his present wife begotten, this is an estate in tail female special. And, in case of an entail male, the heirs female shall never inherit, nor any derived from them; nor e converso, the heirs male in case of a gift in tail female. Words of Procreation Necessary. As the word heirs is necessary to create a fee, so in further limitation of the strictness of the feodal donation the word body, or some other words of procreation, are necessary to make it a feetail, and ascertain to what heirs in particular the fee is limited. If therefore, either the words of inheritance, or words of procreation, be omitted, albeit the others are inserted in the grant, this will not make an estate-tail. As, if the grant be to a man and his issue of his body, to a man and his seed, to a man and his children, or offspring; all these are only estates for life, there wanting the words of inheritance, his heirs. So, on the other hand, a gift to a man, and his heirs male, or female, is an estate in fee-simple, and not in fee-tail: for there are no words to ascertain the body out of which they shall issue. Indeed, in last wills and testaments, wherein greater indulgence is allowed, an estate-tail may be created by a devise to a man and his seed, or to a man and his heirs male; or by other irregular modes of expression. Frankmarriage. There is still another species of entailed estates, now indeed grown out of use, yet still capable of subsisting in law; which are estates in libero maritagio, or frankmarriage. These are defined to be, where tenements are given by one man to another together with a wife, who is the daughter or cousin of the donor to hold in frankmarriage. Now, by such gift, though nothing but the word frankmarriage is expressed, the donees shall have the tenements to them and the heirs of their two bodies begotten, that is, they are tenants in special tail. For this one word, frankmarriage, does ex vi termini not only create an inheritance, like the word frankalmoign, but likewise limits that inheritance; supplying not only words of descent, but of procreation also. Such donees in frankmarriage are liable to no service but fealty; for a rent reserved thereon is void; until the fourth degree of consanguinity be past between the issues of the donor and donee. Incidents to a Tenancy in Tail. The incidents to a tenancy in tail, under the statute Westm. 2, are chiefly these: 1. That a tenant in tail may commit waste on the estate-tail, by felling timber, pulling down houses, or the like, without being impeached, or called to account for the same. 2. That the wife of the tenant in tail shall have her dower, or thirds, of the estate-tail. 3. That the husband of a female tenant in tail may be tenant by the curtesy of the estate-tail. 4. That an estate tail may be barred, or destroyed by a fine by a common recovery, or by lineal warranty descending with assets to the heir. All of which will hereafter be explained at large. Grievances Arising from these Estates. Thus much for the nature of estates-tail: the establishment of which family law (as it is properly styled by Pigott) occasioned infinite difficulties and disputes. Children grew disobedient when they knew they could not be set aside: farmers were ousted of their leases made by tenants in tail; for, if such leases had been valid, then under colour of long leases the issue might have been virtually disinherited: creditors were defrauded of their debts; for if a tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth: innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; of suits in consequence of which our ancient books are full; and treasons were encouraged, as estates-tail were not liable to forfeiture longer than for the tenant's life. So that they were justly branded as the source of new contentions, and mischiefs unknown to the common law; and almost universally considered as the common grievance of the realm. But as the nobility were always fond of this statute, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature, and therefore, by the contrivance of an active and politic prince, a method was devised to evade it. The Remedy-Common Recoveries. About two hundred years intervened between the making of the statute de donis, and the application of common recoveries to this intent, in the twelfth year of Edward IV.; which were then openly declared by the judges to be a sufficient bar of an estatetail. What common recoveries are, both in their nature and consequences, and why they are allowed to be a bar to the estate-tail, must be reserved to a subsequent inquiry. At present I shall only say, that they are fictitious proceedings, introduced by a kind of pia fraus, to elude the statute de donis, which was found so intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal: and that these recoveries, however clandestinely introduced, are now become by long use and acquiescence a most common assurance of lands; and are looked upon as the legal mode of conveyance, by which tenant in tail may dispose of his lands and tenements; so that no court will suffer them to be shaken or reflected on, and even acts of parliament have by a sidewind countenanced and established them. Other Limitations. This expedient having greatly abridged estates-tall with re gard to their duration, others were soon invented to strip them of other privileges. The next that was attacked was the 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 frequently resettled in a similar manner to suit the convenience of families, had address enough to procure a statute 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 Hen. 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 receive a more violent blow, in the same session of parliament by the construction put upon the statute of fines by the statute 32 Hen. 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. Lastly, by a statute of the succeeding year, all estates-tail are rendered liable to be charged for payment of debts due to the king by record or special contract; as since, by the bankrupt law, they are also subjected to be sold for the debts contracted by a bankrupt. And by the construction put on the statute 43 Eliz. c. 4, an appointment 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. 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. We will consider them both in their order. Estates for Life. I. 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 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 pur auter vie. These estates for life are, like inheritances of feodal nature; and were for some time the highest estate that any man could have in a feud, which (as we have before seen) was not in its original hereditary. They are given or conferred by the same feodal rights and solemnities, the same investiture or livery of seisin, as fees themselves are; 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 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. 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 a term of life generally, shall be construed to be an estate for the life of the grantee; 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, 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. 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: for which reason in convey ances the grant is usually made "for the term of a man's natural life;" which can only determine by his natural death. Incidents to an Estate for Life. The incidents to an estate for life are principally the following; 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. Estovers. 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. 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 to do other waste upon the premises: 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 inherit ance. Emblements. 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. 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; 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 feodal 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. From hence our law of emblements 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 is sown, the tenant pur 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, |