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III. The tenants may hold an estate. 1st. In severalty, when only one tenant holds the estate in his own right, without any other person being joined or connected with him, in point of interest, during the continuance of his estate. 2d. Jointtenancy, which must be created by deed, and have the unities of interest, time, title and possession. A jointtenancy may be destroyed by the severance of any of its unities. At common law, the survivor among joint-tenants is entitled to the whole of the property by virtue of the jus accrescendi. This has been altered by acts of assembly in Pennsylvania, and perhaps some other states. M. Coparcenary, which arises at common law, and by particular custom, as, gavel-kind; it must have the unities of interest, title, and possession. It may be destroyed by partition, which may be by consent or by compulsion. Coparcenaries are always created by descent. The technical distinction between coparcenaries and estates in common, may be considered as essentially extinguished in the United States. 4th. In common. Estates in common are created by, first, the destruction of a joint-tenancy or coparcenary estate if they sever the possession; and, secondly, by the proper limitation in a deed; they must have such incidents which arise from the unity of possession ; they may be destroyed by uniting the title and interest in one tenant, or by partition. V. generally, 10 Vin. Ab. 201 ; Bac. Ab. Estate in fee simple; Com. Dig. Estates; Wood's Inst. 119; 4 Dane's Ab. 498; 2 Bl. Com. 107 to 197; 2 Supp. to Ves. jr. 48, 96, 109, 407; 1 Hist. Law. Tracts, 222. As to the effect of the word estate in a devise, see 3 Cranch, R. 97; 3 Yeates, R. 187; 6 Binn. R. 97; 2 Binn. R. 20; 6 Johns. R. 185; see also 1 Wash. R. 86; 1 Call, R. 127; 3 Call, 306; 2
Nott & M'Cord, R. 380; Com. Dig. App. tit. Estates; Chit. Pract. Index, h.t.
ESTATE IN COMMON, is one which is held by two or more persons by unity of possession. They may acquire their estate by purchase and hold by several and distinct titles, or by title derived at the same time, by the same deed or will; or by descent. In this respect the American law differs from the English common law. This tenancy, according to the common law, is created by deed or will, or by change of title from joint-tenancy or coparcenary, or it arises, in many cases, by construction of law. Litt. sec. 292, 294, 298, 302; 2 Bl. Com. 192; 2 Prest. on Abstr. 75. In this country it may be created by descent, as well as by deed or will. 4 Kent, Com. 363. Vide Cruise, Dig. tit. 20; Com. Dig. Estates by Grant, K 8. Estates in common can be dissolved in two ways only; first, by uniting all the titles and interests in one tenant; secondly, by making partition. In the first case the tenant will be one in severalty of the whole; in the latter each will hold his share in severalty.
ESTATE UPON CONDITION, is such an one as has a qualification annexed to it, by which it may, upon the happening of a particular event, be created, or enlarged, or destroyed, These estates are divided into estates upon condition implied or in law, and estates upon condition express or in deed. 1. Estates upon condi. tion in law are such as have a condi. tion impliedly annexed to them, without any condition being specified in the deed or will. Litt. sec. 378, 380; Co. Litt. 215, b; 233, b; 234, b—< 2. The express conditions are particularly mentioned in the contract between the parties. Litt. s. 325; 4 Kent, Com. 117; Cruise, Dig. tit. 13. Vide Condition.
ESTATE IN COPARCENARY, is an estate of lands of inheritance which descend from the ancestor to two or more persons who are called coparceners or parceners. This is usually applied, in England, to cases where lands descend to females, when there are no male heirs. As'in the several states, estates generally descend to all the children equally, there is no substantial difference between coparceners and tenants in common. The title inherited by more persons than one, is, in some of the states, expressly declared to be a tenancy in common, as in New York and New Jersey, and where it is not so declared the effect is the same; the technical distinction between coparcenary and estates in common may be considered as essentially extinguished in the United States. 4 Kent, Com. 363. Vide Estates.
ESTATE BY THE CURTESY, is an estate for life, created by act of law, which is defined as follows. When a man marries a woman, seised at any time during the coverture of the estate of inheritance, in severalty, in coparcenary, or in common, and has issue by her born alive, and which might by possibility inherit the same estate as heir to the wife, and the wife dies in the lifetime of the husband, he holds the lands during his life by the courtesy of England, and it is immaterial whether the issue be living at the time of the seisin, or at the death of the wife, or whether it was born before or after the seisin. Litt. s. 35; Co. Litt. 29, b; 8 Co. 34. There are four requisites indispensably necessary to the existence of this estate; 1, marriage; 2, seisin of the wife, which must have been seisin in deed, and not merely seisin inlaw; it seems, however, that the rigid rules of the common law, have been relaxed, in this respect, as to what is
sometimes called waste or wild lands; 1 Pet. 505; 3, issue; and 4, death
of the wife.
This estate is generally prevalent in the United States; in some of them it has received a modification. In Vermont, the title by curtesy has been laid under the equitable restriction of existing only in the event that the children of the wife entitled to inherit, died within age and without children. In South Carolina, tenancy by the curtesy, to nomine, has ceased by the provisions of an act passed in 1791, relative to the distribution of intestates' estates, which gives to the husband surviving his wife, the same share of her real estate, as she would have taken out of his, if left a widow, and that is one moiety, or one-third of it in fee, according to circumstances. In Georgia, tenancy by the curtesy does not exist, because since 1785, all marriages vest the real, equally with the personal, estate in the husband. 4 Kent, Com. 29. In Louisiana, where the common law has not been adopted in this respect, this estate is unknown.
This estate is not peculiar to the English law, as Littleton erroneously supposes; Litt. s. 35; for it is to be found, with some modifications, in the ancient laws of Scotland, Ireland, Normandy and Germany. In France there were several customs, which gave a somewhat similar estate to the surviving husband, out of the wife's inheritances. "Merlin, Repert. mots Linotte, et Quarte de Conjoint pauvre.
Vide, generally, Bac. Ab. Curtesy of England; Bac. Ab. h. t.; Com. Dig. Estates bv grant, D; Cruise, Dig. t. 5, c. 1; 8 Bl. Com. 126.
ESTATE IN DOWER, is the right of a woman in a third part of all the lands and tenements, in fee simple, fee tail, general, or as heir in special tail, of which her deceased husband was seized, either in deed or in law, at any time during the coverture, and of which any issue she might have had, might by possibility have been heir. Litt. § 36. To create a title to dower, three things are indispensably requisite, 1. Marriage. This must be a marriage not absolutely void, and existing at the death of the husband; a wife de facto, whose marriage is voidable by decree, as well as a wife de jure, is entitled to it; and the wife shall be endowed, though the marriage be within the age of consent, and the husband dies within that age. Co. Litt. 33, a; 7 Co. 42; Doct. & Stud. 22; Cruise, Dig. t. 6, c. 2, s. 2, et seq.—2. Seisin. The husband must have been seised, some time during the coverture of the estate of which the wife is doable. Co. Litt. 31, a. An actual seisin is not indispensable, a seisin in law is sufficient. As to the effect of a transitory seisin, see 4 Kent, Com. 38; 2 Bl. Com. 132; Co. Litt. 31, a.—3. Death of the husband. This must be a natural death; though there are authorities which declare that a civil death shall have the same effect. Cruise, Dig. tit. 6, ch. 2, § 22. Vide, generally, 8 Vin. Ab. 210; Bac. Ab. Dower; Com. Dig. Dower; lb. App.tit. Dower; 1 Supp. to Ves. Jr. 173, 189; 2 lb. 49; 1 Vern. R. bv Raithby, 218, n. 358, n; 1 Salk. R. 291 ; 2 Ves. jr. 572; 5 Ves. 130; Arch. Civ. PI. 469; 2 Sell. Pr. 200; 4 Kent, Com. 35; Amer. Dig. h.«.; Pothier, Traite du Douaire; 1 Swift's Dig. 85; Perk. 300, et seq.
ESTATE IN JOINT-TENANCY, is where the lands or tenements are granted to two or more persons, to hold in fee simple, fee tail, for life, for years, or at will. 2 Bl. Com. 179; the creation of the estate depends upon the expression in the deed or devise, by which the tenants hold, for it must be created by the acts of the parties, and does
not result from the operation of law. Thus an estate given to a number of persons, without any restriction or explanation, will be construed a jointtenancy; for every part of the grant can take effect only, by considering the estate equal in all, and the union of their names gives them a name in every respect. The properties of this estate arise from its unities; these are, 1. Unity of title; the estate must have been created and derived from one and the same conveyance. 2. There must be a unity of time; the estate must be created and vested at the same period. 3. There must be a unity of interest, the estate must be for the same duration and for the same quantity of interest. 4. There must be a unity of possession; all the tenants must possess and enjoy at the same time, for each must have an entire possession of every parcel, as of the whole. One has not possession of one-half, and another of the other half, but each has an undivided moiety of the whole, and not the whole of an undivided moiety. The distinguishing incident of this estate, is the right of survivorship, or jus accrescendi; at common law, the entire tenancy or estate, upon the death of any of the joint-tenants, went to the survivors, and so on to the last survivor, who took an estate of inheritance. The right of survivorship, except perhaps in estates held in trust, is abolished in Pennsylvania, New York, Virginia, Kentucky, Indiana, Missouri, Tennessee, North and South Carolina, Georgia, and Alabama. Griffith's Register, h. t. In Connecticut it never was recognised. 1 Root, Rep. 48; 1 Swift's Digest, 102. Joint-tenancy may be destroyed by destroying any of its constituent unities except that of time. 4 Kent, Com. 359. Vide Cruise, Dig. tit. 18; 1 Swift's Dig. 102; 14 Vin. Ab. 470; Bac. Ab. Joint tenants, &c.; 3 Saund. 319, n. 4; 1 Vern. 353; Com. Dig. Estates by Grant, K 1 ; 4 Kent, Com. 353; 2 Bl. Com. 181; 1 Litt. sec. 304; 2 Woodd. Lect. 127; 2 Preston on Abst. 67; 5 Binn. Rep. 18. Jointtenant; Survivor.
ESTATE FOR LIFE. An estate for life is a freehold interest in lands, the duration of which is confined to the life or lives of some particular person or persons, or to the happening or not happening of some uncertain event. Estates for life are divided into conventional or legal estates. The first created by the act of the parties, and the second by operation of law. 1. Life estates may be created by express words, as, if A conveys land to B, for the term of his natural life; or they may arise by construction of law, as, if A conveys land to B, without specifying the term or duration, and without words of limitation. In the last case, B cannot have an estate in fee, according to the English law, and according to the law of those parts of the United States which have adopted and not altered the common law in this particular, but he will take the largest estate which can possibly arise from the grant, and that is an estate for life. Co. Litt. 42, a. The life estate may be either for a man's own life, or for the life of another person, and in this last case, it is termed an estate pur autre vie. There are some estates for life, which may depend upon future contingencies, before the deaths of the persons to whom they are granted; for example, an estate given to a woman dum sola fuerit, or durante viduitate, or to a man and woman during coverture, or as long as the grantee shall dwell in a particular house, is determinable upon the happening of the event. In the same manner, a house usually worth one hundred dollars a year, may be granted to a person till he shall have received one thousand dollars, this
will be an estate for life, for as the profits are uncertain, and may rise or fall, no precise time can be fixed for the determination of the estate. On the contrary, where the time is fixed, although it may extend far beyond any life, as a term for five hundred years, this does not create a life estate.—2. The estates for life created by operation of law, are, 1st. Estates tail after possibility of issue extinct; 2d. Estate by the curtesy; 3d. Dower; 4th. Jointure. Vide Cruise, Dig. tit. 3; 4 Kent, Com. 23; 1 Brown's Civ. Law, 191 ; 2 Bl. Com. 103. The estate for life is somewhat similar to the usufruct (q. v.) of the civil law.
The incidents to an estate for life are principally the following:—1. Every tenant for life, unless restrained by covenant or agreement, may of common right take upon the land demised to him reasonable estovers or botes. Co. Litt. 41.—2. The tenant for life, or his representatives, shall not be prejudiced by any sudden determination of his estate, because such determination is contingent or uncertain. Co. Litt. M. —3. Undertenants or lessees of an estate for life, have the same, and even greater indulgences than the lessors, the original tenants for life; first, the same; for the law of estovers and emblements with regard to the tenant for life, is also law with regard to his under-tenants; secondly, greater ; for when the tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee, who is a third person. 1 Roll. Ab. 727; 2 Bl. Com. 122.
ESTATE AT SUFFRANCE. It is the right of a tenant who comes into possession of land by lawful title, but holds over by wrong after the determination of his interest. Co. Litt. 57, b. He has a bare naked possession, but no estate which he can transfer or transmit, or which is capable of enlargement by release, for he stands in no privity to his landlord. There is a material distinction between the cases of a person coming to an estate by act of the party, and afterwards holding over, and by act of the law and then holding over. In the first case he is regarded as a tenant at sufferance ; and in the other, as an intruder, abator and trespasser. Co. Litt. 57, b; 2 Inst. 134; Cruise, Dig. t. 9, c. 2; 4 Kent, Com. 115; 13 Serg. & Rawle, 60; 8 Serg. & Rawle, 459; 4 Rawle's R. 126.
ESTATE TAIL AFTER POSSIBILITY OF ISSUE EXTINCT. By this awkward, but perhaps necessary paraphrasis, justified by Sir William Blackstone, 2 Com. 124, is meant the estate which is thus described by Littleton, § 32: "when tenements are given to a man and his wife in special tail, if one of them die without issue, the survivor is tenant in tail after possibility of issue extinct." This estate, though, strictly speaking, not more than an estate for life, partakes in some circumstances of the nature of an estate tail. For a tenant in tail after possibility of issue extinct, has eight qualities or privileges in common with a tenant in tail. 1. He is dispunishable for waste; 2, he is not compellable to attorn; 3, he shall not have aid of the person in reversion; 4, upon his alienation no writ of entry in consimili casu lies; 5, after his death, no writ of intrusion lies; 6, he may join the mise in a writ of right in a special manner; 7, in- a praecipe brought by him, he shall not name himself tenant for life; 8, in a praecipe brought against him, he shall not be named barely tenant for life. There are however four qualities annexed to this estate, which prove it to be in fact only an estate for life. I. If this tenant makes a feoffment
in fee it is a forfeiture; 2, if an estate tail or in fee descends upon him, the estate tail after possibility of issue extinct is merged; 3, if he is impleaded, and makes default, the person in reversion shall be received, as upon default of any other tenant for life; 4, an exchange between this tenant, and a bare tenant for life, is good; for, with respect to duration their estates are equal. Cruise, Dig. tit. 4; Tho. Co. Litt. B. 2, c. 17; Co. Litt. 28, a. Nothing but absolute impossibility of having issue can give rise to this estate. Thus if a person gives lands to a man and his wife, and to the heirs of their two bodies, and they live to a hundred years, without having issue, yet they are tenants in tail; for the law sees no impossibility of their having issue, until the death of one of them. Co. Litt. 28, a. See Tenant in tail after possibility of issue extinct.
ESTATE AT WILL. An estate at will is that which a man has in consequence of a lease of land made to him to hold at the will of the lessor. Co. Litt. sec. 68. Estates at will have become almost extinguished under the operation of judicial decisions. Where no certain term is agreed on, they are now construed to be tenancies from year to year, and each party is bound to give reasonable notice of an intention to terminate the estate. When the tenant holds over by consent given, either expressly or by implication, after the determination of a lease for years, it is held evidence of a new contract, without any definite period, and is construed to be a tenancy from year to year. 4 Kent, Com. 210; Cruise, Die. tit. 9, c. 1.
ESTATE FOR YEARS, is one which is created by a lease for years, which is a contract for the possession and profits of land for a determinate period, with the recompense of rent; and it is deemed an estate