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 acts of the parties; others merely legal, or created by construction and operation of law. note 30, page 230.] We will consider them both in their order.

[See

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 stiled tenant for life; only, when he holds the estate by the life of another, he is usually called tenant per auter vie. 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.*

[121] † 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

a Wright. 190.

b Litt. 256.

c pag. 55.

* Quoted with omissions, 7 Cowen, 326. Cited, 94 Ill. 93; 2 Tenn. Ch. 611.

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 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 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 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.s 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 conveyances the grant is usually made "for the 2 Rep. 48.

d Co. Litt. 42.

e Ibid.

f Ibid. 36.

g Co. Litt. 42. 3 Rep. 20.

h

term of a man's natural life;" which can only determine by his natural death.i*

[122] 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 estovers or botes.1 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 :m 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.?

n

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 i See Vol. I. pag. 132.

k See pag. 35.

1 Co. Litt. 41.

m Ibid. 53.

n Ibid. 55.

8 Previously, "the."

*Cited, 75 Me. 511; 92 Pa. St. 257; 5 N. H. 492; 28 Miss. 771.

+ Cited, 12 Wend. 91; 5 Cowen, 230; 28 Miss. 771; 36 Ga. 104. Cited as to rents and profits, 38 Ala. 309.

? Cited, 2 N. H. 431; 32 N. H. 163; 64 Am. Dec. 365; 23 Wend. 508; 35 Miss. 702.

¶ Cited, 56 Ga. 582; 20 Md. 304; 20 Neb. 404.

shall have the emblements, to compensate for the labour and expence of tilling, manuring, and sowing the lands; and also for the encouragement of busbandry, 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 foedal 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 [123] 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, tif 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 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 law.P But if an estate for life be determined by the tenants 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, o Feud. 1. 2. t. 28.

p 5 Rep. 116.

q Co. Litt. 55.

- Quoted, 91 N. C. 119. Cited, 81 Ind. 254.

+-+ Quoted, 73 Ga. 483.

grass, and the like; which are not planted annually at the expence and labour of the tenant, but are either a permanent, or natural, profit of the earth. For even 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 it's being useful 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. For all persons, who are presented 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.*

3. 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 tennants for life. The same; for the law of estovers and emblements, with [124] regard to the tenant for life, is also law with regard to his under-tenant, who represents him and stands in his place: 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 th rd person. As in the case of a woman who holds du inte 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. The lessees of tenants

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

s Co. Litt. 55.

t Cro. Eliz. 461. 1 Roll. Abr. 727.

9 Ninth edition omits.

9 Ninth edition inserts, "to himself in future, and."

Cited as to crops, 63 Me. 355; 20 Mich. 261; 39 Iowa, 108; 20 Ga. 792; 4 Zab. 93.

+-t. Quoted, 2 Tenn. Ch. 610. Cited, 29 Pa. St. 70; 70 Am. Dec. 158.