down houfes, or the like, without being impeached, or called to account, for the fame. 2. That the wife of the tenant in tail fhall have her dower, or thirds, of the eftatetail. 3. That the husband of a female tenant in tail may be tenant by the curtefy of the eftate-tail. 4. That an estate-tail may be barred, or destroyed by a fine, by a common recovery, or by lineal warranty defcending with affets to the heir. All which will hereafter be explained at large. THUS much for the nature of estates-tail: the establishment of which family law (as it is properly ftiled by Pigott ) occafioned infinite difficulties and difputes". Children grew difobedient when they knew they could not be fet afide: farmers were oufted of their leafes made by tenants in tail; for, if fuch leafes had been valid, then under colour of long leafes the iffue might have been virtually disinherited: creditors were defrauded of their debts; for, if tenant in tail could have charged his eftate with their payment, he might alfo have defeated his iffue, by mortgaging it for as much as it was worth innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; of fuits in confequence of which our antient books are full: and treafons were encouraged; as eftates-tail were not liable to forfeiture, longer than for the tenant's life. So that they were juftly branded, as the fource of new contentions, and mischiefs unknown to the common law; and almost univerfally confidered as the common grievance of the realm1. But as the nobility were always fond of this ftatute, because it preferved their family eftates from forfeiture, there was little hope of procuring a repeal by the legislature; and therefore, by the connivance of an active and politic prince, a method was devised to evade it. ABOUT two hundred years intervened between the making of the ftatute de donis, and the application of common recoveries to this intent, in the twelfth year of Edward IV; which were then openly declared by the judges to be a fuffi i Co. Litt. 19. Moor. 156. 10 Rep. cient bar of an eftate-tail *. For though the courts had, fo long before as the reign of Edward III, very frequently hinted their opinion that a bar might be effected upon these principles, yet it never was carried into execution; till Edward IV obferving (in the difputes between the houses of York and Lancaster) how little effect attainders for treason had on families, whofe eftates were protected by the fanctuary of entails, gave his countenance to this proceeding, and fuffered Taltarum's cafe to be brought before the court": wherein, in confequence of the principles then laid down, it was in effect determined, that a common recovery fuffered by tenant in tail should be an effectual deftruction thereof. What common recoveries are, both in their nature and confequences, and why they are allowed to be a bar to the eftate tail, must be reserved to a subsequent inquiry. At present I fhall only fay, that they are fictitious proceedings, introduced by a kind of pia fraus, to elude the ftatute de donis, which was found fo intolerably mifchievous, and which yet one branch of the legiflature would not then confent to repeal and, that these recoveries, however clandeftinely introduced, are now become by long use and acquiefcence a most common affurance of lands; and are looked upon as the legal mode of conveyance, by which tenant in tail may dispofe of his lands and tenements: fo that no court will suffer them to be fhaken or reflected on, and even acts of parliament have by a fidewind countenanced and established them. THIS expedient having greatly abridged eftates-tail with regard to their duration, others were foon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treafon. For, notwithstanding the large advances made by recoveries, in the compafs of about threefcore years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them frequently re k 1 Rep. 131. 6 Rep. 40. 1 10 Rep. 37, 38. m Pigott. 8. • 11 Hen. VII. c. 20. 7 Hen. VIII. c. 4. 34 & 35 Hen. VIII. c. 20. 14 Eliz. c. 8. 4 & 5 Ann. c. 16. Year book. 12 Edw. IV. 14. 19. Fitzh. Abr. tit faux recov. 20 Bro. Abr. 14 Geo. II. c. 20. ibid.30. tit.r.co.in value. 19.tit.tailez6. H 3 fettled fettled in a fimilar manner to fuit the convenience of families, had addrefs enough to procure a statute P, whereby all eftates of inheritance (under which general words estates-tail wère covertly included) are declared to be forfeited to the king upon any conviction of high treason. THE next attack which they fuffered in order of time, was by the ftatute 32 Hen. VIII. c. 28. whereby certain leafes made by tenants in tail, which do not tend to the prejudice of the iffue, were allowed to be, good in law, and to bind the issue in tail. But they received a more violent blow, in the fame feffion of parliament, by the conftruction put upon the statute of fines 9, by the ftatute 32 Hen. VIII. c. 36. which declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other persons, claiming under fuch entail. This was evidently agreeable to the intention of Henry VII, whofe policy it was (before common recoveries had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the oppofite reafons, were not easily brought to confent to such a provision, it was therefore couched, in his act, under covert and obfcure expreffions. And the judges, though willing to construe that ftatute as favourably as poffible for the defeating of entailed eftates, yet hesitated at giving fines fo extensive a power by mere implication, when the ftatute de donis had expressly declared, that they should not be a bar to eftates-tail. But the ftatute of Henry VIII, when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention. Yet, in order to preferve the property of the crown. from any danger of infringement, all eftates-tail created by the crown, and of which the crown has the reversion, are excepted out of this ftatute. And the fame was done with regard to common recoveries, by the statute 34 & 35 Hen. VIII. c. 20. which enacts, that no feigned recovery had against tenants in tail, where the eftate was created by the P 26 Hen. VIII. c. 13, 9 4 Hen. VII. c. 24. crown, crown', and the remainder or reverfion continues still in the crown, fhall be of any force and effect. Which is allowing, indirectly and collaterally, their full force and effect with respect to ordinary estates-tail, where the royal prerogative is not concerned. LASTLY, by a statute of the fucceeding year, all eftatestail are rendered liable to be charged for payment of debts due to the king by record or fpecial contract; as fince, by the bankrupt laws, they are also subjected to be fold for the debts contracted by a bankrupt. And, by the construction put on the statute 43 Eliz. c. 4. an appointment " by tenant in tail of the lands entailed, to a charitable ufe, is good without fine or recovery. ESTATES-TAIL, being thus by degrees unfettered, are now reduced again to almost the same state, even before issue born, as conditional fees were in at common law, after the condition was performed, by the birth of iffue. For, first, the tenant in tail is now enabled to aliene his lands and tenements by fine, by recovery, or by certain other means; and thereby to defeat the interest as well of his own iffue, though unborn, as alfo of the reverfioner, except in the cafe of the crown: fecondly, he is now liable to forfeit them for high treafon and, laftly, he may charge them with reasonable leafes, and alfo with such of his debts as are due to the crown on fpecialties, or have been contracted with his fellow-fubjects in a course of extensive commerce. r Co. Litt. 372. • 33 Hen. VIII. c. 39, §. 75. ́ t Stat. 21 Jac. I. c. 19. 2 Vern. 453. Chan. Prec. 16. OF CHAPTER THE EIGHT H. FREEHOLDS, NOT o Was E are next to difcourfe of fuch eftates of freehold, as are not of inheritance, but for life only. And of these eftates for life, fome are conventional, or expressly created by the acts of the parties; others merely legal, or created by conftruction and operation of law. We will confider them both in their order. I. ESTATES for life, exprefsly created by deed or grant, (which alone are properly conventional) are where a leafe is made of lands or tenements to a man, to hold for the term of his own life, or for that of any other perfon, or for more lives than one in any of which cases he is ftiled tenant for life; only, when he holds the estate by the life of another, he is usually called tenant pur auter vie. These eftates for life are, like inheritances, of a feodal nature; and were, for fome time, the highest estate that any man could have in a feud, which (as we have before seen ) was not in it's original hereditary. They are given or conferred by the fame feodal rights and folemnities, the fame inveftiture or livery of seifin, as fees themselves are; and they are held by fealty, if demanded, and fuch conventional rents and fervices as the lord or leffor, and his tenant or leffee, have agreed on. a Wright. 190. b Litt. §. 56. c pag. 55. ESTATES |