Page:The American Cyclopædia (1879) Volume VI.djvu/750

 738 ESTATE self had, but would be defeated by a breach of the condition. If this would be inconsistent with the nature of the estate, the restriction would, it may be presumed, be void under the statutory rule which has been adopted in the state of New York, whereby the power of alienation cannot be suspended by any limita- tion or condition whatever for a longer period than two lives in being at the creation of the estate. II. An estate for life may be either by express grant or by operation of law. Of the latter kind are dower and curtesy, the re- spective interests of the wife and husband, each in the lands of the other, in case of sur- vivorship. Estates for life as well as inheri- tance are included in the common denomination of freehold (liberum tenementum) ; which term seems to have been derived from the ancient mode of conveyance, which was by livery of seisin, that is, delivery of possession according to the form of feudal investiture. Other estates which were of an inferior nature could be trans- ferred without this formality. It was chiefly as a distinction from copyhold estates that the term was used. The copyhold was originally an estate at the mere will of the lord, but be- came established by prescription, the evidence of which was in the rolls of the courts baron, whence the estate was said to be held by copy of court roll ; and although it thus became in- dependent of the will of the lord, it was still deemed a base tenure, and the form of convey- ance was by surrender to the lord, and a new grant by him to the alienee, admitting him to be tenant of the copyhold upon the same terms by which the estate had been formerly held. An estate for life may be either for the life of the tenant himself or of another person. The latter is usually designated as an estate par autre vie. III. Estates less than freehold are for a term of years, or at will, or by sufferance. The first is for a definite period ; but whatever may be the length of the period, even if it should be a thousand years, it is still inferior to a freehold, and is classed in law with chattel interests. Thus, on the death of a tenant, his lease is included with the personal property to be administered as assets, instead of going to the heir. An estate at will was when lands were occupied by the tenant with consent of the landlord, but without any agreement as to the time the tenant shall be permitted to re- main. It can hardly be said to exist at pres- ent, as the courts now hold a tenancy where no certain term is agreed upon to be from year to year, and reasonable notice must be given of the intention to terminate it. The circumstance that distinguishes the two kinds of tenancy is the reservation of a certain rent, which may be either by express agreement, or by implica- tion from the receipt of rent. If a certain rent is payable, it constitutes an estate from year to year ; but if neither rent nor time of oc- cupation is Specified, it is a tenancy at will. An estate by sufferance is where the tenant has been in possession by lawful title, but wrong- fully holds over after the determination of his interest. In such a case the tenant holds by the mere laches of the landlord, and is subject to being turned out by summary proceedings. But any act of the landlord affirming the wrongful holding, as receipt of rent, would convert the naked occupancy into a tenancy from year to year, and is then determinate only at the end of the year. The English statute of frauds (29 Charles II.), which has been gen- erally reenacted in the United States, requires leases for a term of more than one year to be in writing ; and in the state of New York and many other states a lease for a term exceeding three years must be recorded, or it will be in- operative against subsequent lona, fide pur- chasers. Another distinction in the nature of estates has reference to the time when the right is reducible to possession. The right may exist prospectively, and it is then termed an estate in expectancy. It is of two kinds : one created by the act of parties, and called a remainder; the other by operation of law, and called a re- version. An estate in remainder is what re- mains after a particular estate, either for years or life, to take effect in possession immediately after such estate, and must be created at the same time, though limited to commence in pos- session at a future time. Thus if a life estate be granted to A, with remainder to B for life, and remainder to C in fee, here are two re- mainders to commence in future, and the whole property constitutes but one estate. Yet in ordinary phraseology, where there is but one remainder including the whole residue of the estate, the fee is said to be in the person to whom such limitation is made. An estate in reversion is the residue of an estate left in the grantor or his heirs or in the heirs of a testator after the determination of a particular estate granted or devised. The estate reverts by op- eration of law, and a reservation to the grantor by the deed would have no effect, being only what the law itself prescribes. A contingent remainder is when the limitation depends upon a contingency which is uncertain or may not occur till after the determination of the partic- ular estate ; though it is held that such contin- gency must not be a remote possibility, as if the limitation should be to the heirs of a child not yet born. A single illustration of this kind of estate will be sufficient. If a grant be made to A for life, with remainder to the heirs of B, and B should survive A, inasmuch as he cannot have heirs while living, the remainder would fail ; but if the limitation be to A and B du- ring their joint lives, with remainder to the survivor, here the remainder will take effect, though it is uncertain as to the person who will have the benefit of it. An executory de- vise is a disposition of an estate by will which would not be valid if made by deed, as a lim- itation of a contingent remainder. The dis- tinction is that the remainder must take effect immediately upon the determination of the par- ticular estate or not at all ; whereas an execu-