistent with it.

Two other cases from which this inference was raised were those referred to in Co. Litt. 388 a. A bishop dies, a church being vacant in his life; and after his decease, the king shall present, and not the executor or administrator. So also in the case of the death of a tenant by knight service in capite, with an advowson appendant, which has become void in his life, his heir within age, the king presents and not the executor or administrator; and this is said to be another proof, that the void turn is still a part of the advowson. But though the king omit to present till he restore to the bishop his temporalities, or till the heir be of age and sue his livery and hath it, the king still has the right to present: and this shews, that in neither case the void turn remains parcel of the advowson, and belongs to the person who is owner of it. For both these positions, Fitz. N. B. 33 N. O. is authority. Besides, it is said in Co. Litt. 388 a., that if the land be holden of a common person, in that case the executor shall present: but if the void turn were still part of the advowson, why should not a common person, as well as the king, who both take the advowson, exercise this right?

It is quite clear, therefore, that neither of these cases can be explained by the supposed rule. We must look for another explanation. Both are clearly referable to the king's prerogative, which entitles him, in these special cases, to this personal interest. It should be observed, also, that Rolle Abr. Present. à l'Eglize, c. pl. 4., and Bro. Present. à l'Eglize, 10., which state that the king is entitled, both state that the bishop's executors are not, which shews that these great lawyers thought the void turn was disannexed, and that the successor, at all events, had no right whatever.

A fourth case, from which the inference of this continuance of the void turn as part of the advowson was deduced, was that of a conveyance by the crown of an advowson, whilst the church was void, which, according to Fitz. N. B. 33 N., passes the void turn. Admitting that authority to be correct, (and it is doubtful, from what is said upon this subject in Dyer 328 b.) it is a question only

as to the effect of the king's grant, and never could have arisen unless the void turn had been severed and distinct from the advowson.

The case, in truth, amounts to no more than this, that the grant of an advowson, which involves in it every present and future right of presentation, passes in the case of the crown the next presentation to a void living; which the crown can grant (Dyer 283 a.); though, in the case of a subject, it would not, for a subject cannot grant over such a personal right.

None of those four cases, therefore, which are relied upon as proofs of the existence of this supposed rule (and there are no others), in reality prove it at all; and all are capable of being satisfactorily explained upon another supposition.

There is, therefore, as it appears to me, a great body of authority in favour of the position, that the void turn is a personal right in all cases; and when the cases are investigated, a total absence of authority to the contrary.

If it be conceded that this interest is of a personal nature, and dissevered from the advowson in all cases, it must be contended that, in the case of a spiritual person, this personal interest or chattel will go by succession. But that is a violation of the established rule, that a corporation sole cannot take a chattel by succession, whether in possession. or action: Fulwood's case, 4 Coke 450. and no authority can be cited that this special chattel interest is an exception.

I have shewn, therefore, that there is no authority for the alleged general rule, that the void turn continues annexed to the advowson, and is not of a personal nature; and if it be of a personal nature, there is not only no authority, but it is against the rules of law that it should pass

to a successor.

Upon the hypothesis in favour of the successor, all the decided cases are anomalies; upon that made by the personal representatives, that the right of presenting is, in all cases, both of lay and spiritual patronage, a personal interest, we have a uniform and consistent system. As this right, when in lay hands, is analogous to rent in the case

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of land; so it is when the advowson is in spiritual hands; and as a parson or prebendary, who resigns, or his executor, when he dies, is clearly entitled to arrearages of rent and profits which accrued before his resignation or death (Fitz. N. B. 122 D. 120 L. 19 Hen. 6. 44.); so he or his personal representative ought to be entitled to the right of presenting, which fell during the same period.

Besides, if this anomalous principle is introduced on the ground of the spiritual character of the prebendary, what is to be said of it whilst the prebend was in lay hands, which it clearly might have been before the act of uniformity, according to the case of Bland v. Maddox, Cro. Eliz. 79. Is the void turn to be dissevered or not, according as the prebendary is a layman or ecclesiastic?

It is said, that this patronage is so annexed to this spiritual corporation, as to be incapable of separation from it: but not only is there no authority for this position, but many precedents are against it, in which bishops, and other ecclesiastical corporations sole, have granted away their right to laymen; which grants have been considered good against themselves. I need not refer your Lordships to the authorities, further than by saying, that they are collected in the reported cases in the courts below.

And, indeed, I am at a loss to see in what way the alleged difference, if there be one, between the qualities of an advowson in lay hands, and in those of a spiritual proprietor, could have arisen. It is highly probable, to say the least of it, that all rectories were originally created in the hands of laymen, who received the patronage from the bishop in lieu of those lands which they granted on the foundation or endowment of a church; and if this be so, what is there to raise the presumption that when they afterwards granted these advowsons to the church, they wished them to have new properties and qualities different from those they had in their own hands; or, if they did wish it, what power had they to communicate them? They could no more alter the rules of law, and make chattel interests be taken in succession by a corporation sole, than they could make the estate in a freehold descend to executors. Succession in a body politic is inheritance in a body private,

(Fullwood's case, 4 Coke 646.); and no grantor can, however much he may wish it, limit his estate against the rules of law.

And supposing that there were instances in which a bishop or other ecclesiastical person, and not a layman, had originally founded or endowed a church out of the lands belonging to him in that character, and became the proprietor of the advowson which he or his successor had granted to the prebendary, the same difficulty occurs in proving the intention of the donor, and a similar difficulty in carrying that intention into effect; and if these difficulties are overcome, the alleged difference in the quality of lay and spiritual advowsons must, at all events, be confined to those very special cases, exclusive of all others.

The next proposition which the authorities establish, is, that all personal rights and interests, of the nature of property, and which are not extinguished by death, vest, on the decease of the owner, (with some few exceptions,) in his personal representatives.

The executors or administrators are not constituted for the purpose of paying the debts of the deceased, their liability to those debts is a consequence of their representative character. Litt. s. 337. says, that "Executors represent the "person of their testator." So Yelverton, 103. is to the same purpose, "He is, in law, the testator's assignee." Wentworth, Off. Ex. 100., as to the estate committed to his trust, he may charge others, and be charged himself, sue and be sued, as the testator himself might, Sheppard's Touch. 401. Executors take, therefore, all the personal estate and interest of the testator, and are identified with him in respect to all personal property; but their obligation to pay debts is only to the extent of the value of those effects which are valuable. They have all the deceased's effects, but they are liable only for assets.

It is a fallacy to suppose that they take nothing but what is valuable; and, therefore, do not take rights of presentation to void benefices. A fallacy which has led to the argument, that all the cases in which a personal representative has taken a void turn, which certainly cannot be sold, are unreasonable anomalies.

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