CH. 2, s. 2. PART I. T. 2, and power is given to the annuitant to enter and distrain and sell, for payment of the arrears of the annuity, it is a charge on the corpus of the estate (). 85. Priority. Where several rent charges are given by will, and the estate proves insufficient to pay them all, they must abate pari passu, unless the testator has clearly manifested his intention to create a priority in favour of any of them. And where, after the creation of trusts for payment of a rent charge, the testator gives another rent charge "subject to the trusts aforesaid," these words do not give priority to the first rent charge (i). 86. PART I. T. 2, Definition. Right of presentation and right of nomination distinguished. Trustees and mortgagees have the right of presentation; ces tuis que trust and mortgagors the right of nomination. SECTION III. Of Advowsons. An advowson is a right of presentation to an ecclesiastical benefice from time to time, whenever a vacancy occurs (k). 87. The right of presentation and the right of nomination to a church are distinct things. Presentation is the offering a clerk to the bishop; nomination is the offering a clerk to the patron. These rights may exist in different persons at the same time. Thus, a person seised of an advowson may grant to A. and his heirs, that whenever the church becomes vacant, he will present to the bishop such person as A. or his heirs shall nominate (). Where the legal estate in an advowson is vested in trustees, the right of presentation, as incident to the legal estate, is in them, but the right of nomination, as the really beneficial right, is in CH. 2, s. 3. appendant Advowson the cestui que trust. So, in the case of a mortgage of an PARTI. T. 2, advowson, the mortgagee has the right of presentation, but the mortgagor has the right of nomination (m). 88. Advowsons are either appendant or in gross. An ad- Advowson vowson appendant is one that was annexed to the ownership or in gross. of the demesnes of a manor by the lord of which the appendant. church was founded, and has been so annexed ever since the foundation of the church. And in consequence of such annexation, this will pass together with the manor, by a grant of the manor only, without adding any other words (n). And where an advowson has passed immemorially with the manor, without any express words to include it, or with only the words "with the appurtenances," it is to be taken as an advowson appendant (o). An advowson in gross is one that is Advowson separated, or has once been separated, by legal conveyance, from the ownership of the manor by the lord of which the church was founded (p). 89. in gross. advowson may become in gross. An advowson appendant may become in gross by various How an means: Thus, 1. If the manor to which it is appendant is conveyed away in fee simple, with an exception of the advowson. 2. If the advowson is conveyed away without the manor to which it is appendant. 3. If the proprietor of an advowson presents to it as an advowson in gross. Or, 4. Where a manor to which an advowson is appendant descends to coparceners, who make partition of the manor, with an express exception of the advowson (q). 90. An advowson may cease to be appendant for a time, and yet become again appendant. Thus, if an advowson is excepted in a lease for life of a manor, it becomes in gross (m) 3 Cruise T. 21, c. 1, § 7 ; and see infra, Part II. T. 10, c. 2, s. 1, No. II. (n) 2 Bl. Com. 22; 3 Cruise T. 21, c. 1, § 9. (0) 3 Cruise T. 21. c. 1, § 9. (9) 3 Cruise T. 21, c. 1 § 13, 14. Advowson ceasing to be appen dant for a time only. CH. 2, &. & PART 1.1.2, during the continuance of the lease; but upon the expiration of the lease it again becomes appendant. So, if an advowson appendant is granted to a person for life, it becomes in gross. But if afterwards another person were enfeoffed of the manor to which it was appendant, with the appurtenances, in fee simple, the reversion of the advowson would pass, and at the expiration of the grant for life, it would again become appendant (). So, if a manor to which an advowson is appendant descends to two coparceners, and upon a partition the advowson is allotted to one and the manor to the other, the advowson becomes an advowson in gross; but if the coparcener to whom the advowson was allotted dies without issue and without disposing of the advowson, it will descend to the other, and again become appendant (s). 91. Advowson appendant and in gross An advowson may be appendant for one turn and in gross for one turn, for another. Thus, if a person having an advowson for another. appendant grants every second presentation to a stranger, it will be in gross for the turn of the grantee, and appendant for the turn of the grantor (†). 92. Advowson presenta tive, and donative. Advowson presentative. Advowsons are also presentative, collative, and donative. tive, colla- An advowson presentative is that in which the patron has a right to present a clerk to the bishop or ordinary, and to demand of him to institute the clerk, if duly qualified, that is, to commit to the clerk the cure of souls (u). Since the Statute of Frauds (x), it is necessary that all presentations be in writing. And a presentation in writing is a kind of letter, not a deed, from the patron to the bishop of the diocese in which the benefice is situated, requesting him to admit to the church the person presented (y). And it may be revoked or varied at any time before institu (r) 3 Cruise T. 21, c. 1, § 15. c. 2, § 2, 5. (x) 29 Car. 2, c. 3, § 4. Сн. 2, 5. 3. Advowson tion (2). An advowson collative is that in which, the PART I. T. 2, bishop being himself the patron, no presentation takes place, but the clerk obtains the benefice by one single act collative. of collation whereby the bishop confers the benefice. An advowson donative is that which exists where the Queen, Advowson or any subject by her license, founds a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron, subject to his visitation only, not to that of the ordinary, and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or induction (a). If the patron of an advowson donative once presents to the ordinary, and allows of the admission of his clerk thereon, he thereby renders his church always presentable, and it will never afterwards be donative (b). 93 Institution or collation must be followed by induction, Induction that is, the investing the clerk with full possession of all the profits belonging to the church (c). 94. estates in an A person may be tenant in fee of an advowson; in Kinds of which case he and his heirs have a perpetual right of advowson. presentation. It may also be entailed within the statute De Donis (d), or may be limited to a person for life or years, in possession, remainder, or reversion. And it may be held in joint tenancy, coparcenary, and common (e). An estate by the curtesy may also be had in an advowson, even though the church be not void during the coverture . And if a man seised of an advowson in fee. marries, his wife acquires a title to the third presentation, as her dower (g). 95. An advowson appendant may be aliened by any kind How an ad () 3 Cruise T. 21, c. 2, § 3; 1 Burn's Eccles. Law, 9th ed. 151. (a) 3 Cruise T. 21, c. 1, § 20, 21; Co. Litt. 344 a. (b) 3 Cruise T. 21, c. 2, § 8; Co. Litt. 344 a; 1 Burn's Eccles. Law, 9th edit. 169. (c) 3 Cruise T. 21, c. 1, § 22. (g) 3 Cruise T. 21, c. 1, § 30. vowson may be aliened. CH. 2, s. 3. PART I. T. 2, of conveyance that transfers the manor to which it is appendant. An advowson in gross may also be aliened by deed (h). 96. Grant of the next or any presenta tions. Not only may an advowson be aliened in fee, or for life, number of or for years, but the next presentation or any number of presentations may also be granted away (i). And the next presentation, when granted away, is considered as a chattel real, which, if not disposed of by the grantee in his lifetime, will vest in his executors (k). 97. Reserving next presentation. Owner of advowson A person cannot grant an advowson, reserving the presentation for his life (). 98. The owner of an advowson cannot grant the glebe lands cannot grant or the tithes as a distinct property. They are inseparably annexed to the advowson, and belong to the incumbent for the time being (m). 99. glebe or tithes. To what extent an advowson may be Where a person has only a particular estate in a manor to which an advowson is appendant, he can of course only alien the advowson for so long as his estate shall continue. having only And where a tenant in tail of a manor to which an aliened by a person a particular manor to a which it is appendant. estate in advowson was appendant granted the next avoidance of the advowson, and died, the issue entered on the manor, and the grant was held to be void. And where a tenant tail and bis in tail and his son joined in a grant of the next avoidance Grant by a tenant in son of the ance. next avoid- of a church, and the tenant in tail died, it was held that the grant was void against the son and heir who joined in the grant, because he had nothing in the advowson at the time of the grant, neither in possession, nor in right, nor in actual possibility (n). 100. Advowson is assets for An advowson in gross, whether the proprietor has a payment of legal or an equitable interest therein, is assets for payment debts. |