Lit. sect. 613. Co. 1. 53. super Lit. 345.

have taken the fee to supply a seisin to the uses ;
and he would have had an estate for the lives
under the Statute of Uses. Jenkins and Young,
Cro. Car. 230; 1 Prest. Est. 180; and 3 Prest.
Abst. p. 52.]

If a tenant in tail grant totum statum suum; by
this [grant] the grantee hath an estate for the life

Plow. 562. 162. of the grantor, and no longer. [But a grant by

Co. super Lit.

24.

p. 24. b.]

tenant in tail to another and his heirs passes a
determinable fee. Machel and Clarke, 2 Lord
Raym. 778.] And if a lessee for life grant all his
estate, hereby his estate for life doth pass, for this
is as much as he can lawfully grant, [and the law
prefers, in its construction, an estate by right to
an estate by wrong. 3 Prest. Abstr. p. 51.]

If a man have a son and a daughter, and die, and lands be granted to the daughter and the heirs [Harg. Co. Lit. females of the body of the father; it seems by this [gift] she hath only an estate for life; [for the son is the general heir of the father, and therefore the daughter does not answer the description of heir. But if the son should die without issue in the lifetime of his sister, or of any of her descendants, being females and heirs, so that a daughter, &c. become the general heir of the father, she may take an estate tail as purchaser. So also, if the son should die, leaving a daughter or daughters, &c. such daughter or daughters, &c. may take an estate in tail female, as purchasers. Counden v. Clerk, Hob. 29. And after an estate in tail female has once vested, the succession would be from female to female, as heirs in tail, notwithstanding a male may be the general heir. In a course of descent to such estate in tail female, no female, being a descendant from a male, could take, as heir in tail. Preston on Estates, ch. Tail.]

If one grant land to another, to have and to hold to her while she shall live sole; or during her widowhood; or so long as she shall * behave her- *P. 107. self well; or so long as she shall dwell in such a house; or so long as she pay 101. yearly; or so long as the coverture between her and her husband shall continue; or if one grant lands to a man, to have and to hold unto him until he shall be promoted to a benefice, or the like: in all these [and the like] cases, if livery of seisin be made according to the deed; or if the grant be of such a

thing whereof no livery is requisite, the grantee hath an estate for his life, and no more, and that determinable also. [These are denominated estates for life, with collateral determinations. Prest. on Estates, ch. Life; Ib. 1 vol. ch. Fee, p. 442.480.]

If one grant lands to I. S. to have and to hold Co. super Lit. to him for life, and doth not say for whose life; Plow. 161. this regularly shall be taken for the life of I. S. the F. N. B. 168. lessee, and not for the life of the lessor. But if the lessor himself have but an estate for life in the lands granted, then the lease shall be construed to be, and to endure during that life only, by which the lessor did hold; [this construction is partly] to prevent a forfeiture. [And it is apprehended, even though no forfeiture would be incurred; since it is for the interest of the grantee to have this construction of the grant. Prest. Estates, ch. Life.] And if he that doth make the lease, be tenant in tail of the land, this [grant] shall be taken to be a lease for the life of the lessor. And if a tenant for life of land make a lease for years of it, and then grant his reversion by the name of a reversion, to another, to have and to hold to him and his heirs [generally ;] by this [grant] he [the grantee] hath only an estate for the life of the grantor, and no more. So, if tenant in tail of land, grant it to one for years, and after grant his reversion to another, to have and to hold to him, and his heirs; this shall be construed to be an estate for the life of the tenant in tail, and no longer; and the attornment of the tenants in these cases will not alter the case. [This conclusion is over-ruled by the determination in Machell & Clarke, 2 Lord Raym. 778; and it is now settled contrary to the opinion of Lit. § 612, that the grant, &c. of a tenant in tail to one and his heirs, will pass a fee determinable on failure of issue inheritable to the estate tail, and defeasible by the issue in tail, unless they are barred by a fine with proclamations, &c.] And so it is in case of a release also, [operating in enlargement of estate ;] as if tenant in tail doth release to B. (being lessee for years of the land) all his right to the land, this [release] shall be taken to enure but for the life of the tenant in tail and no longer. (This is true for want of words of limitation to the heirs; but if the heirs had been named, the release would have passed a base or determinable fee. 1 Preston on

Co. super Lit.

Estates, p. 400; 1 Abstr. p. 127; 2 Prest. Convey. p. 349]: as if a man retain a servant, and say not how long; this shall be taken for a year (21). Constructio legis non facit injuriam, [is the general rule applicable to these cases. Another rule, also applicable, adopts the construction most beneficial to the grantee.]

If one grant to I. S. that if he be not paid 147. Co. 8. 85. yearly for his life 40s. he shall distrain in the land of the grantor for it; by this [grant] I. S. hath [a rent and] an estate for life in the rent. And if a man by his deed grant a rent of 101. issuing out of all his land, quarterly, at the usual feasts, this [in the absence of a limitation of time] is an estate for life of the grantee. [If the grantor had a term of years or for life, the rent would, by construction of law, be for a corresponding or equal term. Butt's case, 7 Rep. 23; 2 Prest. Abstr. p. 23.]

Co. 5. 9. 11. 3.

+ 38 Eliz. B. R. Rose & Adwick,

in the case of

If one grant lands to I. S. and I. D. to have and to hold to them during their lives, omitting these words [and the longest liver of them] by this notwithstanding they [the lessees] shall [except in the instances already noticed] hold it during the life of the longest liver of them; [and if one of them make a lease for years, that lease may continue, notwithstanding his death. But if he sever the joint-tenancy, he becomes merely tenant for his own life. Prest. on Estates, ch. Life; 2 Prest. Abstr. p. 63; 3 Prest. Convey, p. 407, 445. They are joint-tenants, and take an estate for their lives, and the life of the survivor, to give effect to the consequences of law, in regard to joint-tenancy; but from the moment the joint-tenancy ceases by alienation, the right of taking any benefit from the joint-tenancy will no longer exist; and then, by construction of law, the estate of each grantee is to continue merely for the life of that grantee.) And if lands be granted to A. to have and to hold to him during the lives of B. C. and D. without any more words; by this [grant] A. hath an estate during all their lives, and during the life of the longest liver of them. † And if lands be granted to A. to have and to hold to him during his life, and during the lives of B. and C.; by this [grant] he hath a lease for his own life, and the lives of B. and C., and the longest liver of them. But if a lease be made to

(21) For that retainer is according to law. See 13th edition, Co. Lit. 4 2,

*P. 108.

Occupant.

a

B. R. 8 Eliz.

Adjudged Hobart & Wisemore's case.

I. S. of land, to have and to hold to him during
the time * that A. and B. shall be justices of peace,
or during the time that A. and B. shall be of the
Inner Temple, or the like; in these cases the
failure of one doth determine the estate. [For
these are leases with collateral determinations. The
construction on this limitation requires that each of
the persons should continue a justice, &c. Prest. on
Estates, ch. Life; 2 Abstr. 18; 2 Preston Convey.
p. 183.] • And if a lease be made to B. only,
to have and to hold to him and C. for their lives,
[though the life of the longest liver of them be
added;] by this [lease] B. hath an estate for his own
life only, and no more, and C. hath nothing at
all (22). [For as the grant is void as against
C., since he is not a party to the deed, his life
shall not form a part of the limitation of the
estate; for, in construction of law, the limitation
for the life of the longest liver, &c. is expressed,
and expressio eorum quæ tacite insunt nihil operatur;
Eustace's case, 3 Salk. 204. This subject is fully
examined in Essay on Estates, ch. Life; and is under
discussion in Doe v. Wilson, Mich. Term 1820.
But if the lease had been to A., habendum to A.
and B. successively as they are named, B. might
have taken by way of remainder, and been tenant
for his life.] And here, by the way, let it be Co. super Lit.
observed in these and such like cases, where lands 41.239.388.
are granted to one man, to have and to hold to him 28 Dyer, 328.
"or to him and his assigns, or to him, his execu- Co. 10.98.
tors, administrators and assigns;" [it is doubtful
whether executors or administrators could have
been, though heirs may be, special occupants;
3 Prest. Abstr. p. 175;] during the life, or during
the lives of others; and in most cases where a man
is tenant pur auter vie, i. e. for the life, or lives, of
another, or others, if the tenant pur auter vie in
possession die, his estate shall not go to his heirs,
executors or administrators, unless they can first
get into possession after his death; but he that can
first get into the possession of the land after the
death of the tenant pur auter vie, shall have it for
his life, and after his death, then he that can first
get into the possession again, &c. [See Hargrave's
note on Co. Lit. p. 41 b; Essay on Estates, ch.

Plow. 556. 321.264.

(22) See further as to what words make an estate for life, in Vin. Abr. Estate, (N.a.) Bac. Abr. Estate for Life, (A.)

Life.] And therefore if the land were let by
the tenant pur auter vie at the time of his death
to any under-tenant for years, or for one year, or
at will, and this under-tenant be in possession at
the time of the death of the tenant pur auter vie,
this under-tenant shall [by the common law] have
it for his life, if the life or lives by which it is held
so long live; for the rule in this case is occupanti
conceditur. Et capiat qui capere potest. And this
estate [or rather title] is called an occupancy, and
he that hath it an occupant (23). To prevent
which mischief, the lessee must take care when he
takes his lease, to have it made to him and his
heirs during the life or lives of him or them by
whom it is held; for in this case after his death
his heir and none other shall have it; or if this be
neglected, then he must take care to grant over
his estate by act executed (for by his last will
he may not devise it) [Blake v. Blake, 3 Cox, Pr.
Wms. 10. n. 1.] to some friend and his heirs
in trust for him; or he may grant it over to an-
other, and take a regrant of it to himself and his
heirs; or he may make a lease for years of the
lands to some friends in trust, and by this means
he may have the fruit of it during the term (24).

(23) If he who claims to be occupant does not take actual possession, he shall not be occupant, 1 Sid. 347. Vaugh. 188.

(24) By the statute 29 Car. 2, c. 3, tenant pur autre vie may devise his estate by will, attested by three witnesses; and if he does not devise the estate, it is chargeable in the hands of the heir, if it shall come to him by reason of a special occupancy, as assets by descent. In case there be no special occupant thereof, it shall go to the grantee's executors or administrators, and shall be assets in their hands. See 2 Salk. 464. 2 Vern. 719. And by the stat. 14 Geo. 2, c. 20, s. 9, reciting the stat. 29 Car. 2, c. 3, and that doubts had arisen where no devise had been made of such estates, (pur autre vie,) to whom the surplus of such estates, after the debts of such deceased owners thereof, are fully satisfied, shall belong; it is enacted, "That such estates pur autre vie, in case there be no special occupant thereof, of which no devise shall have been made, according to the said act, for prevention of frauds and perjuries; or so much thereof as shall not have been so devised, shall go, be applied, and distributed, in the same manner, as the personal estate of the testator, or intestate."] These two statutes have abolished the title of general or common occupancy (a); but special occupancy by the heir at law, where the original grant is to a man and his heirs during the life of cestuique vie, still continues. And where the executors take, either by being named in the grant, as where the grant is to a man, his executors and administrators, during the natural lives of A. B. and C., or as devisees, in both those cases do not the executors take as special occupants? The statute turns the estate pur autre vie into personalty, for some special purposes, but doth not alter the nature of the estate. This is obvious by the statute requiring three witnesses. See further as to the general doctrine of occupancy, and of what things it may be. If a man has an estate pur autre vie in gavelkind, or in Borough-English lands, the heirs, after the death of their father, according to their respective customs; in one all the sons, in the latter the younger son, shall be the special occupant. Rob. on Gavelkind, 97. (a) [Except as to copyholds, rents, &c.]