117 peal: and, that these recoveries, however clandestinely introduced, are now become by long use and acquiefcence a most common affurance of lands; and are looked upon as the legal mode of conveyance, by which tenant in tail may difpose of his lands and tenements: fo that no court will suffer them to be fhaken or reflected on, and even acts of parliament have by a fidewind countenanced and established them.

THIS expedient having greatly abridged eftates-tail with regard to their duration, others were foon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treafon. For, notwithftanding the large advances made by recoveries, in the compass of about threefcore years, towards unfettering these inheritances, and thereby fubjecting the lands to forfeiture, the rapacious prince then reigning, finding them frequently re- [118] fettled in a fimilar manner to suit the convenience of families, had addrefs enough to procure a ftatute P, whereby all eftates of inheritance (under which general words eftates-tail were covertly included) are declared to be forfeited to the king upon any conviction of high treason.

THE next attack which they fuffered in order of time, was by the ftatuté 32 Hen. VIII. c. 28. whereby certain leases made by tenants in tail, which do not tend to the prejudice of the iffue, were allowed to be good in law, and to bind the islue in tail (11). But they received a more violent blow, in the fame feffion of parliament, by the construction put upon the ftatute of fines, by the ftatute 32 Hen. VIII. c. 36. which declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other perfons, claiming under fuch entail. This was evidently agreeable to the intention of Henry VII, whofe policy it was (before

common recoveries had obtained their full ftrength and authority) to lay the road as open as poffible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the oppofite reasons, were not easily brought to confent to such a provifion, it was therefore couched, in his act, under covert and obfcure expreffions. And the judges, though willing to conftrue that ftatute as favourably as poflible for the defeating of entailed eftates, yet hesitated at giving fines fo extenfive a power by mere implication, when the ftatute de donis had exprefsly declared, that they fhould not be a bar to eftates-tail. But the ftatute of Henry VIII, when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention. Yet, in order to preferve the property of the crown from any danger of infringement, all eftates-tail created by the crown, and of which the crown has the reverfion, are excepted out of this ftatute. And the fame was done with regard to common recoveries, by the ftatute 34 & 35 Hen. VIII. c. 20. which enacts, that no feigned recovery had [119] against tenants in tail, where the eftate was created by the crown', and the remainder or reverfion continues ftill in the crown, shall be of any force and effect. Which is allowing, indirectly and collaterally, their full force and effect with respect to ordinary eftates-tail, where the royal prerogative is

not concerned.

LASTLY, by a ftatute of the fucceeding year, all eftatestail are rendered liable to be charged for payment of debts due to the king by record or fpecial contract; as fince, by the bankrupt laws', they are alfo fubjected to be fold for the debts contracted by a bankrupt. And, by the construction put on the ftatute 43 Eliz, c. 4. an appointment" by tenant in tail of the lands entailed, to a charitable ufe, is good without fine or recovery.

ESTATES-TAIL, being thus by degrees unfettered, are now reduced again to almoft the fame ftate, even before iffue

Co. Litt. 372.

$ 33 Hen. VIII. c. 39. § 75:

t Stat. 21 Jac. I. c. 19.

2 Vern. 453. Chan, Prec. 16.

born,

born, as conditional fees were in at common law, after the condition was performed, by the birth of issue. For, first, 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 intereft as well of his own iffue, though unborn, as alfo of the reverfioner, except in the case of the crown: fecondly, he is now liable to forfeit them for high treafon and, laftly, he may charge them with reasonable leases, and also with fuch of his debts as are due to the crown on specialties, or have been contracted with his fellow-fubjects in a course of extenfive commerce,

OF

CHAPTER THE EIGHTH.

NOT OF

FREEHOLDS, NOT

INHERITANCE.

W

E are next to discourse of such eftates of freehold, as are not of inheritance, but for life only. And of thefe eftates for life, fome are conventional, or expressly created by the act of the parties; others merely legal, or created by conftruction and operation of law. We will confider them both in their order.

I. ESTATES for life, exprefsly created by deed or grant (which alone are properly conventional), are where a lease is made of lands or tenements to a man, to hold for the term of his own life, or for that of any other perfon, or for more lives than one in any of which cases he is ftiled tenant for life; only, when he holds the estate by the life of another, he is ufually called tenant pur auter vie. These estates for life are, like inheritances, of a feodal nature; and were, for fome time, the highest eftate that any man could have in a feud, which (as we have before feen) was not in it's origi nal hereditary. They are given or conferred by the fame feodal rights and folemnities, the fame inveftiture or livery of feifin, as fees themselves are; and they are held by fealty, if demanded, and fuch conventional rents and services as the lord or leffor, and his tenant or leffee, have agreed on.

ESTATES for life may be created, not only by the express words before mentioned, but alfo by a general grant, with out defining or limiting any specific eftate. As, if one grants to A. B. the manor of Dale, this makes him tenant for life. For though, as there are no words of inheritance, or heirs, mentioned in the grant, it cannot be conftrued to be a fee, it fhall however be conftrued to be as large an estate as the words of the donation will bear, and therefore an eftate for life. Alfo fuch a grant at large, or a grant for term of life generally, fhall be conftrued to be an eftate for the life of the grantee; in cafe the grantor hath authority to make fuch a 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', unless in the cafe of the king.

SUCH eftates for life will, generally fpeaking, endure as long as the life for which they are granted: but there are fome eftates for life, which may determine upon future contingencies, before the life, for which they are created, expires. As, if an eftate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice; in these, and fimilar cafes, whenever the contingency happens, when the widow marries, or when the grantee obtains a benefice, the refpective eftates are abfolutely determined and gone. Yet, while they fubfift, they are reckoned eftates for life; because, the time for which they will endure being uncertain, they may by poffibility last for life, if the contingencies upon which they are to determine do not fooner happen. And, moreover, in cafe an eftate be granted to a man for his life, generally, it may also determine by his civil death; as if he enters into a monaftery, whereby he is dead in law for which reafon in conveyances the grant is ufually made " for the term of a man's natural life;" which can only determine by his natural death‘.

& Co. Litt. 42.

e Ibid.

froid. 36.

z Co. Litt. 42. 3 Rep. 20.

h 2 Rep. 48.

i See Vol. I. pag. 132.

THE