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How Created. They may be created, not only by express words, but also by a general grant, without defining or limiting any specific estate.
As if one grants to A the manor of X, this makes him tenant for life. It cannot be construed to be a fee, as there are no words of inheritance or heirs mentioned in the grant, but the law will construe it to be as large an estate as the words of the donation will bear, and therefore an estate for life.
Constrụed against the Grantor. Also such a grant at large, or a grant for a term of life generally, is construed for the life of the grantee, if the grantor had power to make such grant; for an estate for a man's own life is of a higher nature than for another's 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.
Exceptional Life Estates. Estates for life usually endure as long as the life for which they are granted, but some of them 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; when the woman remarries, the estate is determined. Yet while it subsists, it is an estate for life, because the time of its endurance being uncertain, it may by possibility last for life, if the contingency do not sooner happen. A life estate may also be determined by a civil death, as if the life tenant enter a monastery, whereby he is dead in law; for which reason in conveyancing, the grant is usually made for “the term of a man's natural life,” which only ends by his natural death.
Incidents to Life Estates. These are applicable not only to that species of tenants for life, which are expressly created by deed, but also to those species, which are created by act and operation of law.
1. Estovers and Botes. Waste. Every life tenant, unless restrained by agreement, may of common right take upon the land demised to him, reasonable estovers and botes. For he has 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, as it tends to permanent loss to the person entitled to the inheritance.
2. Emblements. A 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 land, 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 of law, that actus Dei nemini facit injuriam. The representatives, therefore, of the life tenant 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 is entitled to the utmost security.
Under the Feudal Law. By the feudal 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 first of March and the end of August, the heirs of the tenant received the whole. Our law of emblements is derived from this, but much improved.
Tenant pur Autre Vie. So also, if a man be tenant for the life of another, and the cestuy que vie, or he on whose life the land is held, dies after the corn is sown, the tenant pur autre vie shall have the emblements. The same is also the rule, if a life estate be determined by the act of law.
Effect of the Divorce of Co-tenants. If a lease be made to husband and wife during coverture, which is in effect an estate for life, and the husband sows the land, and afterwards they are divorced a vinculo matrimonii, the husband shall have the emblements, for the decree of divorce is the act of law.
When Tenant not Entitled. 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 re-marries, he or she shall not be entitled to the emblements.
What Emblements Include. The doctrine of emblements extends not only to grain sown, but also to roots planted, or other annual artificial profit, but it is otherwise as to fruits, 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. When a man plants a tree, he does not do so for any immediale profit, but for himself in the future, or for succeeding tenants. The advantages also of emblements are particularly extended to the parochial clergy, by statute of Henry VIII. For all persons presented to an ecclesiastical benefice, or to any civil office in
England, are considered as tenants for life, unless the contrary be expressed in the form of the donation.
3. Under-Tenants or Lessees. These sub-tenants have even greater indulgences than the lessors, the original tenants for life. The law of estovers and emblements applies to both parties, but in those cases, where a tenant shall forego the emblements, because the estate determined by his own act, the exception shall not reach the lessee, who is a third party. As in the case of a widow taking durante viduitate ; her re-marriage 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 the woman then marries, this her act shall not deprive such sub-tenant of his emblements, who is a stranger and cannot prevent her re-marriage. At common law the lessees of tenants for life, on the death of the lessor, might leave the premises and pay no rent, since the last quarter day. To remedy this, a statute allows the executors or administrators of the tenant for life to collect from the sub-tenant rent to the date of the death of the lessor.
II. TENANT IN TAIL AFTER POSSIBILITY OF ISSUE EXTINCT.
When it Happens. This happens, where one is tenant in special tail, and one from whose body the issue was to spring, dies without issue, or having left issue, it becomes extinct. Then the surviving tenant in special tail becomes tenant in tail, after possibility of issue extinct. As where one has an estate to him and his heirs to be begotten by his present wife, and the wife dies without issue; in such case, the man has an estate tail, which cannot possibly descend to any one.
To have called him a tenant in fee-tail special would not have distinguished him from others, and besides he has no longer a fee, for he can have no heirs capable of taking per formam doni. Had it called him tenant in tail without issue, this would not have excluded the possibility of future issue. If a tenant in tail, without possibility of issue, this would exclude time past as well as present. Hence the present lengthy term is the only appropriate one to
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 sping, for ro limitation, conveyance or other human act can make it. For if land be given to a man and wife, and the heirs of their two bodies begotten, and they are totally divorced, they shall be only tenants for life, notwithstanding the inheritance once vested in them. A possibility of issue is always supposed to exist, in law, unless extinguished by the death of the parties.
Privileges and Restrictions. This estate partakes partly of an estate tail and partly of an estate for life. The tenant is only tenant for life, but with many of the privileges of a tenant in tail; as not to be punishable for waste; or he is a tenant in tail, with many of the restrictions of a tenant for life; as to forfeit his estate, if he aliene it in fee-simple, whereas such alienation by a tenant in tail, though voidable by the issue, is no forfeiture of the estate to the reversioner, who is not concerned, until all possibility of issue be extinct. But in general, the law looks upon this estate as equivalent to an estate for life only, with which tenancy, it may be exchanged, which can only be done in the case of estates, equal in their nature. III TENANT BY THE CURTESY OF ENGLAND.
Defined. This exists, where a man marries a woman seised of an estate of inheritance, that is, of lands and tenements in fee-simple or fee-tail, and has by her issue born alive, which issue was capable of inheriting her estate. In this case, on the death of his wife, the husband shall hold the lands for his life, as tenant by the curtesy of England.
Possesses Some Resemblance to Feudalism. pears to have been the established law of Scotland, and was introduced into England by Herry I. It is likewise used in Ireland, under an ordinance of Henry III. The word “curtesy" apparently signifies an attendance upon the lord's court or curtis. It is not generally believed to have been a consequence of feudal tenure, and yet some feudal reasons may be given for its introduction. For if a woman seised of lands has issue by her husband, and dies, the husband is the natural guardian of the child, and as such is of right entitled to the profits of the land, in order to maintain it, for which reason the heir apparent of a tenant by the curtesy could not be in ward to the lord of the fee, during the life of such tenant. As soon, therefore, as any child was born, the father began to have a permanent interest in the lands, became one of the pares curtis or curiae, did homage to the lord, and was called tenant by the curtesy initiate; and this
It apestate, having once vested in him by the birth of a child, was not suffered to determine by the subsequent death or the coming of age of the infant.
Requisites. Four requisites are necessary to make a tenancy by the curtesy: Marriage. Seisin of the wife. Issue. Death of the wife.
1. Marriage. The marriage must be canonical and legal.
2. Seisin of the Wife. It must be an actual seisin or possession of the lands; not a bare right to possess, which is a seisin in law, but an actual possession, which is a seisin in deed. And, therefore, a man shall not be tenant by the curtesy of a remainder or reversion. But of some incorporeal hereditaments, a man may be tenant by the curtesy, though there have been no actual seisin of the wife. If the wife be an idiot, the husband shall not be tenant by the curtesy of her lands, for the king by prerogative is entitled to them, the instant she herself has any title, and since she could never be rightfully seised of the lands, and the husband's title depends upon her seisin, the husband can have no title by the curtesy.
3. The Issue must be Born Alive. Some mistakenly assert, that it must be heard to cry. Crying is the strongest evidence of its life, but not the only evidence. It must also be born during the life of its mother, for if the mother dies in labor, and the Caesarean operation is performed, the husband shall not be tenant by the curtesy. For at the instant of the mother's death, he was not entitled, as having had no issue born, but the land descended to the unborn infant, and the estate once so vested, shall not be taken from him. In gavelkind lands, a husband may be tenant by the curtesy, without having any issue.
Actual Seisin Requisite. If a woman be tenant in tail male, and has only a daughter born, the husband has no curtesy rights, because such issue female can never inherit the estate in tail male. And this seems to be the chief reason, why the husband cannot be tenant by the curtesy of any lands, of which the wife was not actually seised, because, in order to entitle himself to such estate, he must have begotten issue, that may be heir to the wife.
Question of Time. The time when the issue was born is
1 This proposition has been questioned.