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 (r). 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. The advantages also of emblements are particularly extended to the parochial clergy by the statute 28 Hen. VIII. c. 11 (8). 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. under-tenants 3. A third incident to estates for life relates to the under- 3. As to their tenants, or lessees. For they have the same, nay greater or lessees, 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 un- [ *124 ] der-tenant, who represents him and stands in his place (s): 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 (t). 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 any body for the occupation of the land since the last quarter day, or other day assigned for payment of rent (u). To re (r) Co. Litt. 55, 56; 1 Roll. Abr. 728. (8) Co. Litt. 55. (8) The 6th section of that statute enacts, that any incumbent, who before his death hath caused any of his glebe lands to be manured and (t) Cro. Eliz. 461; 1 Roll. Abr. 727. sown at his proper costs with any corn II. Of tenancy in tail, after possibility of issue extinct; medy which it is now enacted (v), 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 (9). II. The next estate for life is of the legal kind, as contradistinguished from conventional; viz. that of tenant in tail after possibility of issue extinct (10). 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 (v) Stat. 11 Geo. II. c. 19, s. 15. (9) In the case of Paget v. Gee, apportionment: but the dividends on the public funds being made payable on certain days, it has been held are not to be apportioned. (Sherrard v. Sherrard, 3 Atk. 503; Banner v. Lowe, 13 Ves. 135.) And though the statute just cited enacts that all dividends coming due at fixed periods shall be apportioned, it does not appear that dividends on stock in the public funds are meant to be included, but only dividends of profits. (10) This estate, though it partakes, as to some of its qualities, of the nature of an estate tail, is correctly classed by our author under the head of life estates. (Lewis Bowles's case, 11 Rep. 80.) There are four qualities annexed to the estate of tenant in tail after possibility of issue extinct, which prove it to be in fact only an estate for life. 1. If this tenant makes a feoffment in fee, it is a forfeiture; because, having no longer a descendible estate in him, he cannot transfer it to another, without prejudice to the person in remainder. 2. If an estate tail or in fee descends upon him, the estate tail after possibility of issue extinct is merged. 3. If he is impleaded, and makes default, the person in reversion shall be received; as upon default of any other tenant for life. 4. An exchange be an estate to him and his heirs on the body of his present wife to be begotten, and the wife dies without issue (w): 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 [* 125 ] him from others; and besides, he has no longer an estate of inheritance, or fee (x), 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. be created by This estate must be created by the act of God, that is, which can only by the death of that person out of whose body the issue was the act of God. to spring; for no limitation, conveyance, or other human act can make it. For, 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 barely tenants for life, notwithstanding the inheritance once vested in them (y). 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 (2). this estate. This estate is of an amphibious nature, partaking partly The nature of of an estate-tail, and partly of an estate for life. The tenant is, in truth, only tenant for life, but with many of the privileges of a tenant in tail; as not to be punishable for waste, &c. (a) (11): or, he is tenant in tail, with many of the restrictions of a tenant for life; as, to forfeit his estate, if he (a) Co. Litt. 27. (11) See post, chapter 18 of this volume, p. 283. All authorities agree, that tenant in tail after possibility of issue extinct is dispunishable for waste; (Doctor and Student, Dial. 2, c. 1:) but, in Herlakenden's case, (4 Rep. 63,) C. J. Wray is reported to have said, that, although tenant in tail after possibility, &c. cannot be punished in waste for cutting down trees upon the land he holds as such tenant; yet he cannot have the absolute interest in the trees, and, if he sells them, cannot retain the price. This dictum is noticed by Mr. Hargrave in his 2d note to Co. Litt. 27 b; and is countenanced by another dictum in Abraham v. Bubb, (2 Freeman, 53;) Mr. Christian, too, in his annotation upon the passage of the text, considers it as settled law, that, if a tenant in tail after possibility &c., cuts down trees, they do not become his property, but will belong to the party who has the first estate of inheritance. In opposition however to the doctrine imputed to C. J. Wray, and the obiter dictum in Abraham v. Bubb, it was distinctly resolved by the whole Court of King's Bench, (consisting of Coke, Crooke, Doddridge, and Haughton,) in the case of Bowles v. Bertee, (1 Rolle's Rep. 184; S. C. 11 Rep. 84,) that a tenant after possibility has the whole property in trees which he either causes to be cut down, or which are blown down, on the estate. And this seems to be now firmly settled by the case of Williams v. Williams: when that case was before Lord Chancellor Eldon, his lordship (as reported in 15 Ves. 427) intimated, that he could not imagine how it was doubted that the tenant, being dispunishable, had not, as a consequence, the property in the trees. That it was singular there should be an argument raised, that such a tenant should be restrained from committing malicious waste, by cutting ornamental timber, (Garth v. Cotton, 1 Dick. 209,) if it was understood to be the law that he could not commit waste of any kind. (Attorney General v. Duke of Marlborough, 3 Mad. 539.) However, as all the previous cases in which tenant in tail after possibility of issue extinct had been determined to be dispunishable of waste, were cases in which the tenant had once been tenant in tail with the other donee in possession; and in the case of Williams v. Williams the tenant claimed in remainder, after the death of the joint donee; Lord Eldon thought it advisable, before he made a final decree, to direct a case to the Court of King's Bench, not describing the claimant as tenant in tail after possibility of issue extinct, but stating the limitations of the settlement under which the claim was made. The case was accordingly argued at law, and a certificate returned, that the claimant was tenant in tail after possibility of issue extinct; was unimpeachable of waste upon the estate comprised in the settlement; and, having cut timber thereon, was entitled to the timber so cut as her own property. (12 East, 221.) A tenant for life, without impeachment of waste, and a tenant in tail af. ter possibility of issue extinct, seem to stand upon precisely the same footing in regard to all questions of waste: (Attorney General v. Duke of Marlborough, 3 Mad. 539:) and a tenant for life, dispunishable for waste, is clearly not compellable to pursue such a course of management of the timber upon the estate, as a tenant in fee might think most advantageous.Whatever. trees are fit for the purpose of timber he may cut down, though they may be still in an improving state. aliens it in fee-simple (b): whereas such alienation by tenant by the curtesy. III. Tenant by the curtesy (13) of England, is where a man III. Tenancy 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 was capable of inheriting her estate. In this case, he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England (c). (b) Co. Litt. 28. (Smythe v. Smythe, 2 Swanst. 252; Brydges v. Stevens, 2 Swanst. 152, n. ; Coffin v. Coffin, Jacob's Rep. 72.) No tenant for life, however, of any description, although not subject to impeachment for waste, must cut down trees planted for ornament or shelter to a mansion-house, or saplings not fit to be felled as timber, for this would not be a fairly beneficial exercise of the license given to him, but a malicious and fraudulent injury to the remainder-man. (Chamberlayne v. Dummer, 3 Br. 549; Cholmeley v. Paxton, 3 Bing. 212; 10 Moo. 253; Lord Tamworth v. Lord Ferrers, 6 Ves. 420.) In this respect, the claim which might, perhaps, be successfully asserted in a court of law, as to the right of felling any timber whatsoever, is controlled in courts of equity: (Marquis of Downshire v. Lady Sandys, 6 Ves. 114; Lord Bernard's case, Prec. in Cha. 455 :) and that even on the application of a mere tenant for life in remainder. (Davies v. Leo, 6 Ves. 787.) And not only wanton malice, but fraud and collusion, by which the legal remedies against waste may be evaded, will give to courts of equity a jurisdiction over such cases, often beyond, (c) Litt. s. 35, 52. and even contrary to, the rules of law. (Garth v. Cotton, 3 Atk. 755.) A tenant for life, without impeachment of waste, has no interest in the timber on the estate whilst it is standing; nor can he convey any interest in such growing timber to another: (Cholmeley v. Paxton, 3 Bing. 211, 10 Moo. 252) if, in execution of a power, he should sell the estate, with the timber growing thereon, he cannot retain for his own absolute use, that part of the purchase money which was the consideration for the timber; though, before he sold the estate, he might, it seems, have cut down every sizeable tree, and put the produce into his pocket. (Doran v. Wiltshire, 3 Swanst. 701.) And the peculiar privileges which a tenant for life after possibility of issue extinct is allowed to enjoy, because the inheritance was once in him, are personal privileges; if he grants over his estate to another, his grantee will be bare tenant for life. (2 Inst. 302; George Ap Rice's case, Leon. 241.) (12) See post, chapter 20 of this volume, p. 323. (13) See Vol. I. p. 445, n. |