Apportion.
ment
Act, 1870.

obtaining such entire rents if entitled thereto; but so that persons liable to pay rents reserved by any lease or demise, and the lands, tenements, and hereditaments comprised therein, shall not be resorted to for such apportioned parts specifically as aforesaid, but the entire rent of which such portions shall form part shall be received and recovered by the person or persons who, if the Act had not been passed, would have been entitled to such entire rents: and such portion shall be recoverable from such person or persons by the persons entitled to the same under the Act, in any action or suit at law or in equity; but the Act (w) is not to apply to cases where it has been expressly stipulated that no apportionment shall be made. This Act applies to all cases where either the lease reserving the rent or the instrument creating the life estate has been executed since the passing of the Act (x). The Act of William the Fourth had re ference to leases in writing only (y), and since the Act of George the Second only applied to leases which were put an end to by the death of the tenant for life, the rent reserved by a parol lease not determined by the tenant's death was not apportionable (z). Moreover, the Act did not include tithes.

These omissions have been supplied by the Apportionment Act, 1870 (a), which enacts that (b) after the passing of the Act (c) all rents and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be

(w) S. 3.

(x) Lock v. De Burgh, 4 De G. & Sm. 470; Plummer v.

John. 585; Llewellyn v. Rous, L. R. 2 Eq. 27.

(y) Re Markby, 4 My. & C. 484.

(z) Mills v. Trumper, L. R. 4 Ch. 320.

(a) 33 & 34 Vict. c. 35.

(b) S. 2.

(c) 1st August 1870.

Whiteley,

apportionable in respect of time accordingly; and (d) that in the construction of the Act, the word "rent shall include rent service, rent charge, and rent seck, and also all tithes and periodical payments or renderings in lieu of, or in the nature of, rent or tithe. This Act applies to all instruments, whether coming into operation before or not until after the passing of the Act (e).

We conclude this chapter by remarking that on the Emblements. death of a tenant for life whose estate is determined by his death, his executors or administrators are entitled to emblements, the 14 & 15 Vict., c. 25, only applying to cases where terms of years are determined by the death of a lessor who is tenant for life.

Different kind of estates tail.

General.
Special.

CHAPTER V.

OF AN ESTATE TAIL.

WE come next to the consideration of freehold estates of inheritance, and will take first estates in fee tail, or, as they are commonly called, Estates Tail.

We spoke of estates tail generally, in our introduction, as being those estates which are given to a man and the heirs of his (a) body; but we must now point out that there are various classes into which estates tail may be divided. Thus, such an estate may be "general," that is, given to a man and the heirs of his body generally; or it may be "special," that is, given to a man and the heirs of his body by some specified person. Again, an estate tail, whether general or special, may be given to a man and his sons exclusively, or to him and his daughters exclusively; Tail male and whence we get the four sub-divisions of estates tail male general, estates tail female general, estates tail Tail male and male special, and estates tail female special. The course of descent of an estate tail general is to the first tenant's eldest son, and such son's eldest sons and grandsons in succession. If the eldest son leaves no issue, the estate goes to the second and other sons in succession, and their issue, according to the same rule. If there are no sons, or if their issue fails, the daughters take the estate, but in equal shares, and are succeeded by their eldest or other sons and their issue, in a course of primogeniture. The same rule applies

tail female

general.

tail female

special.

(a) It is to be understood that the words "man" and "his" when used with reference to estates include females except where otherwise stated.

to the other kinds of estates tail, but with such modifications as are necessary to suit their particular form.

tail.

Besides the above varieties of estates tail there is Quasi estate that which is known as a quasi estate tail. This occurs when lands held pur autre vie are limited in one of the ways by which a regular estate tail may be created.

estate tail can

An estate tail can only be created by a person who By whom an has an estate in fee-simple, and such person must not, be created. as a rule, be under any disability; but, as we saw in the last chapter, an infant may, under the 18 & 19 Vict., c. 43, create such an estate in contemplation of marriage (b); subject however (c) to the estate being defeated if the infant does not live to attain full age.

ing.
Form of words.

An estate tail may be created by deed or by will. Mode of creatAs to the form of words necessary to create it, it has been already mentioned that the words of an instrument purporting to confer an estate were formerly always construed strictly. Thus, a gift to a man "for ever," or to him "in fee-simple," whether made by deed or will, would have conferred an estate for life only, notwithstanding that the intention to give a fee-simple might be very apparent. For it was said that an estate of inheritance could not be conferred except by words of inheritance, such as "heirs." On the same principle, it was necessary in giving an estate tail to use words, such as "heirs of the body," clearly limiting the estate to the offspring of the grantee, and although this rule has been for some time past relaxed in construing gifts by will (d), it was until lately strictly enforced in respect of deeds. But now by

(b) S. 1.

(c) S. 2.

(d) Griffiths v. Evan, 2 Beav. 241.

H

Rule in
Shelley's Case.

Incidents of an estate tail.

the Conveyancing Act, 1881 (e), it is provided (ƒ), with reference to deeds executed after the commencement of the Act (g), that it shall be sufficient in the limitation of an estate in tail to use the words "in tail," without the words "heirs of the body;" and in the limitation of an estate in tail male or in tail female, to use the words "in tail male" or "in tail female," as the case may require, without using the words "heirs male of the body" or "heirs female or the body." If an estate, then, is given to a man in tail, or him and the heirs of his body, he will take an estate tail; and the result will be the same if the gift is to him for life, and after his death in tail or to the heirs of his body; for in Shelley's Case (h) it was decided that the words "heirs" or "heirs of the body" only serve, in such a case, to limit or define the extent of the estate which the first grantee is to take. If, however, land is limited to a man for life, and after his death either to "his sons," or to "his daughters," in tail, the sons or daughters will be said to take by purchase (i), and not by inheritance; because they are entitled as being the persons named in the deed of gift, and not as heirs of the body of their father. The result therefore of such a limitation will be that the father will take an estate for life only, whilst the persons to whom the estate is limited after his death will have an estate tail, which will not commence until after the death of the tenant for life.

We shall see, before we conclude this chapter, that a tenant in tail can, at the present day, by a very simple process, convert his estate into one in fee-simple. Both for this reason, and on account of the superior nature of his estate, he can deal with the property in

(e) 40 & 41 Vict. c. 41.

(f) S. 51.

(g) 1st January 1882.

(h) 1 Rep. 93b.

(i) Any person taking an estate otherwise than by operation of law is said in law to be a purchaser.