*S. 120.

Estates for life.

*S. 121.

A general

grant creates

CHAPTER IX.

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 in their order.

1. 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 (a). 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 (b)) was not in its original hereditary. They were given or conferred by the same feodal rights and solemnities, the same investiture or livery of seisin, as fees themselves; 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, witha tenancy for out 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

life.

mentioned in the grant, it cannot be construed to be a fee (a), 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 granting gratuitously at the suit and instance of the grantee' (b).

future

life, determin

contingencies.

Such estates for life will, generally speaking, endure as Of estates for long as the life for which they are granted: but there are able upon some estates for life, which determine upon may contingencies, before the life for which they were 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 in case of outlawry, or attainder for treason or felony' (c): for which reason in conveyances the grant is sometimes made "for the term of a man's natural life;" which can only determine by his natural

(a) See ante s. 107. (b) As to construction of Crown grants, see post s. 346. (c) Re G. Thomson, 7 L. J. N. S. 132, 327; Stephen Blackst. vol. I, book I. The instance given by Blackstone of a monk is no longer law; Re Metcalfe's will 23 L. J. N. S. Chy. 308; Blake v. Blake, 7 Ir. Chy. Rep. 349.

* S. 122.

Of the incidents.

Reasonable estovers.

2. Emblements.

death. And though the grant be so made and thus not determined till natural death, still in case of attainder the life estate will, it would seem, be forfeited to the Crown' (a).

*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. 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, 'unless possibly to cultivate wild lands' (b), or do 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.

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 injurium. 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 the law can give. So it is also, if a man be tenant

(a) See section 256, post. (b) As to the right to clear wild land, see post.

for the life of another, and cestuy 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, the husband shall have the emblements in this case; for the sentence of divorce is the act of law. But if an estate for life be determined by the tenant's own act (as by forfeiture; 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 other annual products of annual labour, as' 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 labour 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.

der-tenants.

3. A third incident to estates for life relates to the under- As to their untenants, or lessees. For they have the same, nay greater indulgences than the lessors, the original tenants for life. The same; for the law of 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: and greater; for in those cases where the 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

II. Of tenancy in tail, after

issue extinct.

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 for life had also at 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 anybody for the occupation of the land since the last quarterday, or other day assigned for payment of rent (a). To remedy which it is now enacted (b), that the executors or administrators of 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. 'Our Legislature has also enacted that rents, annuities, dividends and other periodical payments in the nature of income, shall, like interest on money lent, be considered as accruing from day to day, and be apportioned' (c).

II. The next estate for life is of the legal kind, as conpossibility of tradistinguished 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 possibility 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: 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

(a) 10 Rep. 127; Tudor Rl. Prop. Cases, 166.

(b) Stat. 11 Geo. II. c. 19, s. 15.

(c) R. S. O. c. 136, taken mainly from Imp. Stat. 4 & 5 William IV. c. 22, as to which see notes to Clun's case, Tudor's Lg. Ca. Rl. Prop. and Shelford Stat.