FREEHOLD ESTATES

1.The Theory of Estates
Thus far we have considered the various kinds of tenure or landholding, the service that characterized them and the feudal incidents attaching to them. We now consider the system of clasification that was developed to mark out the different interest that tenants might have in land. By the end of the thirteenth century English land law had begun to work out the doctrine of estates as the primary basis of classification of interest. The word estates is of feudal origin and is derived from the latin wor status. It speaks to us of a time when landholding was inseperably connected with a man’s political and personal status in the community.
The theory of estates, a peculiarity of Anglo-American law, is based on the concept of ownership measured in terms of time. ‘Proprietary rights in land are, we may say, projected upon the plane of time. The category of quantity, of duration, is applied to them’. The maximum allowable interest, the estate in fee simple, is of potentially infinite duration; a life estate or an estate for years is of finite duration. Out of the maximum estate, the fee simple, the owner may carve out smaller estates of lesser duration.
In medieval times the only estates fully recognized by the law and given protection in the king’s courts were the freehold estates: the fee simple, the fee tail and the life estate. The later common law recognized the existence of nonfreehold estates, the most important of these being the term of years. When the common law had fully developed, an presently possessory or would be possessory were it not for the exsistence of a prior possessory interest in some other person.
The catalogue of estates as finally evolved by the common law was as follow: the fee simple, fee tail, life estate, estate for years, periodic estate, estate at will and estate at sufferance. Since these estates are the principal basis for the classification of rights in land under the modern law they will be discussed in some detail.

2.The Fee Simple
An estate in fee simple was, and still is, the largest estate known to the law: it denotes the maximum of legal ownership, the greatest possible aggregate of rights, powers, privileges and immunities which a person may have in land.. Littleton, in his famous trestise ‘ Of Tenures’ written in the fifteenth century began his book by defining the estate thus: ‘Tenant in fee simple is he which hath lands or tenements to hold him and his heirs forever. This definition is still valid. It contains the two essential elements of the estate; potentially infinite duration, and inhertability by collaterals as well as by lineal descendants of the owner of the estate.
The concept of the estate in fee simple was developed in the period between the Conquest and the Enactment of the Statute Quia Emptores (1290). In the era immediately after the Conquest a gift of land to a tenant conffered on the donee only a life estate and the land would revert to the lord of the fee upon the tenant’s death. Wheter the heir of the deceseased tenant would be permitted to succeed to the land depended on the will of the lord. In any event the heir had to make a monetary payment before being granted the privilege. By the late 1100s, it would seem, succession by the heir had become the usual situation and the lord was entitled to exact from the heir only a reasonable relief. Where the donor intended that the land descend to the donne and his heirs. Such expression of intention was effective to insure the right of yhe heir inherit the land.
The right of the tenant to alienate or transfer the land during his lifetime was slowly established. Restrictions on alienation had a two-fold source: in the rights of the lord of the fee, and also in the rights of the tenant’s heirs. Since gifts of land were feudal in nature the lord had, especially in the case of military tenures, a legitimate interest in the identity of the tenant. Until the thirteenth century the lord had a right of control over alienations by his tenant but the law was changing. In the middle 1200s the consent of the lord was no longer needed for an alienation by the tenant who held land to himself and his heirs but the lord could still exact a fine for the alienation. Quia Emptores (1290) eliminated this seigniorial incident in the case of the mesne tenant by granting him the right ‘to sell at his own pleasure his land or tenements or part of them’. But tenants in chief of the crown continued to be subject to the requirements of the payment of a fine for alienation until 1660 when this last vestige of feudal restraint on alienation of free tenures was removed by the Tenures Abolition Act.
When the principle of inheritability was admitted, a gift to a man and his heirs clearly gave the donee an estate that would endure during the donee’s life and would continue after his death by descent to his heir. But the form of the gift ‘to B and his heirs’ seemed to give the heir also an interest in the land. Could B convey to a third person and thereby defeat the expectancy of his heir apparent? The law of the twelfth century hesitated over this question. But by 1225 it was decided that at least where the ancestor had conveyed with warranty for himself and his heirs the heir could not after the ancestor’s death upset the conveyance. And from the thirteenth century on, the word ‘and heirs’ in a conveyance ‘to B and his heirs’ merely indicated that B was given an estate in fee simple; B’s heirs took no interest by virtue of the gift.
We would explain this by saying that the word ‘and his heirs’ are words of limitation, not words of purchase. Words of limitation are those marking or defining the quantum of interest given to the grantee; words of purchase indicate the grantee. Put another way, words of purchase indicate him who takes; words of limitation indicate what is taken. A purchase is any person acquiring an estate in any way other than by descent. The term is not restricted to a grantee who pays value for the conveyance. A donee or a devisee takes by purchase; an heir who inherits land does not acquire by purchase.
Since an estate in fee simple was an estate of general ingeritance it was necessary at common law for the creation of such an estate that the conveyance use words of general inheritance. And with the verbal ritualism so characteristic of the period only the word ‘his heirs’ were sufficient for this purpose. As stated by Littleton: ‘if a man would purchase lands or tenements in fee simple, it behoveth him to have these words in his purchase, to have and to hold to him and to his heirs: for these words, his heirs, make the estate of inheritance. Substitute words were not effective. A conveyance by A ‘to B and his heirs’ gave B a fee simple (assuming, of course, that A had a fee simple to convey); a conveyance ‘to B forever’ or ‘to B and his assigns’ or ‘to B in fee simple’ gave B a life estate.
A few exceptions to this general rule were admitted by the common law. The rule never applied to wills, hence a devise passed an estate in fee simple to the devisse without the use of the magic word ‘heirs’ if the will manifested an intent to give a fee simple. A similar relaxation was applicable to a conveyance as would enable him to carry out his duties as trustee despite the absence of the word ‘heirs’ in the conveyance to him. And since a corporation can have no heirs a conveyance to it gave it a fee simple unless a contrary intention was expressed. Finally, where joint tenants hels in fee simple a release of his interest by one tenant to his co-tenants was effective to pass the interest in fee without the use of the word ‘heirs’.

The common law rule requiring words of general inheritance to create a fee simple has been abolished in practically all jurisdictions usually by statute1 but occasionally by decision.2 The ancient rule retains its vitality with to conveyances made before the effective date of any abrogating statute in the particular jurisdiction3 and it is sometimes applied in those states having no statute affecting it.4
Modern deeds usually follow a standardized form and when properly drafted rarely raise a question as to the kind of estate created. But wills, and deeds involving gratuitous transfers, are often drafted by laymen and not infrequently they raise problems of construction because of failure to use language clearly indicating the estate intended to be given. Although it was never required in the case of a will that words of inheritance be used in order to give the devisee a fee simple in the lands devised, it was necessary for testator to indicate in some way his intention to give a fee simple. There was at common law no presumption that the testator intended to give the donee a fee simple. Thus, a devise of Blackacre “to my nephew B,” without more, gave B only a life estate. This common law rule has been changed by statute in practically all jurisdictions. The statutes, in effect, create a presumption that the testator intended that the donee take a fee simple unless the will indicates an intention to give him a smaller estate.5
But in numerous will cases difficult problems of construction arise as to the nature of the estate created in the donee. As the court pointed out in Bramley v. White:6 “Although words of inheritance are not essential that the words ‘for life’ or their precise equivalent be used in order to create a life estate, in the absence of words of either sort descriptive of the quantity of an interest given, a testator’s intent must be determined by construction.” The problems often arises in the case where a testator gives is real and personal property to his wife with power to use and enjoy it as she wishes, and then adds that any of the property remaining at the wife’s death is to go to his children, or other designated devisees. Does the wife take a fee simple in the personalty or only a life interest?7 Most courts seem to have held in this and similar situations that the first donee takes a life estate.8 Basically, the question is one of the intention of the testator as manifested by the language of the will viewed in its entirety in the light of the circumstances surrounding the testator. In one important respect the modern fee owner has an increased power of disposition of his property. At common law lands were not devisable except to and inconsistent with the interest first given.9 Although the rule has been criticized as illogical and frustrative of the donor’s intention it is accepted by most jurisdictions.10
The constructional problem is compicated by a so-called rule of repugnancy. According to that rule, if a fee simple in land or an absolute interest in personal property is given to one person, together with a general power of disposal by deed or will, a gift over to another person of what remains undisposed of on the death of the first taker is void on the alleged ground that the gift over is repugnant
The estate in fee simple today has the same formal characteristics that it had in the common law period: it is an estate of general inheritance and it is of potentially infinite duration. Attempts by transferors of land to curtail the inheritability of the fee simple have been struck down by the courts. Littleton stated: “A man cannot create a new kind of inheritance”11 and modern courts have agreed with him. Thus, if A devises land “to B and her heirs on her father’s side” B takes an estate in fee simple absolute and the attempt to restrict the descent to the paternal side of the family is ineffective.12 And the strong policy developed by the common law in favor of free alienability of land has coincided with odern concepts of public policy so as generally to invalidate attempted restraints on the alienation of a fee simple.13 In one important respect the modern fee owner has an increased power of disposition of his property. At common law lands were not devisable except by special custom in certain localities in England. It was not until the first Statute of Wills was enacted in 1540 that a limited power to devise was granted to land owners.14
While the estate in fee simple absolute still represents the ultimate in ownership of land, the right of an owner in fee simle to make such use of his land as he pleases, subject to the rights of adjacent owners, is in modern times considerably curtailed by governmental controls of various types. Moreover, in many cases, by reason of restrictive covenants imposed by a former owner of the land, the uses to which the land can be put are limited.15

The Qualified or Defeasible Fee Simple.
¬Thus far we have spoken only of the fee simple absolute but an estate in fee simple may also be qualified or defeasible. A qualified fee simple is one subject to a special limitation, or a condition subsequent, or an executory limitation, or any combina¬tion of these.

A fee simple subject to a special limitation is usually called a fee simple determinable. A fee simple normally comes to an end upon the death of the owner there of intestate and leaving no heirs but a fee simple determinable is also limited to expire automatically upon the happening or non-happening of an event stated in the conveyance or will creating the estate. Thus, A owning land in fee simple absolute, conveys it to B "to have and to hold to B and his heirs so long as the land is used for residential purposes and when the land is no longer so used it shall revert to A and his heirs." B has a fee simple determinable. The estate granted is a fee because it is generally inheritable and it may last forever. Yet it is a determinable fee because it will expire on the non-occur¬rence of the stated contingency, namely, the use of the land for residential purposes. The estate conveyed to B automatically ends if and when the land is used for nonresidential purposes and A again owns an estate in fee simple absolute. During the existence of B's estate A retains a future interest in the land called a possibility, or right, of reverter.

A fee simple subject to a condition subsequent exists when the fee simple is subject to a power in the grantor to terminate the estate granted on the happening of a specified event. Thus, A conveys to B "to have and to hold to B and his heirs on the express condition that if the land shall not be used for residential purposes A or his heirs shall have a right to re-enter and possess the land as of his former estate." B has a fee simple on condition subsequent and A has a right of entry or power of termination. On the happening of the stated event, that is, on breach of the condition, the granted estate continues in existence until A effectively exer¬cises his option to terminate by making an entry or bringing an action to recover the land.1 The breach of the condition does not cause an automatic termination of the granted estate. The basic difference, therefore, between the fee simple determinable and the fee simple on condition subsequent is that the former automatical¬ly expires by force of the special limitation, contained in the instrument creating the estate, when the stated contingency oc¬curs, whereas the fee simple on condition subsequent continues despite the breach of the specified condition until it is divested or cut short by the exercise by the grantor of his power to terminate.

The third type of qualified fee simple, the fee simple subject to an executory limitation, exists when the fee simple is subject to divestment in favor of a person other than the conveyor upon the happening of a specified event. Thus, A conveys "to B and his heirs but if B die leaving no children him surviving, then to C and his heirs." B has a fee simple subject to an executory interest in C. This type of defeasible fee could not exist at law prior to the Statute of Uses (1536). The nature of an executory interest will be discussed in a later chapter.

The qualified or defeasible fee simple in one of the forms above described is found fairly frequently in modern practise and is, therefore, of current importance. It is treated briefly at this point in our discussion of the nature of an estate in fee simple but will be examined again in connection with the topic of Future Interests.

5. The Fee Tail
Prior to the year 1285 a gift of land to a man and the heirs of his body created a fee simple traditional. The courts construed such a conveyance as though it were to a man and his heirs on condition thet he have an heir of his body. They held that upon the birth of issue the conditions had been fulfilled and the donee had power to alienate the land in fee simple. They did not go so far as to hold that the donee himself thereby acquired for all purposes an estate in fee. If the donee had issue who predeceased him and the land had not been alienated it reverted on the death of the donee to the donor, even though the donee left surviving collateral relations. This constructions of a gift to a amn and the heirs of his body was undoubtedly influenced by judges ‘bias in favor of free alienability but it run counter to the intention of the donors. Such gifts were commonly made to subsidize marriages and it was the intention of the donors thet upon failure of issue the lands should revert. By the construction of the gift as one of a fee simle conditional, the donee was able in most instances to defeat the rigts of the issue and of the donor.
In 1285 perliament afforded relief to donors by enacting the statute De Donis Conditionalibus. The statute, after reciting the grievances of donors by reason of the courts construction of a gift to a man and the heirs of his body as a conditional fee simle, provided: ‘* * * that the will of the giver according to the form in the deed of gift manifestly expressed shall be from henceforth observed, so thet they to whom the land was given under such condition shall have no power to aliene the land so given, but that it shall remain unto the isuue of them to whom it was given after they death, or shall revert unto the giver or his heirs if issue fail * * * ’. the effect of this statute was to abolish the old common law estate of fee simple condosional and to create a new kind of estate of inheritance-the estate in fee tail. The estate in fee tail was so called because it was an estate of inheritance the descent of which was cut down (in latin ‘talliatum, in French “taille”) to the heirs of the body of the donee.
After the statute De Donis a gift of land to B and the heirs of his body created in B an estate in fee tail. The estate would last so long as there were any lineal descendants of B and upon the failure of such issue the land would reverd to the donor or his heirs. B, the tenant in tail, could convey the land to a third person but the transferee acquired only an estate for B’s life. The restrictions imposed by the statute prevented B from making any conveyance effective to cut off the rights of the issue or the reversioner. These restrictions were burdensome and parliament was petitioned to repeal the statute but refused. We find the reason for such refusal in the fact that the estate in fee tail was not subject (beyond the tenant’s lifetime) to forfeiture for treason or attainder for felony and was not laible for the debts of former tenants in tail. But the courts sanctioned methods to evade the statute. In 1472 it was indicated that by means of the fictitious real action called a common recovery the rights of the issue could be barred; in the next century it was decided that not only the issue but also the reversioner or remainderman would be barred by a common recovery. Also, in the sixteenth century by means of the fictitious action known as a fine the rights of the issue alone could be barred and a ‘base’ fee created in the person in whose favor the fine was levied. The process of converting the estate tail into a fee simple was known as docking or barring the entail. In 1833 fines and recoveries were abolished by statute and a tenant in tail in possession was permitted by the statute completely to dock the entail by a deed recorded in the Court Of Chancery.
Since fee tail was an estate of inheritance it could not be created by an inter vivos conveyance at cmmon law without the use of the word ‘heirs’ in the limitation. This strict rule did not apply to limitations in a will. The intention of the testator, if clearly expressed in the will, would be giveneffect despite the absence of the word ‘heirs’. The words ‘of the body’ were those commonly used in both deeds and wills to show the intention to create a fee tail rather than a fee simple but other words having the same meaning were equally effective.
It was permissible for the grantor of a fee tail to restrict the inheritance (by proper words in the limitation) to a particular group of the lineal descendants of the grantee. There could be an estate in tail male or in tail female, and either one of these could be a fee tail general or a fee tail special. A rant to a man and the heirs of his body created a fee tail male. A grant to a man and the heirs female of his body created a fee tail female. If the grant was to a donee and the heirs of his body by a particular spouse the estate was a fee tail special; if no particular spouse was designated it was a fee tail general. Estates in tail female were, in fact, rarely created but estates in tail man were an integral part of the English family settlement and were, therefore, very numorous in the sixteenth centuries.

6. Modern Law- The Fee Tail in the United States
The estate in fee tail had a hostile reception in the United States. It was recognized at an earlier date in the great majority of jurisdictions but opposition to it developed in the post-revolutionary era on the ground that it was incompatible with American social conditions.1) This is opposition arose partly from the association of the fee tail with the rule of primogeniture (descent of land to the eldest son to the exclusion of all other children ) and partly from the employment of the fee tail in England as a legal device to keep ancestral lands in the family for use as a basis of social and political power.2)
Beginning in the late eighteenth century and extending into the twentieth, state after state enacted legislation abrogating the fee tail and creating a statutory substitute so that at the present time only four jurisdictions, Delaware, Maine, Massachusetts, and Rhode Island (as to deeds only), recognize the estate as it existed at common law.3) The statutory provisions dealing with the fee tail are not uniform but the may be grouped under threemain heading :
A. The most common form of statute convert what would have been a fee tail at common law into a fee simple in the grantee or devisee. Thus, a limitation “to B and the heirs of this body” will give B a fee simple. This result is reached in about twenty-seven jurisdictions.4)
B. In the next largest group of states (eight in all) the statutes substitute for the fee tail a life estate in the grantee or devisee and a remainder in fee simple in his issue.5) Thus, in these states a limitation “to B and the heirs of his body” will give B a life estate and on B’s death his issue will take in fee simple.6)
C. In three states, Connecticut, Ohio and Rhode Island (as to wills only) statutes provide that an estate given in fee tail shall be an estate in fee simple to the issue of the the done in tail. These statutes have the effect of giving the donee a fee tail for his lifetime only and on his death his issue take in fee simple. Thus, in these states a limitation “to B and the heirs of his body” gives B an estate in fee tail for his life and on his death his children take in fee simple. B’s estate has the same characteristic as a normal fee tail but, except in Rhode Island, he cannot convey an estate greater than for this own life.7)
In the four state which still recognize the fee tail in its common law form, Delaware, Maine, Massachusetts and Rhode Island (when created by deed) a tenant in tail in possession has the power to convey in fee simple by an ordinary deed and thereby bar the entail and all reversions, remainders or executor interests expectant thereon. A creditor of a tenant in tail in possession can, except in Delaware, subject the estate to his claim as thought it were owned by the debtor in fee simple.8) But the tenant in tail has no power to dispose of the estate by will. Oddly enough, it is not clear whether on the tenant’s death the estate will descend to all of his children aqually or the rule of primogeniture will apply so as to give it exclusively to the eldest son.9)
In the state of Iowa, Oregon, and south Carolina the statute De Donis is not deemed to be in force, hence a limitation to a man and the heirs of his body (or an equivalent limitation) will in those states create a fee simple conditional.10)

7. Construction Problems-Meaning of Death Without Issue
It is not unusual to find in a will a gift of property to a person with a further gift over to a second person if the first named person dies without issue. Thus, A devises land “to B and his heirs but if B die without issue then to C and his heirs.” Occasionally, a disposition of this type is also found in a gift by deed. The words “die without issue” are ambiguous. They may mean that C is to take only when the whole line of B’s descendants (children, grandchildren,etc.) runs out, whenever that occurs. Or they may mean that C is to take if, and only if, at the time of B’s death he leaves no issue surviving him. Put another way, the problem is whether the words “die without issue” should be construed to mean indefinite failure of issue or definite failure of issue - failure of issue at an undefined point of time or failure of issue at a definite point of time. If the indefinite failure of issue construction is adopted B has a fee tail and C has a remainder in fee simple. Although in form the limitation to B and his heirs appears to give B a fee simple yet the additional phrase “if he die without issue” cuts down B’s interest to one which will last only as long as he has lineal descendants - a period which marks the duration of a fee tail. Thus, the indefinite failure of issue construction of the words “die without issue” gives the limitation the same legal effect as if it read “to B and the heirs of his body, then to C and his heirs.” But if the words “die without issue” are given the definite failure of issue construction, that is, if they are taken to mean failure of issue at the time of B’s death only, then B has a fee simple subject to an executory interest in C. C will take only in the event that B dies leaving no lineal descendant surviving him. If B dies leaving a child, C will not take even if the child should die a month later leaving no issue.
At a relatively early date the English courts established a preference for the indefinite failure of issue construction with the result that in the limitation under discussion B would get a fee tail by implication and C would have a remainder in fee simple. At the time, this construction was reasonable because until the Statute of Uses (1536) executory interests were not recognized as valid and if C were to take at all he would have to take by way of remainder on the expiration of B’s interest. After executory interests became valid the same constructional policy was continued. But since the preference for the indefinite failure of issue construction amounted only to a rebuttable presumption, language in the will indicating that the testator intended that the gift over should take effect at the death of the first taker or on the death of another named person or within a designated period was given controlling weight.

Influenced by the English precedents, a considerable number of American courts at an earlier date adopted the preference for the indefinite failure of issue construction. But in about thirty states there are statutes establishing a preference for the definite failure of issue construction and similar result has been reached in a few jurisdictions without the aid of statute. At the present time, therefore, in most jurisdictions there is a constructional preference for definite failure of issue. It would not be accurate, however, to say that the constructional problem no longer exists since the statutes do not apply to deeds or wills taking effect prior to the statutes so that as to such instruments the former rule in the particular jurisdiction will govern. And the fact that the fee tail has been abrogated by statute in a state does not necessarily prevent a court from applying the indefinite failure of issue construction to a limitation even though its application will result in B taking a statutorily substituted estate in place of a fee tail.

8. Construction Problems—Gift to B and His Children
If a by will makes a gift of land “to B and his children” and at the testator’s death B has no children what interest does B take, and what interest, if any, do B’s after-boin children take? Basically the problem is whether the words “and his children” are to be taken as words of limitation indicating the size of the estale given to B or as words of purchase indicating a gift also to the after born children themselves. The English courts, and a few American courts have held that, in the absence of an expressed contrary intent by the testator, the words are words of limitation and B takes s fee tail. This rule of construction is the so-called first Rule in Wild’s Case. It stems from a dictum in that case: “If A devises his lands to B and to his children or issues (sic), and he hath not any issue at the time of the devise, that the the same is an estate tail.” This peculiar construction of the word “children” (whish normally means issue in the first generation only) was in part due to the popularity of the fee tail in England at the time, and in part due to a desire to have the children take more than estate which would have been the maximum they could have taken as purchasers by way of remainder, because of the absence of words of inheritance or their equivalent.
In modern America there is no sound reason for applying a rule of construction that the testator is presumed to have intended to create a fee tail. Therefore, the first resolution in Wild’s case has been generally repudiated although there are cases in some jurisdictions which adopt it even though a local statute converts the fee tail into some other estate. The preferable view, and the one most frequently held, is that B takes a life estate and the children a remainder. The first resolution in Wild’s Case applied only to devises of land since in a conveyance by deed it was at common law necessary to use words of inheritance in order to create a fee tail. Although a fee tail or its statutory equivalent can today be created by deed without the use of the word “heirs”, an inter vivos conveyance to B and his children (B having no children at the time) would rarely be construed to give B a fee tail which would be converted by the local statute into some other estate.
A second rule of construction is derived from a second resolution or dictum in Wild’s Case. The second resolution was that if at the time the devise to B and his children takes effect B has living children, then B and his children take concurrent interests as joint tenants for life. This second resolution has been generally adopted as a rule of construction in so far as it presumes that the testator intended that B and his children take as co-tenants but today they would usually take as tenants in common in fee simple. A few jurisdictions hold that B takes a life estate with a remainder in fee simple in the children. Where the gift is by deed some courts prefer the latter construction as more consistent with the donor’s intent that all of B’s children take an interest, whenever born.

9. Life Estates
An estate for life is an estate which is not terminable at any fixed or computable period of time and has its duration measured by the life or lives of one or more persons. Unlike the fee simple and fee tail it is not an estate of inheritance but like these two estates it was classified at common law as a freehold estate. Life estates may be created by act of the parties, that is, by deed or by will (under the older terminology these were called conventional life estates); or they may be created by operation of law, in which case they were called legal life estates. Whether a particular life estate is a conventional or a legal one makes no difference other than in the mode of creation, but the distinction does provide convenience of classification for purposes of our discussion.


Creation of Life Estates by Deed or Will
A life estate arises when the conveyance or will expressly limits the duration of the created estate in terms of the life or lives of one or more persons, or when the instrument, viewed as a whole, manifests the intent of the transferor to create an estate measured by the life or lives of one or more persons. The simplest and most common form of limitation is “to B during his life,” but no word of art are necessary and a life estate result from other limitations of a similar nature. Thus, if A, owner in fee simple, conveys “to B until he dies” or “to B for his use during his natural life,” or “to B and at his death to go to B’s children,” in each case B will get an estate for his own life. At common law a conveyance “to B” without more gave B a life estate but under modern law B would normally take a fee simple because of the widespread existence of statutes creating a presumption that a conveyor intends to pass his entire estate to the conveyee.
It is not unusual to find in a will, in addition to the language giving an interest to the designated beneficiary, further provisions specifying the powers of disposition the beneficiary shall have or restricting his powers of disposition. These additional provisions raise a problem of construction as to the estate intended to be given to the beneficiary. Thus, if A devises “to B with the right to use or dispose of as he sees fit” B will be held to have a fee simple in the absence of other language in the will indicating a contrary intent. But if A devises “to B with power to sell or mortgage if he finds it necessary” B has only a life estate. Here the restricted power of disposition, being inconsistent with a fee simple, indicators the testator’s intent to limit B’s interest to a life estate. If the estate given to the beneficiary is expressed to be for life, the addition of a power to convey in fee will not, by the weight of authority, enlarge the estate into a fee simple. Thus, A devises “to my wife, B, all my property to have and to hold and use same as she sees fit during her lifetime. I give my wife power to sell any part or all of my real estate, also power to mortgage, assign as she sees fit or deems proper.” B takes a life estate with a superadded power to sell or mortgage. This is not the equivalent of a fee simple since B has no power to devise the land and it is not in heritable by her heirs.
An estate which is measured by the life of the grantee is called simply a life estate. An estate which is measured by the life of a person other than the grantee is called an estate pur autre vie. Thus, A conveys to B “to have and to hold during the life of C.” B has an estate pur autre vie. At common law if B died before C the property was regarded, until C died, as without an owner, hence the first person to take possession (called the common occupant) was entitled to the estate. This conclusion resulted from the fact that the estate pur autre vie was not an estate of inheritance and could not descend to the heirs of the life tenant, and not being personal property it could not pass to the administrator. But if the conveyance was to “B and his heirs for the life of C,” the on the death of B during C’s lifetime the heir of B took, not by descent but as “special occupant.” This common law rule was abolished in England by statute and is the subject today of statutory regulation in most states.
An estate pur autre vie may be created with more than one measuring life. Thus, A conveys “ to B to have and to hold for the lives of A, B, and C.” B gets a life estate which will endure until the death of the survivor of the three in the absence of an expressed intent that B should take during the joint lives of the three.
A life estate, as well as a fee simple, may be one on special limitation (that is, determinable), or subject to a condition subsequent or executory limitation. Whether a devise by a testator to his wife “so long as she remains a widow” (there being no gift over on the wife’s death) creates a defeasible fee simple or a defeasible life estate presents a difficult problem of construction in many cases. The Restatement favors the determinable life estate construction, but recent cases indicate a trend toward holding that the devises takes a fee simple defeasible on her marriage.
Punya wayan

Life Estates Created by Operation of Law
Legal life estates, or life estates created by operation of law, arouse out of the marital relationship. The various kinds of legal life estates were: A. Tenancy in fee tail after possibility of issue extinct; B. The husband's estate by the marital right; C. Curtesy; D. Dower.
A. Tenancy In Fee Tail After Possibility of Issue Ex¬tinct
A tenant in fee tail special, upon death of the designated spouse without issue, has only a life estate in the land. Thus, A conveys land to B and the heirs of his body by his wife, Mary. Mary dies leaving no issue, B surviving. It is obvious that there can never be issue capable of inheriting the estate. On B's death the land must, by virtue of De Donis, revert to A. Hence, B may be properly said to have, after the death of Mary, only a life estate. But if the original conveyance had created a fee tail general, instead of a fee tail special, there could not be tenant in tail after possibility of issue extinct. Since the fee tail estate exists today in only a few jurisdictions, a life estate resulting from a tenancy in tail after possibility of issue extinct is rarely found in modern law.
B. Estate by The Marital Right
At common law the husband had, by right of marriage, a life estate in all lands of which his wife was seised of a freehold estate (an estate of inheritance or for life) at any time during the marriage and prior to birth of issue. This estate, also known as the husband's estate jure uxoris, was probably a product of the concept that the husband was guardian of the wife. It entitled the husband to the use and occupation of the land, as well as the rents and profits, free from any claim of the wife. He could convey his estate without her consent and it was liable to execution for his debts, but the purchaser obtained an estate that could not outlast the marriage. Actually, the estate was not measured by the life of the husband but was one which continued until the marriage was dissolved by death or divorce, or until issue was born alive of the marriage. Upon the birth of issue alive, the husband acquired in his wife's inheritable estates an estate by the curtesy initiate which lasted until his death.1 If he survived his wife, this estate by the curtesy initiate became, on his wife's death, an estate by the curtesy consummate. The estate by the curtesy initiate dif¬fered from the estate by the marital right in that the husband now held for his own life and had sole seisin in himself whereas prior to birth of issue his estate was substantially an estate during the joint lives of husband and wife, and both were jointly seised.
Although the husband had rights in his wife's equitable es¬tates similar to those given to him in her legal estates, it was through courts of equity that married women first obtained some amelioration of the harsh rules of the common law. This result was achieved through two devices the doctrine of the wife's equity to a settlement, and the recognition of the validity of a trust for the wife's sole and separate use. At the end of the seventeenth century it became established that if the husband sought to reach his wife's equitable assets he would be allowed to do so only if he consented to an adequate settlement out of those assets for her separate use and benefit. This settlement usually took the form of a new trust for the separate use of the wife and the issue; the terms of this new trust being determined by the Court of Chancery. This doctrine of the wife's equity to a settlement was supplemented in the eighteenth century by rulings that property could be conveyed or devised to third persons as trustees for the benefit of a married woman for her separate and exclusive free from the control of her husband. Later it was held that lands could be conveyed directly to a married woman, without the intervention of trustees, for her "sole and separate use" and in such case equity would protect the property from the claims of her husband and his creditors. Although at law the husband in such a case acquired a life estate in the land, in equity he was treated as a trustee for his wife. Property interests of the wife so protected in equity were called a married woman's separate equi¬table estate or her "sole and separate" estate.

The reforms thus inaugurated by the chancellors in the seven¬teenth century were carried to completion in the nineteenth century by legislation abolishing the husband's estate by the marital right and the estate by the curtesy initiate. These stat¬utes, commonly called Married Women's Property Acts, generally give to married women the same rights in their real and personal property which they would have if unmarried, subject in some jurisdictions to the husband's estate by the curtesy consummate or to a requirement that the husband must join in a conveyance of the wife's lands to make the transfer fully effective.
C. Tenancy by the Curtesy
A tenancy by the curtesy was, at common law, a life estate to which the husband was entitled in all lands of which his wife was seised in fee simple or in fee tail at any time during the marriage provided that there was issue born alive capable of inheriting the estate. On the birth of such qualified issue the husband's tenancy by the marital right was enlarged to an estate for his own life which he held "by curtesy of the law of England." Although, as pointed out above, the husband's estate for his life was called curtesy initiate prior to his wife's death and curtesy consummate after her death, he had a present life estate in both situations and there was no substantial difference between the two types of curtesy.
In modern American law curtesy is obsolescent as a source of life estates. Curtesy initiate was swept away by the Married Women's Property Acts. Curtesy consummate, or more simply curtesy, has been completely abolished in most of the states. Generally, the husband is given instead a statutory distributive share in the wife's estate. In the remaining states curtesy survives in a modified form, sometimes as a protected expectancy during the lifetime of the wife although the statutes vary greatly as to the power of the wife to bar curtesy by deed or by will and as to the share the husband takes.
At the present time there are statutes in most states allowing the surviving spouse, whether it be the husband or the wife, to waive the provisions of the will of the deceased spouse and take a specified share of the decedent's estate (usually one-third) instead of curtesy or dower.

12. Characteristics Of a Life Estate
A tenant for life of a possessory estate has a right to the undisturbed possession of the land and to the income and profits thereof. His use and enjoyment of the premises is limited by the law of waste, that is, he is under a duty to refrain from any act which will diminish the value of the reversion or the remainder if such act is also, under all of the circumstances, an unreasonable use of the premises. On the termination of the life estate for a reason other than the tenant’s own act or default, he, or his executor or administrator, is entitled to emblements, that is, to cultivate and haevest annual crops previously planted.
A life estate has the quality of alienability and tehe life tenant can convey his estate to athird person, or mortgage it, or lease it for a term of years not greater than the duration of the life estate. But he cannot (apart from the now obsolete common law doctrine of tortuous feoffment) convey a greater estate than his own. Sometimes the deed or will creating the life estate contains language purpoting to restrict the life tenant’s power to onvey his estate. The courts have been more willing to allow some forms of restraint on its transfer may be thought to be less objectionable than it would be if the estate were a fee simple. Yet the validity of the restraint depends largely on the type of restriction. Thus, in most jurisdictions a disabling restraint on alienation of the life estate (‘to B for life but without power to sell until he reaches the age of thirty’) is void. But a restraint in the form of a forfeiture of the estate on attempted alienation (‘to B for life but if he ceases to live on the land or conveys it, then to C’) is held valid in narly all jurisdictions. The forfeiture restraint is less objectionable since, apart from its deterrent effect on the life tenant, it does not render the land unmarketable in the hands of the holder of the future interest. So also, a promissory restraint is treated like a forfeiture restraint and is held valid (‘to B for life, B bereby Agreeing not to convey her estate’).
Since a life tenant has a limited interest in the land, he owes certain duties to the owner of the future interest in the land, the remainderman or the reversioner. He is obligated to preserve the land and structures in a reasonable state of repair, but he is not bound to make expenditures for thet purpose in excess of the profits, rent or income received by him. Failure to discharge this duty amounts to permissive waste for which the life tenant is liable to the owner of the future interest to contribute to the cost. The life tenant must pay the carryng charges on the property to the extent of the gross income, or the fair rental value if he personally occupies the property. Therefore, he must pay the interest on any mortgage or ather incumbrance to which the life estate and the future interest are subject but he is not personally obligated to make payment on the property. Assessments by a municipality or other public authority (frequently called betterment assessments) for public improvements specially benefiting the property must be borne not exceed the probable duration of the life estate. But where the special assessment is one for an improvement of a permanent or quasi-permanent nature, it must be apportioned between the owner of the life estate and the owner of the future interest in accordance with the respective values of the two estates.
Although a life tenant is free, in the absence of a valid restraint in the creating instrument, to sell his interest, a life estate is not as a practical matter a marketable commodity. The life tenant, therefore, is faced with a difficult situation when the land is unproductive or the carryng charges exceed or substantially diminish the income. Can the life tenant maintain judical proceedings to compel a sale of the fee simple over the objections of the owner of the future interest, or when the owner of the future interest is unascertained or a minor? In approximately one-half of the states there are statues which, under specified conditions, authorize a court to order a sale of the complete ownership trend of judical authority recognizes a power to order a sale when necessary for the protection of the persons interested, particulary when the owners of the future interest are minors or unascertained.