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of the reversion, and is not liable for "waste" committed thereon, 88

The doctrine of "merger," by which, if a greater estate and a lesser estate in the same land become the property of one person, the lesser estate is destroyed or "merged," does not apply so as to merge an estate tail in a fee-simple estate; this exception to the general rule being based on the fact that to apply the doctrine of merger in such a case would have, in effect, nullified the statute De Donis.89

The tenant in tail is not bound to pay off incumbrances on the property, nor generally even to pay interest thereon, though, if he does pay off an incumbrance, it is discharged." § 29. Succession on death of tenant.

On the death of a tenant in tail, the land passes to the next heir of the body of the original donee; but such heir, though he takes because he is the heir of the body, takes not by descent, but as a substituted purchaser from the original donor, per formam doni, as it is expressed.91 As a result of this principle, the heir is not bound by contracts in regard to the property made by a previous tenant, whether the original donee or another, as he would be if he took by descent."2

Phillips v. Rogers, 12 Metc. (Mass.) 405; Waters v. Margerum, 60 Pa. St. 39.

88 See post, § 246.

89 Challis, Real Prop. 72; 2 Bl. Comm. 178.

90 1 Cruise's Dig. tit. 2, c. 1, §§ 40-42; 1 Sharswood & B. Lead. Cas. Real Prop. 103.

91 The heir claims "by substitutional gift, and not by right of descent." 1 Leake, 63. See, also, Challis, Real Prop. 190, 212; 1 Cruise's Dig. tit. 2, c. 2, § 18; Jones v. Jones, 2 Har. & J. (Md.) 281. Since the title of the heir must be traced from the original donee, and not from the last tenant, the common-law doctrine of possessio fratris did not apply. 1 Leake, 63; Challis, Real Prop. 190.

921 Cruise's Dig. tit. 2, c. 2, §§ 18-26; Partridge v. Dorsey's Lessee, 3 Har & J. (Md.) 302; Posey's Lessee v. Budd, 21 Md. 477

Furthermore, since the estate does not pass by descent, it would seem that a general statutory change of the course of descent should not affect the succession to this particular estate, since it could only have such effect by altering the wellunderstood meaning of the term "heirs of the body," or similar expressions used to create the estate, and accordingly the statutory changes of the common-law rules of descent have been held not to apply to this estate.93

(C). LIFE ESTATE.

An estate for life is a freehold interest in land, the duration of which cannot extend beyond the life or lives of some particular person or persons, but which may possibly endure for the period of such life or lives.

The estate is generally for the tenant's own life, but may be for the life of another person or persons, in which case it is called an estate "pur autre vie."

An estate for the tenant's own life may be created by an express limitation, or by implication, but no particular words are necessary. An estate pur autre vie may be created by an express limitation, or by a conveyance by one of an estate for his own life.

An estate for life has the following incidents:

(1) It may be aliened by the tenant in whole or in part. (2) It is liable for the tenant's debts.

(3) The tenant has the right to the ordinary use and profits of the land, but cannot do or suffer any act calculated to injure the inheritance (waste).

(4) The tenant is entitled to take a reasonable amount of timber from the land for fuel and repairs (estovers).

(5) On the death of the tenant, or other termination of the tenancy, not by his own fault, the tenant or his personal representatives is entitled to any annual crops then planted (emblements).

93 Riggs v. Sally, 15 Me. 408; Davis v. Hayden, 9 Mass. 514; Corbin v. Healy, 29 Pick. (Mass.) 514; Collamore v. Collamore.

(6) The tenant is bound to make ordinary repairs, but not improvements, nor can he recover from the owner of the inheritance any part of the cost of improvements made by him.

(7) The tenant must pay the interest on incumbrances and the ordinary taxes.

(8) The estate is liable to be merged in a greater estate, if they both come into the hands of the same person.

(9) The estate is subject to the power of eminent domain. At common law, on the death of the owner of an estate pur autre vie, the residue of the estate belonged to the person who first occupied the land, called a "general occupant," unless the grant had been to the deceased owner "and his heirs," in which case the heir took as "special occupant." In this country, the right to the residue of the estate is generally fixed by statutes, not recognizing either general or special occupancy.

Upon the death of the appointed husband or wife of a donee in special tail, or of one of two donees in special tail, without issue living, the donee or survivor of the two donees becomes tenant in tail after possibility of issue extinct, and the estate is necessarily limited to his or her life.

30. Nature of estate.

An estate for life or life estate created by deed or devise is sometimes termed a "conventional" life estate, as distinguished from such as may be created by the operation of some principle of law. The most important of the life estates created by operation of law are those arising out of the marital relation, and they will be considered elsewhere."

A conventional estate for life is limited for the life of the tenant himself, the grantee, or for the life of another person or persons, in which latter case the estate is known as an estate 158 Mass. 74; Sander's Lessee v. Morningstar, 1 Yeates (Pa.) 313; Guthrie's Appeal, 37 Pa. St. 9; Reinhart v. Lantz, 37 Pa. St. 488.

942 Bl. Comm. 120; 4 Kent, Comm. 25; Challis, Real Prop. 273. As to life estates arising from the marital relation, comprising dower, curtesy, and husband's estate in wife's lands, see post, §§ 176-212.

"pur autre vie."9" To these may be added an estate for the lives of the tenant himself and of another person or per

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In order to constitute a life estate, it is not necessary that the estate be such that it must continue during the life or lives named; it being sufficient that it may 30 continue, though liable to be cut off by the happening of a contingency before the termination of such life or lives. For example, an estate granted to a woman for her life or during her widowhood, or to a man so long as he shall live in a certain house, is an estate for life."" An estate for the tenant's own life is considered in law as of a higher character than an estate pur autre vie, and accordingly, since a grant is construed most strongly against the grantor, in case of doubt the grant will be construed as conveying the greater estate, i. e., one for the tenant's own life.98

97

§ 31. Creation of estate.

While the natural and appropriate mode of creating an

Litt, 56; 1 Cruise's Dig. tit. 3, c. 1, § 3; Challis, Real Prop. 273, 286.

96 Co. Litt. 41b. See Reynolds v. Collin, 3 Hill (N. Y.) 441, Finch's Cas. 13.

The tenant has in such case an estate of freehold to continue till the death of the survivor, and not two estates, one for his own life, and another pur autre vie, and consequently the doctrine of the merger of an estate pur autre vie in an estate for the life of the tenant has no application. Rosse's Case, 5 Coke, 13a, 3 Gray's Cas. 406.

If such other person or persons die in the lifetime of the tenant, then the estate becomes one for the life of the tenant; while if the tenant dies first, then the estate assumes the characteristics of an estate pur autre vie. Challis, Real Prop. 273: 1 Leake, 191. 97 Co. Litt. 42a; 2 Bl. Comm. 121; 4 Kent, Comm. 26; 1 Washburn, Real Prop. 88; Mattocks v. Stearns, 9 Vt. 326; McArthur v. Scott, 113 U. S. 340, 377; Hayward v. Kinney, 84 Mich. 591. In such case, the estate is one on condition or special limitation. See post, § 80.

Co. Litt. 42a; 2 Bl. Comm. 121.

estate for the life of the tenant is by a limitation to him "for life," at common law, as was shown in the discussion of the methods of creating an estate in fee simple, an estate for life is created by a deed which omits the word "heirs," necessary for the creation of an estate of inheritance, and, even in the case of a will, the presumption is, at common law, that such a limitation creates an estate for life only." Under the modern statutes dispensing with words of inheritance in creating an estate in fee, and providing that a conveyance or devise shall, unless a contrary intent appear, transfer the estate which the grantor or testator has, an estate for life will not be created unless this is plainly expressed or implied, or unless the grantor owns a life estate merely.100

An estate pur autre vie may be created by an express limitation, or by a transfer to another person of his estate by one who holds for his own life, the grantee thus becoming tenant for the life of the grantor.101

Incidents of estate-Alienation by tenant.

The tenant, unless expressly restrained, may convey his life interest, or may create a lesser estate out of it, but he cannot, of course, convey any estate which will extend beyond the life which is named.10 102 At common law, the estate was forfeited in case the tenant conveyed an estate greater than

See ante, § 20. See, also, 2 Jarman, Wills, 1131, and Mr. Bigelow's notes thereto.

100 See ante, § 20. See, also, 1 Sharswood & B. Lead. Cas. Real Prop. 195 et seq., for numerous cases involving the construction of particular phrases, as showing an intent to create a life estate vel non.

101 Co. Litt. 41b; Challis, Real Prop. 286; 1 Cruise's Dig. tit. 3, c. 1, § 3. See Roseboom . Van Vechten, 5 Denio (N. Y.) 414, Finch's Cas. 575.

1021 Cruise's Dig. tit. 3, c. 1, § 32; Challis, Real Prop. 54; 4 Kent, Comm. 74; Criswell v. Grumbling, 107 Pa. St. 408; Stewart v. Clark, 13 Metc. (Mass.) 79; Jackson v. Van Hoesen, 4 Cow. (N. Y.) 325; Miles v. Miles, 32 N. H. 147, 64 Am. Dec. 362.

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