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 com

merce.

CHAPTER THE EIGHTH

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 lawa. We will consider them both in their order.

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 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 pur auter vie b. These estates for life are, like inheritances, of a 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.

a Wright, 190.

b Litt. sec. 56.

c pag. 55.

ESTATES for life may be created, not only by the express words before mentioned, but also by a general grant, withcut 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 granteee; in case the grantor hath authority to make such a 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 grantorf, 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 8. 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 hap pen. 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 conveyances the grant is usually made" for the term of a man's natural life;" which can only determine by his natural deathi.

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.

1. EVERY tenant for life, unless restrained by covenant or agreement, may of common right take upon the land demised to him reasonable estoversk or botes1. 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 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 (1).

:

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 labor 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 rever

k See pag. 35.

I Co. Litt. 41,

m Ibid. 53.

n Ibid. 55.

(1) See p. 283. post. in what cases the tenant for life may cut down timber, and commit what in law is called waste.

sion, 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 [123] 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 cestuy que vie, or he on whose life the land is held, dies after the corn 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, the husband shall have the emblements in this case; for the sentence of divorce is the act of lawP. 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. 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 labor of the tenant, but are either a permanent, or natural, profit of the earth". 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 himself 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 (2). For all persons, who are presented to any eccle

o Feud, L. 2, t. 28. p 5 Rep. 116.

q Co. Litt. 55.

r Co. Litt. 55, 56. 1 Roll. Abr. 728.

(2) That statute enables an incumbent to bequeath by will, the cora and grain growing upon the glebe-land.