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sumed 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 (4). 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 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 [*124] with regard to his under-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 remedy 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 (5).

(8) Co. Litt. 55.

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

(4) That statute enables an incumbent to bequeath by will, the corn and grain growing upon the glebe-land, manured and sown at his own cost. s. 6. But a parson who resigns his living is not entitled to emblements. Bulwer v. Bulwer, 2 B. & Α. 470.

(5) At common law, if tenant in fee die after sunset and before midnight of the last day when the rent becomes due, it shall go to the heir, and not to the executor, for the rent is not due till the last instant of the day. 1 Saund. 287. id. note 17. 2 Madd. 268.

Where the mischief recited in the act of 11 Geo. II. c. 19, does not apply, and the lease does not determine on the death of the tenant for life, the case is not affected by it; and therefore if a tenant for life, with a leasing power, demises the premises pursuant to such power, and dies before the rent becomes due, as the rent, and the means of recovering it, will go to the remainderman or reversioner, (see 3 Maule & S. 382.) and will not be lost, the case is not within the act, and the executors of the tenant for life are not entitled to any proportion of the accruing rent. 1 P. Wms. 177. 2 Madd. 268. But if the lease or demise of the tenant for life is not within the power, and determines on his death, this is a case of appointment under the statute. 1 VOL. I. 68

(u) 10 Rep. 127.

(v) Stat. 11 Geo. II. c. 19, § 15.

Swanst. 337. and the learned note of the reporter, 357. It seems that the executors of tenants in tail, who had made leases void, as against the remainderman, and dies without issue, are within the equity of the statute. Ambl. 198. 2 Bro. C. C. 639. 8 Ves. 308. At all events, if the remainderman has received the whole rent, it seems settled he shall account in equity to the executor of the tenant in tail, id. ibid.; and which doctrine seems to apply to the successor of a parson who has received a composition for tithe jointly accruing in the lifetime of the deceased incumbent. 8 Ves. J. 308. 10 East, 334. It is laid down in 10 Co. 128. and Christian's edition, that this act is confined to the death of the landlord, who holds for his own life, and that therefore it seems if tenant pur auter vie leases, and the custuy que vie dies, the lessee is not compellable to pay any rent from the last day of payment before the death of cestuy que vie. In 3 Taunt. 331. Mansfield, C. J. expresses his doubts, see 2 Saund. 288. D.; and it should seem that the case is within the act. See other cases as to apportionment, 1 P. Wms. 392.3 Atk. 260. 583. 2 Ves. 672. Amb. 198. 279. 2 Bro. 659. 3 Bro. 99. 2 P. Wms. 502. There is no apportionment of an annuity, unless expressly provided for, 1 Swanst. 349. in notes;

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. 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, 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 (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, [*125] that *would not have distinguished him from others; and besides,

he has no longer an estate of inheritance or fee (2), 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.

2

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 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 au hundred years old (z).

This estate is of an amphibious nature, partaking partly of an estatetail, 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) (6); or, he is tenant in tail, with many of

(w) Litt. § 32.

(r) Roll. Rep. 184. 11 Rep. 80.
(y) Co Litt. 28.

but if there has been judgment on an annuity
bond standing as a security for future pay-
ments f an annuity, the court will give plain
tiff leave to take out execution for a propor-
tion of a quarter, up to grantee's death, 2 Bla.
R. 1017. 11 Ves. J. 361; and in equity the
maintenance of an infant is always apportion
ed. Id. ibid. 1 Swanst. 350. There is no
apportionment of dividends in the case of
tenant for life; but there is of interest of
mortgages, as that is perpetually accruing. 2
P. Wms. 76. 1 Swanst. 349. in notes. See
1 R. S. 747.

(6) See post, chapter 18 of this book, p.
283. All authorities agree, that tenant in tail
after possibility of issue extinct is dispunish
able for waste: (Doctor and Student, Dial. 2,

(z) Litt. 34. Co. Litt. 28.
(a) Co. Litt. 27.

c. 1): but, in Herlakenden's case, (4 Rep. 63), C. J. Wray is reported to have said, that, although tenant in tail after po-sibility, &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 2nd 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

the restrictions of a tenant for life; as to forfeit his estate, if he alienes it in fee-simple (b): whereas such alienation by tenant in tail, though voidable by the issue, is no forfeiture of the estate to the reversioner: who is not concerned in interest, *till all possibility of issue be extinct. [*126] But, in general, the law looks upon this estate as equivalent to an estate for life only; and, as such, will permit this tenant to exchange his estate with a tenant for life, which exchange can only be made, as we shall see hereafter, of estates that are equal in their nature.

III. Tenant by the curtesy of England (7), is where a man marries a woman seised of an estate of inheritance, that is, of lands and tenements

(b) Co. Litt. 26.

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 lord ship (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 deterinined to be dispunish able 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 after 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. (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. Dammer, 2 Br. 549. Cholmeley v. Paxton, 3 Bing. 212. 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, 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): 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. Wiltskire, 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, 3 Leon. 241).

(7) See in general, 2 Saunders, 45. n. 5. 46. n. q. 382. a. b. Bac. Ab. tit. Curtesy of England. Com. Dig. Estates, D. 1. Prest. on Conv. 69. 1 Cru. Dig. 104. and index. tit. Curtesy. Fearne Con. Rem. 55, 6. 341, 2. 562. n. g.

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).

This estate, according to Littleton, has its denomination, because it is used within the realm of England only; and it is said in the Mirrour (d) to have been introduced by king Henry the First; but it appears also to have been the established law of Scotland, wherein it was called curialitas (e), so that probably our word curtesy was understood to signify rather an attendance upon the lord's court or curtis (that is, being his vassal or tenant), than to denote any peculiar favour belonging to this island (8). And therefore it is laid down (f) that by having issue, the husband shall be entitled to do homage to the lord, for the wife's lands, alone: whereas, before issue had, they must both have done it together. It is likewise used in Ireland, by virtue of an ordinance of king Henry III. (g). It also appears (h) to have obtained in Normandy; and was likewise used among the ancient Almains or Germans (i). And yet it is not generally apprehended to have been a consequence of feodal tenure (k), though I think some substantial feodal reasons may be given for its introduction. For if a woman seised of lands hath issue by her husband, and dies, the husband

is the natural guardian of the child, and as such is in reason en[*127] titled to "the profits of the lands 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 (1). As soon therefore as any child was born, the father began to have a permanent interest in the lands, he became one of the pares curtis, did homage to the lord, and was called tenant by the curtesy initiate; and this estate being once vested in him by the birth of the child, was not suffered to determine by the subsequent death or coming of age of the infant.

There are four requisites necessary to make a tenancy by the curtesy; marriage, seisin of the wife, issue, and death of the wife (m). 1. The marriage must be canonical and legal. 2. The seisin of the wife must be an actual seisin, or possession of the lands; not a bare right to possess, which is a seisin in law (9), but an actual possession, which is a seisin in deed (10). And therefore a man shall not be tenant by the curtesy of a

(c) Litt. § 35.52

(d) c 1, $3.

(e) Crag. 1. 2, с. 19, § 4.

(f) Litt. GO. Co. Litt. 30. 67.

(g) Pat. 11 A. 111. m. 30. in 2 Bac. Abr. 659.

(8) I should rather think with Mr. Wooddeson, that this estate took its name from its peculiarity to England; and that it was afterwards introduced into Scotland and Ireland. 2 Wood. 18. Tenant by the curtesy of England, perhaps originally signified nothing more than tenants by the courts of England; as in Latin he is called tenens per legem Angliæ. See stat. pro tenentibus per legem Anglice. App. to Ruff.

(h) Grand Coustum. c. 119.

(i) Lindenbrog. LL. Alman. t. 92.

(k) Wright, 294.

(1) F. N. B. 143.

(m) Co. Litt. 30.

29.

(9) 2 Saund 45. n. n. (5). Courts of equity, however, allow curtesy of trusts and of other interests, which, although mere rights in law, are deemed extates in equity. 1 Atk. 603. 1 P. W. 108. Lord Redesdale on 2 Sch. and Lef. 368. suggests this reason for the distinction between dower and this claim, viz. that parties had been acting on this supposition,

that the creation of trust estates would bar dower; and that it was necessary for the security of purchasers, mortgagees, and other persons taking the legal estate, to depart in cases of dower from the general principle of courts of equity, which is, in acting upon trusts to follow the law, but it was not necessary in cases of tenancy by the curtesy, because no such practice had prevailed.

(10) Entry is not always necessary to an actual seisin or seisin in deed; for, if the land be in lease for years, curtesy may be without entry or even receipt of rent, the possession of the lessee being the possession of the husband and wife. Co. Litt. 29. a. n. 3. 3 Atk. 469. But if the lands were not let, and the wife died before entry, there could be no curtesy. Co. Litt. 29.

remainder or reversion (11). But of some incorporeal hereditaments a man may be tenant by the curtesy, though there have been no actual seisin of the wife: as in case of an advowson (12), where the church has not become void in the lifetime of the wife which a man may hold by the curtesy, because it is impossible ever to have actual seisin of it, and impotentia excusat legem (n). 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 entirely upon her seisin, the husband can have no title as tenant by the curtesy (0) (13). 3. The issue must be born alive. Some have had a notion that it must be heard to cry; but that is a mistake. Crying indeed is the strongest evidence of its being born alive, but it is not the only evidence (p). The issue also must be born during the life of the mother; for if the mother dies in labour, and the Cæsarean operation is performed, the husband in this case shall not be tenant by the *cur- [*128] tesy; because, at the instant of the mother's death, he was clearly not entitled, as having had no issue born, but the land descended to the child while he was yet in his mother's womb, and the estate being once so vested, shall not afterwards be taken from him (q). In gavelkind lands, a husband may be tenant by the curtesy, without having any issue (r) (14). But in general there must be issue born: and such issue as is also capable of inheriting the mother's estate (s). Therefore if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby entitled to be tenant by the curtesy; because such issue female can never inherit the estate in tail male (t). And this seems to be the principal 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: but no one, by the standing rule of law, can be heir to the ancestor of any land, whereof the ancestor was not actually seised; 12 and therefore as the husband hath never begotten any issue that can be heir to those lands (15), he shall not be tenant of them by the curtesy (u). And hence we may observe, with how much nicety and consideration the old rules of law were framed; and how closely they are connected and interwoven together, supporting, illustrating, and demonstrating one another. The time when the issue was born is immaterial, provided it were during the coverture; for, whether it were before or after the wife's seisin of the lands,

(n) Co. Litt. 29.

(0) Co. Litt. 30. Plowd. 263. (p) Dyer, 25. 1 Rep. 34.

(9) Co. Litt. 29.

(11) A man will not be entitled to tenancy by the curtesy of, nor a woman to dower out of. a reversion or remainder expectant upon an estate of frechold; but upon a reversion expedtant upon an estate for years, both these rights (of dower and of curtesy) accrue; (Stoughton v. Leigh, I Taunt. 410); for the possession of the tenant for years constitutes a legd seisin of the freehold in reversion. (De Gray v. Richardson. 3 Atk. 470. Goodtitle v. Newman, 3 Wils, 521).

(r) Ibid. 30.
(s, Litt. 656.

(t) Co. Litt. 29.

(2) Co. Litt. 40.

curtesy of the advowson. Hal. MSS.

(13) See this doubted in Harg. Co. Litt. 30. b. n. 2.

(12) But if an advowson be appendant to a manor, and the wife die before entry into the manor, the husband shall not be tenant by the (12) See Hov. n. (12) at

(14) But a tenant by curtesy of gavelkind lands has only a moiety of the wife's estate, which heoses by a second marriage. Robin. Gavelk. b. 2. c. 1.

(15) This is not stated with our author's usual precision. The issue, in the case put, might be heir to the lands, though he could nov take as heir to his mother, but as heir to his ancestor, who was last actually seised. (See post, chapter 14 of this book, pp. 200, 227; see also I Inst. 11 b).

the end of the Vol. B. II.

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