CHAPTER IV. OF FREEHOLD ESTATES, 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, some are conventional, or expressly created by the act of the parties; others merely legal, or created by construction and operation of law (c). I. Estates for life, expressly created by deed or grant (which alone are properly conventional) are, where a lease is made of land 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 for the life of another, he is usually called tenant pur auter vie (d). These estates for life are, like inheritances, of a feudal nature and they were for some time the highest estate that any man could have in a feud, for feuds, (as we have before seen) were not, at first, hereditary. They were, originally, conferred by the same feudal rites and, solemnities, the same investiture or livery of seisin, as fees themselves were; and they are held by fealty, and such rents and services as the lord or lessor, and his tenant or lessee, have agreed on.] Consequently, although, at the present day, feoffments have almost disappeared from practice, the estate for life is created and transferred in the same manner as an estate in fee, viz., by deed. [Estates for life may also be created by a grant which does not define or limit the specific estate intended by the grant. As if one grants to A. B. the manor of Dale, this (d) Litt. s. 56. (c) Wright, Tenures, 190. S.C.-VOL. I. L [makes A. B. tenant for life (e). For the grant will 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, for term of life generally, shall be construed to be an estate for life of the grantee, in case the grantor hath authority to make such a grant (f). 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 grants by the Crown (g). Estates for life endure, in general, as long as the life for which they are granted; but some estates for life may determine sooner. For, 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 (h). Yet, while they subsist, they are reckoned as estates for life (i). The estate for life (whether conventional or legal) has the following incidents : 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. And these estovers or botes are of three kinds, viz., housebote, which is for repairs and fuel; ploughbote, which is for repair of the instruments of husbandry used on the land; and haybote, which is for the repair of ancient hedges, or hays (k). 2. But every tenant for life is, in the absence of authority, answerable for waste, that is, for any spoil or destruction which he does to the premises during his tenancy, to the injury of the person entitled to the (e) Co. Litt. 42 a. (y) Ibid. (h) Ibid.; Boraston's Case, (1587) 3 Rep. 19 a. (i) Co. Litt, 42 a. (k) Ibid. 41 b. [inheritance in reversion or in remainder (1).] And there are two kinds of waste, voluntary and permissive; the one by the tenant's voluntary act, as where he pulls down a wall, or cuts down timber, the other by his default, as by suffering a wall to fall down for want of repairs. The ordinary tenant for life is not responsible for permissive waste (m). But the person on whom the enjoyment of a leasehold interest is settled for his life must, probably, perform the covenants of the lease, although the settlor's estate may also be liable (n). Estates for life are sometimes limited, however, with a clause expressing that the tenant shall hold the land without impeachment of waste, the effect of which is, that he is not liable to an action for waste of either kind, whether voluntary or permissive. But, even in such a case, a court of equity would, formerly, have interfered to restrain the felling of ornamental timber or other like unwarrantable and gratuitous injury to the inheritance, although such acts might not be legal waste at all (o). And now, by the Judicature Act, 1873, it is expressly provided that an estate for life, without impeachment of waste, shall not confer on the tenant for life any right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the instrument creating the estate (p). 3. [Tenant for life shall not be prejudiced by any sudden determination of his estate, where such determination is contingent and uncertain. Therefore, if a tenant for his own life sows the lands, and dies before harvest, his representatives shall have the emblements, or profits of the crop so sown; for the estate was determined by the act of God, and actus Dei nemini facit injuriam (q). The (1) Co. Litt. 53 a. (m) Re Cartwright, (1889) 41 Ch. D. 532. (n) Re Fowler, (1881) 16 Ch. D. 723. (0) Vane v. Lord Barnard, (1716) 2 Vern. 738. (p) 36 & 37 Vict. c. 66, s. 25, sub-s. (3). (2) Co. Litt. 55 b. [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, as well as for the encouragement of husbandry, which is of public utility. So it is also, if a man be tenant for the life of another, and cestui que vie, that is to say, he during whose life the land is held, dies after the corn sown; the tenant pur auter vie shall have the emblements. And if a life estate be determined by act of law, e.g., if a lease is made to husband and wife during coverture, and the husband sows the land, and afterwards before the harvest there is a divorce, in such case the husband shall have the emblements; for the sentence of divorce is an act of the law (). But, if a life estate be determined by the tenant's own act (as if tenant during widowhood should think 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 (s). The doctrine of emblements extends not only to corn sown, but 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 the permanent or natural profit of the earth (t). 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 future successions of tenants. The right to emblements was extended to the parochial clergy by the statute 28 Hen. VIII. (1536), c. 11, s. 6; for a parson may be considered as tenant for his own life (u). 4. If a tenant for life under-let, his lessee (i.e., the under-lessee) has, by the common law, the same right of (r) Oland's Case, (1602) 5 Rep. 116 b. (Probably, since the Married Women's Property Act, 1882, the wife would be entitled to a share.) (s) Oland's Cuse, ubi sup. (t) Co. Litt. 55 b. (u) Quare: Did this statute do more than confer upon incumbents the power of bequeathing emblements by will? [emblements (x); nor will he lose that right, where the tenant for life by his own act determines his life estate. And therefore in the case of a woman who holds durante riduitate, although her taking husband is her own act, and deprives her of the emblements; yet, if she have leased to an under-tenant, who sows the land, and she then marries, this her act shall not deprive the under-tenant of his emblements (y).] But the whole subject of emblements, as regards under-lessees, has been much reduced in practical importance by the passing of the Landlord and Tenant Act, 1851, which provides that, as regards a tenant of a farm or lands at a "rack" or full rent, where the interest of such a person is determined by the death of his lessor, the tenant shall continue to hold until the expiration of the current year of his tenancy; at which time he shall quit, upon the terms of his holding, in the same manner as if his tenancy were determined by effluxion of time or other lawful means during the continuance of his landlord's estate. And the succeeding owner is, in such a case, entitled to recover a fair proportion of the rent for the period elapsed from the termination of his predecessor's interest to the time of the tenant's quitting. And the succeeding owner and tenant respectively are to be entitled (as against each other) to all the benefits, and are to be subject to all the terms, to which the original landlord and tenant respectively would have been entitled or subject, in case the tenancy had determined in manner aforesaid at the expiration of such current year. these provisions are in lieu of emblements. And By the Apportionment Act, 1870 (2), it has been provided generally, and not merely in reference to life tenants and their under-lessees, that all rents, annuities, dividends, and other periodical payments in the nature of income, (whether reserved or made payable under an instrument in writing or otherwise,) shall, like interest (x) Co. Litt. 55 b. (y) Ibid. (*) 33 & 34 Vict. c. 35. |