ESTATES FOR LIFE.

Q. What are the powers of a tenant for life over the estate? Can he open new mines, or continue the working of existing mines, or cut timber, or commit waste? And how are his rights varied when the tenant for life is declared to be without impeachment of waste?(a)

A.-Every tenant for life may, unless restrained by covenant or agreement, take reasonable botes or estovers; but he must not commit waste, such as the opening of new mines, or the cutting of timber, although he may work existing mines. If, however, his estate be given him without impeachment of waste, the tenant may commit all acts of waste except equitable waste: (1 Steph. Com. ch. 4; Will. Real Pro. ch. 1; Hallilay's Digest, 163, 7th edit.) As to his powers of leasing see infrà.

Q.-State whether under any and what circumstances a tenant for life has a right to cut timber, open a quarry, and search for mines.

A. When his estate is granted him without impeachment of waste. But even then he will not be allowed to cut ornamental timber: (see references suprà.)

Q.-Can a tenant for life make leases without any express authority in the instrument under which he takes, and if so, what leases ?(a)

A.—Under the 19 & 20 Vict. c. 120, every tenant for life, taking under a settlement executed after the 1st of November, 1856 (unless restrained thereby), may, without any application to the Court of Chancery, lease the estate (except the principal mansion-house and usual demesnes) for twentyone years, which lease binds the remainderman. It must be by deed, take effect in possession, at the best rent, without fine, be impeachable for waste, and contain all usual covenants. If the tenant takes his estate before the above period he can make no lease to endure beyond his own life, unless under a power: (Will. Real Pro. 26, 9th edit.; Hallilay's Digest, 204, 7th edit.) Q.-What power had a tenant for life to lease lands previous to the 1st of November, 1856, and what since that date?

A. See preceding answer.

Q.-What is waste, and what are the remedies of the remainderman against the tenant for life on the commission of waste?

A.-Waste is that which tends to the permanent depreciation of the value of the inheritance. It is either voluntary, which is an offence of commission, as by pulling down a house; or it is permissive, which is an offence of omission only, as by suffering it to fall for want of necessary repairs. The remedy of the remainderman against the tenant for life is by action for waste already done or by injunction for waste contemplated: 2 Smith, R. & P. Pro. 1185, 4th edit.; Will. Real Pro. 23-25, 9th edit.) Q. When a tenant at rack-rent holds of a tenant for life, who dies before the tenancy has ended, has he any and what right, by a modern statute, of holding over; and if so, on what terms?

A. He does not now claim emblements, but holds over until the expiration of his current year's tenancy, paying a proportionate part of the rent to the new landlord, and being compelled to quit at the end of the tenancy without notice to do so: (Will. Real. Pro. 27, 9th edit.; Hallilay's Digest, 180, 7th edit.)

Q.-Land is limited by settlement to the use of A. for life with remainder to his first and other sons in tail male, and charged with a jointure, and portions to younger children. The settlement confers no

(a) Twice.

power for the trustees to sell. Can the land be sold during the minority of A.'s son, and if so, by what means?

A.-Yes; A. may apply by petition to the Court of Chancery for a sale of the estate, which the court has power to order, on being satisfied that it is proper and consistent, with due regard for the interests of all parties entitled (Will. Real Pro. 32, 9th edit,; Hallilay's Digest, 267, 454, 7th edit.)

Q.-How, and under what circumstances, can a sale of settled estates be effected, and how is the purchase money to be applied and invested? A.-As to the mode of effecting this object see the preceding answer. The purchase money is to be paid either to trustees approved by the court, or into court, and applied in the redemption of the land-tax, or of any incumbrance affecting the hereditaments sold, or any other hereditaments settled in the same way; or in the purchase of other hereditaments settled in the same way; or in the payment to the person becoming absolutely entitled. The money in the meantime to be invested in exchequer bills or consols, and the dividends paid to the tenant for life: (Will. Real Pro. 32, 9th edit.)

ESTATES TAIL.

Q. What is an estate in fee tail, and of how many kinds ?(a)

A.-It is an estate given to a man and the heirs of his body. It is of two kinds-general and special. It may also be in tail male or tail female (1 Steph. Com. 247, 5th edit.; Will. Real Pro. 34, 9th edit.; Hallilay's Digest, 154, 7th edit.)

Q.-What words are sufficient to create an estate tail?

A.-An estate tail is created in a deed by a limitation to a man and the heirs of his body. In a will a devise to a person and his seed, or to him and his issue, and many other similar expressions will be sufficient to give an estate tail. A devise to a man and his heirs male will confer an estate in tail male (Will. Real Pro. 154, 208, 9th edit.; Hallilay's Digest, 154, 7th edit.)

Q.-Give an instance of an estate tail general and an estate tail special.(a)

A. The former arises on a grant to a man and the heirs of his body generally, without restriction. The latter, where it is restricted to certain heirs, as to A. and the heirs of his body by B. his present wife to be begotten (see references supra.)

Q.-Land is devised by a father to his son for life with remainder to the heirs of his body. What estate does the son take?

A.—An estate tail under the rule in Shelley's case: (Will. Real Pro. 49, 243, 9th edit.; Hallilay's Digest, 157, 7th edit.)

Q.—An estate is settled to the use of A. for life, remainder to the use of B. and the heirs male of his body, with remainder to the use of C., and the heirs of his body, with remainder to the use of D. and his heirs. State in technical terms what estate A., B., C., and D., respectively have?

A.-A. has an estate for life, B. an estate in tail male, C. an estate tail, and D. an estate in fee simple. The estates of all except A. are also said to be in remainder: (Will. Real Pro. 17, 34, 59, 241, 9th edit.) Q.-How is an estate tail barred?

A. By deed executed by the tenant in tail, with the consent of the protector, if one, and enrolled in Chancery within six months after execution (1 Steph. Com. 584, 5th edit.; Will. Real Pro. 51, 54, 9th edit.; Hallilay's Digest, 157, 7th edit.)

(a) Twice.

Q.-What was the ancient mode of barring an estate tail, and by which statute was the modern practice substituted?

A. The ancient mode of barring entails was usually by a common recovery. Occasionally it was by a fine, but this would only bar the issue. But by the 3 & 4 Will. 4, c. 74, a disentailing deed enrolled in Chancery was substituted for the above methods: (Will. Real Pro. 45, 47, 9th edit.; Hallilay's Digest, 157, 7th edit.)

Q.-Who is protector of a settlement?

A.-Usually the first tenant for life under the settlement creating the entail; but he may be appointed by the settlor without his taking any interest in the estate (1 Steph. Com. 586, 588, 5th edit.; Will. Real Pro. 52, 9th edit.; Hallilay's Digest, 158, 7th edit.)

Q.-A. is tenant for life under the settlement, and B. tenant in tail in remainder, can B. turn his estate into a fee simple; and, if so, how? A.-He may do so with the consent of A., who is the protector, by deed enrolled in Chancery within six months after execution: (see references suprà.)

Q. When there is a tenant in tail in remainder after an estate for life, whose consent is necessary in order to bar the entail, and the remainders over; and how is that consent to be given? And to what extent, if any, can the tenant in tail effect any bar without such consent? (a)

A.-The consent of the tenant for life, if his estate were created by the same settlement as the entail, is necessary, which may be given either by the deed barring the entail, or by another deed executed and enrolled at the same time as or before that deed. Without the consent of the tenant for life the tenant in tail, by deed enrolled, bars his own issue and creates a base fee: (1 Steph. Com. 584, 5th edit.; Will. Real Pro. 51, 52, 9th edit.; Hallilay's Digest, 157, 159, 7th edit.)

Q.-How can the estate of a tenant in possession be turned into an estate in fee simple?

A.-By deed enrolled, &c., as before fully detailed.

Q.-Define the term "possession" in the above question.

A.-The term possession means the seisin or present enjoyment of the freehold in the lands. But it must be remembered, that if the entail is preceded by an estate for years determinable on lives created by the same settlement as the entail, it is considered in remainder so far as barring the entail is concerned: (1 Steph. Com. 318, 579, 588, 5th edit.; Will. Real Pro. 51, 52, 9th edit.; Hallilay's Digest, 155, 7th edit.)

Q.-Describe the proceeding by which an estate tail with remainders over might be barred under the old law.

A. By the tenant in tail suffering a recovery, in which the tenant of the preceding estate of freehold, called the tenant to the præcipe, was a necessary party (Will. Real Pro. 45, 47, 9th edit.; Hallilay's Digest, 156, 7th edit.)

Q. What leases can a tenant in tail make?

A.-Leases for a term not exceeding twenty-one years, to be by deed; commence in possession from the date of the lease; or within twelve calendar months from the date; where the rent received is a rack rent or not less than five-sixth parts of a rack rent. The deed need not be enrolled: (Will. Real Pro. 55, 9th edit.; Hallilay's Digest, 161, 7th edit.) Q.-If a tenant in tail in possession commits waste and dies without

(a) Thrice.

having barred the entail, can the issue in tail claim any compensation for such waste?(a)

A.-No; a tenant in tail may commit what waste he pleases without barring the entail for that purpose: (Will. Real Pro. 55, 9th edit.)

AN ESTATE IN FEE SIMPLE.

Q.-Describe an estate in fee simple.

A.-It is one given to a man and his heirs; being the largest estate which the law of England allows any individual to possess in landed property (Will. Real Pro. 59, 9th edit.; 1 Steph. Com. 238, 5th edit.; Hallilay's Digest, 153, 7th edit.)

Q. What is the difference between an estate in fee simple, and an estate in fee tail?(a)

A.-The difference is one of quality, not quantity. The fee simple being the highest, extending to lineal and collateral heirs, while the fee tail is limited to lineal heirs only. So there is a difference in the formalities of their transfer: (1 Steph. Com. 243, &c., 5th edit.; Hallilay's Digest, 151, 7th edit.)

Q.-If a woman, being a natural born subject, has a child born abroad, is her child an alien?

A.-No; the 7 & 8 Vict. c. 66, having given to such children the right of acquiring real and personal property—a right which was denied (as regards real property) to aliens, previous to the Naturalization Act, 1870: (Will. Real Pro. 64, 9th edit.)

Q.-At what age can a male or female infant respectively make a valid settlement on marriage, and under what authority; and if such infant be tenant in tail, what effect has such settlement?

A.-Males at 20, and females at 17. The sanction of the Court of Chancery is necessary, and the settlement must be upon or in contemplation of marriage. If the infant be a tenant in tail, and executes a disentailing assurance, and dies under twenty-one, the deed is void: (18 & 19 Vict. c. 43; Will. Real Pro. 65, 9th edit.; Hallilay's Digest, 272, 7th edit.)

Q. How can lands be settled for charitable uses?

A.-Lands' may be settled to charitable uses by deed executed in the presence of two credible witnesses twelve calendar months before the death of the grantor, enrolled in Chancery within six months after execution, and to take effect in possession immediately on the granting thereof, and without power of revocation. But bona fide conveyances for a valuable consideration are exempted from the provision of the Mortmain Acts; (Will. Real Pro. 67, &c., 9th edit.; Hallilay's Digest, 289, 7th edit.)

Q-What are the requisites necessary to bind purchasers or mortgagees of land with judgment-debts (1) before the 23 & 24 Vict. c. 38, and (2) after this statute?

A. Before this Act it was necessary to register, and at the proper time to re-register, the judgment by leaving full particulars thereof with the senior master of the Court of Common Pleas. After the Act it was, in addition, necessary to issue a writ of execution, register that and put it in force within three months from registration. And as to judgments entered up since the 29th of July, 1864, the lands are not affected by the judgment until such lands have been actually delivered in execution, and the writ of (a) Twice.

execution duly registered: (27 & 28 Vict. c. 112; Will. Real Pro. 85, 9th edit.; Hallilay's Digest, 220, 7th edit.)

Q. What is an heir apparent and presumptive?

A.-The former is he who if he survives the ancestor must be heir at all events; as the eldest son during his father's lifetime. The latter, though not certain to be heir, would be so if the ancestor were to die at once; as an only daughter before the birth of a son: (Will. Real Pro. 93, 9th edit. ; Hallilay's Digest, 295, 7th edit.)

ON DESCENTS.

Q. What is the difference between a title by purchase and a title by descent ?

A. The former is a title acquired in any other manner than by descent, as where land is devised by will; the latter where it is cast by law, as when lands descend to the eldest son on the death of his father: (Will. Real Pro. 96, 9th edit.; 1 Steph. Com. ch. 10; Hallilay's Digest, 234, 7th edit.)

Q.-Define the legal meaning of the word "purchase' as contradistinguished from descent, and to what tenure is it applicable?

A. The definition of this term is stated above. The term is only applicable to lands in fee simple or in tail, and perhaps leaseholds for lives, as personal property does not descend on the death of a person intestate to his heir. Such property is governed by the Statute of Distributions: (Will. Real Pro. 96, 112, 9th edit.)

Q.-What is meant by the term purchase?

A. This term, as before shown, is said to include every mode of acquiring land other than by descent. It is doubtful, however, whether, strictly speaking, it includes inclosure, elegit, and bankruptcy: (1 Steph. Com. ch. 10; Hallilay's Digest, 205, 206, 7th edit.)

Q.-State the rules of descent.(a)

A.—(1.) Inheritances shall lineally descend, in the first place, to the issue of the purchaser in infinitum.

(2.) Male issue is preferred to female.

(3.) When two of male issue are in equal degree of consanguinity to the purchaser, the elder is preferred, but females inherit together.

(4.) The lineal descendants of a deceased person represent their ancestor. (5.) On failure of lineal descendants the inheritance descends to the nearest lineal ancestor in the preferable line.

(6.) The father and male paternal ancestors of the purchaser and their descendants take before the female paternal ancestors and their heirs; and the female paternal ancestors and their heirs before the mother or maternal ancestors or their heirs; and the mother and male maternal ancestors and descendants before the female maternal ancestors and their descendants. (7.) Kinsmen of the half blood are now admitted in their order.

(8.) In the admission of the female paternal and female maternal ancestors, the mother of a more remote ancestor is preferred to the mother of a less remote ancestor.

(9.) When there is a total failure of heirs of the purchaser the lands shall descend and the descent be traced from the person last entitled as if he had been the purchaser: (Will. Real Pro. ch. 4, pt. 1; Hallilay's Digest, 296, 7th edit.)

(a) Twice.