THE incidents to an estate for life, are principally the fol lowing; which are applicable not only to that fpecies of tenants for life, which are exprefsly created by deed; but also to thofe, which are created by act and operation of law. 1. EVERY tenant for life; unlefs reftrained by covenant or agreement, may of common right take, upon the land demifed to him reafonable eftovers or botes'. k For he hath a right to the full enjoyment and ufe of the land, and all it's profits, during his eftate therein. But he is not permitted to cut down timber or do other wafte upon the premises for the deftruction of fuch things, as are not the temporary profits of the tenement, is not neceffary for the tenant's complete enjoyment of his eftate; but tends to the permanent and lafting lofs of the perfon entitled to the inheritance (1), 2. TENANT for life, or his reprefentatives, fhall not be prejudiced by any fudden, determination of his eftate, becaufe fuch a determination is contingent and uncertain ". Therefore if a tenant for his own life fows the lands, and dies before harveft, his executors niall have the emblements, or profits of the crop for the estate was determined by the act of God; and it is a maxim in the law, that actus Dei nemini facit injuriam. The reprefentatives therefore of the tenant for life fhall have the emblements, to compenfate for the labour and expence of tilling, manuring, and fowing the lands; and alfo for the encouragement of hufbandry, which being a public benefit, tending to the encrease and plenty of provifions, ought to have the utmost fecurity and privilege that the law can give it. Wherefore by the feodal law, if a tenant for life died between the beginning of September and (1) See p. 283, poft, in what cafes the tenant for life may cut down timber, and commit what in law is called walte. the the end of February, the lord, who was entitled to the reverfion, was alfo entitled to the profits of the whole year; but, if he died between the beginning of March and the end of Auguft, the heirs of the tenant received the whole. [ 123 ] From hence our law of emblements feems to have been de rived, but with very confiderable improvements. So it is alfo, if a man be tenant for the life of another, and celuy que vie, or he on whofe life the land is held, dies after the corn fown, the tenant pur auter vie fhall have the emblements. The fame is alfo the rule, if a life-eftate be determined by the act of law. Therefore, if a leafe be made to husband and wife during coverture, (which gives them a determinable eftate for life) and the hufband fows the land, and afterwards they are divorced a vinculo matrimonii, the husband fhall have the emblements in this cafe; for the fentence of divorce is the act of law P. But if an estate for life be deter-· mined by the tenant's own act, (as, by forfeiture for waste committed; or, if a tenant during widowhood thinks proper to marry) in these, and fimilar cafes, the tenants, having thus determined the estate by their own acts, fhall not be entitled to take the emblements 9. The doctrine of emblements extends not only to corn fown, but to roots planted, or other annual artificial profit, but it is otherwife of fruit-trees, grafs, 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'. For when a man plants a tree, he cannot be prefumed to plant it in contemplation of any present profit; but merely with a prospect of it's being useful to himself in future, and to future fucceffions of tenants. The advantages alfo of emblements are particularly extended to the parochial clergy by the ftatute 28 Hen. VIII. c. 11 (2). For all perfons, who are prefented to any ecclefiaftical benefice, or • Feud. 1. 2. 1. 28. P 5 Rep. 116. q Co. Litt. 55. r Co. Litt. 55, 56. 1 Roll. Abr. 728. (2) That ftatute enables an incumbent to bequeath by will, the corn and grain growing upon the glebe-land. to to any civil office, are confidered as tenants for their own lives, unless the contrary be expreffed in the form of donation. 3. A THIRD incident to eftates for life relates to the under-tenants or leffees. For they have the fame, nay greater indulgences than their leffors, the original tenants for life. The fame; for the law of eftovers and emblements, with re[124] gard to the tenant for life, is alfo law with regard to his un der-tenant, who represents him and stands in his place': and greater; for in thofe cafes where tenant for life shall not have the emblements, because the eftate determines by his own act, the exception shall not reach his leffee who is a third perfon. As in the cafe of a woman who holds durante viduitate: her taking husband is her own act, and therefore deprives her of the emblements: but if the leafes her eftate to an under-tenant, who fows the land, and fhe then marries, this her act shall not deprive the tenant of his emblements, who is a stranger and could not prevent her. The lefsees of tenants for life had also at the common law another most unreasonable advantage; for, at the death of their leffors the tenants for life, thefe under-tenants might if they pleased quit the premises, and pay no rent to any body for the occupation of the land fince the last quarter day, or other day affigned for payment of rent". To remedy which it is now enacted v, that the executors or administrators of tenant for life, on whofe death any leafe determined, shall recover of the leffee a ratable proportion of rent, from the last day of payment to the death of fuch leffor. II. THE next eftate for life is of the legal kind, as contradiftinguished from conventional; viz. that of tenant in tail after poffibility of iffue extinct. This happens, where one is tenant in fpecial tail, and a perfon, from whose body the iffue was to fpring, dies without iflue; or, having left iffue, that iffue becomes extinct: in either of thefe cafes the furviving tenant in fpecial tail becomes tenant in tail after pof $ Co. Litt. 55. t Cro. Eliz. 461. 1 Roll. Abr. 727. u 10 Rep. 127. v Stat. 11 Geo. II. c. 19. § 15. fibility fibility of iffue extinct. As, where one has an eftate to him and his heirs on the body of his prefent wife to be begotten, and the wife dies without iffue : in this cafe the man has an eftate-tail, which cannot poffibly defcend to any one; and therefore the law makes use of this long periphrafis, as abfolutely neceffary to give an adequate idea of his eftate. For if it had called him barely tenant in fee-tail special, that would not have diftinguished him from others; and befides [125] he has no longer an estate of inheritance, or fee, 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 stiled tenant in tail without poffibility of issue, this would exclude time past as well as prefent, and he might under this defcription never have had any poffibility of iflue. No definition therefore could fo exactly mark him out, as this of tenant in tail after poffibility of issue extinct, which (with a precision peculiar to our own law) not only takes in the poffibility of iffue in tail which he once had, but also ftates that this poffibility is now extinguished and gone. THIS eftate must be created by the act of God, that is, by the death of that perfon out of whose body the issue was to fpring; for no limitation, conveyance, or other human að 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 eftate, but be barely tenants for life, notwithstanding the inheritance once vested in them. A poffibility of iffue is always fuppofed to exist, in law, unless extinguished by the death of the parties; even though the donees be each of them an hundred years old. THIS estate is of an amphibious nature, partaking partly of an estate-tail, and partly of an estate for life. The tenant w Litt. § 32. * 1 Roll. Rep. 184. 11 Rep. 8o. 7 Co. Litt. 28. 2 Litt. 34. Co. Litt, 28. a is, in truth, only tenant for life, but with many of the pri vileges of a tenant in tail; as, not to be punishable for wafte, &c. (3): or, he is tenant in tail, with many of the reftrictions of a tenant for life; as, to forfeit his eftate if he alienes it in fec-fimple: whereas fuch alienation by tenant in tail, though voidable by the iflue, is no forfeiture of the eftate to the reverfioner: who is not concerned in intereft, [126] till all poffibility of iffue be extinct. But, in general, the law looks upon this eftate as equivalent to an eftate for life only; and, as such, will permit this tenant to exchange his eftate with a tenant for life; which exchange can only be made, as we shall fee hereafter, of eftates that are equal in their nature. III. TENANT by the curtely of England, is where a man marries a woman feised of an cftate of inheritance, that is, of lands and tenements in fee-fimple or fee-tail; and has by her iffie, born alive, which was capable of inheriting her eftate. In this cafe, he fhall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England . THIS eftate, according to Littleton, has it's denomination, because it is used within the realm of England only; and it is faid in the mirrour to have been introduced by king Henry the firft; but it appears alfo to have been the established law of Scotland, wherein it was called curialitas, fo that probably our word curtesy was understood to fignify rather an attendance upon the lord's court or curtis, (that is, being his vafal or tenant) than to denote any peculiar favour belonging to this island (4). And therefore it is laid down that by having a Co. Litt. 27. b Ibid. 28. © Litt. § 35. 52. d c. 1. § 3. e Crag. l. 2. t. 19. §4. f Litt. § 90. Co. Litt. 30. 67. (3) But although he is not punishable if he cuts down trees, yet they are not his property, but will belong to the firft perfon living at the time when they are cut, who has an cftate of inheritance. Harg. Co. Litt. 27. b. 3 P. Wms. 240. (4) I should rather think with Mr. Wooddefon, that this eftate took its name from its peculiarity to England; and that it was |