(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

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

§ 32. 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.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.

102 1 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.

that which he had, by feoffment, with livery of seisin, or by fine or recovery, since this devested the seisin, and turned the estate of the rightful owner into a mere right of entry.103 This rule had no application to conveyances under the Statute of Uses, since these conveyed only what the grantor had,10 and it has no application at the present day; a conveyance of an estate greater than that which the grantor has passing merely that which he has,-this sometimes by force of an express statutory provision.105

Liability for debts.

The liability of the estate to be sold for the tenant's debts is the same as exists in the case of a fee simple, unless there is some statutory limitation on this liability.106

Right to use and profits.

A tenant for life has a right to all the ordinary uses and profits of the land, but he cannot do or suffer any act calculated to injure the inheritance, that is, the interest of the person who owns the remainder or reversion; such injury, known as "waste," being ground for the recovery of damages, or the interposition of a court of equity. Since the principles

108 Litt. 88 415, 416; 2 Bl. Comm. 274. See ante, § 16.

104 1 Cruise's Dig. tit. 3, c. 1, § 36; 4 Cruise's Dig. tit. 32, c. 10, § 32; 4 Kent, Comm. 84; Jackson v. Mancius, 2 Wend. (N. Y.) 357, Finch's Cas. 612.

105 See 8 & 9 Vict. c. 106, § 4 (1845); 1 Stimson's Am. St. Law, § 1402 (B); 4 Kent, Comm. 83; 1 Washburn, Real Prop. 92, note; 1 Sharswood & B. Lead. Cas. Real Prop. 212; Smith v. Cooper, 59 Ala. 494; Hurd v. Cushing, 7 Pick. (Mass.) 169; Foote v. Sanders, 72 Mo. 616; Quimby v. Dill, 40 Me. 528; Middleton v. Dougherty, 46 N. J. Law, 350; McCorry v. King's Heirs, 3 Humph. (Tenn.) 207, 39 Am. Dec. 165.

106 McCormick Harvesting Machine Co. v. Gates, 75 Iowa, 343, Finch's Cas. 581; Bozeman v. Bishop, 94 Ga. 459; Thompson v. Murphy, 10 Ind. App. 464; Anderson v. Briscoe, 12 Bush (Ky.) 344; McClure v. Melendy, 44 N. H. 469.

applicable in determining questions of waste arise in connection with other estates, as well as those for life, discussion of waste, as well as that of "estovers," referred to in the summary above, will be reserved for another part of this work.107

Emblements.

On the termination of a life estate by the death of the tenant, or by any other event, the time of the occurrence of which could not have been foreseen, the tenant or his representatives is entitled to reap crops, previously sown by him, of such products as are the result of annual planting and labor. This right exists whenever the estate for life is terminated by the act of God or the act of the law, and not when it is terminated by the voluntary act of the tenant himself. These products to which he is so entitled are called "emblements," and the right thereto exists in the case of other estates, the time of the termination of which cannot be foreseen,108

Repairs and improvements.

A tenant for life must, according to some decisions, make, at his own expense, such ordinary repairs as are necessary to prevent the structures on the land from passing into a state of dilapidation; neglect to make such repairs being regarded as "permissive waste."109 He is under no obliga

107 See post, §§ 246-256.

In some states, by statute, the estate is subject to forfeiture in case of the commission of waste by the tenant. 1 Stimson's Am. St. Law, 1332 (B).

108 Co. Litt. 55b; 2 Bl. Comm. 122; 4 Kent, Comm. 73; 1 Washburn, Real Prop. 101 et seq. See, for a further consideration of the law of emblements, post, § 224.

1091 Washburn, Real Prop. 115; Hackworth v. Louisville Artificial Stone Co., 20 Ky. Law Rep. 1789; Kearney v. Kearney, 17 N. J. Eq. 59, 504; Wilson v. Edmonds, 24 N. H. 517, 545; In re Steele, 19 N. J. Eq. 120; Brough v. Higgins, 2 Grat. (Va.) 408. This doctrine of permissive waste by either a life tenant or tenant for years is considered more fully, post, § 254.