This expedient having greatly abridged estates tail with regard to their duration, others were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treason. For, notwithstanding the large advances made by recoveries, in the compass of about threescore years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them fre[*118] quently resettled in a similar manner to suit the convenience of families, had address enough to procure a statute (p) whereby all estates of inheritance (under which general words estates-tail were covertly included) are declared to be forfeited to the king upon any conviction of high treason. The next attack which they suffered in order of time, was by the statute 32 Henry VIII, c. 28, whereby certain leases made by tenants in tail, which do not tend to the prejudice of the issue, were allowed to be good in law, and to bind the issue in tail. But they received a more violent blow, in the same session of parliament, by the construction put upon the statute of fines, (q) by the statute 32 Henry VIII, c. 36, which declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other persons claiming under such entail. This was evidently agreeable to the intention of Henry VII, whose policy it was (before common recoveries had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched, in his act, under covert and obscure expressions. And the judges, though willing to construe that statute as favorably as possibly for the defeating of entailed estates, yet hesitated at giving fines so extensive a power by mere implication, when the statute de donis had expressly declared, that they should not be a bar to estates-tail. But the statute of Henry VIII, when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention. Yet, in order to preserve the property of the crown from any danger of infringement, all estates-tail created by the crown and of which the crown has the reversion, are excepted out of this statute. And the same was done with regard to common recoveries, by the statute 34 and 35 Henry VIII, c. 20, which enacts, that no feigned recovery had against tenants in tail, where the estate was created by the *crown, (r) and the remainder or reversion continues still in the crown, [*119] shall be of any force and effect. Which is allowing, indirectly and collaterally, their full force and effect with respect to ordinary estates-tail, where the royal prerogative is not concerned.

Lastly, by a statute of the succeeding year, (s) all estates-tail are rendered liable to be charged for payment of debts due to the king by record or special contract; as sinoe, by the bankrupt laws, (t) they are also subjected to be sold for the debts contracted by a bankrupt. (14) And, by the construction put on

(p) 26 Hen. VIII, c. 13
(8) 33 Hen. VIII, c. 39, 75

(14) 6 Geo. IV, c. 16, s. 65.

And now in England. by stat. 3 and 4 William IV, c. 74, the tenant in tail is enabled "by an ordinary deed of conveyance (if duly enrolled), and without resort to the indirect and operose expedient of a fine or recovery (which the statute wholly abolishes) to aliene in fee-simple absolute, or for any less estate, the lands entailed, and thereby to bar himself, and his issue and all persons having any ulterior estate therein. Yet this is subject to an important qualification, designed for the protection of family settlements. For in these it is usual to settle a life estate (which is a freehold interest) on the parent, prior to the estate-tail limited to the children; and the nature of a recovery (by which alone interests ulterior to the estate-tail could formerly be barred) was such as to make the concurrence of the immediate tenant of the freehold indispensable to its validity. In order therefore to continue to the parent (or other prior taker) a control of the same general description, the act provides that where, under the same settlement which created the estate-tail, a prior estate of freehold, or for years determinable with life, shall have been conferred, it shall not be competent for the tenant in tail to bar any estate taking effect upon the determination of the estate-tail, without consent of the person to whom such prior estate was given; who receives for that reason the appellation of

the statute 43 Eliz. c. 4, an appointment (u) by tenant in tail of the lands entailed, to a charitable use, is good without fine or recovery.

Estates-tail, being thus by degrees unfettered, are now reduced again to almost the same state, even before issue born, as conditional fees were in at common law, after the condition was performed, by the birth of issue. For, first, the tenant in tail is now enabled to aliene his lands and tenements by fine, by recovery, or by certain other means; and thereby to defeat the interest as well of his own issue, though unborn, as also of the reversioner, except in the case of the crown: secondly, he is now liable to forfeit them for high treason: and lastly, he may charge them with reasonable leases, and also with such of his debts as are due to the crown on specialties, or have been contracted with his fellow-subjects in a course of extensive commerce. (15)

CHAPTER VIII.

OF FREEHOLDS, NOT OF INHERITANCE.

WE are next to discourse of such estates of freehold, as are not of inheritance, but for life only. And of these estates for life, some are conventional, or expressly created by the act of the parties; others merely legal, or created by construction and operation of law. (a) We will consider them both in their

order.

1. Estates for life, expressly created by deed or grant (which alone are properly conventional), are where a lease is made of lands or tenements to a man, to hold for the term of his own life, or for that of any other person, or for more lives than one: in any of which cases he is styled tenant for life; only when he holds the estate by the life of another, he is usually called tenant per auter vie. (b) These estates for life are, like inheritances, of feudal nature; and were, for some time, the highest estate that any man could have in a feud, which (as we have before seen) (c) was not in its original hereditary. They are given or conferred by the same feudal rights and solemnities, the same investiture or liv(u) 2 Vern. 453. Chan. Prec. 16. (a) Wright, 190. (b) Litt. § 56. (c) Page, 55.

protector of the settlement. But the object not being to restrain the power of the tenant in tail over the estate-tail itself (which he could have barred before the statute by fine, without any other person's concurrence) his alienation (in the manner prescribed by the act) is allowed to be effectual, even without the consent of the protector, so far as regards the barring of himself and his issue." 1 Stephen's Commentaries, 237. And later than the statute above mentioned, by 1 and 2 Vio. c. 110, estates-tail were made liable to judgments recovered for ordinary

debts.

Mr. Stephen remarks that "estates-tail have thus been gradually unfettered; and are now subject to even less restraint than attached to conditional fees at common law, after the condition was performed by the birth of issue. For, first, the tenant in tail is now enabled by any ordinary deed of conveyance (enrolled) to alien his lands and tenements in fee-simple absolute, or otherwise, and thereby to bar his issue (born or unborn) and all ulterior claimants, subject only to the necessity, so far as the latter are concerned, of obtaining the consent of the protector, where there is one. Secondly, he is liable to forfeit them for treason. Thirdly, he may charge them with reasonable leases, even by deed not enrolled; and lastly, they are subject to be sold for payment of his debts to the same extent to which he would himself have had power to dispose of them."

(15) Estates-tail were introduced into the American colonies with other elements of the common law, and in some of the colonies the mode of barring them by common recovery obtained before the revolution. But now these estates are either changed into fee-simples, or reversionary estates in fee-simple, and do not exist at all as estates-tail, or may be converted into estates in fee-simple by familiar forms of conveyance in the several states, by force of their respective statutes. 1 Washburn on Real Property, 83, 84. It is competent for the legislature to make this change in the nature of estates. Cooley on Const. Lim. 360, and cases there cited.

ery of seisin, as fees themselves are; (1) and they are held by fealty, if demanded, and such conventional rents and services as the lord or lessor, and his tenant or lessee, have agreed on. *Estates for life may be created, not only by the express words before [*121 ] mentioned, but also by a general grant, without defining or limiting any specific estate. As, if one grants to A B the manor of Dale, this makes him tenant for life. (d) For though, as there are no words of inheritance or heirs mentioned in the grant, it cannot be construed to be a fee, it shall however be construed to be as large an estate as the words of the donation will bear, and therefore an estate for life. Also such a grant at large, or a grant for term of life generally, shall be construed to be an estate for the life of the grantee; (e) in case the grantor hath authority to make such grant: for an estate for a man's own life is more beneficial and of a higher nature than for any other life; and the rule of law is, that all grants are to be taken most strongly against the grantor, (f) unless in the case of the king.

Such estates for life will, generally speaking, endure as long as the life for which they are granted: but there are some estates for life, which may determine upon future contingencies, before the life, for which they are created expires. As, if an estate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice; in these, and similar cases, whenever the contingency happens, when the widow marries, or when the grantee obtains a benefice, the respective estates are absolutely determined and gone. (g) Yet while they subsist, they are reckoned estates for life: because, the time for which they will endure being uncertain, they may by possibility last for life, if the contingencies upon which they are to determine do not sooner happen. And, moreover, in case an estate be granted to a man for his life, generally, it may also determine by his civil death: as if he enters into a monastery, whereby he is dead in law: (h) for which reason in conveyances the grant is usually made "for the term of a man's natural life;" which can only determine by his natural death. (i) *The incidents to an estate for life are principally the following; [*122] which are applicable not only to that species of tenants for life, which are expressly created by deed; but also to those which are created by act and operation of law.

1. Every tenant for life, unless restrained by covenant or agreement, may of common right take upon the land demised to him reasonable estovers (k) or botes. (1) For he hath a right to the full enjoyment and use of the land, and all its profits, during his estate therein. But he is not permitted to cut down timber, or do other waste upon the premises: (m) for the destruction of such things as are not the temporary profits of the tenement is not necessary for the tenant's complete enjoyment of his estate; but tends to the permanent and lasting loss of the person entitled to the inheritance. (2)

(d) Co. Litt. 42. (h) 2 Rep. 48.

(f) Ibid. 36.

(e) Ibid. (g) Co. Litt. 42. 3 Rep. 20. (i) See book I, p. 132. (k) See p. 35. (1) Co. Litt. 41. (m) Ibid. 53. (1) [An estate for life may be created by any of the modes of assurance or conveyance proper for passing freehold estates; as by bargain and sale operating under the statute of uses; by release from the reversioner to the tenant for years; by grant of a reversion to a stranger, or, as mentioned in the text, by feoffment. In each of these conveyances words of inheritance are necessary to confer an estate of inheritance; and if no words of inheritance and nothing equivalent to them occur, the conveyance passes but an estate for the life of the grantee.]

(2) [Where the commission of acts of waste, such as cutting down timber that is falling into decay, is clearly for the benefit of all persons interested in the property, the courts have permitted a tenant for life to cut it, the proceeds being invested for the benefit of the remaindermen, but the annual interest being given to the tenant for life. Tooker v. Annesley, 5 Sim. 235; Waldo v. Waldo, 7 id. 261; Phillips v. Barlow, 14 id. 263; Bateman v. Hotchkin, 31 Beav. 436.]

Estates may be created without impeachment of waste, in which case the tenant has a much larger power, though even then he must not commit acts which tend to the destruction of the estate, such as the demolition of a castle: Vane v. Lord Barnard, 2 Vern. 738; or ornamental trees: Aston v. Aston, 1 Ves. Sen. 265. But the doctrine that he must not cut down timber is not entirely applicable to the condition of the American States, in some parts of which and under some circumstances it would be regarded as beneficial to both parties for the tenant to clear and improve a portion of the land. See Crockett v. Crockett, 2 Ohio Ñ. S. 180; McCay v. Wait, 51 Barb. 225.

2. Tenant for life, or his representatives, shall not be prejudiced by any sudden determination of his estate, because such a determination is contingent and uncertain. (n) Therefore if a tenant for his own life sows the lands and dies before harvest, his executors shall have the emblements or profits of the crop: (3) for the estate was determined by the act of God, and it is a maxim in the law, that actus Dei nemini facit injuriam. The representatives, therefore, of the tenant for life shall have the emblements to compensate for the labour and expense of tilling, manuring and sowing the lands; and also for the encouragement of husbandry, which being a public benefit, tending to the increase and plenty of provisions, ought to have the utmost security and privilege that the law can give it. Wherefore by the feudal law, if a tenant for life died between the beginning of September and the end of February, the lord, who was entitled to the reversion, was also entitled to the profits of the whole year; but if he died between the beginning of March and the end of August, the heirs of the tenant received the whole. (0) From hence our law of emblements [*123] seems to have been derived, but with very considerable improvements. So it is, also, if a man be tenant for the life of another, and cestui que vie, or he on whose life the land is held, dies after the corn sown, the tenant per auter vie shall have the emblements. The same is also the rule, if a life estate be determined by the act of law. Therefore if a lease be made to husband and wife during coverture (which gives them a determinable estate for life), and the husband sows the land, and afterwards they are divorced a vinculo matrimonii, the husband shall have the emblements in this case; for the sentence of divorce is the act of law. (p) But if an estate for life be determined by the tenant's own act (as, by forfeiture for waste committed; or, if a tenant during widowhood thinks proper to marry), in these, and similar cases, the tenants, having thus determined the estate by their own acts, shall not be entitled to take the emblements. (q) (4) The doctrine of emblements extends not only to corn sown, but to roots planted, or other annual artificial profit, but it is otherwise of fruit trees, grass, and the like; which are not planted annually at the expense and labour of the tenant, but are either a permanent or natural profit of the earth. (r) For when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of its being useful to

(n) Ibid. 55. (0) Feud l. 2, t. 28. (r) Co. Litt. 55, 56. 1 Roll. Abr. 728.

(p) 5 Rep. 116.

(q) Co. Litt. 55.

(3) This means such crops as are produced by annual planting and culture, and not such as grass, fruit and the like, as are the annual produce from permanent roots. Stewart v. Doughty, 9 Johns. 108. But hops, it is said, are an exception, and will go to the tenant as emblements, because they require annual training and culture: 1 Washb. Real. Prop. 102; and so will trees, shrubs, &c., planted by gardeners and nurserymen for sale. Penton v. Robart, 2 East, 88. The mere preparation of the soil for crops will give the tenant no right to emblements, if they have not been actually planted when his estate terminates. Stewart v. Doughty, 9 Johns. 108; Thompson v. Thompson, 6 Munf. 514; Price v. Pickett, 21 Ala. 741.

(4) [Emblements are considered for most purposes as goods and chattels; they go, as has been seen, to the executors, they may be taken in execution, and contracts relating to them have been held not to be contracts relating to any interest in lands within the statute of frauds, in contradistinction to contracts relating to growing grass, crops of fruit, &c. 2 Brod. and B. 368; 5 B. and C. 829; 8 Dowl. and Ry. 611; 4 Mee. and W. 363.]

To entitle the tenant to emblements, his estate must be of uncertain duration, and must have been terminated in some other manner than by his own act. For if he knows when his estate is to cease, and plants crops which will not ripen during the term, it is his own folly, and the reversioner is not to be the sufferer in consequence. And the law will not protect him against the consequences of his act if he voluntarily puts an end to an estate before his crops are matured. Kittredge v. Woods, 3 N. H. 503; Whitmarsh v. Cutting, 10 Johns. 360; Harris v. Carson, 7 Leigh, 632; Davis v. Brocklebank, 9 N. H. 73; Chandler v. Thurston, 10 Pick. 205; Chesley v. Welch, 37 Me. 106. Therefore a widow holding land during widowhood is not entitled to emblements if she terminates the estate by marriage. Hawkins v. Skeggs, 10 Humph. 31. Nor is a parson who resigns his living. Bulwer v. Bulwer, 2 B. and Ald. 470. See Davis v. Eyton, 7 Bing. 154.

Incident to the right to emblements, is the right to go upon the premises for the purpose of cultivation and harvest, the reversioner being in possession for all other purposes. 1 Washb. Real Prop. 105, 106.

him in future, and to future successions of tenants. The advantages also of emblements are particularly extended to the parochial clergy by the statute 28 Hen. VIII, c. 11. For all persons, who are presented to any ecclesiastical benefice, or to any civil office, are considered as tenants for their own lives, unless the contrary be expressed in the form of donation.

3. A third incident to estates for life relates to the under-tenants, or lessees. For they have the same, nay, greater indulgences than their lessors, the original tenants for life. The same; for the law of estovers and emblements *with

[*124] regard to the tenant for life, is also law with regard to his under-tenant,

who represents him and stands in his place: (s) and greater; for in those cases where 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. As in the case of a woman who holds durante viduitate: her taking husband is her own act, and therefore deprives her of the emblements; but if she leases her estate to an under-tenant, who sows the land, and she then marries, this her act shall not deprive the tenant of his emblements, who is a stranger, and could not prevent her. (t) The lessees of tenants for life had also at the common law another most unreasonable advantage; for at the death of their lessors, the tenants for life, these under-tenants, might if they pleased quit the premises, and pay no rent to any body for the occupation of the land since the last quarter day, or other day assigned for the payment of rent. (u) To remedy which it is now enacted, (v) that the executors or administrators of tenant for life, on whose death any lease determined, shall recover of the lessee a ratable proportion of rent from the last day of payment to the death of such lessor. (5)

II. The next estate for life is of the legal kind, as contradistinguished from conventional; viz: that of tenant in tail after possibility of issue extinct. This happens where one is tenant in special tail; and a person, from whose body the issue was to spring, dies without issue; or, having left issue, that issue becomes extinct in either of these cases the surviving tenant in special tail becomes tenant in tail after possibility of issue extinct. As where one has an estate to him and his heirs on the body of his present wife to be begotten, and the wife dies without issue: (w) in this case the man has an estate-tail, which cannot possibly descend to any one; and therefore the law makes use of this long periphrasis, as abolutely necessary to give an adequate idea of his estate. For if it had called him barely tenant in fee-tail special, that *would not have distinguished him [*125] from others; and besides, he has no longer an estate of inheritance or fee, (x) for he can have no heirs capable of taking per formam doni. Had it called him tenant in tail without issue, this had only related to the present fact, and would not have excluded the possibility of future issue. Had he been styled tenant in tail without possibility of issue this would exclude time past as well as present, and he might under this description never have had any possibility of issue. No definition therefore could so exactly mark him out, as this of tenant in tail after possibility of issue extinct, which (with a precision peculiar to our own law) not only takes in the possibility of issue in tail which he once had, but also states that this possibility is now extinguished and gone.

This estate must be created by the act of God, that is, by the death of that person out of whose body the issue was to spring; for no limitation, conveyance, or other human act can make it. For, if land be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced a vinculo

(8) Co. Litt. 55.

(t) Cro. Eliz. 461. 1 Roll. Abr. 727. (v) Stat. 11 Geo. II, c. 19, § 15. (w) Litt. § 32.

(u) 10 Rep. 127.
(x) 1 Roll. Rep. 184. 11 Rep. 80.

(5) At the common law a tenant for life, unless expressly authorized by the instrument creating the estate, could grant no lease which would have force after the termination of the life estate; but by statute 19 and 20 Vic. c. 120, amended by later statutes, leases of the lands, excepting the manor house and the demesnes and lands usually occupied with it, may be made for any term not exceeding twenty-one years, to take effect in possession; and even longer leases may be given by consent of the court of chancery.