TITLE V. Different senses of the term TITLE V. OF FREEHOLDS NOT OF INHERITANCE. PART II. FREEHOLDS, as we have seen, are, in the most comprehensive sense of the term, either freeholds of inheritance or freeholds not of inheritance. But the word freehold, as denoting simply, is now generally used to denote an estate for life, of interest. in opposition to an estate of inheritance (a). 431. freehold, the quantity Definition of a free hold not of inheritance. Illustration. A freehold not of inheritance, or an estate for life, in the more comprehensive sense of the term, is an estate that is created either by some legal instrument or by operation of law, to endure for a life or lives, or for some uncertain period which may last for a life or lives, but cannot last longer, and yet is not confined to a given number of years. 432. In illustration of this definition, it may be observed, that an estate for ninety-nine years if A. shall so long live, is not a freehold or an estate for life, but an interest less than freehold, a chattel real, a term for years; because, although it is commensurate with the duration of a life, yet it is not for an uncertain period, but is confined to a given number of years. But the estate need not be expressly confined to a given number of years to constitute it a chattel interest; for, if it is actually or virtually, though not expressly, confined to a given number of years, it is a chattel interest. Thus, if lands in lease at a fixed rent are granted to A. until he has received 1007. out of the profits, the certainty of the period makes the interest a chattel (); (a) Co. Litt. 266 b, n. (1). (b) Burton, § 726. for it is actually or virtually confined to a given number of years, to a number of years ascertained and defined at the time by the relative amount of the rent and the sum to be raised thereout. And so, if land is devised to executors for payment of debts and until debts be paid, they take but a chattel interest. And upon the same principle, tenants by statute merchant, statute staple, and elegit, have but chattel interests (c). 433. PART II. ments. A tenant for life, or his representatives, shall not be pre- Emblejudiced by any determination of his estate, except by his own act; so that, if a tenant for his own life sows or plants the land, and dies before harvest, his executors shall have the emblements, or the annual artificial profits, as a compensation for the trouble and expense of tilling, manuring, and sowing the land, and for the encouragement of husbandry. The same is also the case if a life estate is determined by act of law, as where a lease for life is made to husband and wife during coverture, and they are divorced à vinculo matrimonii. So it is also if a person is tenant for the life of another, and cestui que vie, that is, the person on whose life the land is held, dies after the corn is sown (d). 434. The under-tenants or lessees of a tenant for life represented him, and stood in his place; except that if he determined his estate by his own act, his under-tenants or lessees had the emblements (e). 435. By the stat. 14 & 15 Vict. c. 25, s. 1, “where the lease or tenancy of any farm or lands held by a tenant at rackrent shall determine by the death or cesser of the estate of any landlord entitled for his life, or for any other uncertain interest, instead of claims to emblements, the tenant shall continue to hold and occupy such farm or lands until (c) Co. Litt. 42 a, 43 b. (d) 2 Bl. Com. 122-3; Co. Litt. 55 b. (e) 2 Bl. Com. 124. PART II. the expiration of the then current year of his tenancy, TITLE V. Different kinds of freeholds not of inheritance. and shall then quit, upon the terms of his lease or holding, in the same manner as if such lease or tenancy were then determined by effluxion of time or other lawful means during the continuance of his landlord's estate; and the succeeding landlord or owner shall be entitled to recover and receive of the tenant, in the same manner as his predecessor or such tenant's lessor could have done if he had been living or had continued the landlord or lessor, a fair proportion of the rent for the period which may have elapsed from the day of the death or cesser of the estate of such predecessor or lessor to the time of the tenant so quitting, and the succeeding landlord or owner and the tenant respectively shall, as between themselves and as against each other, be entitled to all the benefits and advantages, and be subject to the terms, conditions, and restrictions, to which the preceding landlord or lessor and such tenant respectively would have been entitled and subject in case the lease or tenancy had determined in manner aforesaid at the expiration of such current year: provided always, that no notice to quit shall be necessary or required by or from either party to determine any such holding and occupation as aforesaid." 436. Freeholds not of inheritance, or estates for life in the more comprehensive sense of the term, are of four kinds : I. Estates for life, specifically so called. II. Estates tail after possibility of issue extinct. IV. Estates in dower, freebench, or jointure. 437. CHAPTER I. OF ESTATES FOR LIFE SPECIFICALLY SO CALLED. T. 5, CH. 1. AN estate for life, specifically so called, is an estate that is PARTII created by some legal instrument, and is to endure for a Definition of an estate for life specifically life or lives, or for some uncertain period, which may last for a life or lives, and cannot last longer, and yet is not so called. confined to any given number of years. 438. kinds of Estates for life are of three kinds : estates for the life of Different the grantee or devisee; estates for the life or lives of some such estates. other person or persons; and estates for the life of the grantee or devisee, and for the life or lives of some other person or persons (a). An estate for the life or lives of Estate pour some other person or persons is called an estate pour autre vie; the grantee or devisee is called tenant pour autre vie; and such other person or persons cestui que vie or cestuis que vie. 439. autre vie. for the grantee or or other person may be The first two kinds of estates for life may be created not How estates only by words expressive of the duration thereof, but also life of the by a gift to a person indefinitely; for, except in those par- device, ticular cases already noticed, in which a fee simple will or persons, pass without the word heirs, if lands are conveyed to a created. natural person without any words of inheritance, he will take an estate for life only. And he will take for his own life, as being the highest and most beneficial estate which the terms of the conveyance will pass, unless the grantor is only tenant for his own life, or for the life of some other . person, in which case the grantee will take an estate for the life for which the grantor holds; or unless the grantor (a) Co. Litt. 41 b. T. 5, CH. 1. PART II is only tenant in tail, in which case the grantee will take an estate for the life of the grantor only, as being the largest estate, capable of passing by the words, which the grantor has a right to give (b). And, with the exceptions already noticed, a similar rule applies to an indefinite devise prior to the year 1838 (c). 440. Life estate by implication. On a devise, after death person, to testator's heir, A life estate may also be created by necessary implication. 440a. Thus: 1. Where a testator devises to his heir apparent or heir of another presumptive, after the death of another to whom no express devise is made, such other person will take an estate for life by implication (d), unless the will contains a residuary devise (e); as he cannot, without the grossest absurdity, be supposed to mean to devise real estate to his heir, at the death of the other person, and yet that the heir should have it in the meantime, which would be to render the devise nugatory (f). 441. or a resi duary devise 2. And, for the same reason, where there is a residuary or bequest. devise, and the testator devises particular lands or the residuary realty to the residuary devisee, to take effect in possession on the decease of another person to whom no express devise thereof is made, it would seem that such other person will take an estate for life by implication (g). And so where a testator bequeaths the residue of his personalty to the residuary legatee, on the decease of another person to whom no bequest thereof is made, it would seem that such person will take an estate for life by implication (h). 442. Devise, after another's death, to a 3. But where a testator devises to a person who is neither heir apparent, not heir presumptive, nor residuary (b) 2 Bl. Com. 121; 4 Cruise T. (c) See supra, par. 372-383. (e) Id. 452. (ƒ) Id. 445. (g) Id. 452; Jepson v. Key, 2 Hurl. & Colt. 873. (h) Humphreys v. Humphreys, L.R. 4 Eq. 475. |