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At common law estates for life not subject to dower.

1. AN estate for life, although possessing all the dignity of a freehold estate, is, nevertheless, by the rules of the common law, not subject to dower. It is obvious that dower does not attach upon an estate which the husband holds for his own life, as the right of dower is but a continuation of the husband's estate;' and although the same reason for excluding dower does not exist where an estate is held pur autre vie, yet the common law, for reasons which will be hereafter stated, makes no distinction, and rigorously applies the same rule in both classes of cases.2

2. "By common speech," says Littleton, "he which holdeth for term of his own life, is called tenant for term of his life, and he which holdeth for term of another's life, is called tenant for term of another man's life." Upon which Lord Coke has these observations: "Now it is to be understood that if the lessee in that case dieth, living cestui que vie, (that is, he for whose life the lease was made,) he that first entreth shall hold the land during that other man's life, and he that so entreth is within Littleton's words, viz. tenant pur autre vie, and shall be punished for waste as tenant pur autre vie, and subject to the payment of the rent reserved, and is in law called an occupant, (occupants,) because

1 Park, Dow. 48, 49; 1 Greenl. Cruise, 181, 17. And see Exton v. St. John, Finch, 368.

ron,

Ibid.; Bracton, 92, b.; Plow. 556; Bowles v. Poore, 1 Bulstr. 135; Low v. Bur3 P. Wms. 262; see 1 Ves. Sr. 303.

3 Litt. sec. 56.

his title is by his first occupation. In like manner it is of an estate created by law, for if a tenant by the curtesie or tenant in dower grant over his or her estate, and the grantee dieth, there shall be an occupans." This rule, which was limited to corporeal hereditaments, was founded upon the idea that the estate, upon the death of the grantee, could not go to the heir, for the reason that there were no words of inheritance; nor to the executor, because it was a freehold estate. For these reasons it was supposed the estate became derelict, and that the person who first entered might lawfully retain possession, and would become vested with all the rights and subject to all the obligations and liabilities of the grantee. Upon such an estate, so long as this doctrine was recognised, it is manifest no right of dower could attach.

3. The intrinsic injustice of such a doctrine is very palpable; and it is also apparent that it must have been the fruitful source of much mischievous controversy, and would necessarily call for modification at the hands of the legislative power. Accordingly, by the statute of 29 Car. II., chapter 3, sec. 12, it was enacted "that any estate pur autre vie, shall be devisable by will, &c., and if no such devise thereof be made, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee simple. And in case there be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands." A statute upon the same subject was also passed in the 14 of Geo. II., which, after reciting the 29 Car. II., and that doubts had arisen, where no devise had been made of such estates, to whom the surplus remaining after the payment of debts belonged, enacted as follows: "That such estates pur autre vie, in case there be no special occupant thereof, of which no devise shall have been made according to the said act, or so much thereof as shall not have been so devised, shall go, be applied, and distributed in the same manner as the personal estate of the testator or intestate." A more recent act provides that estates pur autre vie, if not devised, shall be charge

1 Co. Litt. 41, b.

2 1 Greenl. Cruise, 109, 43; Lambert on Dower, 21, 49.

3 14 Geo. II. ch. 20, 9.

able in the hands of the heir, as assets by descent; and if there be no special occupant, they are to go as already provided.'

4. The right of special occupancy existed where an estate was limited to the grantee and his heirs, pur autre vie; in which case the heir or heirs of the grantee, upon his death, would have the exclusive right, by the terms of the original grant, to enter and occupy the lands during the residue of the term, and no right of general occupancy could arise. But although this interest partook very much of the character of a descendible freehold estate, yet by the common law it furnished no foundation for the estate of dower. Nor do the several acts of Parliament above referred to change this common-law rule in any particular. The effect of these enactments is simply to abrogate the right of general occupancy; to confer upon the grantee of an estate pur autre vie the right to dispose of the unexpired portion of the term by will; and to direct, in substance, that such interest of the deceased grantee shall be held and treated as personal estate.1

5. An estate is sometimes created for the life of the tenant, and the life or lives of one or more third persons. It may also be made to depend upon a contingency, the happening of which will determine it before the death of the grantee. It is hardly necessary to add that in neither of these cases is the estate subject to dower."

The rule in the United States.

6. The provisions of the English statutes relating to estates pur autre vie have been substantially adopted in New York,

11 Victoria, ch. 26. See, also, as to the rights of residuary legatees, Ripley v. Waterworth, 7 Ves. Jr. 425; Milner v. Lord Harewood, 18 Ves. Jr. 259.

48.

2 Doe v. Robinson, 8 Barn. & Cress. 296; 1 Greenl. Cruise, 111, 3 Plow. 556; i Bulstr. 135; Cro. Eliz. 805; Park on Dower, 48, 49. Bracton, 92, b.; Low v. Burron, 3 P. W. 262; 1 Ves. Sr. 303.

And see

4 Reference may also be had to the following additional authorities: Lord Windsor's case, 3 Leon. 35: Dyer, 328, b., pl. 10; Buller v. Cheverton, 2 Roll. Abr. 151; Salter v. Butler, Moo. 664; Cro. Eliz. 901; Yelv. 9; Westfaling v. Westfaling, 3 Atk. 460; Williams v. Jekyl, 2 Ves. Sr. 681; Atkinson v. Baker, 4 Term R. 229; Bac. Abr. tit. Est. for Life, 3; 4 Kent, 27; 1 Greenl. Cruise, 110-113, where the English cases are collected and considered.

5 Brac. lib. 4, c. 28, sec. 1: Co. Litt. 42, a.; The People v. Gillis, 24 Wend. 201; 4 Kent, 26.

62 Rev. Stat. N. Y. (3d ed.) p. 9, 8 6. [Rev. Stat. 1882, p. 2174, 6.]

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New Jersey, Virginia, Maryland, Kentucky, Indiana," Rhode Island, Alabama, Arkansas, Wisconsin, and Mississippi.1 In Massachusetts, Maine, North Carolina, and Vermont, estates pur autre vie are made descendible like fee simple estates. 7. The rule of the common law upon the subject of dower in estates pur autre vie was recognised and applied in New York at an early day in the case of Gillis v. Brown.15 In that case the life estate of a tenant by the curtesy initiate was sold on execution, and after the death of the purchaser, which happened during the lifetime of the tenant, his widow claimed dower in the estate. The claim was disallowed. "The husband of the demandant," the court said, "had not an estate that could descend to his heirs. It was pur autre vie. By the English statute, (29 Car. II., ch. 3, sec. 12,) such an estate descends to the heir if it comes to him as a special occupant. It was enacted to prevent the mischief which previously existed, that where no special occupant was designated by the grant, it belonged to the person who first took possession. 4 D. & E. 229. This act enables the proprietor to devise the estate; but when no devise is made, it is chargeable in the hands of the heir, if it comes to him by reason of a special occupancy, as assets by descent, as in case of lands in fee simple; and if there be no special occupant, it shall

1 Rev. Code, 1820, p. 223; Elmer's Dig. p. 596, 5; Act of April 15, 1846, Nixon's Dig. p. 873. [Rev. Stat. 1877, p. 1243, ? 1.]

2 Hen. Stat. at Large, vol. xii. p. 152, 51; Code of Va. (1849,) p. 500, ? 5. [Code of Va. 1873, p. 888, 2 5.]

31 Dorsey, p. 389; 1 Maryl. Code, p. 666, 220. [Rev. Code Md. 1878, p. 458, 2145.

4 Rev. Stat. Ky. (1852,) p. 190, 13; 2 Stanton's Rev. p. 226, 6. [Gen. Stat. 1873, p. 450,

26.]

5 Rev. Stat. 1843, ch. 30. art. 1, 7 6.

6 Rev. Stat. 1844, p. 231; Rev. Stat. 1857, p. 357, 81. [Pub. Stat. 1882, p.

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11 Mass. Rev. Stat. ch. 61, 1; Gen. Stat. Mass. p. 476, 1. [Pub. Stat. 1882,

p. 743.]

1. [See Rev.

12 Rev. Stat. (1857,) ch. 74,
13 Rev. N. C. Code, (1849,) p. 250, Rule 12.
14 Comp. Stat. Verm. (1850,) p. 364, % 1
15 Gillis v. Brown, 5 Cow. 388.

Stat. 1871, p. 564.]

[Battle's Rev. Stat. 1873, p. 363.] [See Rev. L. 1880, 2039, 2041.]

go to the executor and be assets. Our act (1 R. L. 365, s. 4) declares that estates of this description shall be devisable; and if no devise be made they shall go to the executor or administrator, to be applied and distributed as part of the personal estate. The consequence is the demandant is not entitled to dower."

8. In Mississippi, also, it has been held that an estate pur autre vie is not subject to dower.' And in Missouri, under the act converting the estate of the first donee in tail into an estate. for life, with remainder in fee to his heirs, it was adjudged that dower does not attach upon the estate of such donee. But in New Jersey, in cases of this description, a contrary rule prevails, by express statute. In Vermont, where the husband had conveyed certain lands, (his wife not joining,) reserving an estate therein during his own life and the life of his wife, it was held that she was dowable of the lands. In North Carolina a testator died, leaving a will containing, among others, the following provision: "I will to my son B. all my estate, real and personal, for his use and benefit, and then to be divided off and distributed among his children, as he may think proper; that is to say, my land to be used by him, and the profits thereof to be to him, but the lands to be by him divided and distributed among his children, as he shall think proper." It was decided that under this will the son took but an estate for life in the land, with the power of dividing it, at, or prior to his decease, among his children, and that until such appointment the remainder in fee either vested in the children or descended to the heirs of the testator, and that the widow of the son had no dower in the land.5

9. In those States in which dower is allowed in estates for years, it would seem, upon principle, that estates pur autre vie, which are of a higher nature, should also be regarded as subject to the same right.

Estates for years.

10. The principles of the common law did not permit a right

1 Fisher v. Grimes, 1 S. & M. Ch. 107.

Burris v. Page, 12 Misso. 358.

Nixon's Dig. p. 196, 11.

4 Gorham v. Daniels, 23 Verm. 600. See note to this case, per Redfield, J., p. 612. 5 Alexander v. Cunningham, 5 Ired. 430. See, also, Thompson v. Vance, 1 Met. (Ky.) 669. [Knickerbocker v. Seymour, 46 Barb. 198; Edwards v. Bibb, 54 Ala.

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