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§ 982. Compelling security from life tenant of personalty. § 983. Respective rights of life tenant and remainderman.

984. The same subject: Extraordinary dividends from stock. §985. The same subject: English rule.

§ 986. The same subject: Massachusetts rule. § 987. The same subject: Pennsylvania rule. $988. The same subject: Kentucky rule.

8957. Life Estates Defined.

A life estate is a freehold estate not of inheritance.1 Any estate that may last for a life or lives, that is not inheritable, and that is not at will or for any fixed period of time, is a life estate. Such an estate may be for the life of the tenant, in which case it expires at his death; or it may be pur autre vie, being for the life of another called the cestui que vie. If the interest of the tenant ceases with his life, such interest is not devisable; if the interest of the tenant continues during the life of another who survives him, it may be disposed of by his will.*

A testator may create successive life estates in the same property, as where he gives first to his wife for life, then to his daughter for life, with remainder over in fee to others; or as where he devises an estate to his mother for life on certain conditions, and thereafter a life estate to his wife with remainder over to another."

11 Hilliard's Abridgment 36, §1; 1 Lomax's Digest 32, §1; Williams v. Ratcliff, 42 Miss. 145; Cummings v. Cummings, 76 N. J. Eq. 568, 75 Atl. 210; Robb v. New York &C. Gas Coal Co., 216 Pa.

418, 65 Atl. 938.

II Com. on Wills-84

2 Disley v. Disley, 30 R. I. 366, 75 Atl. 481.

3 See § 248.
4 See § 246.

5 Monarque v. Monarque, 80 N. Y. 320, reversing 19 Hun 332.

6 Todd v. Armstrong, 213 Pa. St. 570, 62 Atl. 1114.

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§ 958. Common Law Rule and Statutory Changes.

8

At common law a devise in general terms, without words of limitation denoting the quantity of the estate conferred, was construed to create a life estate only, unless a contrary intention was manifested in the will." This rule, however, has been reversed by modern legislation both in England, and in America, and as the law now is, such a devise confers a fee unless a contrary intention appear in the will. But a devise or bequest in such general terms as, standing alone, would confer an estate in fee-simple, will be construed to give an estate for life only where an intention so to limit the gift clearly appears from the will taken as a whole.10 For these statutes merely change the common-law presumption that unless words of inheritance, or other words indicating an intention to give an estate in fee-simple, are employed by the testator, a life estate only will be deemed to pass. They

7 Wright v. Denn, 10 Wheat. (U. S.) 204, 6 L. Ed. 303; McAleer v. Schneider, 2 App. Cas. (D. C.) 461; Conoway's Lessee v. Piper, 3 Har. (Del.) 482; Gibson v. Brown, (Ind. App.) 110 N. E. 716; Mulvane v. Rude, 146 Ind. 476, 45 N. E. 659; Keplinger v. Keplinger, (Ind.) 113 N. E. 292; Wait v. Belding, 24 Pick. (41 Mass.) 129; Cook v. Holmes, 11 Mass. 528; Van Derzee v. Van Derzee, 30 Barb. (N. Y.) 331; Jackson Martin, 18 Johns. (N. Y.) 31; Wheaton v. Andress, 23 Wend. (N. Y.) 452; Mesick v. New, 7 N. Y. 163; Barnet v. Barnet, 15 Serg. & R. (Pa.) 72, 16 Am. Dec. 516; Calhoun v. Cook, 9 Pa. St. 226.

V.

As to common law rule regard. ing words of limitation, see § 918 et seq.

8 Statute of 1 Victoria, ch. 26, § 28.

9 See 935 and n.

But some statutes have practically re-enacted the common law so that only a life estate will pass to the devisee unless it affirmatively appears that a greater estate was intended. Indiana, Burns Stats., 1901, § 2737; Fenstermaker v. Holman, 158 Ind. 71, 62 N. E. 699; Pate v. Bushong, 161 Ind. 533, 100 Am. St. Rep. 287, 63 L. R. A. 593, 69 N. E. 291.

10 Jossey V. White, 28 Ga. 265; Jones' Exrs. v. Stites, 19 N. J. Eq.

T

do not exclude, in a proper case, a consideration of the testator's surroundings in determining his intent.11

Estates for life arise also under the modern statutes abolishing the rule in Shelley's Case. In all those states in which these statutes have been enacted, the words of the testator are now allowed to have their legitimate effect, and a devise to one for life, with a limitation over upon his decease to his heirs or the heirs of his body or to his issue, does not as formerly vest in the ancestor a feesimple or fee-tail, but confers upon him a life estate only, with remainder to the persons designated by the terms "heirs" and "issue," according to the intention of the testator.12

§ 959. Words Sufficient to Create Life Estates.

In the creation of life estates no particular form of words is necessary, as always the intention of the testator must prevail. The question is, what kind of an estate did the testator intend that the devisee should have? The law does not require that the term "life estate" should be employed, any appropriate or equivalent words are sufficient.13

324; Cantine v. Brown, 46 N. J. L. 599; Corby v. Corby, 85 Mo. 371.

11 Dew v. Kuehn, 64 Wis. 393, 25 N. W. 212.

12 See § 917; Mason v. Pate's Exr., 34 Ala. 379; Borden v. Kingsbury, 2 Root (Conn.) 39; Bowers v. Porter, 4 Pick. (21 Mass.) 198; Chiles v. Bartleson, 21 Mo. 344; Barstow V. Goodwin, 2 Bradf. (N. Y.) 413.

The use of the words "as

13 Cross v. Hoch, 149 Mo. 325, 50 S. W. 786.

In Kentucky a devise to the testator's "wife and children" confers on the wife a life estate with remainder to the children.-Naville v. American Machinery Co., 145 Ky. 344, 37 L. R. A. (N. S.) 153, 140 S. W. 559; Houchens' Guardian v. Houchens, 158 Ky. 190, 164 S. W. 791.

long as he lives," "during his life,"

or "during his natural life, "'15 or or "for the full term of her natural life," or "life tenants, "'18 creates a life estate.

§ 960. Effect of the Use of the Word "Loan," or "Lend." The word "lend" will be construed to mean "give, bequeath, or devise," and under a will providing that the testator loans or lends to the devisee certain property for life, the devisee will take a life estate therein.19 No distinction is made as to the meaning of the words "lend" and "loan," whether the gift be of personalty or of realty. In each instance the words are held to be equivalent to "give, bequeath, or devise. ''20

Where the testator lent his niece one negro girl and

14 Modlin v. Kennedy, 53 Ind. 267; Succession of Weller, 107 La. 466, 31 So. 883.

"To hold jointly during their lives" are words which create a life estate. Harrison v. Foote, 9 Tex. Civ. App. 576, 30 S. W. 838.

15 Pendley v. Madison's Admr., 83 Ala. 484, 3 So. 618; Peckham v. Lego, 57 Conn. 553, 14 Am. St. Rep. 130, 7 L. R. A. 419, 19 Atl. 392; Smith v. Runnels, 97 Iowa 55, 65 N. W. 1002; Austin v. Hyndman, 119 Mich. 615, 78 N. W. 663; McClure v. Melendy, 44 N. H. 469.

16 Young v. Morehead, 94 Ky. 608, 23 S. W. 511; Sheafe v. Cushing, 17 N. H. 508.

17 Sillcocks v. Sillcocks, 50 N. J. Eq. 25, 25 Atl. 155.

18 Howe v. Gregg, 52 S. C. 88, 29 S. E. 493, wherein the court says: "This expression 'life tenants' is repeated again and again. But I apprehend that this is not

the crucial test of the will, so far as the creation of these life estates is concerned."

19 Holt v. Pickett, 111 Ala. 362, 20 So. 432; Britt v. Rawlings, 87 Ga. 146, 13 S. E. 336; May v. Lewis, 132 N. C. 115, 43 S. E. 550; Glover v. Harris, 4 Rich. Eq. (S. C.) 25; Robertson v. Hardy's Admr., (Va.) 23 S. E. 766. 20 As to personalty:

Ewing v. Standefer, 18 Ala, 400; Pournell v. Harris, 29 Ga. 736; Myers v. Pickett, 1 Hill Eq. (S. C.) 35.

As to realty:

Holt v. Pickett, 111 Ala. 362, 20 So. 432; Sessoms v. Sessoms, 144 N. C. 121, 56 S. E. 687; Faison v. Moore, 160 N. C. 148, 75 S. E. 993; Callis v. Kemp, 11 Gratt. (Va.) 78. As to both personalty and realty:

Glover v. Harris, 4 Rich. Eq. (S. C.) 25.

her increase during the niece's life and at her death to her lawful issue, a life estate was created in the niece.21 An absolute estate was vested in A where the testator provided, "I lend to A during her natural life five negroes, these five negroes, with all their increase I will to the lawful begotten heirs of A to be equally divided among them at her death."'22

Where the will provided: "I lend to my loving wife during her natural life the use of one-half of my land and five negroes," the wife took only a life estate in the negroes.23

A provision in the will, "I do at my death loan the tract of land on which I at present reside to my beloved wife during her natural life," gave the wife an estate for life.24

§ 961. Gift of Rents, Issues, Profits, Income, Etc., of Land.
At common law every indefinite devise of the "rents
and profits" or the "income" of land passed an estate
for life only. By reason of statutory enactments whereby
the testator passes all his estate in property devised
unless a contrary intent appear from the context of the
will, this rule has been changed. But where, by the ex-
press terms of the will, a life estate only is given, the
fee does not pass; and a gift of "rents,"25 "profits,"26

Where the will stated that the testator "lends" lands to a devisee, and provided that in case he arrived at manhood and begat heirs he should take in fee, but if not then over, it was held he took a life estate subject to be enlarged to a fee upon the happening of the prescribed contingency.— Felton v. Billups, 21 N. C. (1 Dev. & B. Eq.) 584.

21 Bryan v. Durcan, 11 Ga. 67.

22 Ewing v. Standefer, 18 Ala.

400.

23 Glover v. Harris, 4 Rich. Eq. (S. C.) 25.

24 Robertson v. Hardy, (Va.) 23 S. E. 766.

25 Commons v. Commons, 115 Ind. 162, 16 N. E. 820, 17 N. E. 271; Gidley v. Lovenberg, 35 Tex. Civ. App. 203, 79 S. W. 831.

26 Mather v. Mather, 103 Ill. 607; Succession of Skipwith, 15

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