3. Paterson insured the life of a woman to whom he was married, and whom he supposed to be his wife. As a matter of fact she had another husband living from whom she had not been divorced, so that the marriage to Paterson was a nullity. Upon her death may Paterson recover the amount of the policy? Why?

4. Wilkinson in answer to the following question in an application for life insurance, "Have you ever met with any accidental or serious injury, and if so, what?" answered "No." The company, when sued for the insurance money after his death, defended on the ground that he had, several years before taking out the policy, fallen a considerable height from a tree and was sick for two weeks at the time, but that this in no way contributed to his death. May the beneficiary recover? Why?

1. In possession

II. As to Time of Enjoyment(2. In Futuro, or in

the future

(1. In severalty

III. As to Number of Owners 2. By joint tenancy 3. By tenancy in

common

401. Real Property consists of the right in lands and such things as are permanent, fixed and immovable. It includes rights in the minerals that are beneath the surface of the earth, water flowing upon it, and things of a permanent nature attached to the earth, such as buildings, trees, and the unsevered fruits of the soil.

402. Source of Real Estate Law. The laws respecting real estate were developed at a very early period in England, and the English conceptions became fully implanted in the colonial minds before the separation of the United States from Great Britain. These conceptions have continued to the present time, and the early English law is even now frequently quoted as authority for decisions respecting real estate, and in interpreting rules.

The English law regarding real estate was developed while England was under the feudal system of government, the feudal system having itself been a development from the Roman law and the primitive customs of the early Teutonic tribes. It was

introduced into England from France by William the Conqueror, and formed the basic theory of real estate law. By that theory the original title to all land vested in the king, who was deemed to hold it and to rule by divine right. Immediately below him were the great nobles, the king's tenants in chief, among whom the lands were parceled out in large districts to be held by them in return for military service to the king. The estates of the nobles were in turn re-parceled among under lords, and again and again until the earth-tenant, or the actual cultivator of the soil, was reached. Each holder was bound to return money or services to his superior, the title to the lands being always ultimately traceable to the king, or over-lord.

Under the feudal system several forms of tenure, or land holding, developed, varying in the character of the duties owed to the superior lord, and the rights possessed by the tenant. These underwent various changes until in the year 1645 practically all the tenures came to be known as "freeholds," by which name all estates in land have been known since that time, with the exception of a few English church estates.

In the United States, the title to all lands is considered to have been originally derived, since the Revolution, from either the state or the United States. The idea of feudal dues and obligations has, however, been eliminated from our law, and the ownership of land is absolute and unconditional in the owner, except as against the right of the state to purchase land for public purposes by the power of eminent domain, even against the will of the owner, the right of escheat, and the right of the government to enact regulations by virtue of its police power.

403. An Estate is the nature and extent of the interest which a person has in real property. There are many different kinds of estates in land, the most important being as shown in the outline at the beginning of this chapter.

404. Fee Simple. This is the largest estate possible to be possessed in property. It is the absolute ownership and title, and may be defeated only by the state under its power of eminent domain, escheat, or police power. The owner holds it not only for his own life, but he owns that future enjoyment which will descend to his heirs according to the laws of descent. This is the

The

common manner of holding land in the United States. owner in fee simple may use the property as he may see fit, or he may dispose of it to whomever he chooses by deed or will.

405. Life Estate. Instead of being possessed of the absolute title to land, a person may hold it only for the term of his own life, or the life of some other person. Such an estate is known as a life estate. It is not an estate of inheritance, for he who owns it, known as the life-tenant, possesses no rights extending beyond his own life, or the life of the other person whose life is designated to measure the term of the estate.

The life tenant has the right, however, to the full use of the land, and all its profits, during his estate. He may cut all necessary wood for his fuel and to repair his fences and buildings, during the continuance of his estate, but he is not entitled to commit acts which materially injure the future value of the estate, these acts being known as waste, and being wrongful on his part. This may be either actual or permissive waste, permissive waste occurring when buildings are allowed to decay. In the absence of agreement, the tenant is bound to keep the premises in as good repair and condition as he found them, inevitable accidents excepted. The tenant for life is likewise bound to pay the taxes and interest on incumbrances.

The life tenant is also entitled to emblements, these being the annual crops growing on the land at the termination of the estate. The theory for allowing the life tenant these crops is that he could not forsee the time of death of the person on whose life the estate depended, and should be entitled to crops which he had planted in expectation of reaping. The life tenant may part with his estate or any portion of it, but cannot lease or grant it to another for a period to extend beyond the life estate.

A life estate may be created by deed or by will, or by operation of law. The rights of dower, curtesy, and homestead are created by operation of law.

EXAMPLE

Brown, dying, left a will giving all his real property to his wife to be held and enjoyed by her as long as she should live. On her death their children were to come into possession and enjoyment of the property. The wife had a life estate.

406. Dower is the right which a wife has, upon the death of her husband, in lands which her husband owned in fee simple, while she was under his protection. It is a life estate in one equal third part of all such lands, and is a right of which she cannot be deprived by any act of her husband. She may, however, waive it by joining with him in a deed during his lifetime, or she may herself convey it either before or after his death. She may also abandon her right to dower by accepting a provision in her husband's will giving her other property instead of the dower interest. The right of dower is for the protection of the wife and she is not compelled to accept a provision in a will giving her other property, unless she so desires. She cannot ordinarily have both the dower right and the property left her under a will, but must disclaim one or the other. In some states this right has been limited by statute, and in others enlarged, though in general the common law right of dower, as previously defined, remains unchanged.

EXAMPLES

1. Ames dies possessed of 640 acres of land, leaving a widow and several children. He leaves no will. The widow is entitled to receive the rents and profits of one-third of this land for her life. The remaining two-thirds would be immediately distributed among his children and the one-third in which she had her dower right would go to the children at her death.

2. Bates, in contemplation of marriage, made an agreement with his prospective wife by which she accepted stocks and bonds to the value of $10,000 instead of dower. At Bates' death, she would not be entitled to any dower in property owned by her husband.

3. Call, a married man, sold some of his property, known as Blackacre, to Dale, Call's wife not joining in signing the deed from Call to Dale. After Call's death, Mrs. Call may assert her dower right in this property.

407. Estate by Curtesy. At common law the husband acquired by his marriage the right to all of the rents and profits from his wife's property, and at her death, if a child had been born to them capable of inheriting from her, the husband became entitled to an estate by curtesy, which was a life estate in all the real property which his wife had owned in fee during their marriage relationship. Many states have abolished this right of the husband*; others have limited it to a right equivalent to

* California, Colorado, North Dakota, South Dakota, Georgia, Idaho, Maryland, Iowa, Kansas, Maine, Minnesota, Nevada, Washington, Mississippi, South Carolina, and Wyoming.