executors, but, in caſe the tenant dies inteſtate, in the adminiſtrators alſo; and go in a courſe of diſtribution like a chattel intereſt.
By theſe two ſtatutes the title of common occupancy is utterly extinct and aboliſhed: though that of ſpecial occupancy, by the heir at law, continues to this day; ſuch heir being held to ſucceed to the anceſtor's eſtate, not by deſcent, for then he muſt take an eſtate of inheritance, but as an occupant, ſpecially marked out and appointed by the original grant. The doctrine of common occupancy may however be uſefully remembered on the following account, among others: that, as by the common law no occupancy could be of incorporeal hereditaments, as of rents, tithes, advowſons, commons, or the like[1], (becauſe, with reſpect to them, there could be no actual entry made, or corporal ſeiſin had; and therefore by the death of the grantee pur auter vie a grant of ſuch hereditaments was entirely determined[2]) ſo now, I apprehend, notwithſtanding theſe ſtatutes, ſuch grant would be determined likewiſe; and the hereditaments would not be deviſable, nor veſt in the executors, nor go in a courſe of diſtribution. For the ſtatutes muſt not be conſtrued ſo as to create any new eſtate, or to keep that alive which by the common law was determined, and thereby to defer the grantor's reverſion; but merely to diſpoſe of an intereſt in being, to which by law there was no owner, and which therefore was left open to the firſt occupant. When there is a reſidue left, the ſtatutes give it to the executors, &c, inſtead of the firſt occupant; but they will not create a reſidue, on purpoſe to give it the executors. They only meant to provide an appointed inſtead of a caſual, a certain inſtead of an uncertain, owner, of lands which before were nobody's; and thereby to ſupply this caſus omiſſus, and render the diſpoſition of law in all reſpects entirely uniform: this being the only inſtance wherein a title to a real eſtate could ever be acquired by occupancy.
