HALSBURY'S LAWS OF ENGLAND FIFTH EDITION 2012

                                           87 REAL PROPERTY AND REGISTRATION

151. Determination of estate pur autrie vie. Any person having any claim in remainder, reversion or expectancy may, upon affidavit showing that he has cause to believe that the cestui que is dead, and that his death is concealed, obtain an order of the High Court for his production by the tenant pur autrie vie or his assignee¹, and if such an order is not complied with the cestui que vie is taken to be dead, and any person claiming any interest in remainder, or reversion, or otherwise may enter accordingly².

A tenant pur autrie vie who holds over after the death of the cestui que vie, without the express consent of the persons next entitled, becomes a trespasser and may be proceeded against accordingly³.

The burden of proving that the cestui que vie is dead lies on the person next entitled. In the absence of direct evidence of death, the proof may be assisted by presumption of death⁴. If the cestui que vie remains beyond the seas or elsewhere absents himself in the realm for the space of seven years, the reversioner is entitled to recover the land in the absence of proof that he is alive⁵. If the supposed dead person is subsequently proved to have been living at the date of eviction, the tenant pur autrie vie who has been evicted may recover mesne profits with interest in respect of the period during which he was wrongfully out of possession⁶.

1Re Hall, ex p Castledine (1881) 44 LT 469; Re Pople, ex p Baker (1889) 40 Ch D 589.

2See the Cestui Qui Vie Act 1707 s 1 (amended by virtue of the Constitutional Reform Act 2005 Sch 4 Para 6). Remaindermen may apply notwithstanding that, in certain events, they are not immediately entitled on the death of the tenant for life: Ex p Grant (1801) 6 Ves 512. The order states the place at which, the time when, and the person before whom the cestui que vie is to be produced: Ex p St Aubyn (1793) 2 Cox Eq Cas 373; Ex p Whalley (1828) 4 Russ 561; Re Lingen (1841) 12 Sim 104; Re Lingen (1841) 12 Sim 104; Re Clossey (1854) 2 Sm & G 46; Re Pople, ex p Baker (1889) 40 Ch D 589; 2 Secton's Judgments and Orders (7^th Edn) 1713. It appears that it is not necessary for the affidavit required by the statute to contain a statement that the death is concealed from the applicant: Re Dennis' Will (1860) 7 Jur NS 230. The order for production will be made if the remainderman gives notice to the person in possession to produce the cestui que vie under the staute, and the notice is not complied with: Re Owen (1878) 10 Ch D 166. In default of production, a further order is made for the production before commissioners or to the court (Re Lingen; Re Pople, ex p Baker; 2 Seton's Judgments and Orders (7^th Edn) 1713); and, if this is not complied with, a final order is made that the cestui que vie is deemed to be deemed to be deemed to be dead (Re Lingen; Re Pople, ex p Baker; 2 Seton's Judgments and Orders (7^th Edn) 1713). As to extending the time for production see Re St John's Hospital (1868) 18 LT 317. The court cannot give the tenant pur autrie vie the costs of producing the cestui que vie (Re Issac (1838) 4 My & Cr 11); nor will it give the applicant his costs, at any rate if the respondent had good reason for requiring him to come before the court (Re Pople, ex p Baker at 593). The statute applies to cases where the title of the remaindermen depends on the death of the cestui que vie without issue (Ex p Grant; Re Pople, ex p Baker); to cases where the estate is for 99 years if the cestui que vie so long lives (Ex p Grant); and to cases where the person in possession has any interest determinable on a life, such is permissive occupation, although not an estate pur autrie vie strictly so called (Re Stevens (1886) 31 Ch D 320). As to procedure see further Daniell's Chancery Practice (8^th Edn) 1866. The remainderman has, of course, to give up possession to the tenant pur autrie vie if, after the order is made, the cestui que vie proves to be alive: Re Pople, ex p Baker at 592. As to an estate for a term determinable on life see now PARA 119 note 3.

                                                                                 PARA 119 note 3

Fines and Recoveries Act 1833 s 22 (as amended see note 2). The estates specified as sufficient to confer the office of protector are 'any estate for years determinable on the dropping of a life or lives, or any greater estate (not being an estate for years)': s 22 (as so amended). An estate for years determinable on a life or lives was mentioned with reference to a form of settlement which was practically obsolete before 1926. The first limitation was frequently to A for 99 years if he should so long live, followed by a remainder to his first and other sons in tail. A had thus no estate of freehold, and his concurrence in a recovery was not nessecary. This form of limitation was used in order to keep the land in settlement as long as possible: see Bell v Holtby (1873) LR 15 Eq 178 at 189. However, in effect, A had an estate for life, and the Fines and Recoveries Act 1833 expressly made his assent to disentailing necessary. An actual life estate was greater than an estate for years determinable on life; consequently, this was within s 22 and so a fortiori was a prior estate tail: Re Blewitt (1855) 6 De GM & G 187. Thus, where there is a tenant in tail in possession and a tenant in tail in remainder: Re Blewitt; Carson's Real Property Statutes (3^rd Edn) 322.

                                                                                           note 2

See the Fines and Recoveries Act 1833 ss 22-31. Of these ss 29-31 related to dispositions before 1834 and are repealed as obsolete: Law of Property (Amendment) Act 1924 s 10, Sch 10 (repealed). The Fines and RECOVERIES Act 1833 s 24 is also repealed; and ss 22, 23, 25-28 are amended by the Statute Law Revision (No 2) Act 1888.

3See the Cestui que Vie Act 1707 s 5 (amended by the Statute Law Revision Act 1888).

4See Prudential Assurance Co v Edmonds (1877) 2 App Cas 487, HL; Re Owen (1878) 10 Ch D 166; Re Clossey (1854) 2 Sm & G 46. The order has been made on evidence of incurable illness of the cestui que vie when last heard of: Re Dennis' Will (1860) 7 Jur NS 230. As to presumption of death see CIVIL PROCEDURE vol 11 (2009) PARA 1100.

5See the Cestui que Vie Act 1666 s 1.

6See the Cestui que Vie Act 1666 s 4 (amended by the Statute Law Revision Act 1888).

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