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The 31 Ed. 3. s. 1. c. 11. puts administrators, who are the deputies of the ordinary, on the same footing as executors; vide also Sheph. Touch. 401.

To this rule, that the personal representatives take all the personal rights of the deceased of the nature of property, there are some exceptions, which the common law, in the case of private individuals, or the king's prerogative right, have established.

Chattels touching the realty, deer in a park, fish in a pond, evidences of title, heir looms, which go to the real representative, and the analogous case of the ornaments of a bishop's chapel, which pass to the successor, are of the former description; the right of the crown to the void turn, in the case of the tenant in capite, and the bishop, stated by Coke, p. 388 a., are instances of the latter and it is to be observed, that both those instances are put by him as exceptions to the general rule "that chattels, as "well real as personal, shall go to the executors or ad"ministrators."

None of the excepted cases have any bearing upon this; and there is no mention any where made of an exception of the right in question, when in spiritual hands: and it would violate the rule of law, as to succession by a corporation sole to chattels, if it did.

I must own that it appears to me to be quite clear, that if this case is to be decided, as I conceive all similar cases ought to be, according to the rules deduced from former decisions and legal precedents and principles, there is no doubt as to the right of the personal representative of the prebendary to present to the void living. These rules cannot be shewn to be contrary to sound reason and just policy. We are not enquiring whether other rules might or might not have been more wise or reasonable, and whether the heir in the case of lay property, and the successor in that of spiritual property, might or might not have been likely to exercise the right of presentation more beneficially to the public interests.

If such an alteration is proper, and it is not my province to enquire whether it is, it must be made by the legislature. What ground has a judge, says Lord Keeper Henley, to

alter the law, because he cannot approve the reasons that others have given, or may not be able to assign a satisfactory one himself? At present the system is, at all events, uniform and consistent, and uniformity and consistency ought not to be lightly sacrified.

The law of England, which has treated from the first advowsons as property, the founders or benefactors of churches having had the patronage granted to them as property for a valuable consideration, has not relied upon the person or character of the patron for the due exercise of the trust, but has adopted other securities for that important purpose. The incorrupt exercise of the trust is secured by the penalties against simony; and the selection of a fit clerk, by the examination of the ordinary. Subject to these provisions, it has left the patronage of churches to descend, be limited, and enjoyed like other real property.

For these reasons, I am of opinion that the right to present to the void turn passed to the personal representative of the deceased prebendary.

Gaselee J.-This, my Lords, is not the first occasion on which my attention has been called to this question. Your Lordships are aware that in the case out of which it arises there have been conflicting judgments in the Courts of King's Bench and Common Pleas, and that full reports of these judgments are to be found in 3 Bingh. 223., 11 B. Moore, 139., and 7 Barn. & C. 153.

The case has been since very fully and ably argued at your Lordships' bar, and in the course of the several discussions which it has undergone, I believe every authority that can be brought to bear upon the subject has been cited; and they are all mentioned in the reports I have alluded to.

I shall therefore not trouble your Lordships with going through them at length, but shall state, as shortly as I can, the grounds upon which I found my answer to your Lordships' question in the affirmative.

It is extraordinary that, although cases similar to the present must have happened, there are no traces of any such having been made the subject of legal investigation;

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nor, upon the best enquiry that I can make, have I been able to ascertain what the practice in such cases has been.

It is admitted that the general rule with respect to presentative livings is, that if after a vacancy the patron of the advowson dies without having presented, the right of presentation to the vacant turn belongs to the personal representative, and not to the heir of the patron: and the reason given in the books for this is, that it is a fruit fallen, a chattel severed from the inheritance, or, in other words, that the moment a church becomes vacant the turn is separated and disannexed from the advowson, and is vested in the person of the individual to whom the advowson at that instant belongs; see 4 Leon. 109., Fitz. N. B., 33 P., 34 B. and 34 N. P., and many other authorities; and it is so far considered as disannexed from the inheritance, that the grant of an advowson during the vacancy does not carry the vacant turn. Where the husband is tenant by the courtesy, and the church becomes void during his life, and he dies before it is filled up, yet the heir of the wife, who takes the advowson, shall not have the vacant turn, but the husband's executors. So, where the wife is seised of the advowson, and, the church being void, dies without having had issue, so that the husband is not tenant by the courtesy, yet the husband shall present to the vacant turn, and not the heir of the wife. Again, in the case of a termor, if a vacancy happens during the term, and he does not fill it up during the continuance of the term, he is entitled to do so after its expiration. And there are many cases which decide, that although the grant of the next presentation be made to a man and his heirs, yet it shall go to his executors and not to the heir.

But it is said there are exceptions to this general rule: one of which is, that where the patron is the incumbent, the vacancy occasioned by his death shall not be filled up by his executors, but by his heir upon whom the advowson descends; and for this is cited the case of Hall v. The Bishop of Winchester, 3 Lev. 47. But what is the reason given by the Court for this? It is, that all is done in an instant, the descent to the heir and the falling of the ad

vowson to the executor; and that, where two titles do accrue in the same instant, the elder shall be preferred. As in the case of joint tenancy, where one devises his part, the title of the devisee and of the survivor happens in the same instant, and the title of the survivor being the elder, shall be preferred.

Another exception is where the patron is a bishop, and entitled to the living in right of his see; in which case, if the bishop dies after the vacancy, and before it is filled up, the king, and not the executors of the bishop, shall present. Various reasons are given in the books for this; one is said to be, for that nothing can be taken for the presentation, and, therefore, it is not assets. This surely cannot be the reason; for if it were, it would apply to every case, and entirely do away with what is admitted to be the general rule in presentative livings. Another reason given is, that it is a spiritual trust; and, consequently, on the vacancy of the see, vested in the king as the supreme patron and head of the church. Is that the reason? The vacant turn is, by all the authorities, considered as part of the temporalities of the see. The king takes it as such. It passes to a third person by the grant of the temporalities, and nothing can be more strong to shew that it is considered as disannexed from the advowson than that, if the vacancy remains unfilled, not only until after the consecration of the new bishop, but after restitution of the temporalities, the vacancy is still to be supplied by the king or his grantee, and not by the new bishop, to whom, if not considered as so disannexed, it would naturally pass as part of the advowson. The rights of the crown upon this subject are stated in Watson's Complete Incumbent, cap. 9. p. 48. If the rule be, that all ecclesiastical patronage is a spiritual trust, and cannot be transferred into lay hands, what becomes of the case of an archbishop's options, which are to all purposes considered as chattels and his personal property. He may devise them, and if he does not, they pass to his personal representative. It is true, that after the vacancy happens, the options cannot be sold; and, although it cannot be supposed that any archbishop would sell it during his lifetime, yet there may be cases in

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which his executor or administrator might be compelled to do so before a vacancy happens; as, for instance, on the application of a residuary legatee, or one of the next of kin.

A distinction is attempted to be made between ecclesiastical and lay patronage, because it is said, that in the latter the church is secure from an improper person being presented by the bishop's right to refuse the party presented. But there is, in fact, no ground for this distinction. In this very case, the administratrix claims only to present. The bishop of Lincoln is to judge of the fitness of the person presented. And so it is in all presentative livings, whether of ecclesiastical or lay patronage. The bishop of the diocese, in which the benefice is situate, is to examine and decide upon the fitness of the presentee. I am not aware of any authority which has determined that a grant by an ecclesiastical patron of a presentative living, to which he was entitled in respect of his ecclesiastical preferment, is void, although, of course, he cannot grant it beyond his own life. In Watson, p. 53. it is said to have been held, that a grant by a bishop of an archdeaconry for twenty-one years, though void against the successor and the king, is good as against himself. And many of such grants in ancient times are to be found in the books of entries; I will not trespass upon your Lordships' time by stating them at length, but merely refer to the books where they are to be found: The King v. The Abbot of - and Another, Vet. Intr. 110., Stanhope v. Bishop of London and Others, Winch. 285. Hob. 237., Webster v. Archbishop of York and Woodroffe, Co. Ent. 507., Hill v. Bishop of London and Others, Co. Ent. 508., Adamson v. Bishop of Lincoln and Others, 2 Brown, 233. Rastall, 522. Overton v. Syddal, Co. Ent. 122., Byng v. Bishop of Lincoln, Winch. 853. Although there does not appear to have been any decision in these cases, yet Mr. Justice Ashhurst, in 2 Term Rep. 636., says that the forms of legal proceedings are evidence of what the law is. In one case, indeed, that of London v. Southwell, Hob. 304., the pleadings of which are in Winch's Entries, 810., it was held that an advowson did not pass by a lease made by a prebendary, not because the grant of an advowson by