ད .

SECTION 71. If a grant was made to a man and the word ""heirs was not used an estate for life was given unless some rule or Act, such as that of 1909 (Sec. 58, supra), provides that the word "heirs" is not necessary to create a fee simple or unless from the circumstances the law would imply a mere lease at will.

SECTION 72. An estate for life is one that may by possibility last for a life. It may be granted to a woman during her widowhood. (A distinction between "grass widows" and "sod widows" is noted by Mr. Justice Schaffer in Henry's Estate, 271 Pa., 416.) At the common law a grant to a woman (containing a condition in restraint of marriage was valid, but in the civil law (which governed in England upon administration of personal property of decedents) such restraints were invalid and the condition ignored. The civil lay did, however, recognize estates upon limitation and sustained legacies of personalty to a woman to be enjoyed during widowhood. If the will gives real estate to a woman for life but if she should remarry then to another person, the other person would take in the event of the woman's remarriage. Had the gift been of personalty the condition in restraint of marriage would have been invalid and the woman would enjoy the personalty during remarriage. "Had the scrivener provided for the gift by words of limitation, as "during widowhood" the woman's interest in the personalty would have ceased on her marriage: Com. vs. Stauffer, 10 Pa., 350; Holbrooks Est., 213 Pa., 93. Compare Sec. 145, post.

Willards Willer

SECTION 73. Blackstone says that a tenant for life may have estovers, his estate may have emblements, and his undertenants must apportion the rent to the date of their landlord's death.

land bor for timber life Venant

in Pa. may Cur limber

SECTION 74. At common law a life tenant could not cut timber as an estover but had only "windfalls. The law of Penna. is much more liberal because in the early days the clearing of land was of great benefit and therefore a tenant for life will not, generally speaking, commit waste by removing the timber Willard vs. Willard, 56 Pa., 119, 128. He must not, however, wantonly waste the timber: McCullough vs. Irwin's Ex., 13 Pa., 438, 443.

same calegon as mines

SECTION 75. A life tenant may work to exhaustion the coal under a tract if there were opened mines at the commencement of the life estate. He may make additional openings if necessary to the proper working of the openings already made. He may not take coal from one

39

*

in case of real estate condition subsequent is valid whether gen. a partial whether in form of Condition or limitatur

tract physically separated from another upon which there happens to be an opening: Neel vs. Neel, 19 Pa., 323; Westmoreland Coal Co.'s Appeal, 85 Pa., 344. See Act of 1848 (Pur., 5063, under "Waste"), which allows "reasonable and necessary use and enjoyment" of land to a life tenant. If land having coal under it is sold by a deed given by the life tenant and the remainderman the life tenant is entitled to the income from the selling price for his life as the fund takes the place of the land: Deffenbaugh vs. Hess, 225 Pa., 638.

SECTION 76. The life tenant must maintain the property, repair the buildings, and meet accruing incumbrances. He cannot destroy buildings even though erected by himself: McCullough vs. Irwin's Ex., 13 Pa., 438. The land must be farmed in husband-like manner, with due observance of the rotation of crops and fertilization. The life tenant must not commit waste and must prevent others from doing so. He must pay current assessments and taxes (Manor vs. Goldsmith, 216 Pa., 489), but will be responsible for only some equitable proportion of assessments for permanent public improvements, such as street paving: Boro vs. Wallace, 20 Dist. R., 461. If the taxes and current charges are not paid by the life tenant the Court of Common Pleas may appoint a sequestrator to collect income to pay such taxes at the instance of the remaindermen: Act of 1887, Pur., 4378, under "Sequestration"; Mulhollen's Estate, 56 Superior, 67.

SECTION 77. If a life tenant committed "waste" the St. of Gloucester, 6 Edward I, 1278, provided that he should lose the estate and pay triple damages. The Report of the Judges found that this statute was in force in Penna. (Roberts Digest and Appendix to 3 Binney) but the Courts are not inclined to so regard it: Willard vs. Willard, 56 Pa., 128. In Lyle vs. Richards, 9 S. & R., 322, 367, Mr. Justice Duncan mentions the "writ of waste, in which the place wasted was recovered" as a Pennsylvania action. A year later the same justice said no such action had been used: Shult vs. Barker, 12 S. & R., 272. A bill in equity may be filed to prevent waste or an action of trespass on the case may be brought to recover damages or a writ of estrepement may be used and an order equivalent to an injunction secured by terms of the Act of 1848, Pur., 5062, under "Waste". Compare Sec. 215, post.

SECTION 78. The "emblements" of a life estate are the corn and

102 Pa. 285- of growing crops are sold.

personas properly

crops produced annually, fructus industriales. estate of the life tenant if he should die before

These belong to the they are cut or harvested. But his estate will not be entitled to uncut hay or crops which are classed as fructus naturales: Reiff vs. Reiff, 64 Pa., 134. Compare Sec. 121, post.

SECTION 79. If the property is damaged, as for example by the exercise of a power of eminent domain, the damages will be impounded or the sum paid will be preserved so that the life tenant will receive the income or interest and the corpus or principal will go to the remaindermen at the end of the life estate: DeWitt vs. L. V. R. R., 21 Superior, 10.

SECTION 80. Apportionment of rent to the date of a life tenant's death was authorized by Act of 1834, Secs. 30 and 7, and by the Act of 1917, Pl. 470, 489, 505. If a life tenant leases the property for five years at a quarterly rental and dies in the middle of the quarter his administrator will be entitled to one-half of the quarter's rental while the other half goes to the remaindermen. If a tenant in fee simple dies, however, his administrator would be entitled to the rental up to the preceding rent payment day only: Bank of Pa. vs. Wise, 3 Watts, 394, 399. It does not follow that a life tenant can give a valid lease for a period beyond the expiration of the life estate-the death of the life tenant terminates the lease (Lee vs. Lutz, 65 Superior, 188), but the lessee may become a tenant from year to year (Sec. 128, post) or at will (Sec. 132, post) under the remainderman.

=

SECTION 81. At common law a tenant for life who attempted to alienate his estate by tortious feoffment or conveyance would forfeit his estate but our Penna. conveyances are not regarded in the same way (McKee vs. Pfout, 3 Dallas, 486) and if a life tenant attempts to convey a fee his grantee will simply be a tenant pur autre vie. Compare Carson vs. Cemetery Co., 104 Pa., 575, and Sec. 444, post.

SECTION 82. If a tenant pur autre vie dies before the one on whose life the estate is limited (the cestui qui vie), the estate pur autre vie will descend as personal estate of the first tenant pur autre vie. Act of 1834, Sec. 9, Pur., 1091; Act of 1917, Sec. 11, g., P. L. 471.

SECTION 83. The estate of a tenant in tail after possibility of issue extinct is the second sort of life estate mentioned by Blackstone

as of the
of the death

of the life

tenant.

word the deed 111 Ace 1925 "To granted for The term of the grantor's life"

ворон