of carrying them away (g): for the estate was determined by the act of God, and it is a maxim in the law, that actus Dei nemini facit injuriam. (234) 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 (h). Therefore, by the feudal law, if a tenant for life died between the beginning of

[* 238]

the realty, subsists for some purposes, as a chattel interest, which goes on his death to his executors, as against the heir; though, as against the executors, it goes to the devisee of the land, who is in the place of the heir, unless otherwise directed. This is founded upon a presumed intention of the devisor in favour of the devisee. But this again may be rebutted by words which show an intent that the executor shall have it. A devise to the executor of all the testator's stock on the farm, entitles him to the crops, in opposition to the devisee of the estate. (Cox v. Gonsalve, 6 East, 604, n. (d); Com. Dig., Biens (G. 2). ) The executor's claim is good against the heir of a tenant in tail. (Com. Dig., Biens (G. 2); but not against a dowress or a surviving joint-tenant. (Id.; Owen, 102; Dyer, 316 a.)

It was held formerly, that if a devise be to A. for life, remainder to B., and before severance A. dies, B. shall have them (Anon., Cro. Eliz. 61; see Spencer's Case, Win. 51; Godb. 159); but the contrary has been long established, and the present rule is that the executor of the tenant for life shall have them, it being for the benefit of the kingdom, which is interested in the continual produce of corn, and will not suffer them to go to the remainderman. (Lawton v. Lawton, 3 Atk. 16.)

(g) Co. Litt. 56 a.

(h) If therefore the person whose estate determines has not himself been at the expense of the tillage and sowing, the rule does not necessarily apply; as, where A. having sown land, grants it to B. for life, remainder

(234) A tenant for life, or of any estate of uncertain duration has, in this country, a clear and well-established right to emblements. In determining what are emblements, the general rule is, that they include such crops as are produced by annual planting and culture, among which are wheat, rye, corn, oats, peas, barley, beans, potatoes, hemp, flax, tares, saffron, and the like.

On the other hand, the general rule is, that such products of the land as are not the result of annual labor or culture, do not fall within the definition of emblements. And among these articles are the various kinds of grasses which endure for more than one year; so of fruit growing, or of other things which grow naturally for several years. Hops are made an exception, for although they produce for more than one year, it is necessary to cultivate them annually to render the crop of any value. So of trees planted by nurserymen for the express purposes of sale. Miller v. Baker, 1 Metc. 27; and see Penton v. Robart, 2 East, 90; Lee v. Risdon, 7 Taunt. 191; Wyndham v. Way, 4 id. 316.

At common law, it is essential to a claim of emblements that the crop should have been planted during the life of the tenant; for no degree of preparation of the soil will give to one the fruits of seed planted by another after the determination of his tenancy. Stewart v. Doughty, 9 Johns. 108; Price v. Pickett, 21 Ala. 741; Gee v. Young, 1 Hayw. 17; Thompson Thompson, 6 Munf. 514.

V.

To sustain a claim of emblements, the estate of the tenant must be of uncertain duration; for, if it is certain that his estate will terminate before he can reap the crop, it will be his own folly if he sows it for the benefit of his successor. Whitmarsh v. Cutting, 10 Johns. 360; Debow v. Colfax, 5 Halst. 128; Kittredge v. Woods, 3 N. H. 503; Chesley v. Welch, 37 Me. 106; Harris v. Carson, 7 Leigh, 632; Chandler v. Thurston, 10 Pick. 205; Hawkins v. Skegg, 10 Humph. 31.

The termination of the tenancy must be by the act of God, or by the act of the lessor, for if the tenant voluntarily terminates the estate the right to emblements will be lost. A woman who is tenant during widowhood, will lose her rights to emblements if she marries. Hawkins v. Skegg, 10 Humph. 31; Debow v. Colfax, 5 Halst. 128.

A right to emblements gives a right to enter upon the land to cultivate a growing crop, and to cut and harvest it at the proper time. Forsythe v. Price, 8 Watts, 282; Bevans v. Briscoe, 4 Harr. & J. 139. The tenant is not entitled to the exclusive possession of the land, but merely a right of ingress and egress to secure the crop, which, for all other purposes, the owner of the land has the exclusive possession. Humphries v. Humphries, 3 Ired. 362.

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 (i). From this 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 sown, the tenant pur autre vie shall have the emblements (k). 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 law (1). 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 What are emble- cases, the tenants, having thus determined the estate by their own acts, shall not be entitled to take the emblements (m). (235) The doctrine of emblements extends not only to corn sown, but to [* 239] roots planted (n), and other annual artificial profits, but it is otherwise of fruit-trees, grass, and the like; which are not planted annually at the expense and labour of the tenant, but are either a permanent, or natural profit of the earth (0). 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 (p). (236) The advantages also of emblements are particularly extended to the parochial clergy by the statute 28 Hen. 8, c. 11 (q). For all persons, who are presented

None, if estate determine by tenant's own act.

ments.

to C., and B. dies before the crop is severed, C. shall have the crop and not B.'s executor. (Grantham v. Hawley, Hob. 135; Vin. Ab., Emblements (A).) But if a testator, having sown the land, devise it to A. for life, without any remainder over, and both the testator and A. die before the crop is severed, the executors of A. shall have the crop (Winch, 51; Co. Litt. 55 b); but if there had been a remainder over, the remainderman would have been entitled. The ground of this distinction may be collected from the preceding note. From a dictum in Hob. 132, it would appear that the rule is different in respect of a grant inter vivos; and that there, if the ultimate remainderman die before severance, the grantor's executors are entitled to the crops sown by such grantor.

(i) Feud. 1. 2, t. 28.

(k) The rule applies to any uncertain estate or interest; as, for instance, to an estate for years, determinable with a life (Gilb. Ev. 215), or to an estate at will, determined by the lessor, or by the death of the lessee. (Co. Litt. 55 b).

() 5 Rep. 116.

(m) Co. Litt. 55. See Davies v. Eyton, 4 Moo, & P. 820, 7 Bingh. 154.

(n) This seems to be the better opinion, being that of Lord Coke (Co. Litt. 55 b.); but both Godolphin (pt. 2, c. 14, s 1), and

(235) See note 234.

Wentworth (Office of Exec. p. 152), assert that carrots, turnips, and other annual roots belong to the heir, because the executor is not at liberty to break the soil to reach them. In Evans v. Roberts (5 B. & Cr. 832), Bayley, J., founded his judgment on the assumption that potatoes were emblements. Sir E. V. Williams thinks that Coke's opinion would probably be upheld. Exors. 599.

(0) Co. Litt. 55, 56; 1 Roll. Abr. 728.

(p) Similar questions arise as to fixtures, put up by tenant for life of a mansion. See D'Eyncourt v. Gregory, L. R. 3 Eq. 382.

(7) That statute enables an incumbent to bequeath, by will, the corn and grain growing upon the glebe-land, manured and sown at his own cost (s. 6). But a parson who resigns his living is not entitled to emblements, although his tenant in such case would be entitled to them (Bulwer v. Bulwer, 2 B. & Al. 470); and by the stat. of Merton, 20 Hen. 3, c. 2, the executors of a tenant in dower are entitled to emblements,- an enactment which, according to the better opinion, was merely in affirmance of the common law. (Com. Dig., Biens (G. 2).) If the dowress marry, and her husband sow the land and die, his executors, and not the widow, are entitled to the crop; but it is otherwise if the land had been sown before marriage. (Bro. Ab., Emblements, pl. 26.

(236) See note 234.

Right of sub. lessee to emblements.

to any ecclesiastical benefice, or to any civil office, are considered as tenants for their own lives, unless the contrary be expressed in the form of donation. A third incident to estates for life relates to the under-tenants, or lessees. For they have the same, nay greater indulgences than their lessors, the original tenants *for life. The same; for the law of [*240] estovers and emblements, with regard to the tenant for life, is also law with regard to his under-tenant, who represents him and stands in his place (r): and greater; for in those cases where tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee, who is a third person. As in the case of a woman who holds durante viduitate; her taking husband is her own act, and therefore deprives her of the emblements: but if she leases her estate to an under-tenant, who sows the land, and she then marries, this her act shall not deprive the tenant of his emblements, who is a stranger, and could not prevent her (s). (237) The lessees of tenants for life had also at Apportionment the common law another most unreasonable advantage; for, at the death of their lessors, the tenants for life, these under-tenants might, if they pleased, quit the premises, and pay no rent to any body for the occupation of the land since the last quarter day, or other day assigned for payment of rent (t). To remedy which it is now enacted, that the executors or administrators of a tenant for life, on whose death any lease determined, shall recover of the lessee a rateable proportion of rent, from the last day of payment to the death of such lessor (u).

of rent.

In order to promote the improvements of property, powers have been given by the legislature to tenants for life to charge the inheritance in certain cases where the money raised is laid out in draining, irrigation, embankment of rivers, erection of labourers' cottages, and in making other similar lasting improvements, and erecting permanent buildings calculated to enhance the value of the property (x). By these acts provisions are made for the *sanction of any proposed works by the Inclosure Commissioners, and [* 241 ] also, upon their sanction being obtained, for the execution of the works, the costs of which become a charge upon the inheritance of the land repayable by instalments (y).

Except when effected under the provisions of these enactments, a tenant for life will not have any allowance made to him for improvements effected upon the property (z). (238)

(r) Co. Litt. 55.

(s) The dictum in Oland's Case (5 Rep. 116 a), contra, is opposed by all the authorities. (See S. C., Cro. El. 460; Gouldsb. 189; 1 Roll. Ab. 727; Bulwer v. Bulwer, 2 B. & Al. 470.)

(t) 10 Rep. 127. (u) Ante, p. 57.

(x) See 8 & 9 Vict. c. 56; 9 & 10 Vict. c. 101; 10 & 11 Vict. c. 11; 11 & 12 Vict. c. 119; 12 & 13 Vict. c. 100; 13 & 14 Vict. c. 31; 19 & 20 Vict. c. 9; 27 & 28 Vict. c. 114. See sect. 9, which enumerates the works authorised by the act.

(y) By 9 & 10 Vict. c. 101, advances of pub

lic money can be made for the drainage of lands; repayable by instalments spread over twenty-two years.

(2) Nairn v. Marjoribanks, 3 Russ. 582; Hibbert v. Cooke, 1 S. & S. 552; Caldecott v. Brown, 2 Hare, 144; Ilorlock v. Smith, 17 Beav. 572; Dent v. Dent, 30 Beav. 363; Dunne v. Dunne, 7 D. G. M. & G. 25. Sometimes, however, a permanent improvement is allowed to be made out of money which represents part of the corpus to the settled estate. See Re Duke of Wellington's settled Estate, 3 D. G. F. & J. 13. Macnolty v. Fitzherbert, 27 L. J. Ch. 272; Re Dummer's will, 2 D. G. J. & S. 515.

(237) Bittinger v. Baker, 29 Penn. St. 66, 70; Bevans v. Briscoe, 4 Har. & J. 139, are to the same effect.

(238) The same rule was applied in Corbett v. Laurens, 5 Rich. Eq. 301.

But if a tenant for life pays off an incumbrance upon the inheritance, he is prima facie entitled to that charge for his own benefit, and the burden of proving that he intended to benefit the inheritance is thrown upon the remainderman (a), though whilst such incumbrances exist the tenant for life 13 bound to keep down the interest (b). Lastly a tenant for life is entitled to the custody of the title deeds of the property, though he is bound to produce them when required by the remainderman for a proper purpose (c).

Under the provisions of one of the church building acts, *a tenant [* 242] for life has power in a suitable case to dedicate a piece of the land to which he is so entitled as a site for a church or school, or other buildings for the promotion of religion or education (d). And under another act (e), he may, with the approbation of the court of chancery, dedicate lands to the public for roads or other similar purposes, if to do so will prove advantageous to the rest of the estate.

In other cases where land is purchased for public works under the authority of special acts of parliament, the tenant for life is empowered to enter into an agreement as to the price to be paid, and also to carry out the agreement by conveying the fee simple upon the price being paid into the court of chancery (f). Similar powers of dealing with the inheritance have been created by statute to meet the cases of settlements made by will when the lands are required for payment of the debts of the testator (g).

A tenant for life formerly could not (unless, as was commonly the case, the settlement under which he claimed gave him power to do so) make any disposition of the land which would continue valid after his death, for his own interest terminating then there could be nothing which his dealings could affect afterwards. The inconvenience of not being able to make a lease which would unquestionably endure throughout the term created by it, led to giving tenants for life a limited power of binding their successors by a lease. By the Leases and Sales of Settled Estates Act (h), every tenant for life * under an instrument of settlement which has come in force since [* 243] 1st November, 1856, and does not contain an express declaration to the contrary, may demise any part of the settled estates other than the mansion house and the demesnes and lands usually occupied with it for any term not exceeding twenty-one years, to take effect in possession; but by every lease granted under the act the best procurable rent must be reserved, and no fine or premium may be paid for granting the lease, and it must contain a covenant to pay the rent and other usual and proper covenants. With the consent of the court of chancery other longer losses may be granted (i).

(a) Burrell v. Lord Egremont, 7 Beav. 205; Bulwer v. Astley, 13 L. J. c. 329. As to redemption of land tax by tenant for life under 38 Geo. 3, c. 6; 42 Geo 3, c. 116; 16 & 17 Vict. c. 74; see Ware v. Lord Egmont, 4 D. G. M. & G. 460.

(b) Hawkins v. Hawkins, 6 L. J. Ch. 69; Playfair v. Cooper, 17 Beav. 187; Sharshaw v. Gibbs, Kay, 333.

(c) Sugd. V. & P. 444, 445, 14th ed.; Davis v. Lord Dysart, 20 Beav. 405; Garner v. Hannington, 22 Beav. 627; Pennell v. Lord Dysart, 27 Beav. 542.

(d) 58 Geo. 3, c. 45, s. 36.

(e) The Leases and Sales of Settled Estates Act, 19 & 20 Vict. c. 120, ss. 14, 15, & 16.

(f) See the provisions under which this is done in the Lands Clauses Consolidation Act, 1845, 8 Vict. c. 18. Where the amount is less than 20%., the tenant for life takes the whole, s. 72.

(g) 11 Geo. 4 & 1 Will. 4, c. 47, s. 12; 2 & 3 Vict. c. 60; 13 & 14 Vict. c. 60, s. 29; and for those cases when the testator has charged the lands with his debts, see 22 & 23 Vict. c. 35, ss. 14-18.

(h) 19 & 20 Vict. c. 120; amended by 21 & 22 Vict. c. 77; and 27 & 28 Vict. c. 45.

(2) This part of the act applies to all cases whatever be the dates of the settlement.

The terms authorised are twenty-one years for an occupation or agricultural lease, forty

Estate tail after possibility of issue extinct.

The next estate for life is of the legal kind, as distinguished from conventional; viz. that of tenant in tail after possibility of issue extinct. This happens where one is tenant in special tail, and a person, from whose body the issue was to spring, dies without issue; or, having left issue, that issue becomes extinct. In either of these cases the surviving tenant in special tail becomes tenant in tail after possibilty of issue extinct. As, where one has an estate to him and his heirs on the body of his present wife to be begotten, and the wife dies without issue (k): in this case the man has an estate-tail, which cannot possibly descend to any one; and therefore the law makes use of this long periphrasis, as absolutely necessary to give an adequate idea of his estate. For if it had called him barely tenant in fee-tail special, that would not have distinguished him from others; and besides, he has no longer an estate of inheritance, or fee (7), [* 244] for he can have no heirs capable of taking per formam doni. Had it called him tenant in tail without issue, this had only related to the present fact, and would not have excluded the possibility of future issue. Had he been styled tenant in tail without possibility of issue, this would exclude time past as well as present, and he might under this description never have had any possibility of issue. No definition, therefore, could so exactly mark him out, as this of tenant in tail after possibility of issue extinct, which (with a precision peculiar to our own law) not only takes in the possibility of issue in tail, which he once had, but also states that this possibility is now extinguished and gone.

How created.

This estate must be created by the act of God, that is, by the death of that person out of whose body the issue was to spring, for no limitation, conveyance, or other human act can make it (m). If land be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced a vinculo matrimonii, they shall neither of them have this estate, but be mere tenants for life, notwithstanding the inheritance once vested in them (n). But a possibility of issue is always supposed to exist in law, unless extinguished by the death of the parties: even though the donees be each of them an hundred years old (0).

This estate is of an amphibious nature, partaking partly of an estate-tail, and partly of an estate for life. The tenant is, in truth, only tenant for life, but he enjoys many of the privileges of a tenant in tail; for instance, he is under no restriction as to committing waste (p): except such as is considered malicious, and would not be permitted in a tenant for life, who under the settlement is allowed to commit waste generally. If he violates this *rule, as by cutting down ornamental trees, he will not be allowed to [* 245 ] retain the proceeds, which will be impounded for the benefit of the owner of the first estate of inheritance in remainder (g).

(0) Litt. s. 34; Co. Litt. 28.
(p) Co. Litt. 27.

(9) See Har. Co. Litt. 27 b, and 218 b. n. 2; 2 P. W. 241; Williams v. Williams, 15 Ves. 430; 12 East. 209; Bisset on Estates for Life, 20. The point, as to whose property the things wasted are, is not free from doubt: on the analogous question in the case of an ordinary tenant for life, see ante, p. 235.