of inheriting the estate-tail, per formam doni. (u) Tenant in tail special is where the gift is restrained to certain heirs of the donee's body, and does not go to all of them in general. And this may *happen several ways. (w) I [*114] shall instance in only one; as where lands and tenements are given to a man and the heirs of his body on Mary his now wife to be begotten; here no issue can inherit, but such general issue as is engendered between them two; not such as the husband may have by another wife; and therefore it is called special tail. And here we may observe, that the words of inheritance (to him and his heirs) give him an estate in fee: but they being heirs to be by him begotten, this makes it a fee-tail; and the person being also limited, on whom such heirs shall be forgotten (viz.: Mary his present wife), this makes it a fee-tail special.

Estates, in general and special tail, are farther diversified by the distinction of sexes in such entails; for both of them may either be in tail male or tail female. As if lands be given to a man, and his heirs male of his body begotten, this is an estate in tail male general; but if to a man and the heirs female of his body on his present wife begotten, this is an estate in tail female special. And, in case of an entail male, the heirs female shall never inherit, nor any derived from them; nor e converso, the heirs male, in case of a gift in tail female.(x) Thus, if the donee in tail male hath a daughter, who dies leaving a son, such grandson, in this case cannot inherit the estate-tail; for he cannot deduce his descent wholly by heirs male. (y) And as the heir male must convey his descent wholly by males, so must the heir female wholly by females. And therefore if a man hath two estates-tail, the one in tail male, the other in tail female; and he hath issue a daughter, which daughter hath issue a son; this grandson can succeed to neither of the estates; for he cannot convey his descent wholly either in the male or female line. (z)

As the word heirs is necessary to create a fee, so in farther limitation of the strictness of the feudal donation, the word body, or some other words of procreation, are necessary to make it a fee-tail, and ascertain to what heirs in particular the fee is limited. If, therefore, either the words of inheri[*115] tance, or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an estate-tail. As, if the grant be to a man and his issue of his body, to a man and his seed, to a man and his children, or offspring: all these are only estates for life, there wanting the words of inheritance, his heirs. (a) So, on the other hand, a gift to a man, and his heirs male or female, is an estate in fee-simple, and not in fee-tail: for there are no words to ascertain the body out of which they shall issue. (b) Indeed, in last wills and testaments, wherein greater indulgence is allowed, an estate-tail may be created by a devise to a man and his seed, or to a man and his heirs male; or by other irregular modes of expression. (c) (13)

There is still another species of entailed estates, now indeed grown out of use, yet still capable of subsisting in law; which are estates in libero maritagio, or frankmarriage. These are defined (d) to be, where tenements are given by one man to another, together with a wife, who is the daughter or cousin of the donor, to hold in frankmarriage. Now, by such gift, though nothing but the word frankmarriage is expressed, the donees shall have the tenements to them, and the heirs of their two bodies begotten; that is, they are tenants in special tail. For this one word, frankmarriage does ex vi termini not only create an inheritance, like the word frankalmoign, but likewise limits that inheritance; supplying not only words of descent, but of procreation also. Such donees in frankmarriage are liable to no service but fealty; for a rent reserved thereon is

(u) Litt. 14, 15.

(y) Ibid. 24.

(20) Ibid. 16, 26, 27, 28, 29,
(z) Co. Litt. 25.

(b) Litt. 31. Co. Litt. 27.

(x) Ibid. 21, 22.
(a) Co. Litt. 20.
(c) Co. Litt. 9, 27, (d) Litt. 17.

(13) [Or to a man and his children, if he has no children at the time of the devise: 6 Co. 17 ; or to a man and his posterity: 1 H. Bl. 447; or by any other words, which show an intention to restrain the inheritance to the descendants of the devisee. See 2 Jarm. on Wills, 232 et seq.]

void, until the fourth degree of consanguinity be past between the issues of the donor and donee. (e)

The incidents to a tenancy in tail, under the statute Westm. 2, are chiefly these. (f) 1. That a tenant in tail may commit waste on the estate-tail, by felling timber, pulling down houses, or the like, without being impeached, or called to account for the same. *2. That the wife of the tenant in tail shall have

her dower, or thirds, of the estate-tail. 3. That the husband of a female [*116] tenant in tail may be tenant by the curtesy of the estate-tail. 4. That an estatetail may be barred, or destroyed by a fine, by a common recovery, or by lineal warranty descending with assets to the heir. All which will hereafter be explained at large.

Thus much for the nature of estates-tail: the establishment of which family law (as it is properly styled by Pigott) (g) occasioned infinite difficulties and disputes. (h) Children grew disobedient when they knew they could not be set aside: farmers were ousted of their leases made by tenants in tail; for, if such leases had been valid, then under colour of long leases the issue might have been virtually disinherited; creditors were defrauded of their debts; for, if a tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth; innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; of suits in consequence of which our ancient books are full: and treasons were encouraged; as estates-tail were not liable to forfeiture, longer than for the tenant's life. So that they were justly branded, as the source of new contentions, and mischiefs unknown to the common law; and almost universally considered as the common grievance of the realm. (i) But as the nobility were always fond of this statute, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature, and therefore, by the connivance of an active and politic prince, a method was devised to evade it.

About two hundred years intervened between the making of the statute de donis, and the application of common recoveries to this intent, in the twelfth year of Edward IV; which were then openly declared by the judges to be a *sufficient bar of an estate-tail. (k) For though the courts had, so long before as the reign of Edward III, very frequently hinted their opinion [*117] that a bar might be effected upon these principles, (?) yet it was never carried into execution; till Edward IV, observing (m) (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had on families, whose estates were protected by the sanctuary of entails, gave his countenance to this proceeding, and suffered Taltarum's case to be brought before the court; (n) wherein, in consequence of the principles then laid down, it was in effect determined, that a common recovery suffered by tenant in tail should be an effectual destruction thereof. What common recoveries are, both in their nature and consequences, and why they are allowed to be a bar to the estate-tail, must be reserved to a subsequent inquiry. At present I shall only say, that they are fictitious proceedings, introduced by a kind of pia fraus, to elude the statute de donis, which was found so intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal: and that these recoveries, however clandestinely introduced, are now become by long use and acquiescence a most common assurance of lands; and are looked upon as the legal mode of conveyance, by which tenant in tail may dispose of his lands and tenements: so that no court will suffer them to be shaken or reflected on, and even acts of parliament (0) have by a sidewind countenanced and established them.

This expedient having greatly abridged estates tail with regard to their duration, others were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treason. For, notwithstanding the large advances made by recoveries, in the compass of about threescore years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them fre[*118] quently *resettled in a similar manner to suit the convenience of families, had address enough to procure a statute (p) whereby all estates of inheritance (under which general words 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 Henry VIII, 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. But they received a more violent blow, in the same session of parliament, by the construction put upon the statute of fines, (q) by the statute 32 Henry 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 persons claiming under such entail. This was evidently agreeable to the intention of Henry VII, whose policy it was (before common recoveries had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched, in his act, under covert and obscure expressions. And the judges, though willing to construe that statute as favorably as possibly for the defeating of entailed estates, yet hesitated at giving fines so extensive a power by mere implication, when the statute de donis had expressly declared, that they should not be a bar to estates-tail. But the statute 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 preserve the property of the crown from any danger of infringement, all estates-tail created by the crown and of which the crown has the reversion, are excepted out of this statute. And the same was done with regard to common recoveries, by the statute 34 and 35 Henry VIII, c. 20, which enacts, that no feigned recovery had against tenants in tail, where the estate was created by the *crown, (r) and the remainder or reversion continues still in the crown, [*119] shall be of any force and effect. Which is allowing, indirectly and collaterally, their full force and effect with respect to ordinary estates-tail, where the royal prerogative is not concerned.

Lastly, by a statute of the succeeding year, (s) all estates-tail are rendered liable to be charged for payment of debts due to the king by record or special contract; as since, by the bankrupt laws, (t) they are also subjected to be sold for the debts contracted by a bankrupt. (14) And, by the construction put on

(p) 26 Hen. VII. c. 13
(8) 33 Hen. VIII, c. 39, 75

(14) 6 Geo. IV, c. 16, s. 65.

And now in England. by stat. 3 and 4 William IV, c. 74, the tenant in tail is enabled “by an ordinary deed of conveyance (if duly enrolled), and without resort to the indirect and operose expedient of a fine or recovery (which the statute wholly abolishes) to aliene in fee-simple absolute, or for any less estate, the lands entailed, and thereby to bar himself, and his issue and all persons having any ulterior estate therein. Yet this is subject to an important qualification, designed for the protection of family settlements. For in these it is usual to settle a life estate (which is a freehold interest) on the parent, prior to the estate-tail limited to the children; and the nature of a recovery (by which alone interests ulterior to the estate-tail could formerly be barred) was such as to make the concurrence of the immediate tenant of the freehold indispensable to its validity. In order therefore to continue to the parent (or other prior taker) a control of the same general description, the act provides that where, under the same settlement which created the estate-tail, a prior estate of freehold, or for years determinable with life, shall have been conferred, it shall not be competent for the tenant in tail to bar any estate taking effect upon the determination of the estate-tail, without consent of the person to whom such prior estate was given; who receives for that reason the appellation of

the statute 43 Eliz. c. 4, an appointment (u) by tenant in tail of the lands entailed, to a charitable use, is good without fine or recovery.

Estates-tail, being thus by degrees unfettered, are now reduced again to almost the same state, even before issue 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 interest as well of his own issue, though unborn, as also of the reversioner, except in the case of the crown: secondly, he is now liable to forfeit them for high treason: and lastly, he may charge them with reasonable leases, and also with such of his debts as are due to the crown on specialties, or have been contracted with his fellow-subjects in a course of extensive commerce. (15)

CHAPTER VIII.

OF FREEHOLDS, 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 estates for life, some are conventional, or expressly created by the act of the parties; others merely legal, or created by construction and operation of law. (a) We will consider them both in their

order.

1. Estates for life, expressly 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 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 per auter vie. (b) These estates for life are, like inheritances, of feudal nature; and were, for some time, the highest estate that any man could have in a feud, which (as we have before seen) (c) was not in its original hereditary. They are given or conferred by the same feudal rights and solemnities, the same investiture or liv(u) 2 Vern. 453. Chan. Prec. 16. (a) Wright, 190. (b) Litt. § 56.

(c) Page, 55.

protector of the settlement. But the object not being to restrain the power of the tenant in tail over the estate-tail itself (which he could have barred before the statute by fine, without any other person's concurrence) his alienation (in the manner prescribed by the act) is allowed to be effectual, even without the consent of the protector, so far as regards the barring of himself and his issue." 1 Stephen's Commentaries, 237. And later than the statute above mentioned, by 1 and 2 Vic. c. 110, estates-tail were made liable to judgments recovered for ordinary debts.

Mr. Stephen remarks that "estates-tail have thus been gradually unfettered; and are now subject to even less restraint than attached to conditional fees at common law, after the condition was performed by the birth of issue. For, first, the tenant in tail is now enabled by any ordinary deed of conveyance (enrolled) to alien his lands and tenements in fee-simple absolute, or otherwise, and thereby to bar his issue (born or unborn) and all ulterior claimants, subject only to the necessity, so far as the latter are concerned, of obtaining the consent of the protector, where there is one. Secondly, he is liable to forfeit them for treason. Thirdly, he may charge them with reasonable leases, even by deed not enrolled; and lastly, they are subject to be sold for payment of his debts to the same extent to which he would himself have had power to dispose of them."

(15) Estates-tail were introduced into the American colonies with other elements of the common law, and in some of the colonies the mode of barring them by common recovery obtained before the revolution. But now these estates are either changed into fee-simples, or reversionary estates in fee-simple, and do not exist at all as estates-tail, or may be converted into estates in fee-simple by familiar forms of conveyance in the several states, by force of their respective statutes. I Washburn on Real Property, 83, 84. It is competent for the legislature to make this change in the nature of estates. Cooley on Const. Lim. 360, and cases there cited.

ery of seisin, as fees themselves are; (1) and they are held by fealty, if demanded, and such conventional rents and services as the lord or lessor, and his tenant or lessee, have agreed on. *Estates for life may be created, not only by the express words before [*121] mentioned, but also by a general grant, without defining or limiting any specific estate. As, if one grants to A B the manor of Dale, 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 hath authority to make such 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, (f) unless in the case of the king.

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 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 contingency happens, when the widow marries, or when the grantee obtains a benefice, the respective estates are absolutely determined and gone. (g) 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 death: as if he enters into a monastery, whereby he is dead in law: (h) 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. (i) *The incidents to an estate for life are principally the following; [*122] which are applicable not only to that species of tenants for life, which are expressly created by deed; but also to those which are created by act and operation of law.

1. Every tenant for life, unless restrained by covenant or agreement, may of common right take upon the land demised to him reasonable estovers (k) or botes. (1) For he hath a right to the full enjoyment and use of the land, and all its profits, during his estate therein. But he is not permitted to cut down timber, or do other waste upon the premises: (m) 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. (2)

(e) Ibid.

(f) Ibid. 36.

(i) See book I, p. 132. (k) See p. 35.

(g) Co. Litt. 42. 3 Rep. 20.
(1) Co. Litt. 41.

(m) Ibid. 53.

(d) Co. Litt. 42. (h) 2 Rep. 48. (1) [An estate for life may be created by any of the modes of assurance or conveyance proper for passing freehold estates; as by bargain and sale operating under the statute of uses; by release from the reversioner to the tenant for years; by grant of a reversion to a stranger, or, as mentioned in the text, by feoffment. In each of these conveyances words of inheritance are necessary to confer an estate of inheritance; and if no words of inheritance and nothing equivalent to them occur, the conveyance passes but an estate for the life of the grantee.]

(2) [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 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. Tooker v. Annesley, 5 Sim. 235; Waldo v. Waldo, 7 id. 261; Phillips v. Barlow, 14 id. 263; Bateman v. Hotchkin, 31 Beav. 436.]

Estates may be created without impeachment of waste, in which case the tenant has a much larger power, though even then he must not commit acts which tend to the destruction of the estate, such as the demolition of a castle: Vane v. Lord Barnard, 2 Vern. 738; or ornamental trees: Aston v. Aston, 1 Ves. Sen. 265. But the doctrine that he must not cut down timber is not entirely applicable to the condition of the American States, in some parts of which and under some circumstances it would be regarded as beneficial to both parties for the tenant to clear and improve a portion of the land. See Crockett v. Crockett, 2 Ohio Ñ. S. 180; McCay v. Wait, 51 Barb. 225.