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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 commerce.

120

CHAPTER VIII.

OF FREEHOLDS, NOT OF INHERITANCE.

We are next to discourse of such estates of freehold, as are of the nature

and properties not of inheritance, but for life only. And of these estates of estates of

freehold for life for life, some are conventional, or expressly created by the only. act of the parties; others merely legal, or created by construction and operation of law (a). We will consider them both in their order.

I. Estates for life, expressly created by deed or grant, 1. Of estates for (which alone are properly conventional,) are where a lease deed or grant. 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 pur auter vie (6) (1). 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 (c), 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.

*Estates for life may be created, not only by the express [ 121 j. words before mentioned, but also by a general grant, with whiteneralmente out defining or limiting any specific estate (2). As, if one any specific es

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, tenancy for life.

(a) Wright, 190.

(6) Litt. s. 56.

(c) Page 55.

(1) See post, chapter 16 of this volume, pp. 258, et seq. and the notes

thereto.

(2) This passage was cited, and re

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Of estates for life, determinable upon contingencies.

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 (3), 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 (e); 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 (f), unless in the case of the king (4).

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(g). 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 (h): 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

death (i). [ * 122 ] *The incidents to an estate for life are principally the folof the incidents lowing ; which are applicable not only to that species of

to for life.

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vers.

tenants for life, which are expressly created by deed; but

l also to those, which are created by act and operation of law.

1. Every tenant for life, unless restrained by covenant or 1. A tenant for agreement, may of common right take upon the land de- reasonable estomised to him reasonable estovers (k) or botes (1) (5). 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 (6); 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 pre- 2. Emblements. judiced by any sudden determination of his estate, because such a determination is contingent and uncertain (n). 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 labour and expense of tilling, manuring, and sowing the lands (7); and also for the encouragement of husbandry,

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(5) See ante, p. 34, and the note thereto.

(6) See post, chapter 18, p. 283, and the note thereto, for a fuller discussion of this matter. And see our author's own qualification of this doctrine, in cases of tenancy after possibility of issue extinct, if such tenants are to be considered, as is doubtfully stated in p. 125, only tenants for life, with many of the privileges of a tenant in tail. See also post, the note to p. 125.

(7) In the case of Latham v. Atwood, (Cro. Car. 515,) it was decided, that hops, growing out of ancient

roots, are like emblements, and shall
go to the personal representatives of
a tenant for life ; for manurance and
industry are necessary to the growth
of hops, which are, therefore, not to
be compared to such articles as grow
of themselves. But, in Grantham v.
Hawley, (Hob. 132,) it was said to be
settled, that, if A., seised of land, sow
it with corn, and then convey it to B.
for life, remainder to C. for life; and
then B. die before the corn is reaped,
C. shall have it, and not the executors
of B., for the reason of charge and in-
dustry in B. fails ; (and see, to the
same effect, Anonym. Cro. Eliz. 61;

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 reversion, was also entitled to the profits of the

whole year: but if he died between the beginning of March [ * 123 ) and the end *of August, the heirs of the tenant received the whole (o).

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 lifeestate 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 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 (q). The doctrine of emblements extends not only to corn sown, but to roots planted, or other annual artificial

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

(P) 5 Rep. 116.

(9) Co. Litt. 55.

Knevit v. Pool, Cro. Eliz. 463.) So, see p. 404, post. The principle upon growing corn is a chattel, for which which the law that gives emblements, an executor may bring trespass; but was originally established, was fully grass growing is part of the freehold, discussed in Graves v. Weld, (5 Barn. to which the executor has no right. & Adol. 117, S. C. 2 Nev. & Man. (Emerson v. Emerson, 1 Ventr. 187; 732.) where it was held, that the 3 Salk. 160 ; and see Lawton v. Law- doctrine applies to those species of ton, 3 Atk. 16.) Mr. Hargrave has crops only which ordinarily repay the observed (in note (2) to Co. Litt. 55 labour by which they are produced, b) “it is not easy to account for the within the year in which that labour distinction which gives corn growing is bestowed : and the authorities upto the devisee, but denies it to the heir: on which this law depends were stated though this has been attempted in to be Littleton, sect. 68, and Coke's Gilbert's Law of Evid. p. 250." And commentary on that passage.

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