Grey v. R. 292. the estate is held, and the grantee takes the absolute property, which he may dispose of by deed. 12. A lease for three lives was devised to trustees, cited, 6 Term in trust for B. for life, remainder to F. for life, remainder to her first and other sons in tail, with limitations over. B. died. Sir F. Mannock, who was the first son of F. in the lifetime of his mother, then in possession, did by fine sur concessit, and deed of uses, limit the estate to himself and his heirs. Blake v. Upon his mother's death he entered, surrendered the subsisting lease, and took a new one for fresh lives. Subsequent to this he made his will, and devised his estate to his wife, who contracted for the sale of it. The purchaser having some doubt whether the limitations were well barred, a bill was brought for performance of the contract. Lord Nottingham said, this was a descendible freehold, not intailable within the statute De Donis; therefore no common recovery could be suffered of it. But the person who would have been tenant in tail, had it been an inheritance, was entitled to the absolute ownership; as, at common law, the conditional fee became absolute by the parties having issue. Decreed performance of the contract. 13. R. Blake devised a lease for three lives to trus3P. Wms. 10. tees, in trust for his son R. Blake, and the heirs male of his body; and in case he should die without issue, then for the plaintiff, his other son, in like manner. R. Blake the son surrendered the old lease, and took a new one for three lives, to him and his heirs. R. Blake the son died without issue, having by his will disposed of the lease. A bill was filed by his second son to have the benefit of the new lease; insisting that the surrender of the old lease, and the taking of the new one, were not sufficient to bar the limitation to the second son; and that those claiming under R. Blake the son ought to be declared trustees of the new lease, for the plaintiff. The Court of Exchequer was of opinion that R. Blake the son being tenant in tail, a court of equity could not have called upon him to have declared such a trust in his lifetime; that there was no stronger equity against his representatives; and dismissed the bill. 14. This doctrine was fully confirmed by Lord Kenyon in a modern case, who also inclined to the opinion that a person having an estate of this kind might dispose of it by will. Lord Redesdale has said. he could find no decision that at all warrants Lord Kenyon's dictum : that he found from his note of the case of Blake v. Blake, that though the estate was devised; the argument did not turn on the will, nobody conceiving that the estate would pass by it, if the quasi estate tail subsisted at the death of the testator. 1 Cox's Rep. 266. Cooper's R. 178. Doe v. Luxton, 6 Term R. 291. Rep. in V. 1. p. 294. Subject to 15. An estate for life is subject to merge in the inheritance; therefore, whenever the tenant for life acquires the absolute property or inheritance of the Inst. 338 b lands, his estate becomes merged or drowned in the fee simple. 16. An estate pour auter vie will also merge in an Dyer, 10 b. estate for a man's own life; the latter being most 11 Rep. 83 b. valuable. Thus, if an estate be limited to a person for the life of another, remainder to himself for his own life, the first estate is merged. 17. Every tenant for life is entitled to estovers; that is, to allowance of necessary wood, which he may take upon the land, without any assignment, unless * This must be a mistake; he was quasi tenant in tail. Tenants for to Estovers. Gloss. 1 Inst. 41 b. 13 Rep. 68. Dyer 19 b. pl. 115. Hob. 173. Inst. 53 b. 54 b. Vin. Ab. Waste, M. Gorges v. Stanfield, Cro. Eliz. 593. he is restrained by special covenants: for modus et conventio vincunt legem; but affirmative covenants do not restrain. 18. Sir Henry Spelman says the word estovers, estoverium, is derived from the French word estoffe, material it is used in this sense in the statute Westm. 2. c. 25. which gives an assise of novel disseisin de estoveriis bosci. There are three kinds of estovers, or botes, as it is called in the old Saxon dialect; namely house bote, which is two-fold, estoverium ardendi et ædificandi; plough bote, estoverium arandi; lastly, hay bote, estoverium claudendi. 19. It was resolved in 28 Hen. VIII. that where a lessor covenanted with a lessee that he should have thorns for hedges, by the assignment of the lessor's bailiff, the lessee might cut thorns without assignment; for what the law gives by implication in the lease, that he may take without assignment. Otherwise, where the lessee covenants negatively, that he will not take without assignment. 20. It is laid down by Lord Coke, that tenants for life may cut down timber trees, at seasonable times, for the reparation of houses or fences; but a tenant for life cannot cut down timber to build new houses, or to repair those that he himself has improperly suffered to fall into decay. 21. Where a tenant for life cuts down more timber than is necessary, it is waste, though he assert that he cut down the timber to employ it in future reparations. 22. In an action of waste, for cutting down 300 oaks, the defendant, as to 200 of them, pleaded that the houses let to him were ruinous, &c. and that he cut them down to repair those houses; as to the residue, that he cut them down, and kept them to be used in reparations, tempore opportuno, &c. The plaintiff demurred in law, but the court held it no plea; for if it should, every farmer might cut down all the trees growing on the land, when there was not any necessity of reparations. As to waste by tenants for life, it will be treated of in the next chapter. 23. Where a tenant for life dies before harvest time, his executors will be entitled to the crops then growing on the lands, as a return for the labour and expence of tilling the ground; which the law calls emblements. 24. This rule extends to every case in which the estate for life determines by the act of God, or the act of the law; but not where it is determined by the act of the tenant. Thus, if a woman who holds lands durante viduitate, which is an estate for life, sows them, and afterwards marries, she will not be entitled to emblements; because her estate determined by her own act. And to Emblements. Oland's Case, 5 Rep. 116 a 25. If an estate be made to a husband and wife Idem. during coverture, and the husband sows the lands, and afterwards they are divorced, causa præcontractus, the husband will be entitled to emblements. For although the suit is the act of the party, yet the sentence which dissolves the marriage is the judgement of the law; et judicium redditur in invitum. 26. If A., seised in fee of land, sows it with grain, Hob. 132. and after grants it to B. for life, remainder to C. B. dies before severance, C. shall have the corn, and not the executors of B.; for the reason of industry and charge is wanting. 27. The word emblements only extends to such 1 Inst. 55 b. vegetables as yield an annual profit; so that if a Latham v. May pray in Act. 60. person who is tenant for life plants fruit trees, or oaks, ashes, elms, &c. or sows the ground with acorns, his executors will not be entitled to them. But if a tenant for life dies in August, before severance of the hops, his executors shall have them, though growing on antient roots. 28. In all real actions a tenant for life may pray in Booth's Real aid, or call for the assistance of the person entitled to the inheritance, to defend his title; because the tenant for life is not generally supposed to have in his custody the evidences necessary to establish the right to the inheritance. Not bound to pay off Incumbrances. 1 Bro. R. 208. 218. 1 Ves. Jun. 233. But must keep down the Interest. Tracy v. Hereford, 2 Bro. R. 128. May alien their Estates. 29. A tenant for life is not subject to the payment of any principal sums charged on the inheritance; therefore, where a tenant for life pays off an incumbrance charged on the inheritance, he becomes a creditor on the estate for the sum so paid. For otherwise he must be supposed to have paid it for the benefit of the persons entitled to the inheritance. But if a tenant for life does any act which shews an intention of paying off the charge for the benefit of the inheritance, he will not in that case be deemed a creditor. 30. Tenants for life are, however, bound to keep down the interest of all incumbrances affecting the inheritance. And it has been lately determined, that the rents and profits of an estate for life must be applied, not only in payment of all interest due during the possession of the tenant for life, but also of all interest due before the commencement of that estate. 31. Every tenant for life has a right to the full use and enjoyment of the land, and of all its annual profits, during the continuance of his estate. He has also a power of alienating his whole estate and |