estates tail were covertly included) are declared to be forfeited to the king upon any conviction of high treason. The next attack which they suffered in order of time was by the statute 32 Hen. 8, c. 28, whereby certain leases made by tenants in tail, which do not tend to the prejudice of the issue, were allowed to be good in law, and to bind the issue in tail. This power of granting leases by simple deed without enrolment, has been extended so as to allow a tenant in tail to grant a lease *for any term not exceeding twenty-one years, from the date of the lease, or from any time not exceeding a year from that date; so that not less than five-sixths of a rack rent shall be reserved (n). by fine. [* 229] But, in the meantime, a further means of destroying the efficacy of an estate-tail in preserving family property had been adopted. Fines, as they Might be barred were called, which were, like common recoveries, in appearance a species of judicial action, had acquired under Edward I. (0) some validity in effecting this object, which, after being destroyed in the reign of Edward III. (p) was revived by acts of Richard III. (q) and Henry VII. (r), and extended first by judicial interpretation (s), and subsequently by statutory declaration, in the reign of Henry VIII. (t), to operate as a complete bar to all persons claiming under an entail. Thenceforth fines continued to be in use as a means of barring all claim by the issue in tail until their abolition, which took place at the same time as that of common recoveries (u). In order, however, that the property of the crown might be in no danger of infringement, all estates-tail created by the crown, and of which the reversion remained in the crown, were excepted out of the statute; and with the like object, and for fear of ambiguity, another act (x) was passed (declaratory, however, only of the previous law (y)) which enacted, that a common recovery should not bar the reversion in the king of an estate-tail created by the crown. This special protection given to reversions. in the crown has been preserved by the modern act (z). *Lastly, by a statute of the succeeding year (a), all estates-tail are rendered liable to be charged for payment of debts due to the king Are liable for debts to the crown, or of a bankrupt. [* 230] by record or special contract; as since, by the bankrupt laws (b), they are also subjected to be sold for the debts contracted by a bankrupt. And, by the construction put on the statute 43 Eliz. c. 4, an appointment (c) by tenant in tail of the lands entailed, to a charitable Appointment to use, is good without fine or recovery. Estates-tail have also been recently rendered available to judgment creditors for the payment of their debts, in a manner similar to that applicable to estates in fee simple (d). charity. Estates-tail, having been thus by degrees unfettered, are now nearly as much (2) 3 & 4 Will. 4, c. 74, s. 18. (b) Stat. 21 Jac. 1, c. 19; 6 Geo. 4, c. 16, s. 65. This was repealed by the 55th section of the Fines and Recoveries Abolition Act (3 & 4 Will. 4, c. 74), and other provisions were substituted, giving to the creditors the same benefit from the estate-tail which the bankrupt could have had before his bankruptcy. (See ss 56, 57, &c.) (c) 2 Vern. 453; Chan. Prec. 16. in the absolute control of their owner as estates in fee simple; except when the estate is not in possession but expectant upon the determination of prior estates, in which case, as we shall see, a partial restraint upon alienation exists. But with this exception the interests, both of the issue in tail and of those who possess an estate limited to commence after the expiration of the estate-tail, are placed in the absolute power of the tenant in tail. (231) [* 231] * CHAPTER VIII. FREEHOLDS, NOT OF INHERITANCE. WE are next to consider such estates of freehold as are not of inheritance, but for life only. And of these estates for life, some are conventional, or exEstates for life pressly created by the acts of the parties; others merely legal, or created by construction and operation of law (a). consider them both in their order. only. I. Created by deed, &c. We will I. Estates for life, expressly created by grant or devise (which alone are properly conventional), are where a grant or gift 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 autre vie (b). These estates for life are, like inheritances, of a feudal nature; they were given or conferred by the same feudal rights and solemnities, the same investiture or livery of seisin, as fees themselves were; and they were held by fealty, if demanded, and such conventional rents and services, as the lord or lessor and his tenant or lessee, had agreed on. Estates for life, rendering rent, are now not uncommon in the case of lands belonging to ecclesiastical corporations, colleges and other similar proprietaries. Created by in Estates for life may be created, not only by the express words before men[*232] tioned, but also by a general grant, *without defining or limiting any specific estate (c). As, if one grants to A. B. the manor of Dale, definite grant. 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, 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 has authority to make such a grant: for an estate for a man's own life is more beneficial and of a (a) Wright, 190. (b) Litt. s. 56. (c) Hewlins v. Shippam, 5 B. & Cr. 221, 228. (d) Co. Litt. 42. (231) For the various statutes of the different States upon this subject, see 1 Washb. Real Prop. 99, note 3, 3d ed. 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. If the grantor has not power to make a grant for the life of the grantee, the rule is different; and therefore a grant by a tenant in tail, without words of limitation, and not enrolled so as to operate as a disentailing deed, is construed to be a grant for the life of the grantor (g). It [* 233 ] Estates for life may be created by any of the modes of assurance or conveyance proper for passing freehold estates; of the various sorts of these we shall see more hereafter. The rule that a gift to a person, without any addition of words of inheritance, conferred on him only an estate for life, was formerly applied to the construction of wills as well as of deeds. was found, however, that it very frequently had the effect of defeating the intention of testators, who little suspected when they made their wills, as must often happen, without professional assistance, that a devise to A. B. of all their lands gave only a life interest in them. The recent Wills Act (h), therefore, has abrogated this technical rule, and, *in order to create a life estate by will, it is now (since the year 1837) necessary to declare by express words that the estate is to be limited for a life or lives. 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 upon a contin- 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 eontingency happens, when the widow marries, or when the grantee obtains a benefice, the respective estates are absolutely determined and gone (i). 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 or upon natural death: as formerly if he entered a monastery, whereby he was or civil death. dead in law (k): 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. (232) Determinable gency, (f) Ibid. 36. (g) Co. Litt. 42 a. (h) 7 Will. 4 & 1 Vict. c. 26, s. 28, governing all wills made since the 31st of December, 1837. (i) Co. Litt. 42, 3 Rep. 20. (k) 2 Rep. 48. It is scarcely necessary to repeat that civil death by profession is not now recognised by the law of England. (R. v. Lady Portington, 1 Salk. 162; Re Metcalfe's Trust, 2 De G. J. & S. 122.) As to the cases of civil death which are still possible, vide ante, vol. i. p. 156. (232) A life estate may be terminated by a forfeiture before the natural death of the tenant. And in some of the States where such tenant executes a conveyance of a greater estate than he has, this will work a forfeiture of his estate. Redfern v. Middleton, 1 Rice's S. C. 459; Stump v. Findlay, 2 Rawle, 168; Lyle v. Richards, 9 S. & R. 322, 370. But, the prevailing rule is that such a conveyance does not forfeit the estate, it passes such estate as the tenant has and nothing more. Mc Kee v. Pfout, 3 Dall. 486; Pendleton v. Vandevier, 1 Wash. 381; Rogers v. Moore, 11 Conn. 553; Bell v. Twilight, 22 N. H. (2 Fost.) 500; Stevens v. Winship, 1 Pick. 318; see, also, Jackson v. Van Hoesen, 4 Cow. 325. The incidents to an estate for life are principally the following; many of which are applicable not only to that species of tenancies for life, which are expressly created by deed or will; but also to those which are created by act and operation of law. Incidents thereto. Reasonable estovers. Every tenant for life, unless restrained by covenant or agreement, may, of common right, take upon the land demised to him reasonable estovers (1) or botes (m), for he has a right to the full enjoyment [* 234] and use of the land, and all its profits, during his estate therein. He is not permitted to cut down timber or do other waste upon the premises (n), except for purpose of repairing houses or hedges (o); 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. (233) Waste. He may, however, continue the working of old mines and make new shafts or pits in mines already open in order to pursue the same vein of minerals (p). Waste, vastum, is a spoil or destruction of that which constitutes the corporeal hereditament, and is in a legal point of view both actual, such as that already mentioned, and permissive, as where houses are allowed to fall into ruin, or sea walls to fall in (q); but we may remark that, as regards tenants for life, the remedy at law for permissive waste appears to be doubtful (r), and in equity is none at all (s). Where the commission of acts of waste, such as cutting down timber that is falling into decay, is clearly for the benefit of all persons interested in the property, the courts have permitted a [* 235] *tenant for life to cut it, the proceeds being invested for the benefit of the remaindermen, but the annual interest being given to the tenant for life (t). But where the waste is wholly unauthorised, the proceeds of the waste or the things wasted belong to the owner of the first estate unimpeachable for waste, if there be one in existence at the time, and if there be none it belongs to the owner of the first estate of inheritance, and ought to be (See ante, p. 22. (m) Co. Litt. 41. An exception of timber in the lease is an exception of estovers, and the taking them is then trespass, not waste. (Vin. Ab., Waste, (M), pl. 26.) (n) Ibid. 53. Viner v. Vaughan, 2 Beav. 466; Lewis Bowles' Case, 11 Rep. 82 b.; Davis v. Duke of Marlborough, 2 Swanst. 108, 145. (0) Co. Litt. 54 b.; Vin. Ab., Waste, (M); Darcy v. Askwith, Hob. 234; Simmons v. Norton, 5 Moo. & P. 645; he may not sell the timber even to pay the wages of the workmen who do the repairs. (p) Clavering v. Clavering, 2 P. W. 388; Viner v. Vaughan, 2 Beav. 466. He may renew the working of abandoned mines; Bagot v. Bagot, 32 Beav. 509, where the right gen erally of tenant for life was much discussed; and as to windfalls, see further Bateman v. Hotchkin, 31 Beav. 486, and Earl Cowley v. Wellesley, L. R. 1 Eq. 656. (q) 2 Inst. 145; Vin. Ab. Waste, D. (r) Gibson v. Wells, 1 N. R. 291; Herne v. Bembow, 4 Taunt. 764; Warren v. Rudall, 1 J. & H. 1. (8) Lord Castlemaine v. Lord Craven, 2 Vin. Ab. 523; Powys v. Blagrave, 4 De G. M. & G. 448; Warren v. Rudall, 1 J. & H. 1. (t) Tooker v. Annesley, 5 Sim. 235; Waldo v. Waldo, 7 Sim. 261; see 12 Sim. 107; Consett v. Bell, 1 Y. & C. C. C. 569; Peters v. Blake, 6 L. J. Ch. 157; Phillips v. Barlow, 14 Sim. 263; Gent v. Harrison, John. 517; see also Bateman v. Hotchkin, 31 Beav. 486. (233) Although a tenant for life is entitled to reasonable estovers, he has no right to dig up and use soil or wood on the demised premises for the purpose of manufacturing bricks for sale. Livingston v. Reynolds, 2 Hill, 157. He may cut timber for the necessary use of the farm, but not for the purpose of carrying it off to be used elsewhere, or to be sold. Van Deusen v. Young, 29 N. Y. (2 Tiff.) 9. retained for his benefit, the annual interest in this case not being given to the tenant for life so improperly committing waste (u). It is common, in modern settlements by which life estates are limited, to create them without impeachment of waste." The effect of this is to give the tenant for life very enlarged powers as to doing acts of the nature of waste (x). Still his power, in this respect, is not even then equal to that which a tenant in fee simple possesses; because courts of equity have established Equitable waste. a doctrine that he may not commit any act which tends to the destruction of the thing settled (y); as, for instance, the pulling down of a castle (z) or family mansion, or even cutting any timber which has been planted or left standing for ornament (a). And it may be remarked that no question of taste is allowed to influence the decision whether or not the trees [* 236] or other plantations are ornamental; the only point to be ascertained is, whether they were in fact planted or left standing for ornament (b); and if this fact be established trees may not be cut down, though they be two miles distant from the mansion (c). Neither is the test of what an owner would do in the prudent management of his property applicable to permit a tenant for life to commit equitable waste (d). A tenant for life, or his representative, shall not be prejudiced by the contingent and uncertain nature which characterises the determination of his estate (e). Therefore, if a tenant for his own life sows the lands, and dies before harvest, his executors shall have the emblements (ƒ) or profits of the crop, and they may enter for the purpose Emblements. (u) Bagot v. Bagot, 32 Beav. 509. The question to whom the corpus of such proceeds belongs, whether to the owner of a subsequent estate for life unimpeachable for waste, or to the owner of the first estate of inheritance, has been a good deal discussed. See Gent v. Harrison, John. 517, where the doctrine opposite to that in the text was expressed, though not decided. (x) Lewis Bowles' Case, 11 Rep. 796; and see notes thereto in Tud. L. C. Conv. 19 et seq., and Davies v. Wescomb, 2 Sim. 425. (y) In an ordinance of Philip le Bel, in 1302, we find this prohibition:-"Ne faient aucum gast et s'il y a aucum arbre qui ait esté gardé pour sa beauté ou pour sostentation de maisons, qu'il soit encore gardé," which shows the feeling regarding these acts of waste to have been in ancient times peculiarly strong. (z) Vane v. Lord Barnard, 2 Vern. 738. (a) Aston v. Aston, 1 Ves. S. 265; Rolt v. Lord Somerville, 2 Eq. Ca. Ab. 759. The cases upon the subject are very numerous; they will be found collected in the notes to Garth v. Cotton, 1 Wh. & Tud. L. C. Eq. 559, et seq. Ornamental timber in a park was protected from being felled, even though the mansion had been pulled down. Wellesley v. Wellesley, 6 Sim. 497. (b) Marquis of Downshire v. Lady Sandys, 6 Ves. 110; Ford v. Tynte, 2 De G. J. & S. 127. * [* 237] Co. (f) Emblements from emblaver, to sow with corn, are the corn and other growth of the earth produced annually, not spontaneously, but by labour and culture. They include hemp, flax, and the like, and even hops, which though growing from old roots require annual culture much the same as corn. Litt. 55; Latham v. Atwood, Cro. Car. 515; Will. Exor. 597. Though perhaps the person who first plants hops is not necessarily entitled to the first crop whenever produced. See Graves v. Weld, 5 B. & Ad. 120, a case relating to clover, which, sown at the same time as barley, was mown after more than a year had elapsed. As to emblements in general, what they are, and who shall have them, see Com. Dig. Biens (G.) 1, 2; Vin. Ab., Emblements and Executors (U); Bac. Ab., Executors (H.), 3; Co. Litt. 55 a, b; 1 Williams on Executors, ubi sup. With respect to the person who is entitled to emblements, Lord Ellenborough observed, in West v. Moore, 8 East, 343, that the distinction between the heir and devisee in this respect was capricious enough. In the testator himself, the standing corn, though part of |