forfeiture for treafon, made them chargeable for debts due to the king, and liable to be fold for debts contracted by a bankrupt tenant.

The incidents to eftates-tail, by the law of England, are that the tenant may commit wafte, his wife fhall have her dower, the hufband of a female tenant in tail, may be tenant by the curtefy, and that an eftage tail may be barred, or deftroyed by lineal warranty, defcending with aflets to the heir.

In this ftate, it has been fuppofed by fome, that the English law refpecting the entailment of eftates was in force. Eltates of that kind have been created, and common recoveries have been fuffered. But this was an erroneous opinion. Our courts have never recognized the doctrine of conditional fees at common law, • and have never admitted of eftates in fee-tail. A ftatute has lately been paffed in affirmance of a principle of common law, adopted and established by the courts of judicature. By this ftatute it is enacted— “that no eftate either in fee fimple, fee tail, or any leffer eftate, fhall be given by deed, or will, to any per"fon, or perfons, but fuch as are in being, or to the immediate "iffue or defcendants of fuch as are in being, at the time of mak❝ing fuch deed or will. And that all eftates given in tail, shall "be and remain an abfolute estate in fee fimple, to the iffue of the "first donee in tail." Such is now our ftatute law, and fuch has ever been our common law. Here we have the pleasure to observe that the transfer of our lands, is not fettered and burdened by the restrictions and incumbrances, with which they are perplexed and embarraffed in England; and that we have no occafion to acquire a knowledge of this branch of their jurifprudence, only to explain fome terms that have been borrowed from it, and introduced into our own.

In construction of this ftatute, it may be obferved, that all deeds or wills, that contain the words of limitations used in England, veft an estate in fee-tail in the firft donee, and a fee fimple abfolute, in his iffue or defcendants. All fuch eftates therefore during the life of the first donee, partake of the legal qualities of fuch estates in England, but have a total different operation after his

death

death. To create an estate-tail, by our statute there must be some words of inheritance, or procreation made ufe of as heirs of his body--otherwife, it will be a fee fimple. All gifts in the form preferibed by the law of England, to create an eftate-tail, will create one by our law.

The first donee, or tenant in tail, cannot alien for a longer time than his own life, fo as to bar the iffue, or the reverfion. The policy of this regulation by our statute is apparent. The father may difcover in his fon, marks of prodigality and profufion, that would render it unadviseable to veft him with the abfolute property of lands. By this mode, he may make a fafe provifion for him during his life, and prevent him from running into extravagance, by depriving him of the power of fquandering away his property; and the limiting of an eftate for a single life, is not productive of the inconveniences of perpetuities. Tenant in tail, cannot do any act by which he can make the lands chargeable with his debts, after his decease.

It is not in the power of the first donee in tail, to do any act by which he can become invested with a fee fimple, and defeat the iffue or reverfioner. As the ftatute has exprefsly authorifed the proprietor in fee, to carve out fuch an estate, it precludes the existence of a power to defeat it. It therefore may be established as a general principle, that fines and common recoveries, or any mode that has been adopted in England, cannot be introduced here, to dock fuch entailments as are warranted by ftatute. To allow fuch a power would be defeating the humane and beneficial intentions of the law. It would prevent a father from making fuitable provifion for the fupport of a prodigal fon during life, becaufe it would allow the fon a power to inveft himself with an abfolute eftate in the lands conveyed to him for life, and by fquandering it away, defeat the benevolent design of a parent, and difinherit his own offspring.

In England, common recoveries were introduced to unfetter the perpetual entailment of eftates, which reduced the nation to flavery, and difcouraged industry and agriculture. But as in this state

we

we admit only of an entailment for a fingle life, which is dictated by found policy, and produces none of the mischiefs of perpetuities, it is manifeft that no method can be allowed to defeat it.

Upon a failure of iffue of the first donee in tail, the land shall revert to the donor, or on his decease to his heirs, and shall not vest in the collateral heirs of the donee. But if the donee die, leaving fundry children, the cftate will veft in the particular heir or child to whom it is limited.

As our statute has borrowed the description of an estate from the English law, it neceffarily recognises all the incidents that refult from the nature of it. The incidents then to an cftate in tail, are the four following.

1. The first donee, or tenant in tail, may commit waste on the land by felling timber, pulling down houfes and the like, with. out being impeached, or called to account therefor, in as ample a manner as proprietor in fee can do. 2. The wife of the first donee fhall have her dower, or thirds in the cftate tail. 3. The hufband of a female tenant in tail, may be tenant by curtesy of the eftate-tail. 4. An estate tail, may be barred, or destroyed by lineal warranty, defcending with affets to the flue of the first donee, that is, if fuch donce alien in his life time, with warranty and then leaves fufficient eftate, which defcends to the heirs, to make good the warrnty, by which they would be liable on the covenants of warranty, in cafe of an eviction of the purchaser of the eftate-tail, then fuch heirs fhall be barred of a recovery of fuch eftate, fo aliened by their ancestor: because it would be an abfurdity to allow them to recover the lands of the purchafer, and then make them liable to pay back to him the value of it, upon an action brought against them upon the covenant of warranty.

But it is probable that all our learning refpecting cftates in feetail, will foon go into difufe; for in confequence of the reftriction of the ftatute, all the purposes of a conveyance allowed by it, may be aufwered by a perfon's making a gift to a man for life, and then to the heirs of his body forever, or any particular heir, which

VOL. I.

K k

is

is all that can be done by an estate tail, and in this cafe the donee is tenant for life, instead of tenant in fee-tail.

CHAPTER EIGHTH,

OF ESTATES FOR LIFE.

ESTATES for life, are freehold eftates, not of inheritance, and

there are three kinds known by our law. The first is created by the act and agreement of the parties. The other refult from the operation of law, and are where a man is tenant by curtefy, and a woman tenant in dower.

I. 7 Estates for life created by the act of the parties, are, where a man by deed, devise, or lease, grants lands to another, to hold for the term of his own life, or for that of any other person, or for more lives than one. Where the grant is to a man for his own life, he is called tenant for life: where the grant is to a man for the life of another, he is called tenant for another's life. The most ufual method of creating eftates for life, are by leafe but they may be created not only by exprefs words, but by a general grant without defining any eftate. As where a man grants lands to. another, without fpecifying any eftate, or heirs; this makes him tenant for life, for as no words of inheritance are inferted in the deed, it cannot be conftrued to be a fee; but the eftate fhall be conftrued to be as large as the words in the deed will warrant, and therefore if the grantor have authority to make fuch a grant, it fhall be conftrued to be an eftate for the life of the grautee.

All eftates for life, are generally confidered to endure for the life of the perfon to whom they are granted. There are however, fome eftates for life, dependent on future contingences, which may be determined before the life for which they are created, expires. As where a man has an estate given to him for the life of another, or a woman during her widowhood, when the perfon for whofe life the land is holden, dies, or the widow marries, the eftates are determined and gone; yet while they continue, they are deemed

"

g 2 Black. Com. 120.

Co. Lit. 41.

deemed to be estates for life, because their duration is uncertain, and they might poffibly have endured for the life of the tenant.

The incidents to eftate for life are. 1. Tenant for life, when he is laid under no reftrictions in the deed by which he holds, may of common right take from the land neceflary wood to repair or burn in his house, to make or repair inftruments of husbandry, and to make and repair neceffary fences on the land. By the common law he has right to improve the land in the fame manner as tenant in fee, without impeachment of wafte; and if he commit wafte, no action will lie against him, and this feems to be the diftinction adopted in the law, that where an estate is created by act of the parties, the tenant cannot be impeached of wafte, because it is in the power of the grantor to fecure his intereft, and lay the tenant under proper reftraints by the deed that creates the estate; but where estates for life refult from construction of law, the tenant fhall be restricted from the commiffion of wafte, and if he do waste, fhall be liable to an action, because it never was in the power of the heir in intereft, by a contract, to limit or reftrict the tenant in the ufe of the land. It is therefore neceflary for every perfon when he grants an estate for life, to refrain the tenant by the deed from the commiffion of wafte. But in England, by the ftatute of Glocester, tenants for life, as well as years, are liable to an action of wafte. Such is the common law, as ftated by Coke, and Blackstone, but Reeve contends, that tenant for life, was punishable for wafte by the common law.

2. Tenant for life, fhall not be injured by any fudden and unexpected determination of the eftate, because the determination is contingent and uncertain. It is a general rule, that in all cafes where the determination of an estate for life is dependent on a contingence, if it be determined by the act of God, or the act of the law, the tenant, unless the cftate be determined by his death, and then his reprefentatives, fhall have the emblements, or profit of the crops growing on the land at the time the estate is determined: but if the eft te be determined by the act of the tenant, the emblements fhall go to the proprietor in fee. If a tenant for life fows the land, and dies before harvest, his executor fhall have Kk 2 the

See vol. ii. 83. fa Black. Com. 122.

·Co. Lit. 55.