LECTURE LV.

OF ESTATES FOR LIFE.

AN estate of freehold is a denomination which applies equally to an estate of inheritance and an estate for life. (a) Liberum tenementum denoted anciently an estate held by a freeman, independently of the mere will and caprice of the feudal lord; and it was used in contradistinction to the interests of terms for years, and lands in villenage or copyhold, which estates were originally liable to be determined at pleasure. This is the sense in which the terms liberum tenementum, frank treatment or freehold, are used by Bracton, Fleta, Littleton, and Cɔke; and, therefore, Littleton said, that no estate below that for life was a freehold. (b) Sir William Blackstone (c) confines the description of a freehold estate simply to the incident of livery of seisin, which applies to estates of inheritance and estates for life; and as those estates were the only ones which could not be conveyed at common law without the solemnity of livery of seisin, no other estates were properly freehold estates. But this criterion of a free- * 24 hold estate, as being one in fee, or for life, applies as well to the estates created by the operation of the statute of uses, as to those which are conveyed by livery of seisin; for the statute which unites the possession to the use, supplies the

(a) This is even made a matter of legislative declaration, in the New York Revised Statutes, vol. i. 772, sec. 5.

(b) Fuerunt in conquestu liberi homines, qui libere tenuerunt tenementa sua per libera servitia, vel per liberas consuetudines. Bracton, lib. 1, fol. 7. Liberum tenementum non habuit, qui non tenuit nisi ad terminum annorum. Fleta, lib. 5, c. 5, sec. 16. Litt. sec. 57. Co. Litt. 43, b. In the French law, the liberi, or freemen, were defined to be celles qui ne recognoissent superieure en Feidalité. So, in Doomsday, the liberi were expressed to be qui ire poterant quo volebant Dalrymple on Feudal Property, 13.

(e) Com. vol. ii. 104.

place of actual livery. Any estate of inheritance, or for life, in real property, whether it be a corporeal or an incorporeal hereditament, may justly be denominated a freehold.

By the ancient law, a freehold interest conferred upon the owner a variety of valuable rights and privileges. He became a suitor of the courts, and the judge in the capacity of a juror; he was entitled to vote for members of parliament, and to defend his title to the land; as owner of the immediate freehold, he was a necessary tenant to the præcipe in a real action, and he had a right to call in the aid of the reversioner or remainderman, when the inheritance was demanded. These rights gave him importance and dignity as a freeholder and freeman. (a)

Estates for life are divided into conventional and legal estates. The first are created by the act of the parties, and the second by operation of law.

(1.) Estates for life by the agreement of the parties, were, at common law, freehold estates of a feudal nature, inasmuch as they were conferred by the same forms and solemnity as estates in fee, and were held by fealty, and the conventional services agreed on between the lord and tenant. (b) Sir Henry Spelman (c) endeavored to show that the English law took no notice of feuds until they became hereditary at the Norman Conquest; and that fealty, as well as the other feudal incidents, were consequences of the perpetuity of fiefs, and did not belong to estates for years, or for life. The question has now become wholly immaterial in this country, where every real

vestige of tenure is annihilated, and the doubt, whether *25 fealty was not, in this state, an obligation upon a ten

ant for life, has been completely removed, in New York, by the act declaring all estates to be allodial. (d) But, considering it as a point connected with the history of our law, it may be observed, that the better opinion would seem to be, that fealty was one of the original incidents of feuds when they were for life. It was as necessary in the life estate as in a fee,

(a) Sullivan's Lectures on Laws of England, lec. 6. Preston on Estates, vol. i. 206-210.

(b) Wright on Tenures, 190.

(c) Treatise of Feuds and Tenures, c. 3.

(d) New York Revised Statutes, vol. i. 718, sec. 3.

and it was in accordance with the spirit of the whole feudal association, that the vassal, on admission to the protection of his lord, and the honors of a feudal investiture, should make an acknowledgment of his submission, with an assurance of service and fidelity. The rights of the feudal investiture were exceedingly solemn, and implied protection and reverence, beneficence and loyalty. (a)

and in this last case *26

Life estates may be created by express words, as if A. conveys lands to B. for the term of his natural life; or they may arise by construction of law, as if A. conveys land to B. without specifying the term of duration, and without words of limitation. In this last case, B. cannot have an estate in fee, according to the English law, and according to the law of those parts of the United States which have not altered the common law in this particular, but he will take the largest estate which can possibly arise from the grant, and that is an estate for life. (b) The life estate may be either for a man's own life, or for the life of another person, it is termed an estate pur autre vie, which is the lowest species of freehold, and esteemed of less value than an estate for one's own life. The law in this respect has proceeded upon known principles of human nature; for, in the ordinary opinion of mankind, as well as in the language of Lord Coke, "an estate for a man's own life is higher than for another man's." A third branch of life estates may also be added, and that is, an estate for the term of the tenant's own life, and the life of one or more third persons. In this case, the tenant for life has but one freehold limited to his own life, and the life of the other party or parties. (c)

(a) See Lib. Feud. lib. 1, tit. 1, and lib. 2, tit. 5, 6, 7, where the vassal for life is termed fidelis, and every vassal was bound by oath to his lord, quod sibi erit fidelis, ad ultimum diem, vitæ contra omnem hominem excepto rege et quod credentiam sibi commissam non manifestabit. Doctor Gilbert Stuart, in his Diss. on Eng. Const. 87, 88, was of the same opinion; and he explored feudal antiquities with a keen spirit of research, sharpened by controversy. His work is deserving of the study of the legal antiquarian, if for no other purpose, yet for the sagacity and elegance with which he comments upon the sketches of barbarian manners, as they remain embodied in the clear and unadorned pages of Cæsar, and the nervous and profound text of Tacitus. (b) Co. Litt. 42, a.

(c) Co. Litt. 41, b. There are several subtle distinctions in the books, growing out

These estates may be made to depend upon a contingency, which can happen and determine the estate before the death of the grantee. Thus, if an estate be given to a woman dum sola, or durante viduitate, or to a person so long as he shall dwell in a particular place, or for any other intermediate period, as a grant of an estate to a man until he shall have received a given sum out of the rents and profits; in all these cases, the grantee takes an estate for life, but one that is determinable upon the happening of the event on which the contingency depended. (a) If the tenant for the life of B. died in the lifetime of B., the estate was opened to any general occupant during the life of B.; but if the grant was to A. and his heirs during the life of B., the heir took it as a special occupant. The statute of 29 Charles II. c. 3, made such an interest devisable, and if not devised, the heir was made chargeable with the estate as assets by descent, and it speaks of him as a special occupant.

The statute of 14 Geo. II. c. 20, went further, and provided, that if there was no such special occupant named, and *27 *the land be not devised, it was to go in a course of administration as personal estate. This peculiar estate pur autre vie, has been frequently termed a descendible freehold, but it is not an estate of inheritance, and perhaps, strictly speaking, it is not a descendible freehold, in England, for the heir does not take by descent. It is a freehold interest sub modo, or for certain purposes, though in other respects it partakes of the nature of personal estate. (b) In New York, an estate pur autre vie, whether limited to heirs or otherwise, is deemed a freehold only during the life of the grantee or devisee, and after his death it is deemed a chattel real. (c) The interest of every occupant, general or special, is, therefore, in

of this topic, whereof students, according to Lord Coke, "may disport themselves for a time; "and Mr. Ram has endeavored to do so, in a puzzling note to his recent Outline of the Law of Tenure and Tenancy, 33.

(a) Bracton, lib. 4, c. 28, sec. 1. Co. Litt. 42, a. The People v. Gillis, 24 Wendell, 201.

(b) Lord Kenyon, in Doe v. Luxton, 6 Term Rep. 289. By the statute of 1 Victoria, ch. 26, estates pur autre vie, if not devised, were to be chargeable in the hands of the heir, as assets by descent; and if there be no special occupant, they were to go as already provided.

(c) N. Y. Revised Statutes, vol. i. 722, sec. 6.

New York, totally annihilated; but the statute provisions in other states vary considerably upon this subject. In New Jersey, the act of 1795 is the same as that in New York; but Virginia and North Carolina follow in the footsteps of the English statutes, and leave a scintilla of interest, in certain events, in the heir as a special occupant. (a) In Massachusetts and Vermont, on the death of the tenant pur autre vie, without having devised the same, the estate descends to his lawful representatives, like estates in fee-simple. (b) In many other states, the real and personal estates, and all interest therein, go in the same course of distribution.

(2.) Tenancy by the courtesy is an estate for life, created by the act of the law. When a man marries a woman, seised, at any time during the coverture, of an estate of inheritance, in severalty, in coparcenary or in common, and hath issue by her born alive,1 and which might by possibility inherit the same estate as heir to the wife,2 and the wife dies in the lifetime of the husband, he holds the land during his life, by the courtesy of England; and it is immaterial whether the issue be living at the time of the seisin, or at the death of the *28 wife, or whether it was born before or after the seisin. (c)

This estate is not peculiar to the English law, as Littleton erroneously supposes, (d) for it is to be found, with some modifications, in the ancient laws of Scotland, Ireland, Normandy, and Germany. (e) Sir Martin Wright is of opinion, that cour

(a) Revised Code of Virginia, vol. i. 233. Revised Statutes of North Carolina, vol. i. 278. In Maryland, estates pur autre vie, except those granted to the deceased and heirs only, are considered as assets in the hands of the executor or administrator. Act of 1798, ch. 101. Dorsey's Testamentary Law of Maryland, 88.

(6) Revised Statutes of Massachusetts, 413. Revised Statutes of Vermont, 292. (c) Litt. sec. 35, 53. Co. Litt. 29, b. Paines's Case, 8 Co. 34. If the issue take as purchasers, the husband is not entitled to take by the courtesy, as where there was a devise to the wife and her heirs, but if she died leaving issue, then to such issue and their heirs. Barker v. Barker, 2 Simons, 249.

(d) Litt. sec. 35.

(e) Co. Litt. 30, a. Wright on Tenures, 193. 2 Blacks. Com. 126. In Nor

1 During the life of the mother. 2 Blacks. Comm. 128. Marsellis v. Thalhimer, 2 Paige, 35.

* When the wife's estate is so limited over, that her children take at her death as purchasers, the husband has no right of courtesy. Janney v. Sprigg, 7 Gill, 197.