barred by com About two hundred years intervened between the making Estates tail of the statute de donis and the application of common re Hen. 8, intituled, "an act to bar feigned recovery of lands wherein the king is in reversion," or by any other act, are restrained from barring their estates tail, or to tenants in tail, after possibility of issue extinct, s. 18. Where an estate tail shall have been converted into a base fee, the tenant in tail has power to enlarge the base fee into a fee simple, saving the rights of certain persons as in s. 15. If a tenant in tail shall make a disposition under the act by way of mortgage, or for any other limited purpose, it is a bar to all persons against whom it is authorized to be made; but if the estate created be only an estate pour autre vie, or for years, or if an interest charge, lien, or incumbrance, be created without a term of years, or any greater estate, then it is a bar only to give effect to the mortgage, or to such other limited purpose, s. 21. The owner of the first existing estate under a settlement prior to an estate tail under the same settlement, is to be the protector of the settlement so far as regards the lands in which such prior estate shall be subsisting, and to be deemed the owner of such prior estate, s. 22. Power is given to any settlor to appoint the protector. In cases of lunacy, &c., the lord chancellor is to be the protector, ss. 32. 33. Where an estate tail has been converted into a base fee, and there shall be a protector of the settlement, his consent is requisite to the exercise of the power of disposition, s. 35. The protector is subject to no control in the exercise of his power, s. 36. A voidable estate by a tenant in tail in favour of a purchaser is confirmed by a subsequent disposition, whatever its object by such tenant in tail; but not against a purchaser for a valuable consideration, who shall not have express notice of the voidable estate, s. 38. Base fees, when united with the immediate reversions without any intermediate estate, are enlarged instead of being merged, s. 39. Every disposition under this act by a tenant in tail, is to be effected as if he were seised in fee simple; but no disposition is of any force, unless made or evidenced by deed; and no disposition resting only in contract, whether for a valuable consideration, or not, is of any force. If a married woman, her husband's concurrence is necessary, and her deed must be acknowledged as directed by s. 79 of the act, s. 40. Every assurance by tenant in tail, except a lease not exceeding twenty-one years, at rack rent, must be enrolled in chancery within six months, s. 41. The consent of the protector may be given by the same assurance, or by a distinct deed. If by the latter the consent is to be deemed unqualified, and in either case it is irrevocable, ss. 42, 43, 44. A married woman protector is to consent as feme sole, s. 45. Consent of the protector by a distinct deed must be enrolled with or before assurance, s. 46. Courts of equity are excluded from giving any effect to dispositions by tenants in tail, or consents of protectors of settlements, which in courts of law would not be effectual, s. 47. The provisions of the act apply to copyholds, except that a disposition of such lands, if an estate in law, must be made by surrender; if in equity, either by surrender or deed, s. 50. Provision is made by the act as to the deed of consent, and the entry of it on the court rolls where the protector of a settlement of copybolds consents by deed to the disposition of a tenant in tail, and for evidencing the consent on the court rolls when not given by deed, ss. 51, 52. Power is given to equitable tenants in tail of copyholds to dispose of their lands by deed, s. 53. Enrolment is not necessary as to copyholds, s. 54. The bankrupt act, 6 Geo. 4, c. 16, s. 65, so far as it relates to estates tail, is repealed by this act, except as to commissions issued before December, 1833, s. 55. The commissioner, in the case of an actual tenant in tail becoming bankrupt after &c. mon recoveries, coveries to bar estates tail. This expedient having greatly abridged estates tail with regard to their duration, others were invented to strip them of remaining privileges. Their freedom 1 Rep. 130. 6 Rep. 40. December, 1833, is to dispose of the lands of the bankrupt of any tenure for valuable consideration for the benefit of creditors, s. 56. Commissioner in case of a tenant in tail entitled to a base fee becoming bankrupt, and of there being no protector, shall, by deed, dispose of such lands for the benefit of creditors in fee simple, saving certain rights, as in s. 19, s. 57. In case there be a protector, the commissioner is to stand in the place of the tenant in tail, so far as regards the consent of such protector, s. 58. Every deed by which such commissioner shall convey must be enrolled within six months; and if the lands be copyhold, it must be entered on the court rolls of the manor, s. 59. If by the disposition of the commissioner only a base fee shall be created for want of the consent of the protector, on there ceasing to be a protector, such base fee becomes enlarged into a fee simple, saving certain rights, as in s. 19, s. 60. A base fee disposed of under the former bankrupt acts, and during its continuance there ceasing to be a protector, is to become enlarged into a fee simple, saving certain rights, as in s. 19, s. 61. A voidable estate created in favour of a purchaser by an actual tenant in tail, or by a tenant in tail entitled to a base fee, becoming bankrupt, is confirmed by the disposition of the commissioner, if no protector, or being such with his consent, or on there ceasing to be a protector, but not against a purchaser, without notice, s. 62. The acts of a bankrupt tenant in tail are void against any disposition under the act by the commissioner (s. 63), but subject to the powers given to the bankrupt commissioner and to the estate in the assignees, and the rights of persons claiming under them, a bankrupt tenant in tail is to retain his powers of disposition under the act as if he had not become bankrupt, s. 64. The disposition by the commissioner of the lands of a bankrupt tenant in tail, if the bankrupt be dead, has, in the cases therein mentioned, the same operation as if he were alive, s. 65. Every disposition by the commissioners of copyhold lands, where the estate is not equitable, has the same operation as a surrender; and the purchaser may claim to be admitted on paying the fines, &c., s. 66. The assignees of a bankrupt can recover rents of lands, of which the commissioner has power to make disposition and enforce covenants, as if entitled to the reversion. This clause applies to all copyhold lands; but as to other lands only to such as the commissioner may dispose of after the bankrupt's death, s. 67. The previous clauses, with certain variations, apply to lands of any tenure to be sold where the purchase money is subject to be invested in the purchase of lands to be entailed, and where money is subject to be invested in the same manner, s. 71. A married woman, with her husband's concurrence, may dispose of lands and money, subject to be invested in the purchase of lands, and of any estate therein, and may release and extinguish powers as a feme sole; but these powers do not extend to copyholds in any case in which before the act the objects to be effected by this clause could have been effected by surrender, and the powers are not to interfere with any other powers, limited or reserved to her, independently of the act, ss. 77, 78. Every deed by a married woman, not executed by her as protector, must be acknowledged by her before a judge or master in chancery, or two perpetual or special commissioners appointed under the act, who, before receiving such acknowledgment, are to examine her apart from her husband, and she is also to be separately examined on the surrender of an estate of copyholds, as if such estate were legal. The court of common par Leases by tenants in tail. 4 Hen. 7, c. 24. from forfeitures for treason was abolished by 26 Hen. 8, c. 13, and by 32 Hen. 8, c. 28, 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 liament by the construction put upon the statute of fines by the stat. 32 Hen. 8, c. 36, which declared 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. All estates tail created by the crown, and of which the crown has the reversion, are however excepted out of this statute. And by 34 & Co. Litt. 372. 35 Hen. 8, c. 20, no feigned recovery had against tenants in tail, where the estate was created by the crown, and the remainder or reversion continues still in the crown is of any force (ƒ). By a statute of the succeeding year, all estates tail 33 Hen. 8, are rendered liable to be charged for payment of debts due to c. 39, s. 75. the king by record or special contract; as since, by the bankrupt laws, they are also subjected to be sold for the debts con- 21 Jac. 1, tracted by a bankrupt (g). And by the construction put on the statute 43 Eliz. c. 4, an appointment by tenant in tail of the lands entailed to a charitable use is good without fine or recovery. Estates tail, being thus unfettered, are now reduced again to almost the same state, even before issue born, as conditional fees were in at the common law after the condition was performed by the birth of issue (h). c. 19. 2 Vern. 453. Chan. Prec. 16. pleas, when a husband is lunatic, may dispense with his concurrence, except where the lord chancellor is the protector, ss. 79, 80, 90, 91. If from being abroad a married woman is prevented from making the acknowledgment, special commissioners are to be appointed, s. 83. The persons taking the acknowledgment of a married woman are to sign a memorandum and certificate thereof to the effect mentioned in the act, s. 84. The certificate, with an affidavit verifying it, must be lodged with an officer of the court of common pleas, and filed of record, s. 85, and the deed by relation is to take effect from the acknowledgment, s. 86. (f) See 3 & 4 Wm. 4, c. 74, s. 18, ante, note (e), to this chapter. (h) See now the statute abstracted ante, in note (e) to this chapter, whereby (s. 15) power is given to tenants in tail to dispose of entailed lands, either in fee simple or for any less estate, saving the rights of persons prior to the estate tail, and the rights of all other persons, except those against whom such disposition is authorized to be made. The rule in Shelley's case is as much applicable to estates tail as to estates in fee simple; Burton's Compendium, 221; Co. Litt. 22 b.; Fearne, C. R. 28. Tenant in tail was always allowed to make leases for any term of years, which, during his own life, would be valid and indefeasible; and after his death, if the estate tail continued, would still CHAPTER VIIL Of freehold estates for life only. Wright, 190. Of estates for life created by deed or grant. Co. Litt. 42. Ibid. 36. Ibid. 36. Of estates for life determin able upon contingencies. Co. Litt. 42. 3 Rep. 20. OF FREEHOLDS NOT OF INHERITANCE. OF such estates of freehold as are not of inheritance, but for life only, some are conventional, or expressly created by the act of the parties; others merely legal, or created by construction and operation of law. Estates for life may be expressly created by deed or grant, as 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; but when he holds the estate for the life of another, he is called tenant pur autre vie. Estates for life may be also created by a general grant without defining or limiting any specific estate; as if one grants to A. B. the manor of Dale, without the word "heirs," or words of inheritance in the grant, this, though for want of such words, it cannot be a fee, yet shall be as large an estate as the words of the donation will bear, and shall, therefore, be construed to be an estate for the life of the grantee, the rule of law being that all grants are to be taken most strongly against the grantor, unless in the case of the king. 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; these are reckoned estates for life, because they may possibly last for life; yet whenever the contingency happens, as when the widow marries, or the grantee obtains a benefice, the estates are determined. And if an estate be granted to a man for his life, generally, it may also subsist, unless defeated by the entry of the heir, who, if, instead of entering accepted rent from the lessee, placed himself in the situation of the lessor; Id. Co. Litt. 45 b, 46b; and see now 3 & 4 Wm. 4, c. 74, s. 21, ante, note (e), to this chapter, which declares such interests, as well as dispositions by way of mortgage, valid, pro tanto; but it must be borne in mind, that by s. 41 of the act every assurance by tenant in tail, except a lease not exceeding twenty-one years, at rack rent, must be enrolled in chancery within six months after the execution, unless it be a bargain and sale, when it must be enrolled within six months after date, as required by 27 Hen. 8, c. 16. determine by his civil death: as if he enters a monastery, whereby he is dead in law: for which reason, in conveyances, the grant 2 Rep. 48. is usually made," for the term of a man's natural life," which can only determine by his natural death. to an estate for Co. Litt. 41. Ibid. 53. The incidents to an estate for life are principally the following: The incidents Every tenant for life, unless restrained by covenant or agree- life. ment, may of common right take upon the land demised to him reasonable estovers or botes. But he is not to cut down timber or do other waste upon the premises. He or his representatives shall not be prejudiced by any sudden determination of his estate, because such a determination is contingent and uncertain; if he sows the lands and dies before harvest, his executors Ibid. 55. shall have the emblements or profits of the crop. So if a man be tenant for the life of another, and cestui que vie, or he on whose life the land is held dies after the corn is sown, the tenant pur autre vie shall have the emblements. But if an estate be determined by the tenant's own act (as by forfeiture for waste, or marrying during widowhood) they shall not be entitled to emblements. The doctrine of emblements extends Co. Litt. 55. not only to corn sown, but to roots planted, or other annual artificial profit; but it is otherwise of fruit trees, grass, and the like, which are not planted annually at the expense and labour Co. Litt. 55, of the tenant, but are either a permanent or natural profit of 56. the earth. The stat. 28 Hen. 8, c. 11, extends the advantages 728. of emblements to the parochial clergy. The law of estovers and emblements, with regard to the tenant for life, is also law with regard to his under-tenant, who represents him, and stands in his place: indeed the indulgences are greater; for in those Co. Litt. 55. cases where tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee, who is a third person. As if a woman, who holds during widowhood, marries; this her act shall not deprive the tenant of his emblements, who is a stranger, and could not prevent her. By 11 Geo. 2, c. 19, s. 15, the Cro. Eliz. 461. executors or administrators of tenant for life shall recover of 1 Roll. Abr. the lessee a rateable proportion of rent from the last day of payment to the death of the lessor (a). 1 Roll. Abr. As to the under-tenants, or lessees of tenants for life. 727. (a) If no disposition by will shall be made of any estate pur autre vie of a freehold nature, it is chargeable in the hands of the heir, if devolving upon him by special occupancy, as assets by descent; and if there be no special occupant, estates pur autre vie, whether freehold or copyhold, or of any other tenure, and whether corporeal or incor poreal, go to the executor or administrator of the grantee thereof, and in either case |