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CHAPTER IV.

OF AN ESTATE FOR LIFE.

HAVING thus discussed estates less than freehold, we will now ascend to the next stage, and consider those estates which are of a freehold nature, first pausing to remind the reader that there is a distinction between freehold estates and estates in land of freehold tenure. For there may be a freehold estate (i.e., one for life or in fee) in copyholds, which are estates of a base, and not of a freehold, tenure. Freehold estates may be classed under the two principal headings of-1st, Freeholds of inheritance, or estates in fee-simple and in fee-tail; and 2nd, Freeholds not of inheritance, or estates for life. It is proposed in this chapter to notice the chief points relating to estates for life.

These are of two kinds, namely, those which are Estate for life conventional, or expressly created by act of parties; and those which are legal, or created only by construction and operation of law (a). The former are the more usual, and exist when a man has an estate in land which is to last for the term of his own life, or for that of another, or for the lives of two or more persons, of whom he may or may not be one.

Such an estate may be created by any person, not By whom it under disability, who has an estate of freehold. But may be created, a tenant for years, however long his term may be, cannot create an estate for life; because, having only a chattel interest, he cannot out of it create that which the law considers a greater interest than his

(a) 2 Bl. Com. 120.

Corporations. own. We have already seen that corporations may,

Infants.

18 & 19 Vict.

c. 43.

Mode of creating an estate for life.

By operation

of law.

Estate in
Dower.

to a certain extent, create estates for life (b), and we have to add that an infant may also create such an estate under special circumstances.

For it is enacted by the 18 & 19 Vict., c. 43, that from and after the passing of the Act (c), it shall be lawful for every male infant not under the age of twenty years, and for every female infant not under the age of seventeen years (d), upon or in contemplation of his or her marriage, to make (e), with the sanction of the Court of Chancery, a valid settlement of all or any part of his or her property, or of property over which he or she has any power of appointment. By means of such a settlement, then, an infant may create an estate for life, but the Act goes on to provide (f) that any appointment or disentailing assurance executed under the provisions of the Act by an infant who is a tenant in tail, shall be void if the infant afterwards dies before attaining the age of twenty-one years.

An estate for life may be created (1) by operation of law, (2) by deed, or (3) by will. The estates for life which are created by the first-named process are— Ist, Estates in Dower; 2nd, Estates by Curtesy; and 3rd, Tenancy in tail after possibility of issue extinct. An Estate in Dower is that which a widow may have, during her lifetime, in hereditaments of which her husband was tenant for an estate of inheritance. It will be necessary to explain this subject somewhat fully, and since the former law relating to dower was materially altered by the Dower Act (g) now in force,

(b) 32 Hen. VIII. c. 28; 5 Geo. III. c. 17; 5 & 6 Vict. c. 108; 45 & 46 Vict. c. 50.

(c) 2nd July 1855.

(d) S. 4.

(e) S. 1.

(f) S. 2.

(g) 3 & 4 Wm. IV. c. 105.

(which applies only to women who were married after the 1st of January 1834), we will explain how the law stood before the passing of that statute.

dower.

Under the old law, a widow was deemed to be Former law of entitled to an estate for life in one-third part of all hereditaments, corporeal or incorporeal, of which her husband, at any time during the coverture, had had the sole legal possession for an estate in fee-simple or in fee-tail, and which any of her issue, actual or possible, was capable of inheriting. Of the right to this estate she could not be deprived, after her marriage, by any alienation or disposition which her husband might make of the hereditaments in question, unless she formally assented thereto and expressly released her right to dower. If before her marriage she, or her guardian for her (h), if she were an infant, accepted a jointure (that is, a competent livelihood of freehold for her life of lands, to take effect in possession immediately on her husband's death (i),) then she was, under the Statute of Uses (), deprived of her right to dower. She would also have been restrained by the Court of Chancery from claiming dower if the provision thus made for her were sufficient, although it might not have come out of property strictly within the terms of the statute (k). She could not be deprived of her dower by any jointure made for her after her marriage, but she would, in such a case, have been compelled to give up either her dower or her jointure. If, however, nothing had been done which barred her dower, her right to it was paramount to the claims of all purchasers, incumbrancers, or creditors, from or of her husband.

The widow herself was not entitled to take posses

(h) Drury v. Buckingham, 3 Bro. P. C. 492.

(i) Co. Litt. 36b.

(j) 27 Hen. VIII. c. 10, s. 6.

(k) Williams v. Chitty, 3 Ves. 545; Co. Litt. 36b, note B.; Vizard v. Longdale, cited 3 Atk. 8; Garthshore v. Ghalie, 10 Ves. 1.

sion of any land for her dower, but it was the duty of the heir to assign one-third of her husband's lands for that purpose; if he neglected to do so, or made an unfair assignment, she was entitled to a writ of dower, in pursuance of which the lands out of which her dower was to be derived would be marked out by the sheriff of the county in which they lay. If any dower was to come out of incorporeal hereditaments, she was entitled to receive one-third of the profits derived from them.

She could also claim arrears of dower which had become due, either from neglect in paying her or in consequence of no land having been assigned for her benefit. At one time there was no limit, either at law or in equity (), to the amount which might be so claimed, but her rights in this respect were afterwards limited to six years' arrears of dower (m).

The former law of dower was not open to much objection in the days when the alienation of land was prohibited, but afterwards it became a source of very serious inconvenience. The Court of Chancery did indeed permit a purchaser of land to protect himself against the dower of the vendor's wife, if he could manage to procure the assignment to a trustee for himself of one of those long terms of which we spoke in the last chapter. He could also prevent his own wife's right to dower from fastening upon land which he purchased, by framing the conveyance of it to himself in a manner which need not be particularised here, further than to say that, by means of the intervention of a life estate, given to a trustee for the purchaser, the latter did not take a legal estate of inheritance in possession in the lands, in the absence of which, as we have seen, his widow had no claim to dower.

A man

(1) Oliver v. Richardson, 9 Ves. 222.
(m) 3 & 4 Wm. IV. c. 27, s. 41.

might also coerce his widow into relinquishing her dower, by making some provision for her in his will conditional on her doing so. Practically, therefore, the widow's claim to dower was in most instances evaded, though not without considerable expense and some risk, and the Legislature consequently decided to make a sweeping change in the law.

This was effected by the Dower Act (n), which Dower Act. applies, as we said, to all women who were married after the 1st of January 1834 (0). The Act (p) gives every widow to whom it applies a right to dower not merely out of all legal, but also out of all equitable, or partly equitable and partly legal, estates of inheritance in possession (other than estates in joint tenancy) to which her husband was beneficially entitled at the time of his death, or which (9) he had a right to enter upon. The Act in this respect applies as well where the parties were married before as after its passing (r). It also affirmed by fresh enactment what had been the law previously, namely, that (s) no gift made by a husband to his widow by will of personal estate or of any of his land not liable to dower should defeat or prejudice her right to dower, unless a contrary intention were declared by the will. But the other sections of the Act render the widow's dower very precarious, and entirely dependent upon the pleasure of her husband. For it is enacted that (t) no widow shall be entitled to dower out of any "land" (a term which in the Act extends to all hereditaments liable to dower, corporeal or incorporeal, and to any share thereof (u),) which shall have been absolutely disposed of by her

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