siastical benefice, or to any civil office, are considered as tenants for their own lives, unless the contrary be expressed in the form of donation.

3. A THIRD incident to estates for life relates to the underténants or lessees. For they have the same, nay greater indulgences than their lessors, the original tenants for life.

The same; for the law of estovers and emblements, [124] with regard to the tenant for life, is also law with regard to his under-tenant, who represents him and stands in his places: and greater; for in those cases where tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee who is a third person. As in the case of a woman who holds durante viduitate; her taking husband is her own act, and therefore deprives her of the emblements: but if she leases her estate to an under-tenant, who sows the land, and she then marries, this her act shall not deprive the tenant of his emblements, who is a stranger and could not prevent hert, The lessees of tenants for life had also at the common law another most unreasonable advantage; for, at the death of their lessors, the tenants for life, these under-tenants might if they pleased quit the premises, and pay no rent to any body for the occupation of the land since the last quarter day, or other day assigned for payment of rent". To remedy which it is now enacted, that the executors or administrators of tenant for life, on whose death any lease determined, shall recover of the lessee a ratable proportion of rent, from the last day of payment to the death of such lessor (3).

s Co. Litt. 55.

t Cro. Eliz. 461. 1 Roll, Abr. 727.

u 10 Rep. 127.

Stat. 11 Geo. II. c. 19. sec. 15.

(3) This act is confined to the death of the landlord, who holds for his own life; and therefore, it seems, if tenant pur autre vie leases, and the cestuy que vie dies, the lessee is not compellable to pay any rent from the last day of payment before the death of cestuy que vie. 10 Rep. 128.

II. THE next estate for life is of the legal kind, as contradistinguished from conventional; viz. that of tenant in tail after possibility of issue extinct. This happens, where one is tenant in special tail, and a person, from whose body the issue was to spring, dies without issue; or, having left issue, that issue becomes extinct: in either of these cases the surviving tenant in special tail becomes tenant in tail after possibility of issue extinct. As, where one has an estate to him and his heirs on the body of his present wife to be begotten, and the wife dies without issue w: in this case the man has an estate-tail, which cannot possibly descend to any one; and therefore the law makes use of this long periphrasis, as absolutely necessary to give an adequate idea of his estate. For if it had called him barely tenant in fee-tail special, that would not have distinguished him from others; [125] and besides he has no longer an estate of inheritance,

or fee, for he can have no heirs capable of taking per formam doni. Had it called him tenant in tail without issue, this had only related to the present fact, and would not have excluded the possibility of future issue. Had he been styled tenant in tail without possibility of issue, this would exclude time past as well as present, and he might under this description never have had any possibility of issue. No definition therefore could so exactly mark him out, as this of tenant in tail after possibility of issue extinct, which (with a precision peculiar to our own law) not only takes in the possibility of issue in tail which he once had, but also states that this possibility is now extinguished and gone.

THIS estate must be created by the act of God, that is, by the death of that person out of whose body the issue was to spring; for no limitation, conveyance, or other human act can make it. For, if land be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced a vinculo matrimonii, they shall neither of them have this estate, but be barely tenants for life, notwithstanding the

w Litf, sec. 32.

x 1 Roll. Rep. 184. 11 Rep. 80.

inheritance once vested in themy. A possibility of issue is always supposed to exist, in law, unless extinguished by the death of the parties; even though the donees be each of them an hundred years old 2.

THIS estate is of an amphibious nature, partaking partly of an estate-tail, and partly of an estate for life. The tenant is, in truth, only tenant for life, but with many of the privi leges of a tenant in tail; as, not to be punishable for waste,

c. (3): or, he is tenant in tail, with many of the restrictions of a tenant for life; as, to forfeit his estate if he alienes it in fee-simple b: whereas such alienation by tenant in tail, though voidable by the issue, is no forfeiture of the estate to

the reversioner: who is not concerned in interest, [126] till all possibility of issue be extinct. But, in general, the law looks upon this estate as equivalent to an estate for life only; and, as such, will permit this tenant to exchange his estate with a tenant for life; which exchange can only be made, as we shall see hereafter, of estates that are equal in their nature.

III. TENANT by the curtesy of England, is where a man marries a woman seised of an estate of inheritance, that is, of lands and tenements in fee-simple or fee-tail; and has by her issue, born alive, which was capable of inheriting her estate. In this case, he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England.

THIS estate, according to Littleton, has its denomination, because it is used within the realm of England only; and it

y Co. Litt. 28.

z Litt. sec. 34. Co. Litt. 28.

a Co. Litt. 27.
b lbid. 28.

c Litt. sec. 35. 52.

(3) But although he is not punishable if he cuts down trees, yet they are not his property, but will belong to the first person living at the time when they are cut, who has an estate of inheritance. Harg. Co. Litt. 27. b. 3 P. Wms. 240.

is said in the mirrord to have been introduced by king Henry the first; but it appears also to have been the established law of Scotland, wherein it was called curialitas e, so that probably our word curtesy was understood to signify rather an attendance upon the lord's court or curtis, (that is, being his vassal or tenant,) than to denote any peculiar favor belonging to this island (4). And therefore it is laid down f that by having issue, the husband shall be entitled to do homage to the lord, for the wife's lands, alone: whereas, before issue had, they must both have done it together. It is likewise used in Ireland, by virtue of an ordinance of king Henry III 8. It also appears to have obtained in Normandy; and was likewise used among the ancient Almains or Germans i. And yet it is not generally apprehended to have been a consequence of feodal tenure, though I think some substantial feodal reasons may be given for its introduction. For, if a woman scised of lands hath issue by her husband, and dies, the husband is the natural guardian of the child, and as such is in reason entitled to the profits of the lands in order to maintain it (5); for which reason the heir apparent of a tenant by the curtesy could not be in ward to the lord of the

d c. 1. sec. 3.

e Crag. I. 2. t. 19. sec. 4.

f Litt, sec. 90. Co. Litt. 30. 67.

g Pat. 11 H. III. m. 30. in 2 Bac. Abr. 659.

h Grand Coustum, e. 119.
i Lindenbrog. LL. Alman, t. 92.
k Wright, 294.

(4) I should rather think with Mr. Wooddeson, that this estate took its name from its peculiarity to England: and that it was afterwards introduced into Scotland and Ireland. 2 Woodd. 18. Tenant by the curtesy of England, perhaps originally signified nothing more than tenant by the courts of England; as in Latin he is called tenens per legem Anglia. See stat. pro tenentibus per legem Angliæ. App. to Ruff. 29.

(5) And this estate seems founded upon the natural and rational principle, that it is fitter that the son should be in a state of dependence upon the father, than the father upon the son.

fee, during the life of such tenant'. As soon therefore as any child was born, the father began to have a permanent interest in the lands, he became one of the pares curtis, did homage to the lord, and was called tenant by the curtesy initiate; and this estate being once vested in him by the birth of the child, was not suffered to determine by the subsequent death or coming of age of the infant.

THERE are four requisites necessary to make a tenancy by the curtesy; marriage, seisin of the wife, issue, and death of the wife m. 1. The marriage must be canonical and legal. 2. The seisin of the wife must be an actual seisin, or possession of the lands; not a bare right to possess, which is a seisin in law, but an actual possession, which is a seisin in deed. And therefore a man shall not be tenant by the curtesy of a remainder or reversion. But of some incorporeal hereditaments a man may be tenant by the curtesy, though there have been no actual seisin of the wife as in case of an advowson, where the church has not become void in the life-time of the wife; which a man may hold by the curtesy, because it is impossible ever to have actual seisin of it, and impotentia excusat legem". If the wife be an idiot, the husband shall not be tenant by the curtesy of her lands; for the king by prerogative is entitled to them, the instant she herself has any title: and since she could never be rightfully seised of the lands, and the husband's title depends entirely upon her seisin, the husband can have no title as tenant by the curtesy (6). 3. The issue must be born alive. Some have had a notion that it must be heard to cry; but that is a mistake. Crying indeed is the strongest

I F. N. B. 143.
m Co. Litt. 30.

n Co. Litt. 29.

o Co. Litt. 30, Plowd. 263.

(6) See this doubted in Harg. Co. Litt. 30.