are devised to such unborn son of a feme-covert, as shall first attain the age of twenty-one, and his heirs; the utmost length of time that can happen before the estate can vest, is the life of the mother and the subsequent infancy of her son: and this hath been decreed to be a good executory devise. (k) 3 3. By executory devise a term of years may be given to one man for his life, and afterwards limited over in remainder to another, which could not be done by deed; for by law the first grant of it, to a man for life, was a total disposition of the whole term; a life estate being esteemed of a higher and larger nature than any term of years. (1) And, at first, the courts were tender, even in the case of a will, of restraining the devisee for life from aliening the term; but only held, that in case he died without exerting that act of ownership, the remainder over should then take place: (m) for the restraint of the power of alienation, especially in very long terms, was introducing a species of perpetuity. But, soon afterwards, it was held, (n) that the devisee for life hath no power of aliening the term, so as to bar the remainder-man: yet, in order to prevent the danger of perpetuities, it was settled, (o) that though such remainders may be limited to as many persons successively as the devisor thinks proper, yet they must all [175] be in esse during the life of the first devisee; for then all the candles are lighted and are consuming together, and the ultimate remainder is in reality only to that remainder-man who happens to survive the rest: and it was also settled, that such remainder may not be limited to take effect, unless upon such contingency as must happen (if at all) during the life of the first devisee. (p)o Thus much for such estates in expectancy, as are created by the express words of the parties themselves; the most intricate title in the law. There is yet another species, which is created by the act and operation of the law itself, and this is called a reversion. III. An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular es k Fort. 232. n Dyer, 358. 8 Rep. 96. 18 Rep. 95. o 1 Sid. 451. m Bro. tit. chatteles, 23. Dyer, 74. (8) Lord Kenyon has explained the whole doctrine of executory derises in the following words: "The rules respecting executory devises have conformed to the rules laid down in the construction of legal limitations, and the courts have said, that the estate shall not be unaliena. ble by executory devises for a longer term than is allowed by the limitations of a common law conveyance. In marriage settlements the estate may be limited to the first and other sons of the marriage, in tail; and until the person to whom the first remainder is limited is of age, the estate is unalienable. In conformity to that rule the courts have said, so far we will allow executory devises to be good. To support this position, I could refer to many decisions; but it is sufficient to refer to the Duke of Norfolk's case, in which all the learning on this head was gone into; and from that time to the present, every judge has acquiesced in that decision. It is an established rule that an executory devise is good, if it must necessarily happen within a life or lives in being, and twenty-one years, and the fraction of another year, allowing for the time of gestation." See Long. v. Blackall, 7 T. R. 100. In that case it was determined that a child en ventre sa nere was to be considered as a child born, and therefore that an estate might be devised to it for life, and after its death to its issue in tail. Christian. (9) It has long been fully settled that a term for years, or any chattel interest, may be given by an executory devise to an unborn child of a person in existence, when it attains the age of twenty-one; and that the limits of executory devises of real and personal property are precisely the same. Fearne, 320. It is very common to bequeath chattel interests to A and his issue, and it he dies without issue, to B. It seems now to be determined, that where the words are such as would have given A an estate-tail in real property, in personal property the subsequent limitations are void, and A has the absolute interest: but if it appears from any clause or circumstance in the will, that the testator intended to give it over only in case A had no issue living at the time of his death, upon that event the subsequent limitation will be good as an executory devise. See Fearne, 371. and cases referred to in 3 Coze's P. Wms. 262. Christian tate granted out by him. (q) Sir Edward Coke (r) describes a reversion to be the returning of land to the grantor or his heirs after the grant is over. As, if there be a gift in tail, the reversion of the fee is, without any special reservation, vested in the donor by act of law and so also the reversion, after an estate for life, years, or at will, continues in the lessor. For the fee-simple of all the lands must abide somewhere; and if he, who was before possessed of the whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him. A reversion is never therefore created by deed or writing, but arises from construction of law; a remainder can never be limited, unless by either deed or devise. But both are equally transferrable, when actually vested, being both estates in praeseni, though taking effect in futuro. The doctrine of reversions is plainly derived from the feodal constitution. For when a feud was granted to a man for life, or to him and his issue male, rendering either rent or other services; then, on his death or the failure of issue male, the feud was determined, and resulted back to the lord [176] or proprietor, to be again disposed of at his pleasure. And hence the usual incidents to reversions are said to be fealty and rent. When no rent is reserved on the particular estate, fealty however results of course, as an incident quite inseparable, and may be demanded as a badge of tenure, or acknowledgment of superiority; being frequently the only evidence that the lands are holden at all. Where rent is reserved, it is also incident, though not inseparably so, to the reversion. (s) The rent may be granted away, reserving the reversion; and the reversion may be granted away, reserving the rent; by special words: but by a general grant of the reversion, the rent will pass with it, as incident thereunto; though by the grant of the rent generally, the reversion will not pass. The incident passes by the grant of the principal, but not e converso: for the maxim of law is, accessorium non ducit, sed sequitur, suum principale." (t) These incidental rights of the reversioner, and the respective modes of descent, in which remainders very frequently differ from reversions, have occasioned the law to be careful in distinguishing the one from the other, however inaccurately the parties themselves may describe them. For if one seised of a paternal estate in fee, makes a lease for life, with remainder to himself and his heirs, this is properly a mere reversion, (u) to which rent and fealty shall be incident; and which shall only descend to the heirs of his father's blood, and not to his heirs general, as a remainder limited to him by a third person would have done : (w) for it is the old estate, which was originally in him, and never yet was out of him. And so likewise, if a man grants a lease for life to A, reserving rent, with reversion to B, and his heirs, B hath a remainder ascendible to his heirs general, and not a reversion to which the rent is incident; but the grantor shall be entitled to the rent, during the continuance of A's estate. (x) In order to assist such persons as have any estate in remainder, [177] reversion, or expectancy, after the death of others, against fraudulent concealments of their death, it is enacted by the statute 6 Ann. c. 18. that all persons on whose lives any lands or tenements are holden, shall (upon application to the court of chancery, and order made thereupon), once in every year, if required, be produced to the court, or its commissioners; or, upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenements, till the party shall appear to be living. Before we conclude the doctrine of remainders and reversions, it may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, (y) the less is immediately annihilated; or, in the law phrase, is said to be merged, that is, sunk or drowned in the greater. Thus, if there be tenant for years, and the reversion in fee-simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more. But they must come to one and the same person in one and the same right; else, if the freehold be in his own right, and he has a term in right of another (en auter droit), there is no merger." Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge; for he hath the fee in his own right, and the term of years in the right of the testator, and subject to his debts and legacies. So also, if he who hath the reversion in fee marries the tenant for years, there is no merger; for he hath the inheritance in his own right, the lease in the right of his wife. (2) An estate-tail is an exception to this rule: for a man may have in his own right both an estate-tail and a reversion in fee: and the estate-tail, though a less estate, shall not merge in the fee. (a) For estates-tail are protected and preserved from merger by the operation and construction, though not by the express words, of the statute de donis: which operation and [178] construction have probably arisen upon this consideration; that, in the common cases of merger of estates for life or years by uniting with the inheritance, the particular tenant hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate. (b) But, in an estate-tail, the case is otherwise the tenant for a long time had no power at all over it, so as to bar or destroy it, and now can only do it by certain special modes, by a fine, a recovery, and the like: (c) it would therefore have been strangely improvident to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue; and hence it has become a maxim, that a tenancy in tail, which cannot be surrendered, cannot also be merged in the fee. y 3 Lev. 187. z Plowd. 418. Cro. Jac. 275. Co. Litt. 338, b Cro. Eliz. 302. a 2 Rep. 61. 8 Ref. 74. c See page 116, (10) As to this doctrine in general, see 3 Preston on Conveyancing; Cruise Dig. 6 vol. index, Merger. CHAP. XII. OF ESTATES IN SEVERALTY, JOINT-TENANCY, We come now to treat of estates, with respect to the number and connexions of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four different ways; in severalty, in joint-tenancy, in coparcenary, and in com mon. I. He that holds lands or tenements in severalty, or is sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest, during his estate therein. This is the most common and usual way of holding an estate; and therefore we may make the same observation here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter: that there is little or nothing peculiar to bé remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise; and that in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. I shall therefore proceed to consider the other three species of estates, in which there are always a plurality of tenants. II. An estate in joint-tenancy' is where lands or tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years, [180] or at will. In consequence of such grants an estate is called an estate in joint-tenancy, (a) and sometimes an estate in jointure, which word as well as the other signifies an union or conjunction of interest; though in common speech the term jointure is now usually confined to that joint-estate, which by virtue of the statute 27 Hen. VIII. c. 10. is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower. (b) In unfolding this title, and the two remaining ones, in the present chapter, we will first inquire how these estates may be created; next, their properties and respective incidents; and lastly, how they may be severed or destroyed. 1. The creation of an estate in joint-tenancy depends on the wording of the deed or devise, by which the tenants claim title: for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of law. Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A and B and their heirs, this makes them immediately a Litt. 277. b See page 137, (1) As to joint-tenants in general, see 6 Cruise, ind. title Joint-tenancy; Bac. Ab. Joint-tenants and Tenants in Common; Com. Dig. Estates, K.; Chancery, 3 V 1. Devise, H. 7. N 8 Jacob's Dict. Jotat-tenants; 2 Saunders, index, Joint-tenants; Preston on Estates joint-tenants in fee of the lands. For the law interprets the grant so as to make all parts of it, take effect, which can only be done by creating an equal estate in them both. As therefore the grantor has thus united their names, the law gives them a thorough union in all other respects. For, 2 2. The properties of a joint-estate are derived from its unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession; or, in other words, joint-tenants have one and the saine interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. First, they must have one and the same interest. One joint-tenant cannot be entitled to one period of duration or quantity of in- [181] terest in lands, and the other to a different; one cannot be tenant for life, and the other for years; one cannot be tenant in fee, and the other in tail. (c) But if land be limited to A and B for their lives, this makes them joint-tenants of the freehold; if to A and B and their heirs, it makes them joint-tenants of the inheritance. (d) If land be granted to A and B for their lives, and to the heirs of A; here A and B are joint-tenants of the freehold during their respective lives, and A has the remainder of the fee in severalty or if land be given to A and B, and the heirs of the body : 3 (2) Joint-tenancies are now regarded with so little favour, both in courts of law and equity, that whenever the expressions will import an intention in favour of a tenancy in common, it will be given effect to, Fisher v. Wigg. 1 P. Wms. 14. n. and id. 1 Ld. Raym. 622. I Salk. 392. note 8. Lord Cowper says, that a joint-tenancy is in equity an odious thing. I Salk. 158. See also 2 Ves. Sen. 258. In wills the expressions" equally to be divided, share and share alike, respectively between and amongst them," have been held to create a tenancy in common. 2 Atk. 121. 4 Bro. 15. The words equally to be divided make a tenancy in common in surren ders of copyholds, 1 Salk. 391. 2 Salk. 620.; and also in deeds which derive their operation from the statute of uses, 1 P. Wms. 14. 1 Wils. 341. Cowp. 660. 2 Ves. Sen. 257.; and though Lord Holt and Lord Hardwicke seem to be of opinion that these words in a com mon law conveyance are not sufficient to create a tenancy in common, (same cases, and 1 Ves. Sen. 165. 2 Ves. Sen. 257. and see Bac. Ab. Joint-tenants, F.) yet from the notes to some of those cases, and 4 Cruise Dig. 1 ed. 455 to 459. 2 Bla. C. 193, 4. Mr. Christian's note, it may be collected that the same words in a common law conveyance would now create a tenaney in common In a joint-tenancy for life to A. and B. the words and the survivor of them, are merely words of surplusage, as without them the lands upon the death of one joint-tenant go to the survivor. But in the creation of a joint-tenancy in fee, particular care must be taken not to insert these words. For the grant of an estate to two and the surviver of them, and the heirs of the survivor, does not make them joint-tenants in fec, but gives them an estate of freehold during their joint lives, with a contingent remainder in fee to the survivor. Harg, and Butl. Co. Litt. 191. a. n. 1. Where there was a devise to three sisters for, and during their joint lives, and the life of the survivor, to take as tenants in common, and not as joint-tenants, remainder to trustees during the respective lives of the sisters, and the life of the survivor, to preserve contingent remainders, and from and after their respective deceases and the decease of the survivor, remainder over; it was held that the sisters took the estate as joint-tenants, to be regulated in its enjoyment as a tenancy in common, or as tenants in common, with benefit of survivorship. 1 M. & S. 428. Where testator devised the residue of his property to his daughters as tenants in common, and afterwards made a codicil expressly for a particular purpose, but thereby also redevised the residue to his daughters, omitting the words of severance, the codicil was construed by the will, and they took as tenants in common. 3 Anstr. 727. Where the devise was to the use and behoof of the testator's niece A. and his nieces B. and C. and the survivor and survi vors of them, and the heirs of the body of such survivors, as tenauts in common and not as jointtenants, it was held, that under this devise A., B., and C. took as tenants in common. 1 New. Rep. 82. When two or more purchase lands, and pay in equal proportions, a conveyance being made to them and their heirs, this is a joint-tenancy. But if they advance the money in unequal proportions, they are considered in equity in the nature of partners; and if one of them die, the others have not his share by survivorship, but are considered as trustees for the deceased's representatives. 1 Eq. Ca. Abr. 291. Chitty. (3) Lord Coke says, that if a rent-charge of 101. be granted to A. and B. to have and to hold to them two, viz. to A. till he be married, and to B. till he be advanced to a benefice, they are joint-tenants in the mean time, notwithstanding the limitations; and if A. die before marriage, the rent shall survive to B. But if A. had married, the rent should have ceased for a moiety, e sic e converso, on the other side. Co. Lit. 180. b. 2 Cruise Digest, 498. VOL. I. 66 |