By the ancient law, a freehold interest conferred upon the owner a variety of valuable rights and privileges. He became a suitor of the courts, and the judge in the capacity of a juror; he was entitled to vote for members of parliament, and to defend his title to the land; as owner of the immediate freehold, he was a necessary tenant to the præcipe in a real action, and he had a right to call in the aid of the reversioner or remainder-man, when the inheritance was demanded. These rights gave him importance and dignity as a freeholder and freeman. (a)

Estates for life are divided into conventional and legal estates. The first are created by the act of the parties, and the second by operation of law.

(1.) Estates for life, by the agreement of the parties, were, at common law, freehold estates of a feudal nature, inasmuch as they were conferred by the same forms and solemnity as estates in fee, and were held by fealty, and the conventional services agreed on between the lord and tenant. (b) Sir Henry Spelman (c) endeavored to show that the English law took no notice of feuds until they became hereditary at the Norman Conquest; and that fealty, as well as the other feudal incidents, were consequences of the perpetuity of fiefs, and did not belong to estates for years, or for life. The question has now become wholly immaterial in this country, where every real vestige of tenure is annihilated, and the doubt, whether fealty was not, in this state, an obligation * 25 upon a tenant for life, has been completely removed, in New York, by the act declaring all estates to be allodial. (a) But, considering it as a point connected with the history of our law, it may be observed, that the better opinion would seem to be, that fealty was one of the original incidents of feuds when they were for life. It was as necessary in the life estate as in a fee, and it was in accordance with the spirit of the whole feudal association, that the vassal, on admission to the protection of his lord, and the honors of a feudal investiture, should make an acknowledgment of his submission, with an assurance of service and fidelity. The rights of

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(a) Sullivan's Lectures on Laws of England, lec. 6. Preston on Estates, vol. i. 206-210.

(b) Wright on Tenures, 190.

(c) Treatise of Feuds and Tenures, c. 3.

(a) New York Revised Statutes, vol. i. 718, sec. 3.

the feudal investiture were exceedingly solemn, and implied protection and reverence, beneficence and loyalty. (b)

Life estates may be created by express words, as if A. conveys lands 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 of duration, and without words of limitation. In this last case, B. cannot have an estate in fec, according to the English law, and according to the law of those parts of the United States which have 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. (c) The life estate may be either for a * 26 man's own life, or for the life of another person, * and in this last case it is termed an estate pur autre vie, which is the lowest species of fieehold, and esteemed of less value than an estate for one's own life. The law in this respect has proceeded upon known principles of human nature; for, in the ordinary opinion of mankind, as well as in the language of Lord Coke, "an estate for a man's own life is higher than for another man's." A third branch of life estates may also be added, and that is, an estate for the term of the tenant's own life, and the life of one or more third perIn this case, the tenant for life has but one freehold limited to his own life, and the life of the other party or parties. (a)

sons.

These estates may be made to depend upon a contingency, which can happen, and determine the estate before the death of the grantee. Thus, if an estate be given to a woman dum sola, or durante viduitate, or to a person so long as he shall dwell in a particular place, or for any other intermediate period, as a grant of an

(b) See Lib. Feud. lib. 1, tit. 1, and lib. 2, tit. 5, 6, 7, where the vassal for life is termed fidelis, and every vassal was bound by oath to his lord, quod sibi erit fidelis, ad ultimum diem, vitæ, contra omnem hominem, excepto rege, et quod credentiam sibi commissam non manifestabit. Doctor Gilbert Stuart, in his Diss. on Eng. Const. 87, 88, was of the same opinion; and he explored feudal antiquities with a keen spirit of research, sharpened by controversy. His work is deserving of the study of the legal antiquarian, if for no other purpose, yet for the sagacity and elegance with which he comments upon the sketches of barbarian manners, as they remain embodied in the clear and unadorned pages of Cæsar, and the nervous and profound text of Tacitus. (c) Co. Litt. 42, a.

(*) Co. Litt. 41, b. There are several subtle distinctions in the books, growing out of this topic, whereof students, according to Lord Coke, "may disport themselves for a time;" and Mr. Ram has endeavored to do so, in a puzzling note to his recent Outline of the Law of Tenure and Tenancy, 33.

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estate to a man until he shall have received a given sum out of the rents and profits; in all these cases, the grantee takes an estate for life, but one that is determinable upon the happening of the event on which the contingency depended. (b) If the tenant for the life of B. died in the lifetime of B., the estate was opened to any general occupant during the life of B.; but if the grant was to A. and his heirs during the life of B., the heir took it as a special occupant. The statute of 29 Charles II. c. 3, made such an interest devisable, and if not devised, the heir was made chargeable with the estate as assets by descent, and it speaks of him as a special occupant. The statute of 14 Geo. II. c. 20, went further, and provided, that if there was no such special occupant named, and the land be not devised, it was to go in a course of administration as personal estate. This peculiar estate pur autre vie, has been frequently termed a descendible freehold, but it is not an estate of inheritance, and perhaps, strictly speaking, it is not a descendible freehold, in England, for the heir does not take by descent. It is a freehold interest sub modo, or for certain purposes, though in other respects it partakes of the nature of personal estate. (a)1 In New York, an estate pur autre vie, whether limited to heirs or otherwise, is deemed a freehold only during the life of the grantee or devisee, and after his death it is deemed a chattel real. (b) The interest of every occupant, general or special, is, therefore, in New York, totally annihilated; but the statute provisions in other states vary considerably upon this subject. In New Jersey, the act of 1795 is the same as that in New York; but Virginia and North Carolina follow in the footsteps of the English statutes, and leave a scintilla of interest, in certain events, in the heir as a special occupant. (c)

(b) Bracton, lib. 4, c. 28, sec. 1. Co. Litt. 42, a. The People v. Gillis, 24 Wendell, 201.

(a) Lord Kenyon, in Doe v. Luxton, 6 Term Rep. 289. By the statute of 1 Victoria, ch. 26, estates pur autre vie, if not devised, were to be chargeable in the hands of the heir, as assets by descent; and if there be no special occupant, they were to go as already provided.

(b) N. Y. Revised Statutes, vol. i. 722, sec. 6.

(c) Revised Code of Virginia, vol. i. 233. Revised Statutes of North Carolina, vol. i. 278. In Maryland, estates pur autre vie, except those granted to the deccased and heirs only, are considered as assets in the hands of the executor or administrator. Act of 1798, ch. 101. Dorsey's Testamentary Law of Maryland, 88.

In Massachusetts and Vermont, on the death of the tenant pur autre vie, without having devised the same, the estate descends to his lawful representatives, like estates in fee-simple. (d) In many other states, the real and personal estates, and all interest therein, go in the same course of distribution.

(2.) Tenancy by the courtesy is an estate for life, created by the act of the law. 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 hath issue by her born alive,2 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 land during his life, by the courtesy of England; and it

is immaterial whether the issue be living at the time of the *28 seisin, * or at the death of the wife, or whether it was born before or after the seisin. (a)

This estate is not peculiar to the English law, as Littleton erroneously supposes, (b) for it is to be found with some modifications, in the ancient laws of Scotland, Ireland, Normandy, and Germany. (c) Sir Martin Wright is of opinion, that courtesy was not of feudal origin, for it is laid down expressly in the book of feuds, (d) that the husband did not succeed to the feud of the wife, without a special investure; and he adopts the opinion of Craig, who says, that courtesy was granted out of respect to the former marriage, and to save the husband from falling into poverty; and he deduces courtesy from one of the rescripts of the Emperor Constantine. (e) But whatever may have been the origin of this

(d) Revised Statutes of Massachusetts, 413. Revised Statutes of Vermont, 292. (a) Litt. secs. 35, 53. Co. Litt. 29, b. Paine's Case, 8 Co. 34. If the issue take as purchasers, the husband is not entitled to take by the courtesy, as where there was a devise to the wife and her heirs, but if she died leaving issue, then to such issue and their heirs. Barker v. Barker, 2 Sim. 249.

(b) Litt. sec. 35.

(c) Co. Litt. 30, a. Wright on Tenures, 193. 2 Blacks. Comm. 126. In Normandy, according to The Coutumier, c. 119, the courtesy lasted only during the widowhood of the husband.

(d) Feud. lib. i. tit. 15; lib. 2, tit. 13.

(e) Wright on Tenures, 194. Craig's Jus Feudale, lib. 2. Dieg. 22, sec. 40.

2 During the life of the mother. 2 Blacks. Comm. 128. Marsellis v. Thalhimer, 2 Paige, 35.

3 When the wife's estate is so limited over, that her children take at her death as pur chasers, the husband has no right of courtesy. Janney v. Sprigg, 7 Gill, 197.

title, it was clearly and distinctly established in the English law, in the time of Glanville; and it was described by Bracton, and especially in a writ, in 11 Hen. III., with the fulness and precision of the law of definitions at the present day. (f) Though the extent of it, as against the adult heir of the wife, may be justly complained of, yet it is remarkable that courtesy has continued unimpaired in England and Scotland, (g) and it *29 remains almost entirely unshaken in our American jurisprudence.1

South Carolina is an exception, for in that state tenancy by the courtesy eo nomine, has ceased by the provision of an act 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 either one moiety or one third of it, in fee, according to circumstances. In Georgia, also, tenancy by courtesy does not exist; but all marriages, since 1785, vest the real equally with the personal estate of the wife in the husband.

Four things are requisite to an estate by the courtesy, viz: marriage, actual seisin of the wife, issue, and death of the wife. The law vests the estate in the husband immediately on the death

(ƒ) Glanville, lib. 7, c. 18. Bracton, lib. 5, c. 30, sec. 7. Hale's Hist. Com. Law, c. 9. In the form of the writ given by Sir Matthew Hale, in which Henry III. directs the English laws to be observed in Ireland, tenancy by the courtesy is stated, even at that time, to be consuetudo et lex Angliæ; and The Mirror, c. 1, sec. 3, says, that this title was granted of the courtesy of King Henry I.

(g) In Scotland, there is this variation in the courtesy from that in England, that the wife must have been seised of the estate as heir, and not have acquired it by purchase, though it is admitted there is no good reason for the distinction. Bell's Com. vol. i. 5th edit. 61.

1 But courtesy is now abolished in Indiana, Iowa, and California, and other provisions made. Revised Statutes of Indiana, 1852, vol. ii. p. 250, 251. Code of Iowa, 1851, p. 215, sec. 1421. California Compiled Laws, 1853, p. 813. As to the provision in Maine, see Revised Statutes, 1857, ch. 103, sec. 17. Courtesy is not abolished in New York by the Married Woman's Acts of 1848 and 1849. By those statutes the wife may devise, if she choose; but, if she do not devise, the husband is entitled to his courtesy. Clark v. Clark, 24 Barb. (N. Y.) 581. But by Laws of 1860, ch. 90, (p. 159,) courtesy would seem to be, in certain specified cases, abolished. The act provides that at the decease of husband or wife leaving no minor child or children, the survivor shall have a life estate of one third of all the real estate whereof the husband or wife died seised, and at the decease of the husband or wife intestate leaving minor child or children, the survivor shall have the income of all the real estate whereof the intestate died seised during the minority of the youngest child, and one third during his or her