consequently every disposition, by which the donee, the heir, or legatee, is charged to preserve for, or to return a thing to, a third buyer is null; and by the Roman law, a portion of the testator's property might be retained by the instituted heir, when he was charged with a fidei commissa, or fiduciary bequest, but this is no longer the law in countries where trusts are abolished. See the Code of Louisiana, art. sup. ed. New-Orleans, 1838, with annotations by Upton & Jennings. In monarchical governments, which require the establishment and maintenance of hereditary orders in power and diguity, it may be very questionable whether the entire abolition of entails be wise or politic. As they are applied to family settlements, in England, and modified according to circumstances, they are found, according to a very able and experienced lawyer, Mr. Park, to be extremely convenient, and to operate by way of mutual check. Thus, if the father, being tenant for life, wishes to charge the estate beyond his own life, to meet the wants of the junior branches of the family, and provide for their education and marriage, and settlement in life, and his eldest son being the tenant in tail, stands in need, on arriving to majority, of some independent income, they can do nothing without mutual consent. It is, therefore, a matter of daily occurrence, in respect to estates, among the principal families belonging to the landed aristocracy, to open the entail, and resettle it, by the joint act of the father and the son, to their mutual accommodation. New arrangements are repeated at intervals, as new exigencies arise, and all improvident charges and alienations are checked by these limitations of estates of inheritance, by way of particular estate in the father for life, with a vested remainder in the son in tail; for the father cannot charge beyond his life, nor the son convey the remainder during the father's life, without mutual consent. That consent is never obtained, but for useful or salutary family purposes; and by this contrivance estates are made to subserve such purposes, while their entirety is permanently preserved. The Massachusetts Revised Statutes of 1835, part 2, tit. 1, c. 59, sec. 4, follow this policy, for they declare, that where lands are held by one person for life, with a vested remainder in tail to another, they both may, by a joint deed, convey the same in feesimple.

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. 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 tenement, or freehold, are used by Bracton, Fleta, Littleton, and Coke; and therefore, Littleton said, that no estate below that for life was a freehold. Sir William Blackstone 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 freehold estate, as being one in fee, or

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

• Fuerunt in conquestu liberi homines, qui libere tenuerunt tenementa sua per libera servitia, vel per liberas consuetudines. Bracton, lib. 1, p. 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, 11. • Com. vol. ii. 104.

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 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 remainder-man, 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. Sir Henry Spelman endeavoured 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

Sullivan's Lectures on Feudal Law, Lec. 6. Preston on Estates, vol i. 206-210.

b Wright on Tenures, 190.

Treatise of Feuds and Tenures, c. 3.

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real vestige of tenure is annihilated, and the doubt, whether fealty was not, in this state, an obligation upon a tenant for life, has been completely removed, in New-York, by the act, declaring all estates to be allodial. 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, 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 honours of a feudal investiture, should make an acknowledgment of his submission, with an assurance of service and fidelity. The rites of the feudal investiture were exceedingly solemn, and implied protection and reverence, beneficence and loyalty.b

Life estates may be created by express words, as if A. conveys land 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 pos

New-York Revised Statutes, vol. i. 718, sec. 3.

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 View of Society in Europe, 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 Tacitu