A jointure then, or, what is equivalent in its effect, a settlement upon the wife with the intention of barring her right to dower, has long been in use, to such an extent that few widows have been able to claim dower under their general right. But inasmuch as, in order to establish a free power of alienation of his lands, it was necessary (before the statute) for a married man to show that by some of these methods his wife was barred of her dower, a necessity which was no inconsiderable clog upon his title, it became desirable that upon purchasing an estate of inheritance some means should be devised whereby the property could be conveyed to him so as to be under his absolute disposal, and yet that the right of dower should not attach. Various modes were formerly * in use for this purpose. Sometimes the estate was con[* 267] veyed to a trustee for the purchaser, in which case, as we have seen, the widow could claim no dower: but this method was not much liked, inasmuch as a natural objection existed to giving a third person any power by being seised of the legal estate. Another method was to have the land conveyed to the purchaser and another as joint tenants, the interest of the other being merely a trust for the purchaser. In this case, so long as the joint tenancy existed, the wife could not be endowed, but, as the trustee might die before the husband, the latter might become solely seised, and the dower would attach. The method was therefore imperfect, in addition to having the same objection as in the previous method of the legal estate being vested in a trustee. At last, a method was invented (y) which was free from all objection, which was as follows: To limit a life estate to the purchaser, and after the determination of this estate, by forfeiture or otherwise, a remainder was limited to trustees during the life of the purchaser in trust for him, and after his death a remainder in fee was given to him. This method of limitation will be better understood hereafter when we treat of remainders; it will be sufficient here to observe, that the intermediate remainder to the trustee, however little likely to have any operation, was considered sufficient to prevent his having at any moment during his lifetime a fee simple in possession, and therefore his wife could claim no dower (z). The last improvement to this scheme was to give the husband, by the aid of the statute of uses, a power of appointing the fee simple in such manner as he might please in priority to his own life interest and the remainders. The mode by which this took effect will be understood when we shall have considered the operation of powers (a).

Uses to bar dower.

[*268]

This method of conveying property to uses to bar dower *(as it was called) became general, and is still the daily practice on conveyance of property to a married man whose marriage took place on or before the 1st of January, 1834. It is obvious that no necessity arises for the adoption of

(y) The form, as finally adopted, was settled by Mr. Fearne.

(z) 18 Viner, 413; 3 Lev. 437.
(a) Ray v. Pung, 5 B. & Al. 561.

widow will be held entitled to both, unless some statute prohibits it. Tobias v. Ketchum, 32 N. Y. (5 Tiff.) 319; Herbert v. Wren, 7 Cranch, 370, Higginbotham v. Cornwell, 8 Gratt, 83; Kennedy v. Andrew, 1 Dall. 418; Williard v. Binford, 10 Ala. 977, 987; Pickett v. Peay, 3 Brev. 545; Ostrander v. Spickard, 8 Blackf. 227; Tooke v. Hardeman, 7 Ga. 20; Norris v. Clark, 2 Stockt, 51; Clark v. Griffith, 4 Iowa, 405; Yancy v. Smith, 2 Metc. (Ky.) 408; Thomas v. Wood, 1 Md. Ch. Decis. 296; Sturgis v. Ewing, 18 III. 176; Fulton v. Fulton, 30 Miss. 586.

any such method where the marriage of the purchaser has taken place since that date, and indeed the limitation to uses to bar dower would not in that case effect their object (b). If it be desired by a purchaser coming within the act to prevent his wife having her dower against his heir in case of his own. intestacy, on which alone, as we have seen, the wife could claim (a not very reasonable desire it may be thought), by inserting a simple declaration in the purchase deed, he effectually debars her.

vie.

We mentioned at the beginning of this chapter the case of a life estate, held not for the life of the tenant but of some other person, called an estate pur Estate pur autre autre vie, the person for whose life it is held being called cestui que vie. This estate, since it may determine before the death of the tenant for life, is considered in law to be inferior to an estate for his own life, and yet it may prove to be more valuable, for the cestui que vie, or the person for whose life the estate is holden, may outlive the tenant. The estate may be limited to a man and his heirs, or to a man without any addition of words of limitation, or in various other modes. Formerly much importance was attached to these modes of limitation. If the estate were granted to a man without words of limitation, he could not take an interest to endure longer than his own life, and therefore during the interval between the death of the grantee and that of the cestui que vie, there was no person entitled, as the grantor having parted with his property for the whole period of the life of the cestui que vie, had no right to enter, and no one was entitled under the grant; he, therefore, who first entered upon the land might retain * possession until the cestui que vie died, and was called general occupant.

[* 269]

This seems to have been recurring to first principles, and calling in the law of nature to ascertain the property of the land, when left without a legal owner. For it did not revert to the grantor, though it formerly (c) was supposed so to do; for he had parted with all his interest, so long as cestui que vie lived: it did not escheat to the lord of the fee, for all escheats must be of the absolute entire fee, and not of any particular estate carved out of it: much less of so minute a remnant as this: it did not belong to the grantee; for he was dead; it did not descend to his heirs; for there were no words of inheritance in the grant: nor could it vest in his executors; for no executors could succeed to a freehold. Belonging therefore to nobody, like the hæreditas jacens of the Romans, the law left it open to be seized and appropriated by the first person that could enter upon it, during the life of cestui que vie, under the name of an occupant. But there was no right of occupancy allowed, where the king had the reversion of the lands; for a special privilege, that of treating the grant as at an end, was, in this as in many other similar instances, given to, or at least successfully claimed by the crown. Where, however, the estate pur autre vie had been granted to a man and his heirs during the life of cestui que vie, the heir might, and still may, enter and hold possession, and is called in law a special occupant: as having a special exclusive right, by the terms of the original grant, to enter upon and occupy this hæreditas jacens, during the residue of the estate granted; though some have thought him so called with

(b) Ante, p. 259, n

(c) Bract. 1. 2, c. 9; 1. 4, tr. 3, c. 9, s. 4; Flet 1. 3, c. 12, s. 6; 1. 5, c. 5, s. 15.

no very great propriety (d), and that such estate is rather a descendible freehold.

[*270] *If an estate pur autre vie be given to a man and the heirs of his body, he takes what is called a quasi entail, the estate descending (so long as it exists) like an ordinary estate tail, and is similar to one in all respects, except that the owner may bar the entail and dispose of the estate, without the necessity of enrolling the deed of disposition, under the Fines and Recoveries Abolition Act (e).

This theory of common occupancy could have no application to incorporeal hereditaments, as rents, advowsons, commons, or the like (f), because there could be no actual entry upon such species of property. Originally, therefore, a grant pur autre vie of such hereditaments seems to have been thought absolutely to determine on the death of the grantee, unless it were limited to heirs or some other persons, who by virtue of the grant might take possession (g). That the possession of the heir was recognised as lawful seems rather contradictory to the theory of special occupancy, but he was, nevertheless, called a

[* 271] special occupant. We may here observe that there can be no occupancy of a trust estate, for the trustee is, of necessity, in pos

session (h).

The doctrine of occupancy has been much modified by successive statutory enactments: the first (i) gave the tenant pur autre vie power to devise the estate when there was no special occupant, and directed that, in default of snch devise, it should go to his executors, or administrators, and be assets in their hands for payment of the debts of the deceased tenant.

The next statute (k) gave to the tenant pur autre vie an unrestricted power of devising the estate. It also rendered the estate, when not devised, but in the hands of the heir as a special occupant, liable as assets by descent to the same extent as lands in fee simple. Further, it made the estate, in case of there being no special occupant, assets in the hands of the executor or administrator, to be administered not only in payment of debts, but in all respects as other personal estates. A still later act (7) has re-enacted these provisions, giving both ample power of devising the estate and providing for intestacy in every possible

(d) See Atkinson v. Baker, 4 T. R. 229, and Vaugh. 201. They were not descendible freeholds because the heir-at-law does not take by descent. If an action at common law had been brought against the heir on the bond of his ancestor, he might have pleaded riens per descent, for these estates were not liable to the debts of the ancestor before the statute of Frauds.

(e) Fearne, Cont. Rem. 495. If the estate tail be in remainder after an estate for life, the consent of the latter is necessary to bar the quasi entail. Such a quasi estate is a mere expectancy. Allen v. Allen, 2 Dr. & War. 307, 335; Edwards v. Champion, 3 D. G. M. & G. 202.

(f) Co. Litt. 41; Vaugh. 201.

(g) Lord Keeper Harcourt has declared, there is no difference since the 29 Car. 2, c. 3. between a grant of corporeal and incorporeal hereditaments pur autre vie; for by that statute every estate pur autre vie is made devisable, and, if not devised, it shall be as

sets in the hands of the heir, if limited to the heir; if not limited to the heir, it shall go to the executors or administrators of the grantee, and be assets in their hands; and the statute, in the case of rents and other incorporeal hereditaments, does not enlarge, but only preserves the estate of the grantee. (3 P. Wms. 264.) And this opinion has been confirmed by decision, Bearpark v. Hutchinson, 4 Moo. & P. 848; and corroborated by legislative declaration, stat. 7 Will. 4 & 1 Vict. c. 26, s. 6.

(h) Penny v. Allen, 7 D. G. M. & G. 409, in which case much discussion was had on the nature of occupancy, and the following authorities were relied on, Castle v. Dod, Cro. Jac. 200; Com. Dig. Estates by Grant, F, 2. See however, contra, Reynolds v. Wright, 30 L. J. Ch. 381.

(i) 29 Car. 2, c. 3.
(k) 14 Geo. 2, c. 20.

()7 Will. 4 & 1 Vict. c. 26, ss. 3, 6.

case(m). It has, moreover, removed all questions arising where the subject of the estate is an incorporeal hereditament, by declaring that estates pur autre vie in these shall also, where there is no special occupant, go to the executor or administrator, in order to be distributed by him. Under this act it has been held that the crown *on taking out letters of administration to a [* 272] bastard intestate becomes entitled to an equitable estate pur autre vie belonging to him (n).

We see then that, at the present day, the importance of the mode of limitation of these peculiar estates, is confined to the determination, in cases of intestacy, whether the heir, or special heir, or the statutory next of kin, becomes entitled to the beneficial interest in the estate subject to the paramount obligation of providing for the payment of the debts of the deceased. For we may in conclusion note that as lands in fee simple when devised are now fully subject in the hands of the devisee to this same obligation, so also are estates pur autre vie.

*CHAPTER IX.

ESTATES LESS THAN FREEHOLD.

[* 273]

Or estates that are less than freehold, there are three sorts: 1. Estates for years; 2. Estates at will; 3. Estates by sufferance.

Three sorts.

An estate for years (a) is an interest entitling the owner to the possession of lands or tenements, for some determinate period; and it takes place where a man demises or lets them to another for the term of a certain number of years, agreed upon between the lessor and the lessee, and the lessee enters thereon (b). (255). The estate may also be created by

For years.

(m) A doubt has arisen whether the former act applied, when the executor or administrator took as special occupants named in the grant. The last act expressly includes all such cases. Under the act, moreover, a devise by a tenant in quasi tail would doubtless be held valid as barring the quasi tail. The act has no application to cases where the cestui que vies died before the 1st Jan. 1838, see s.

34.

(n) Reynolds v. Wright, 30 L. J. Ch. 381. The reasoning of Lord Campbell is not very

conclusive, and quare whether the decision is right. The parties claiming against the crown were the trustees, who contended that they were entitled to the estate discharged of any trust.

(a) On this subject the student is recommended to study the admirable article on "Leases and terms for years," printed in Bacon's Abridgement, and attributed to the pen of Chief Baron Gilbert. (b) Litt. s. 58.

(255) It is a general rule that any thing corporeal or incorporeal. lying in livery or in grant, may be the subject of a demise. And, therefore, not only lands, but commons, ways, fisheries, estovers, annuities, rent charges, and all other incorporeal hereditaments are included in the common-law rule. The corporation of the city of New York is authorized by law to lease the wharves within the city. Taylor v. Beebe, 3 Rob. 262; Commissioners of Pilots v. Clark, 33 N. Y. (6 Tiff.) 251. A railroad corporation may lease its franchises and property if authorized to do so by the legislature. Troy and Rutland R. R. Co. v. Kerr, 17 Barb. 581, 601; Commonwealth v. Smith, 10 Allen, 448, 455.

It is quite common to include in a lease of real estate certain articles of personal property, such as sheep, cows, horses and other live stock, as well as farming implements, or of

VOL. I.-74

will. If the lease be made for half a year or a quarter, or any less time, this lessee is respected as a tenant for years, and is styled so in legal proceedings: a year being the shortest term which the law in this case takes notice of (c). And this may, not improperly, lead us into a short digression, concerning the division and calculation of time by the English law.

of a year.

The space of a year, by which we mean a civil or legal year, is an artificial period fixed by law to suit the convenience of mankind, for which two essenLegal meaning tial requisites had to be observed; first, that the length of it should be measured by an exact number of days; and secondly, that it should never deviate much from the year which nature * sug[* 274] gests, viz. the tropical year, which does not consist of an exact number of days. In order to satisfy as far as was practicable these conditions, it is ordained by law (d) that every year, except bissextile or leap-years, should contain 365 days, and that leap-years should contain 366 days, the additional day being, it is almost needless to add, the 29th of February. Leap-years, moreover, occur every fourth year, i. e. in every year the name of which referred to the birth of Jesus Christ is divisible by 4, except that the years which are divisible by 100 are not leap-years unless they are divisible by 400. Thus the year A. D. 1868 was a leap-year, the year A. D. 1900 will not be a leap-year, but the year A. D. 2000 will be so. The law takes no account of fractions of a day, therefore half an ordinary year consists only of 182 days (e); so a quarter of a year consists of 91 days only, the extra 6 or 12 hours being rejected (ƒ): though where justice imperatively requires it, as when it is necessary to ascertain which of two events first happened, courts will of course regard any subdivision of time that may be neces[* 275 ] sary (g). But * inasmuch as certain feasts or holidays, Lady-day, Midsummer-day, Michaelmas-day (h), and Christmas have been used

(c) lb. 67.

(d) 24 Geo. 2, c. 23, which, in the year 1752, introduced the new style into England. For a full account of the present (the Gregorian) calendar, and its relation to the true astronomical period, the reader may consult Sir John Herschel's Outlines of Astronomy, p. 672. The law as to bissextile years seems first to have been declared by statute in the year 1236, 21 Hen. 3.

(e) Co. Litt. 135 b; Bishop of Peterborough v. Catesby, Cro. Jac. 166; Clayton's Case, 5 Rep. 1.

(f) Co. Litt. 135 b; 2 Roll. 521; Com. Dig. Ann. A.

(g) Smallcomb v. Buckingham, 1 Salk. 320; Combe v. Pitt, 3 Burr. 1423, 1434; Thomas v. Desanges, 2 B. & Ald. 586; Sadler v. Leigh, 4 Camp. 195; Chick v. Smith, 8 Dowl. P. C. 337. As to how the law deals with presumptive evidence in such points, see Underwood v. Wing, 4 De G. M. & G. 633, where questions

arose who were the last survivors of several who were drowned in the same ship. An instance is given by Sir Henry Nicolas of parts of a day being noticed in formal instruments. The surrender of the Scotch crown of Baliol, in the early part of the 20th Nov. 1292, was said to have taken place at the end of the 20 Edw. 1. (Edward I. was proclaimed king, it will be remembered, on the 20th Nov. 1272.) Proceedings later in the same day were said to have happened anno regni ipsius domini nostri Edwardi vicesimo finiente et vicesimo primo incipiente." Chronology of History, p. 312.

(h) Old Lady-day is the 6th April; Old Michaelmas day the 11th October; and evidence is sometimes admitted to show that these are intended. Furley v. Wood, 1 Esp. 198; Doe d. Hinde v. Vince, 2 Camp. 256; Doe d. Willis v. Perrin, 9 C. & P. 467; Doe d. Hall v. Benson, 4 B. & Ald. 588; Rogers v. Dock Company of Hull, 34 L. J. Ch. 165.

household furniture or other chattels in the house, and such leases are valid. Putnam v. Wyley, 8 Johns. 432; Allen v. Culver, 3 Denio, 484; Newton v. Wilson, 3 Hen. & M. 470 Billings v. Tucker, 6 Gray, 368. It is usual to include a schedule of the articles in the lease, and to insert a covenant for their return at the end of the term, and without such covenant it is said that the lessor has no remedy but trover, detinue or replevin, after the expiration of the lease. Ib.