ESTATE. This word his several meanings: 1. In its most extensive sense, it
is applied to signify every thing of which riches or, fortune may consist
and includes personal and real property; hence we say personal estate, real
estate. 8 Ves. 504. 2. In its more limited sense, the word estate is applied
to lands, It is so applied in two senses. The first describes or points out
the land itself, without ascertaining the extent or nature of the interest
therein; as "my estate at A." The second, which is the proper and technical
meaning of estate, is the degree, quantity, nature and extent of interest
which one has in real property; as, an estate in fee, whether the same be a
fee simple or fee tail; or an estate for life or for years, &c. Lord Coke
says: Estate signifies such inheritance, freehold, term of years, tenancy by
statute merchant, staple, eligit, or the like, as any man hath in lands or
tenements, &c. Co. Lit. Sec. 650, 345 a. See Jones on Land Office Titles in
Penna. 165-170.
2. In Latin, it is called status, because it signifies the condition
or circumstances in which the owner stands with regard to his property..
3. Estates in land may be considered in a fourfold view with regard, 1.
To the quantity of interest which the tenant has in the tenement. 2. To the
time during which that quantity of interest is to be enjoyed. 3. To the
number and connexion of the tenants. 4. To what conditions may be annexed to
the estate.
4.-1. The quantity of interest which the tenant has in his tenement
is measured by its duration and extent. An estate, considered in this point
of view, is said to be an estate of freehold, and an estate less than
freehold.
5.-1. Freehold estates are of inheritance and not of inheritance. An
estate in fee, (q.v.) which is the estate most common in this country, is a
freehold estate of inheritance. Estates of freehold not of inheritance, are
the following:
6.-1st. Estates for life. An estate for life is a freehold interest
in lands, the duration of which is confined to the life or lives of some
particular person or persons, or to the happening or not happening of some
uncertain event.
7. Estates for life are divided into conventional or legal estates. The
first created by the act of the parties, and the second by operation of law.
8.-1. Life estates may be created by express words; as, if A conveys
land to B, for the term of his natural life; or they may arise by
construction of law, as, if A conveys land to B, without specifying the term
or duration, and without words of limitation. In the last case, B cannot
have an estate in fee, according to. the English law, and according to the
law of those parts of the United States which have adopted and not altered
the common law in this particular, but he will take the largest estate which
can possibly arise from the grant, and that is an estate for life. Co. Litt.
42, a. So a conveyance "to I M, and his generation, to endure as long as
the waters of the Delaware should run," passes no more than a life estate. 3
Wash. C. C. Rep. 498. The life estate may be either for a man's own life, or
for the life of another person, and in this last case it is termed an estate
per autre vie. There are some estates for life, which may depend upon future
contingencies, before the death of the person to whom they are granted; for
example, an estate given to a woman dum sola fuerit, or durante viduitate,
or to a man and woman during coverture, or as long as the grantee shall
dwell in a particular house, is determinable upon the happening of the
event. In the same manner, a house usually worth one hundred dollars a year,
may be granted to a person still he shall have received one thousand
dollars; this will be an estate for life, for as the profits are uncertain,
and may rise or fall, no precise time can be fixed for the determination of
the estate. On the contrary, where the time is fixed, although it may extend
far beyond any life, as a term for five hundred years, this does not create
a life estate.
9.-2. The estates for life created by operation of law, are, 1st.
Estates tail after possibility of issue extinct. 2d. Estates by the curtesy.
3d. Dower. 4th. Jointure. Vide Cruise. Dig. tit. 3; 4 Kent, Com. 23; 1
Brown's Civ. Law, 191; 2 Bl. Com. 103. The estate for life is somewhat
similar to the usufruct (q.v.) of the civil law.
10. The incidents to an estate for life, are principally the following:
1. Every tenant for life, unless restrained by covenant or agreement, may of
common right take upon the land demised to him reasonable estovers or
bote's. Co. Litt. 41.
11.-2. The tenant for life, or his representatives, shall not be
prejudiced by any sudden determination of his estate, because such
determination is contingent or uncertain. Co. Litt. 55.
12.-3. Under tenants or lessees of an estate for life, have the same,
and even greater indulgences than the lessors, the original tenants for
life; for when the 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. l Roll. Ab. 727 2 Bl. Com. 122.
13.-2d. Estates by the curtesy. An estate by the curtesy is an estate
for life, created by act of law, which is defined as follows: When a man
marries a woman, seised at any time during the coverture of an estate of
inheritance, in severalty, in coparcenary, or in common, and has issue by
her born alive, and which might by possibility inherit the same estate as
heir to the wife, and the wife dies in the lifetime of the husband, he holds
the lands during, his life by the curtesy of England, and it is immaterial
whether the issue be living at the time of the seisin, or at the death of
the wife, or whether it was born before or after the seisin. Litt. s. 35;
Co. Litt. 29, b; 8 Co. 34. By Act of Assembly of Pennsylvania, the birth of
issue is not necessary, in all cases where the issue, if any, would have
inherited.
14. There are four requisites indispensably necessary to the existence
of this estate: 1. Marriage. 2. Seisin of the wife, which must have been
seisin in deed, and not merely seisin in law; it seems, however, that the
rigid rules of the common law, have been relayed, in this respect, as to
what is sometimes called waste or wild lands. 1 Pet. 505. 3. Issue. 4. Death
of the wife.
15.-1. The marriage must be a lawful marriage; for a void marriage
does not entitle the husband to the curtesy; as if a married man were to
marry a second wife, the first being alive, he would not be entitled to the
curtesy in such second wife's estate. But if the marriage had been merely
voidable, he would be entitled, because no marriage, merely voidable, can be
annulled after the death of the parties. Cruise, Dig. tit. 5, c. 1, s. 6.
16.-2. The seisin of the wife must, according to the English law, be a
seisin in deed; but this strict rule has been somewhat qualified by
circumstances in this country. Where the wife is owner of wild uncultivated
land, not held adversely, she is considered as seised in fact, and the
husband is entitled to his curtesy. 8 John. 262 8 Cranch, 249; 1 Pet. 503 1
Munf. 162 1 Stow. 590. When the wife's state is in reversion or remainder,
the husband is not, in general, entitled to the curtesy, unless the
particular estate is elided during coverture. Perk. s. 457, 464; Co. Litt.
20, a; 3 Dev. R. 270; 1 Sumn. 263; but see 3 Atk. 469; 7 Viner, Ab. 149, pl.
11. The wife's seisin must have been such as to enable her to inherit. 5
Cowen, 74.
17.-3. The issue of the marriage, to entitle the husband to the
curtesy, must possess the following qualifications: 1. Be born alive. 2. In
the lifetime of the mother. 3. Be capable of inheriting the estate.
18.-1st. The issue must be born alive. As to what will be considered
life, see Birth; Death; Life.
19.-2d. The issue must be born in the lifetime of the mother; and if
the child be born after the death of the mother, by the performance of the
Caesarian operation, the husband will not be entitled to the curtesy; as
there was no issue born at the instant of the wife's death, the estate vests
immediately on the wife's death to the child, in ventre sa mere, and the
estate being once vested, it cannot be taken from him. Co. Litt. 29, b.; 8
Co. Rep., 35, a. It is immaterial whether the issue be born before or after
the seisin of the wife. 8 Co. Rep. 35, b.
20.-3d. The issue must be capable of inheriting the estate; When, for
example, lands are given to a woman and the heirs male of her body, and she
has a daughter, this issue will not enable her husband to take his curtesy.
Co. Litt. 29, a.
21.-4th. The death of the wife is requisite to make the estate by the
curtesy complete.
22. This estate is generally prevalent in the United States; in some of
them it has received a modification. In Pennsylvania the right of the
husband takes place although there be no issue of the marriage, in all cases
where the issue, if any, would have inherited. In Vermont, the title by
curtesy has been laid under the equitable restriction of existing only in
the event that the children of the wife entitled to inherit, died within age
and without children in South Carolina, tenancy by the curtesy, eo nomine,
has ceased by the provisions of an act passed in 1791, relative to the
distribution of intestates estates, which gives to the husband surviving his
wife, the same share of her real estate, as she would have taken out of his,
if left a widow, and that is one moiety, or one-third of it in fee,
according to circumstances. In Georgia, tenancy by the curtesy does not
exist, because, since 1785, all marriages vest the real, equally with the
personal estate, in the husband. 4 Kent, Com. 29. In Louisiana, where the
common law has not been adopted in this respect, this estate is unknown.
23. This estate is not peculiar to the English law, as Littleton
erroneously supposes; Litt. s. 35; for it is. to be found, with some
modifications, in the ancient laws of Scotland, Ireland, Normandy and
Germany. In France there were several customs, which gave a somewhat similar
estate to the surviving husband, out of the wife's inheritances. Merlin,
Repert. mots Linotte, et Quarte de Conjoint pauvre.
24.-3d. Estate in dower. Dower is an estate for life which the law
gives the widow in the third part of the lands and tenements, or
hereditaments of which the husband was solely seised, at any time during the
coverture, of an estate in fee or in tail, in possession, and to which
estate in the lands and tenements the issue, if any of such widow, might, by
possibility, have inherited. In Pennsylvania, the sole seisin of the.
husband is not necessary. Watk. Prin. Con. 38; Lit. Sec. 36; Act of Penna.
March 31, 1812.
25. To create a title to the dower, three things are indispensably
requisite: 1. Marriage. This must be a marriage not absolutely void, and
existing at the death of the husband; a wife de facto, whose marriage is
voidable by decree, as well as a wife de jure, is entitled to it; and the
wife shall be endowed, though the marriage be within the age of consent, and
the husband dies within that age. Co. Litt. 33, a; 7 Co. 42; Doct. & Stud.
22; Cruise, Dig. t. 6, c. 2, s, 2, et seq.
26.-2. Seisin. The husband must have been seised, some time during the
coverture, of the estate of which the wife is dowable. Co. Litt. 31, a. An
actual seisin is not indispensable, a seisin in law is sufficient. As to the
effect of a transitory seisin, see 4 Kent, Com. 38; 2 Bl. Com. 132; Co.
Litt. 31, a.
27.-3. Death of the husband. This must be a natural death; though
there are authorities which declare that a civil death shall have the same
effect. Cruise, Dig. tit. 6, ch. 2, Sec. 22. Vide, generally, 8 Vin. Ab.
210; Bac. Ab. Dower; Com. Dig. Dower; Id. App. tit. Dower; 1 Supp. to. Ves.
jr. 173, 189; 2 Id. 49; 1 Vern. R. by Raithby, 218, n. 358, n.; 1 Salk. R.
291; 2 Ves. jr. 572; 5 Ves. 130; Arch. Civ. Pl. 469; 2 Sell. Pr. 200; 4
Kent, Com. 35; Amer. Dig. h.t.; Pothier, Traite du Douaire; 1 Swift's Dig.
85; Perk. 300, et seq.
28.-4th. Estate tail after possibility of issue extinct. By this
awkward, but perhaps necessary periphrasis, justified by Sir William
Blackstone, 2 Com. 124, is meant the estate which is thus described by
Littleton, Sec. 32 when tenements are given to a man and his wife in special
tail, if one of them die without issue, the survivor is tenant in tail after
possibility of issue extinct."
29. This estate though, strictly speaking, not more than an estate for
life, partakes in some circumstances of the nature of an estate tail. For a
tenant in tail after possibility of issue extinct, has eight qualities or
privileges in common with a tenant in tail. 1. He is dispunishable for
waste. 2. He is not compellable to attorn. 3. He shall not have aid of the
person in reversion. 4. Upon his alienation no writ of entry in consimili
casu lies. 5. After his death, no writ of intrusion lies. 6. He may join the
mise in a writ of right in a special manner. 7. In a praecipe brought by him
he shall not name himself tenant for life. 8. In a praecipe brought against
him, he shall not be named barely tenant for life.
30. There are, however, four qualities annexed to this estate, which
prove it to be, in fact, only an estate for life. 1. If this tenant makes a
feoffment in fee, it is a forfeiture. 2. If an estate tail or in fee
descends upon him, the estate tail after possibility of issue extinct is
merged. 3. If he is impleaded and makes default, the person in reversion
shall be received, as upon default of any other tenant for life. 4. An
exchange between this tenant and a bare tenant for life, is good; for, with
respect to duration, their. estates are equal. Cruise, Dig. tit. 4; Tho. Co.
Litt. B. 2, c. 17; Co. Lit. 28, a.
31. Nothing but absolute impossibility of having issue, can give rise to
this estate. Thus if a person gives lands to a man and his, wife, and to the
heirs of their two bodies, and they live to a hundred years, without having
issue, yet they are tenants in tail; for the law' sees no impossibility of
their having issue, until the death of one of them. Co. Litt. 28, a. See
Tenant in tail after possibility of issue extinct.
32.-2. An estate less than freehold is an estate which is not in fee,
nor for life; for although a man has a lease for a thousand years, which is
much longer than any life, yet it is not a freehold, but a mere estate for
years, which is a chattel interest. Estates less than freehold are estates
for years, estates at will, and estates at sufferance.
33.-1. An estate for years, is one which is created by a lease; for
years, which is a contract for the possession and profits of land for a
determinate period, with the recompense of rent; and it is deemed an estate
for years, though the number of years should exceed the ordinary limits of
human life; and it is deemed an estate for years though it be limited to
less than a single year. It is denominated a term, because its duration is
absolutely defined.
34. An estate for life is higher than an estate for years, though the
latter should be for a thousand years. Co. Litt. 46, a; 2 Kent, Com. 278; 1
Brown's Civ. Law, 191; 4 Kent, Com. 85; Cruise's Dig. tit. 8; 4 Rawle's R.
126; 8 Serg. & Rawle, 459; 13 Id. 60; 10 Vin. Ab. 295, 318 to 325.
35.-3. An estate at will is not bounded by any definite limits with
respect to time; but as it originated in mutual agreement, so it depends
upon the concurrence of both parties. As it depends upon the will of both,
the dissent of either may determine it. Such an estate or interest cannot,
consequently, be the subject of conveyance to a stranger, or of transmission
to representatives. Watk. Prin. Con. 1; Litt. Sec. 68.
36. Estates at will have become infrequent under the operation of
judicial decisions. Where no certain term is agreed on, they are now
construed to be tenancies from year to year, and each party is bound to give
reasonable notice of an intention to terminate the estate. When the tenant
holds over by consent given, either expressly or by implication, after the
determination of a lease for years, it is held evidence of a new contract,
without any definite period, and is construed. to. be a tenancy from year to
year. 4 Kent, Com. 210; Cruise, Dig. tit. 9, c. 1.
37.-3. An estate at sufferance. The session of land by lawful title, but
holds over by wrong after the determination of his interest. Co. Litt. 57,
b. He has a bare naked possession, but no estate which he can transfer or
transmit, or which is capable of enlargement by. release, for he stands in
no privity to his landlord.
38. There is a material distinction between the case of a person coming
to an estate by act of the party, and afterwards holding over, and by act of
the law and then holding over. In the first case, he is regarded as a tenant
at sufferance; and in the other, as an intruder, abator, and trespasser. Co.
Litt. 57, b; 2 Inst. 134 Cruise, Dig. t. 9, c. 2 4 Kent, Com. 115 13 Serg. &
Rawle, 60 8 Serg. & Rawle, 459; 4 Rawle, 459; 4 Rawle's R. 126.
39.-II. As to the time of their enjoyment, estates are considered
either in possession, (q.v.) or expectancy. (q.v.) The latter are either
remainders, (q.v.) which are created, by the act of the parties, and these
are vested or contingent, or reversions, (q, v.) created by act of law.
40.-III. An estate way be holden in a variety of ways the most common
of which are, 1. In severalty. 2. In joint tenancy. 3. In common. 4. In
coparcenary. These will be separately considered.
41.-1. An estate in severally, is where only one tenant holds the
estate in his own right, without any other person being joined or connected
with him, in point-of interest, during the continuance of his estate.
42.-2. 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, or at will. 2 Bl. Com. 179. Joint tenants always take by
purchase, and necessarily have equal shares; while tenants in common, also
coparceners, claiming under ancestors in different degrees, may have unequal
shares and the proper and best mode of creating an estate in joint tenancy,
is to limit to A B and C D, and their assigns, if it be an estate for life;
or to A B and C D, and their heirs, if in) fee. Watk. Prin. Con. 86.
43. The creation of the estate depends upon the expression in the deed
or devise, by which the tenants hold, for it must be created by the acts of
the parties, and does not result from the operation of law. Thus, an estate
given to a number of persons, without any restriction or explanation, will
be construed a joint tenancy; for every part of the grant can take effect
only, by considering the estate equal in all, and the union of their names
gives them a name in every respect.
44. The properties of this estate arise from its unities; these are, 1.
Unity of title; the estate must have been created and derived from one and
the same conveyance. 2. There must be a unity of time; the estate must be
created and vested at the same period. 3. There must be a unity of interest;
the estate must be for the same duration, and for the same quantity of
interest. 4. There must be a unity of possession; all the tenants must
possess and enjoy at the same time, for each must have an entire possession
of every parcel, as of the whole. One has not possession of one-half, and
another of the other half, but each has an undivided moiety of the whole,
and not the whole of an undivided moiety.
45. The distinguishing incident of this estate, is the right of
survivorship, or jus accrescendi; at common law, the entire tenancy or
estate, upon the death of any of the joint tenants, went to the survivors,
and so on to the last survivor, who took an estate of inheritance. The right
of survivorship, except, perhaps, in estates held in trust, is abolished in
Pennsylvania, New York, Virginia, Kentucky, Indiana, Missouri, Tennessee,
North and South Carolina, Georgia, and Alabama. Griffith's Register, h.t.
In Connecticut it never was recognized. 1 Root, Rep. 48; 1 Swift's Digest,
102. Joint tenancy may be destroyed by destroying any of its constituent
unities, except that of time. 4 Kent, Com. 359. Vide Cruise, Dig. tit. 18; 1
Swift's Dig. 102; 14 Vin. Ab. 470; Bac. Ab. Joint Tenants, &c.; 3 Saund.
319, n. 4; 1 Vern. 353,; Com. Dig. Estates
by Grant, K 1; 4 Kent, Com. 353; 2 Bl. Com. 181; 1 Litt. see. 304
2 Woodd. Lect. 127; 2 Preston on Abst. 67; 5 Binn. Rep. 18; Joint
tenant; Survivor; Entirety.
46.-3. An estate in common, is one which is held by two or more
persons by unity of possession.
47. They may acquire their estate by purchase, and hold by several and
distinct titles, or by title derived at the same time, by the same deed or
will; or by descent. In this respect the American law differs from the
English common law.
48. This tenancy, according to the common law, is created by deed or
will, or by change of title from joint tenancy or coparcenary; or it arises,
in many cases, by construction of law. Litt. sec. 292, 294, 298, 302; 2 Bl.
Com. 192; 2 Prest. on Abstr. 75.
49. In this country it maybe created by descent, as well as by deed or
will. 4 Kent, Com. 363. Vide Cruise, Dig. tit. 20 Com. Dig. Estates by
Grant, K 8.
50. Estates in common can be dissolved in two ways only; first, by
uniting all the titles and interests in one tenant secondly, by making
partition.
51.-4. An estate in coparcenary, is an estate of inheritance in lands
which descend from the ancestor to two or more persons who are called
coparceners or parceners.
52. This is usually applied, in England, to cases where lands descend to
females, when there are no male heirs.
53. As in the several states, estates generally descend to all the
children equally, there is no substantial difference between coparceners and
tenants in common. The title inherited by more persons than one, is, in some
of the states, expressly declared to be a tenancy in common, as in New York
and New Jersey, and where it is not so declared the effect is the same; the
technical distinction between coparcenary and estates in common may be
considered as essentially extinguished in the United States. 4 Kent, Com.
363. Vide Estates.
54.-IV. An estate upon condition is one which has a qualification
annexed to it by which it may, upon the happening or not happening of a
particular event, be created, or enlarged, or destroyed. Conditions may be
annexed to estates in fee, for life, or for years. These estates are divided
into estates upon condition express, or in deed; and upon conditions
implied, or in law.
55. Estates upon express conditions are particularly mentioned 'in the
contract between the parties., Litt. s. 225; 4 Kent, Com. 117; Cruise, Dig.
tit. 13.
56. Estates upon condition in law are such as have a condition impliedly
annexed to them, without any condition being specified in the deed or will.
Litt. s. 378, 380; Co. Litt. 215, b; 233, b; 234, b.
57. Considered as to the title which may be had in them, estates are
legal and equitable. 1. A legal estate is one, the right to which can be
enforced in a court of law. 2. An equitable, is a right or interest in land,
which not having the properties of a legal estate, but being merely a right
of which courts of equity will take notice, require the aid of such a court
to, make it available. See, generally, Bouv. Inst. Index, h.t.
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