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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.

tion to make improvements, and if he does so he cannot demand that the owner of the inheritance pay any part of the cost thereof, even though a statute provides for compensation for improvements made by occupying claimants of property.110 But he may, it seems, complete improvements begun by the donor of the estate, and demand contribution therefor.111 And, according to some authorities, he is entitled to compensation, under the betterment or occupying claimants' acts, if he make the improvements in the belief that he has title in fee simple; the fact that he has a life estate not affecting his right to compensation under the statute.112

Incumbrances and taxes.

The life tenant is bound to pay the interest on incumbrances on the property, but is not under the obligation of paying any part of the principal, and if he does so he may claim contribution from the owner of the remainder or reversion.118 The life tenant is also bound to pay the ordinary

110 Killmer v. Wuchner, 79 Iowa, 722, 18 Am. St. Rep. 392; Sohler v. Eldredge, 103 Mass. 345; Smalley v. Isaacson, 40 Minn. 450; Stewart v. Matheny, 66 Miss. 21, 14 Am. St. Rep. 538; Hagan v. Varney, 147 Ill. 281; Falck v. Marsh, 88 Wis. 680; Williams, Real Prop. 29. See, as to the occupying claimants' or betterment acts, post, § 241.

111 Sohier v. Eldredge, 103 Mass. 345; Corbett v. Laurens, 5 Rich. Eq. (S. C.) 301, 316; Broyles v. Waddel, 11 Heisk. (Tenn.) 32.

112 Fee V. Cowdry, 45 Ark. 410, 55 Am. Rep. 560; Plimpton v. Plimpton, 12 Cush. (Mass.) 458; Barrett v. Stradl, 73 Wis. 385, 9 Am. St. Rep. 795. See, to the contrary, without reference to any statute, Henry v. Brown, 99 Ky. 13; Taylor v. Kemp, 86 Ga. 181. See, also, 16 Am. & Eng. Enc. Law (2d Ed.) 118.

111 Story, Eq. Jur. § 487; 4 Kent, Comm. 74; Cogswell v. Cogswell, 2 Edw. Ch. (N. Y.) 231, Finch's Cas. 607; Plympton v. Boston Dispensary, 106 Mass. 544; Thomas v. Thomas, 17 N. J. Eq. 356; Jones v. Sherrard, 2 Dev. & B. Eq. (N. C.) 179; Bowen v. Brogan, 119 Mich. 218; Hunt v. Watkins, 1 Humph. (Tenn.) 498; Parrish v. Ross, 19 Ky. Law Rep. 1676.

taxes on the property;114 but of assessments for permanent improvements he need pay only a proportionate share. 115 In case an incumbrance on the property is paid off, or the property is sold, the proportion in which the burden of the incumbrance or the proceeds of the sale shall be apportioned between the life tenant and the remainderman is dependent on the probable duration of the tenant's life, and this is ascertained generally by considering his health and habits, as well as his age, and using mortality tables to assist in the computation.116

Merger of estate.

It is a well-settled rule of law that whenever "a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is immediately annihilated, or, in the law phrase, it is said to be 'merged,'

114 Hagan V. Varney, 147 Ill. 281; Varney v. Stevens, 22 Me. 331; Jenks v. Horton, 96 Mich. 13; Bone v. Tyrrell, 113 Mo. 175; Roche v. Waters, 72 Md. 264, 7 L. R. A. 533; Johnson v. Smith, 5 Bush (Ky.) 102; Deraismes v. Deraismes, 72 N. Y. 154; Disher v. Disher, 45 Neb. 100.

115 Plympton v. Boston Dispensary, 106 Mass. 547; Reyburn v. Wallace, 93 Mo. 326; Thomas v. Evans, 105 N. Y. 601, 59 Am. Rep. 519; Outcalt v. Appleby, 36 N. J. Eq. 73, 80; Chambers v. Chambers, 20 R. I. 370. Contra, as to an assessment for an improvement which will probably not outlast the tenant's life. Wordin's Appeal, 71 Conn. 531; Hitner v. Ege, 23 Pa. St. 305; Reyburn v. Wallace, 93 Mo. 326, Finch's Cas. 609.

116 See 1 Sharswood & B. Lead. Cas. Real Prop. 215 et seq.; 1 Story, Eq. Jur. §§ 487, 488a; 1 Washburn, Real Prop. 96; 4 Kent, Comm. 74.

It was decided by Story, J., that the duration of the life estate should be determined by such a calculation based upon probabilities, even though its actual duration be determined by the death of the life tenant before the making of the apportionment. Foster v. Hilliard, 1 Story, 77, Fed. Cas. No. 4,972. Contra, Gunning v. Carman, 3 Redf. (N. Y.) 69.

that is, sunk or drowned in the greater."117 Reference will be made in other parts of this work to this doctrine of merger, which has at times results of some importance, and it is sufficient here to say that it applies with full force in the case of estates for life, which will accordingly be merged in the reversion, or estate expectant on the termination of the life estate, if the reversion or other expectant estate passes by purchase to the owner of the estate for life, or the estate for life is conveyed to the owner of the reversion.118 Further, it may be stated that, according to the technical doctrine before referred to,-that, as between an estate for a man's own life and an estate pur autre vie, the latter is considered the less estate, if an estate pur autre vie and a subsequent tenancy for one's own life come together in one person, the former is merged in the latter.110

Taking for public use.

A life estate may be taken, like a fee simple, for public use under the power of eminent domain, this being a characteristic of all interests in property of whatever nature. 120

33. Estate pur autre vie-Succession on owner's death.`

At common law, upon the death of a tenant pur autre vie during the life of the person for whose life the estate was limited, called the "cestui que vie," it was considered that the residue of the life estate still remaining could not pass to the heirs of the tenant, because it was not an estate of inheritance, nor could it pass to his executors, since it was freehold property. Accordingly, the property was re

117 2 Bl. Comm. 177. See, also, 4 Kent, Comm. 99.

1181 Washburn, Real Prop. 90; Webster v. Gilman, 1 Story, 499, Fed. Cas. No. 17,335; Boykin v. Ancrum, 28 S. C. 486, Finch's Cas. 615.

119 1 Leake, 190; 1 Washburn, Real Prop. 90; Boykin v. Ancrum, 28 S. C. 486, Finch's Cas. 615.

120 Lewis. Em. Dom. (2d Ed.) §§ 262, 262a, 483, 627.

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