estate(redirected from Incorporeal Interests)
Also found in: Dictionary, Thesaurus, Medical, Financial, Encyclopedia.
The degree, quantity, nature, and extent of interest that a person has in real and Personal Property. Such terms as estate in land, tenement, and hereditaments may also be used to describe an individual's interest in property.
When used in connection with probate proceedings, the term encompasses the total property that is owned by a decedent prior to the distribution of that property in accordance with the terms of a will, or when there is no will, by the laws of inheritance in the state of domicile of the decedent. It means, ordinarily, the whole of the property owned by anyone, the realty as well as the personalty.
In its broadest sense, the social, civic, or political condition or standing of a person; or, a class of persons grouped for social, civic, or political purposes.
There are several types of estates that govern interests in real property. They are freehold estates, nonfreehold estates, concurrent estates, specialty estates, future interests, and incorporeal interests.
A freehold estate is a right of title to land that is characterized by two essential elements: immobility, meaning that the property involved is either land or an interest that is attached to or has been derived from land, and indeterminate duration, which means there is no fixed duration of ownership.
There are three kinds of freehold estates: a fee simple, a fee tail, and a life estate.
Fee Simple Absolute A fee simple absolute is the most extensive interest in real property that an individual can possess, since it is limited completely to the individual and his or her heirs and assigns forever, and it is not subject to any limitations or conditions.
For example, an individual might purchase a plot of land for which the deed states that the grantor transfers the property "to grantee and his or her heirs," which would have the legal effect of creating a fee simple absolute. The grantee has the right to immediate and exclusive possession of the land, and he or she can do whatever he or she wants with it, such as grow crops, remove trees, build on it, sell it, or dispose of it by will. This type of estate is deemed to be perpetual. Upon the death of the owner, if no provision has been made for its distribution, the land will automatically be inherited by the owner's heirs.
Fee Simple Determinable A fee simple determinable, which is also referred to as a base fee or qualified fee, is one that continues until the occurrence of a specified event. When such an event occurs, the estate will terminate automatically by operation of law, at which time the ownership reverts to the grantor or his or her heirs.
For example, a grantor makes the following conveyance: "To grantee and his or her heirs so long as it is used for school purposes." The grantor's intent is clearly indicated when he or she creates the estate. When the grantee ceases to use the land for school purposes, the grantor has the right to immediate possession. The grantee's estate is restricted to the period during which the land is used for school purposes.
The interest of the grantor is known as a possibility of reverter. Ordinarily the words until or as long as indicate the creation of a special limitation.
Fee Simple Subject to a Condition Subsequent A fee simple subject to a condition subsequent is an estate that terminates only upon the exercise of the power of termination, or right of reentry, for the violation of a particular condition. It differs from a fee simple determinable in that the latter expires automatically, by operation of law, upon the happening of the event specified. A fee simple subject to a condition subsequent continues even after the occurrence of the event until the grantor divests the estate or ends it through the exercise of his or her power to terminate.
For example, the grantor conveys land "to grantee and his or her heirs, but if the premises are used for commercial purposes other than the sale of antiques, then the grantor has the right to reenter and repossess the property."
The grantor has the power to end the grantee's fee through his or her reentry onto the premises if the condition is violated. Reentry, however, is totally at the option of the grantor. The grantee's estate continues until the grantor either enters the land or brings an action to recover possession. When the grantor does reenter the land, the remaining portion of the grantee's estate is forfeited.
Ordinarily, the words used in conveyance to create an estate subject to a condition subsequent are upon condition that, provided that, or but if, together with a provision for reentry by the grantor.Fee Simple Subject to Executory Limitation At English Common Law, a grantor was not able to create a freehold estate that was to begin in futuro, at a subsequent time, because Livery of Seisin (actual possession) was essential. If actual possession of the land was given to the grantee, the estate would be immediately effective, contrary to the grantor's intent. The only manner in which an estate that was to begin in the future could be created was through the use of a remainder. For example, if a grantor wished to give the grantee a future interest in the land, he might make the following conveyance,"to transferee for life, remainder to grantee and his or her heirs." Livery of seisin was thereby made to the transferee, who held the estate for life, and upon the transferee's death the seisin passed to the grantee.
In 1535, however, the Statute of Uses was passed, which allowed the creation, by deed, of springing interests, or executory interests. A grantor could, thereby, give the grantee a present right to the future interest in the land. The grantor might, for example, convey the land "to grantee and his heirs, grantee's interest to commence five years from the date of the deed."
A grantor can also convey an estate subject to a shifting interest. For example, the grantor might make the following conveyance: "To grantee and his or her heirs, but in the event that grantee dies without issue upon his or her death, then to transferee and his or her heirs." The grantee is thereby given a fee simple subject to an executory limitation, which is the interest of the transferee.
Fee Tail A fee tail is an estate subject to limitations concerning who may inherit the property, which is ordinarily created by a deed or a will.
Two significant historical developments were instrumental in the creation of this type of freehold estate. The first was recognition by the court of the fee simple conditional, and the second was the passing of the Statute De Donis Conditionalibus, commonly known as the Statute De Donis, in 1285 by Parliament.
Prior to 1285, the provision "to grantee and the heirs of his body" was interpreted by the courts as providing the grantee with the power to convey a fee simple in the property if and when he sired a child. An estate of this nature was referred to as a fee simple conditional, since it was a fee simple contingent upon offspring being born to the grantee. The grantee was thereby able to terminate any rights that the heirs of his body might have in the land. In addition, he was able to terminate the possibility of reverter which the grantor had in the land.
The Statute De Donis was subsequently passed in order to keep family land in a family, provided there was a family or issue. A grantee could not convey land in such manner as to terminate the right of heirs of his body to inherit the land upon his death nor could he convey so as to terminate the grantor's reversionary interest. If the grantee conveyed property "to transferee and his heirs," and then died, leaving a child, the child could take the land from the transferee. If the grantee died with no surviving heirs of the body, the grantor could take the land away from the transferee.
The grantor of a fee tail was permitted to limit the inheritance to a specific group of lineal descendants of the grantee. He could create a fee tail general, for example, to transferee and "the heirs of his body begotten," regardless of the number of wives by whom the transferee had children. Alternatively, he could create a fee tail special, to transferee and "the heirs of his body on Ann, his now wife, to be begotten," which specifies that only issue of the marriage of the transferee and Ann, and no other marriage, could inherit. A grant to a man and his male bodily heirs, for example, created a fee tail male while a fee tail female restricted transfer of land to the transferee and the female heirs of his or her body only.
Life Estate A life estate is an interest in property that does not amount to ownership, since it is limited by a term of life, either of the individual in whom the right is vested or some other person. It may also last only until the occurrence or nonoccurrence of an uncertain event. A life estate pur autre vie is an estate that the grantee holds for the life of another person.
A life estate is generally created by deed but can be created by lease. No special language is required provided the grantor's intent to create such an estate is clear. The grantee of a life estate is called the life tenant.
A life tenant can use the land, take any fruits stemming from the land (i.e., crops), and dispose of his or her interest to another person. The power to dispose includes the right to mortgage the property, and to create liens, easements,or other rights in the property, provided they do not extend beyond the period of the tenant's life.The holder of a life estate cannot do anything that would injure the property or cause waste, or in any way interfere with the reversionary interest of the grantee. The life tenant has the right to exclusive possession subject to the rights of the grantor to (1) enter the property to ascertain whether or not waste has been committed or is in the process of being committed; (2) collect any rent that is due; (3) come upon the property to make any necessary repairs; (4) move timber that has been severed and belongs to him or her; and (5) do any acts that will prevent the termination of his or her reversion.
The life tenant is permitted to use the property in the same manner as the owner of a fee simple, except that he or she must leave the property in reasonably good condition for the individual who will succeed to the possession. The life tenant has an obligation to maintain the property in good repair and must pay taxes and interest on any mortgage on the premises when the life estate begins. The life tenant has the right to the issues and profits from the land, and any crop planted prior to the termination of the life estate can be harvested by the tenant's Personal Representative. In addition, any fixtures placed on the ground by the tenant can be removed by him or her. If the property is harmed, the life tenant can obtain a recovery for the injury to his or her interest.
In a typical life estate for the life of an individual other than the tenant, the grantor conveys the property "to grantee for the life of A." The grantee is thereby given an estate for the life span of another person. In this type of conveyance, A is the measuring life. At common law, if the grantee died before the individual whose life measured the estate, the property was regarded as being without an owner. The first individual to obtain possession, known as the common occupant, was entitled to the estate until the death of the person whose life measured the duration of the estate. An estate pur autre vie could not be inherited by the heirs of the deceased grantee, nor could it be reclaimed by the grantor since he or she had conveyed his or her interest for the life of another person who was still living. No one had the right to evict the common occupant.
Some grantors made conveyances that provided for the heirs of the grantee. For example, "to grantee and his heirs for the life of A." If the grantee died during A's lifetime, an heir of the grantee would take as a special occupant rather than by descent. Some modern statutes have made the property interest between the death of the grantee and the measuring life a chattel real, making the provision that the grantee's personal representative takes the property as personal property.
A life estate is alienable, and therefore, the life tenant can convey his or her estate. The grantee of the life tenant would thereby be given an estate pur autre vie. The life tenant is unable, however, to convey an estate that is greater than his or her own.
Nonfreehold estates are interests in real property without seisin and which are not inheritable. The four main types of nonfreehold estates are an estate for years, an estate from year to year, a tenancy at will, and a tenancy at sufferance.
Estate for Years The most significant feature of an estate for years is that it must be of definite duration, that is, it is required to have a definite beginning and a definite ending. The most common example of an estate for years is the arrangement existing between a Landlord and Tenant whereby property is leased or rented for a specific amount of time. In this type of estate the transferor leases the property to the transferee for a certain designated period, for example: "Transferor leases Blackacre to transferee for the period of January 1, 1998, to January 1, 2003, a period of five years."
During the five-year period, the transferee has the right to possess Blackacre and use and enjoy the fruits that stem from it. He or she is required to pay rent according to the terms of the rental agreement and is not permitted to commit waste on the premises. If the transferee dies during the term of the lease, the remainder of such term will pass to the transferee's personal representative for distribution pursuant to a will or the laws of Descent and Distribution, since a leasehold interest is regarded as personal property or a chattel real.
Estate from Year to Year The essential distinguishing characteristic of an estate from year to year is that it is of indefinite duration. For example, a landlord might lease Blackacre to a tenant for a two-year period, from January 1, 2003, to January 1, 2005, at a rental of $600 per month, payable in advance on or before the ninth day of each month. The tenant might hold possession beyond January 1, 2005, and on or before January 9, 2005, give the landlord $600. If the landlord accepts the rent, the tenant has thereby been made a tenant from year to year. An estate of this nature continues indefinitely until one of the parties gives notice of termination. The terms of the original lease are implied to carry over to the year-to-year lease, except for the term that set forth the period of the lease.
Notice of termination is an important component of this type of periodic tenancy. In the preceding example, either party would be able to terminate the tenancy by providing notice at least six months preceding the end of the yearly period. Statutory provisions often abridge the length of notice required to end periodic tenancies. Such tenancies may come within requirements set forth by the Statute of Frauds.
Tenancy at Will A tenancy at will is a rental relationship between two parties that is of indefinite duration, since either may end the relationship at any time. It can be created either by agreement, or by failure to effectively create a tenancy for years.
A tenancy at will is terminated by either individual without notice and ends automatically by the death of either party or by the commission of voluntary waste by the lessee. It is not assignable and is categorized as the lowest type of chattel interest in land.
Tenancy at Sufferance A tenancy at sufferance is an estate that ordinarily arises when a tenant for years or a tenant from period to period retains possession of the premises without the landlord's consent. This type of interest is regarded as naked and wrongful possession.
In this type of estate, the tenant is essentially a trespasser except that his or her original entry onto the property was not wrongful. If the landlord consents, a tenant at sufferance may be transformed into a tenant from period to period, upon acceptance of rent.
Concurrent estates are those that are either owned or possessed by two or more individuals simultaneously. The three most common types of concurrent estates are Joint Tenancy, Tenancy by the Entirety, and Tenancy in Common.
Joint Tenancy A joint tenancy is a type of concurrent ownership whereby property is acquired by two or more persons at the same time and by the same instrument. A typical conveyance of such a tenancy would be "Grantor conveys Blackacre to A, B, and C and their heirs in fee simple absolute." The main feature of a joint tenancy is the Right of Survivorship.If any one of the joint tenants dies, the remainder goes to the survivors, and the entire estate goes to the last survivor.
In a joint tenancy, there are four unities, those of interest, time, title, and possession.
Unity of interest means that each joint tenant owns an undivided interest in the property as a whole. No one joint tenant can have a larger share than any of the others.
Unity of time signifies that the estates of each of the joint tenants is vested for exactly the same period.
Unity of title indicates that the joint tenants hold their property under the same title.
Unity of possession requires that each of the joint tenants must take the same undivided possession of the property as a whole and enjoy the same rights until one of the joint tenants dies.
Tenancy by the Entirety A tenancy by the entirety is a form of joint tenancy arising between a Husband and Wife,whereby each spouse owns the undivided whole of the property, with the right of survivorship.
A tenancy by the entirety can be created by will or deed but not by descent and distribution. It is distinguishable from a joint tenancy in that neither party can voluntarily dispose of his or her interest in the property. There is unity of title, possession, interest, time, and person.
Tenancy in Common A tenancy in common is a form of concurrent ownership that can be created by deed or will, or by operation of law, in which two or more individuals possess property simultaneously. A typical conveyance of this type of tenancy would be "Grantor, owner of Blackacre in fee simple absolute, grants to A, B, and C, and their heirs—each taking one-third interest in the property."
In the preceding illustration, A, B, and C are tenants in common. There is no right of survivorship in such a tenancy, and each grantee has the right to dispose of his or her share by deed or by will.
In a tenancy in common, one of the tenants may have a larger share of the property than the others. In addition, the tenants in common may take the same property by several titles. The only unity present in a tenancy in common is unity of possession.
Future interests are interests in real or personal property, a gift or trust, or other things in which the privilege of possession or of enjoyment is in the future and not the present. They are interests that will come into being at a future point in time. There are five classes of future interests: reversions; possibilities of reverter; powers of termination, also known as rights of reentry for condition broken; remainders, and executory interests.
Incorporeal interests in real property are those that cannot be possessed physically, since they consist of rights of a particular user, or the right to enforce an agreement concerning use. The five major types of incorporeal interests are easements; profits; covenants running with the land; equitable servitudes; and licenses.
Abts, Henry W. 2002. The Living Trust: The Failproof Way to Pass Along Your Estate to Your Heirs. 3d ed. New York: McGraw-Hill.
Applegate, E. Timothy. 2003. "Estate Planning: Who Owns the Family Plot?" California Lawyer 23 (October).
n. 1) all that one owns in real estate and other assets. 2) commonly, all the possessions of one who has died and are subject to probate (administration supervised by the court) and distribution to heirs and beneficiaries, all the possessions which a guardian manages for a ward (young person requiring protection and administration of affairs), or assets a conservator manages for a conservatee (a person whose physical or mental lack of competence requires administration of his/her affairs). 3) an alternative term for real property interest which is used in conjunction with another defining word, like "life estate," "estate for years," or "real estate." (See: probate, will, guardian, conservator, life estate, real estate)
estate(Hereditament), noun bequest, birthright, gift by succession, heritage, heritance, inheritance, legacy, patrimony
Associated concepts: beneficial estate, charge against an essate, claim against an estate, distribution, estate tax, residue
estate(Property), noun acres, ager, assets, assets and liabilities, belongings, chattels, chattels real, chose in accion, collective assets, earthly possessions, effects, equity, freehold, goods, grounds, hereditament, holdings, intangiile assets, interest in land, land and buildings, lands, liquid assets, material assets, material things which are owned, personalty, piece of landed property, possessio, possessions, real estate, realty, resources, right, title and interest in land, tangible assets, tangibles, tenement, territory, villa
Associated concepts: absolute estate, conditional estate, deeeasible estate, equitable estate, estate at sufferance, estate at will, estate by entirety, estate by purchase, estate for life, estate for years, estate from period to period, estate from year to year, estate in common, estate in expectancy, estate in land, estate in remainder, estate in reversion, estate lands, estate on a conditional limitation, estate pour autre vie, estate tail, estate upon a limitation, executory estate, fee-simple estate, fee-tail estate, forfeiture of an estate, freehold, joint estate, landed estate, life estate, limited essate, next eventual estate, qualified estate, vested estate
Foreign phrases: Post executionem status lex non patitur possibilitatem.After the execution of the estate the law suffers not a possibility.
See also: assets, demesne, domain, dower, effects, freehold, holding, homestead, land, paraphernalia, parcel, possessions, property, rating, real estate, realty, remainder, resource, substance
estatea landholding. In English law the Crown is the only absolute owner of land. Others have estates which may be either an estate in FEE SIMPLE ABSOLUTE IN POSSESSION (freehold) or an estate for a term of years absolute (leasehold). Certain property maybe held like leasehold but with no landlord, an association running the holding: see COMMONHOLD.
ESTATE. This word his several meanings: 1. In its most extensive sense, it
is applied to signify every thing of which riches or, fortune may consist
and includes personal and real property; hence we say personal estate, real
estate. 8 Ves. 504. 2. In its more limited sense, the word estate is applied
to lands, It is so applied in two senses. The first describes or points out
the land itself, without ascertaining the extent or nature of the interest
therein; as "my estate at A." The second, which is the proper and technical
meaning of estate, is the degree, quantity, nature and extent of interest
which one has in real property; as, an estate in fee, whether the same be a
fee simple or fee tail; or an estate for life or for years, &c. Lord Coke
says: Estate signifies such inheritance, freehold, term of years, tenancy by
statute merchant, staple, eligit, or the like, as any man hath in lands or
tenements, &c. Co. Lit. Sec. 650, 345 a. See Jones on Land Office Titles in
2. In Latin, it is called status, because it signifies the condition or circumstances in which the owner stands with regard to his property..
3. Estates in land may be considered in a fourfold view with regard, 1. To the quantity of interest which the tenant has in the tenement. 2. To the time during which that quantity of interest is to be enjoyed. 3. To the number and connexion of the tenants. 4. To what conditions may be annexed to the estate.
4.-1. The quantity of interest which the tenant has in his tenement is measured by its duration and extent. An estate, considered in this point of view, is said to be an estate of freehold, and an estate less than freehold.
5.-1. Freehold estates are of inheritance and not of inheritance. An estate in fee, (q.v.) which is the estate most common in this country, is a freehold estate of inheritance. Estates of freehold not of inheritance, are the following:
6.-1st. Estates for life. An estate for life is a freehold interest in lands, the duration of which is confined to the life or lives of some particular person or persons, or to the happening or not happening of some uncertain event.
7. Estates for life are divided into conventional or legal estates. The first created by the act of the parties, and the second by operation of law.
8.-1. Life estates may be created by express words; as, if A conveys land 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 or duration, and without words of limitation. In the last case, B cannot have an estate in fee, according to. the English law, and according to the law of those parts of the United States which have adopted and 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. Co. Litt. 42, a. So a conveyance "to I M, and his generation, to endure as long as the waters of the Delaware should run," passes no more than a life estate. 3 Wash. C. C. Rep. 498. The life estate may be either for a man's own life, or for the life of another person, and in this last case it is termed an estate per autre vie. There are some estates for life, which may depend upon future contingencies, before the death of the person to whom they are granted; for example, an estate given to a woman dum sola fuerit, or durante viduitate, or to a man and woman during coverture, or as long as the grantee shall dwell in a particular house, is determinable upon the happening of the event. In the same manner, a house usually worth one hundred dollars a year, may be granted to a person still he shall have received one thousand dollars; this will be an estate for life, for as the profits are uncertain, and may rise or fall, no precise time can be fixed for the determination of the estate. On the contrary, where the time is fixed, although it may extend far beyond any life, as a term for five hundred years, this does not create a life estate.
9.-2. The estates for life created by operation of law, are, 1st. Estates tail after possibility of issue extinct. 2d. Estates by the curtesy. 3d. Dower. 4th. Jointure. Vide Cruise. Dig. tit. 3; 4 Kent, Com. 23; 1 Brown's Civ. Law, 191; 2 Bl. Com. 103. The estate for life is somewhat similar to the usufruct (q.v.) of the civil law.
10. The incidents to an estate for life, are principally the following: 1. Every tenant for life, unless restrained by covenant or agreement, may of common right take upon the land demised to him reasonable estovers or bote's. Co. Litt. 41.
11.-2. The tenant for life, or his representatives, shall not be prejudiced by any sudden determination of his estate, because such determination is contingent or uncertain. Co. Litt. 55.
12.-3. Under tenants or lessees of an estate for life, have the same, and even greater indulgences than the lessors, the original tenants for life; for when the tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee, who is a third person. l Roll. Ab. 727 2 Bl. Com. 122.
13.-2d. Estates by the curtesy. An estate by the curtesy is an estate for life, created by act of law, which is defined as follows: 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 has issue by her born alive, 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 lands during, his life by the curtesy of England, and it is immaterial whether the issue be living at the time of the seisin, or at the death of the wife, or whether it was born before or after the seisin. Litt. s. 35; Co. Litt. 29, b; 8 Co. 34. By Act of Assembly of Pennsylvania, the birth of issue is not necessary, in all cases where the issue, if any, would have inherited.
14. There are four requisites indispensably necessary to the existence of this estate: 1. Marriage. 2. Seisin of the wife, which must have been seisin in deed, and not merely seisin in law; it seems, however, that the rigid rules of the common law, have been relayed, in this respect, as to what is sometimes called waste or wild lands. 1 Pet. 505. 3. Issue. 4. Death of the wife.
15.-1. The marriage must be a lawful marriage; for a void marriage does not entitle the husband to the curtesy; as if a married man were to marry a second wife, the first being alive, he would not be entitled to the curtesy in such second wife's estate. But if the marriage had been merely voidable, he would be entitled, because no marriage, merely voidable, can be annulled after the death of the parties. Cruise, Dig. tit. 5, c. 1, s. 6.
16.-2. The seisin of the wife must, according to the English law, be a seisin in deed; but this strict rule has been somewhat qualified by circumstances in this country. Where the wife is owner of wild uncultivated land, not held adversely, she is considered as seised in fact, and the husband is entitled to his curtesy. 8 John. 262 8 Cranch, 249; 1 Pet. 503 1 Munf. 162 1 Stow. 590. When the wife's state is in reversion or remainder, the husband is not, in general, entitled to the curtesy, unless the particular estate is elided during coverture. Perk. s. 457, 464; Co. Litt. 20, a; 3 Dev. R. 270; 1 Sumn. 263; but see 3 Atk. 469; 7 Viner, Ab. 149, pl. 11. The wife's seisin must have been such as to enable her to inherit. 5 Cowen, 74.
17.-3. The issue of the marriage, to entitle the husband to the curtesy, must possess the following qualifications: 1. Be born alive. 2. In the lifetime of the mother. 3. Be capable of inheriting the estate.
18.-1st. The issue must be born alive. As to what will be considered life, see Birth; Death; Life.
19.-2d. The issue must be born in the lifetime of the mother; and if the child be born after the death of the mother, by the performance of the Caesarian operation, the husband will not be entitled to the curtesy; as there was no issue born at the instant of the wife's death, the estate vests immediately on the wife's death to the child, in ventre sa mere, and the estate being once vested, it cannot be taken from him. Co. Litt. 29, b.; 8 Co. Rep., 35, a. It is immaterial whether the issue be born before or after the seisin of the wife. 8 Co. Rep. 35, b.
20.-3d. The issue must be capable of inheriting the estate; When, for example, lands are given to a woman and the heirs male of her body, and she has a daughter, this issue will not enable her husband to take his curtesy. Co. Litt. 29, a.
21.-4th. The death of the wife is requisite to make the estate by the curtesy complete.
22. This estate is generally prevalent in the United States; in some of them it has received a modification. In Pennsylvania the right of the husband takes place although there be no issue of the marriage, in all cases where the issue, if any, would have inherited. In Vermont, the title by curtesy has been laid under the equitable restriction of existing only in the event that the children of the wife entitled to inherit, died within age and without children in South Carolina, tenancy by the curtesy, eo nomine, has ceased by the provisions of an act passed 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 one moiety, or one-third of it in fee, according to circumstances. In Georgia, tenancy by the curtesy does not exist, because, since 1785, all marriages vest the real, equally with the personal estate, in the husband. 4 Kent, Com. 29. In Louisiana, where the common law has not been adopted in this respect, this estate is unknown.
23. This estate is not peculiar to the English law, as Littleton erroneously supposes; Litt. s. 35; for it is. to be found, with some modifications, in the ancient laws of Scotland, Ireland, Normandy and Germany. In France there were several customs, which gave a somewhat similar estate to the surviving husband, out of the wife's inheritances. Merlin, Repert. mots Linotte, et Quarte de Conjoint pauvre.
24.-3d. Estate in dower. Dower is an estate for life which the law gives the widow in the third part of the lands and tenements, or hereditaments of which the husband was solely seised, at any time during the coverture, of an estate in fee or in tail, in possession, and to which estate in the lands and tenements the issue, if any of such widow, might, by possibility, have inherited. In Pennsylvania, the sole seisin of the. husband is not necessary. Watk. Prin. Con. 38; Lit. Sec. 36; Act of Penna. March 31, 1812.
25. To create a title to the dower, three things are indispensably requisite: 1. Marriage. This must be a marriage not absolutely void, and existing at the death of the husband; a wife de facto, whose marriage is voidable by decree, as well as a wife de jure, is entitled to it; and the wife shall be endowed, though the marriage be within the age of consent, and the husband dies within that age. Co. Litt. 33, a; 7 Co. 42; Doct. & Stud. 22; Cruise, Dig. t. 6, c. 2, s, 2, et seq.
26.-2. Seisin. The husband must have been seised, some time during the coverture, of the estate of which the wife is dowable. Co. Litt. 31, a. An actual seisin is not indispensable, a seisin in law is sufficient. As to the effect of a transitory seisin, see 4 Kent, Com. 38; 2 Bl. Com. 132; Co. Litt. 31, a.
27.-3. Death of the husband. This must be a natural death; though there are authorities which declare that a civil death shall have the same effect. Cruise, Dig. tit. 6, ch. 2, Sec. 22. Vide, generally, 8 Vin. Ab. 210; Bac. Ab. Dower; Com. Dig. Dower; Id. App. tit. Dower; 1 Supp. to. Ves. jr. 173, 189; 2 Id. 49; 1 Vern. R. by Raithby, 218, n. 358, n.; 1 Salk. R. 291; 2 Ves. jr. 572; 5 Ves. 130; Arch. Civ. Pl. 469; 2 Sell. Pr. 200; 4 Kent, Com. 35; Amer. Dig. h.t.; Pothier, Traite du Douaire; 1 Swift's Dig. 85; Perk. 300, et seq.
28.-4th. Estate tail after possibility of issue extinct. By this awkward, but perhaps necessary periphrasis, justified by Sir William Blackstone, 2 Com. 124, is meant the estate which is thus described by Littleton, Sec. 32 when tenements are given to a man and his wife in special tail, if one of them die without issue, the survivor is tenant in tail after possibility of issue extinct."
29. This estate though, strictly speaking, not more than an estate for life, partakes in some circumstances of the nature of an estate tail. For a tenant in tail after possibility of issue extinct, has eight qualities or privileges in common with a tenant in tail. 1. He is dispunishable for waste. 2. He is not compellable to attorn. 3. He shall not have aid of the person in reversion. 4. Upon his alienation no writ of entry in consimili casu lies. 5. After his death, no writ of intrusion lies. 6. He may join the mise in a writ of right in a special manner. 7. In a praecipe brought by him he shall not name himself tenant for life. 8. In a praecipe brought against him, he shall not be named barely tenant for life.
30. There are, however, four qualities annexed to this estate, which prove it to be, in fact, only an estate for life. 1. If this tenant makes a feoffment in fee, it is a forfeiture. 2. If an estate tail or in fee descends upon him, the estate tail after possibility of issue extinct is merged. 3. If he is impleaded and makes default, the person in reversion shall be received, as upon default of any other tenant for life. 4. An exchange between this tenant and a bare tenant for life, is good; for, with respect to duration, their. estates are equal. Cruise, Dig. tit. 4; Tho. Co. Litt. B. 2, c. 17; Co. Lit. 28, a.
31. Nothing but absolute impossibility of having issue, can give rise to this estate. Thus if a person gives lands to a man and his, wife, and to the heirs of their two bodies, and they live to a hundred years, without having issue, yet they are tenants in tail; for the law' sees no impossibility of their having issue, until the death of one of them. Co. Litt. 28, a. See Tenant in tail after possibility of issue extinct.
32.-2. An estate less than freehold is an estate which is not in fee, nor for life; for although a man has a lease for a thousand years, which is much longer than any life, yet it is not a freehold, but a mere estate for years, which is a chattel interest. Estates less than freehold are estates for years, estates at will, and estates at sufferance.
33.-1. An estate for years, is one which is created by a lease; for years, which is a contract for the possession and profits of land for a determinate period, with the recompense of rent; and it is deemed an estate for years, though the number of years should exceed the ordinary limits of human life; and it is deemed an estate for years though it be limited to less than a single year. It is denominated a term, because its duration is absolutely defined.
34. An estate for life is higher than an estate for years, though the latter should be for a thousand years. Co. Litt. 46, a; 2 Kent, Com. 278; 1 Brown's Civ. Law, 191; 4 Kent, Com. 85; Cruise's Dig. tit. 8; 4 Rawle's R. 126; 8 Serg. & Rawle, 459; 13 Id. 60; 10 Vin. Ab. 295, 318 to 325.
35.-3. An estate at will is not bounded by any definite limits with respect to time; but as it originated in mutual agreement, so it depends upon the concurrence of both parties. As it depends upon the will of both, the dissent of either may determine it. Such an estate or interest cannot, consequently, be the subject of conveyance to a stranger, or of transmission to representatives. Watk. Prin. Con. 1; Litt. Sec. 68.
36. Estates at will have become infrequent under the operation of judicial decisions. Where no certain term is agreed on, they are now construed to be tenancies from year to year, and each party is bound to give reasonable notice of an intention to terminate the estate. When the tenant holds over by consent given, either expressly or by implication, after the determination of a lease for years, it is held evidence of a new contract, without any definite period, and is construed. to. be a tenancy from year to year. 4 Kent, Com. 210; Cruise, Dig. tit. 9, c. 1.
37.-3. An estate at sufferance. The session of land by lawful title, but holds over by wrong after the determination of his interest. Co. Litt. 57, b. He has a bare naked possession, but no estate which he can transfer or transmit, or which is capable of enlargement by. release, for he stands in no privity to his landlord.
38. There is a material distinction between the case of a person coming to an estate by act of the party, and afterwards holding over, and by act of the law and then holding over. In the first case, he is regarded as a tenant at sufferance; and in the other, as an intruder, abator, and trespasser. Co. Litt. 57, b; 2 Inst. 134 Cruise, Dig. t. 9, c. 2 4 Kent, Com. 115 13 Serg. & Rawle, 60 8 Serg. & Rawle, 459; 4 Rawle, 459; 4 Rawle's R. 126.
39.-II. As to the time of their enjoyment, estates are considered either in possession, (q.v.) or expectancy. (q.v.) The latter are either remainders, (q.v.) which are created, by the act of the parties, and these are vested or contingent, or reversions, (q, v.) created by act of law.
40.-III. An estate way be holden in a variety of ways the most common of which are, 1. In severalty. 2. In joint tenancy. 3. In common. 4. In coparcenary. These will be separately considered.
41.-1. An estate in severally, is where only one tenant holds the estate in his own right, without any other person being joined or connected with him, in point-of interest, during the continuance of his estate.
42.-2. An estate in joint tenancy, is where lands or tenements are granted to two or more persons, to hold in fee simple, fee tail, for life, for years, or at will. 2 Bl. Com. 179. Joint tenants always take by purchase, and necessarily have equal shares; while tenants in common, also coparceners, claiming under ancestors in different degrees, may have unequal shares and the proper and best mode of creating an estate in joint tenancy, is to limit to A B and C D, and their assigns, if it be an estate for life; or to A B and C D, and their heirs, if in) fee. Watk. Prin. Con. 86.
43. The creation of the estate depends upon the expression in the deed or devise, by which the tenants hold, for it must be created by the acts of the parties, and does not result from the operation of law. Thus, an estate given to a number of persons, without any restriction or explanation, will be construed a joint tenancy; for every part of the grant can take effect only, by considering the estate equal in all, and the union of their names gives them a name in every respect.
44. The properties of this estate arise from its unities; these are, 1. Unity of title; the estate must have been created and derived from one and the same conveyance. 2. There must be a unity of time; the estate must be created and vested at the same period. 3. There must be a unity of interest; the estate must be for the same duration, and for the same quantity of interest. 4. There must be a unity of possession; all the tenants must possess and enjoy at the same time, for each must have an entire possession of every parcel, as of the whole. One has not possession of one-half, and another of the other half, but each has an undivided moiety of the whole, and not the whole of an undivided moiety.
45. The distinguishing incident of this estate, is the right of survivorship, or jus accrescendi; at common law, the entire tenancy or estate, upon the death of any of the joint tenants, went to the survivors, and so on to the last survivor, who took an estate of inheritance. The right of survivorship, except, perhaps, in estates held in trust, is abolished in Pennsylvania, New York, Virginia, Kentucky, Indiana, Missouri, Tennessee, North and South Carolina, Georgia, and Alabama. Griffith's Register, h.t. In Connecticut it never was recognized. 1 Root, Rep. 48; 1 Swift's Digest, 102. Joint tenancy may be destroyed by destroying any of its constituent unities, except that of time. 4 Kent, Com. 359. Vide Cruise, Dig. tit. 18; 1 Swift's Dig. 102; 14 Vin. Ab. 470; Bac. Ab. Joint Tenants, &c.; 3 Saund. 319, n. 4; 1 Vern. 353,; Com. Dig. Estates by Grant, K 1; 4 Kent, Com. 353; 2 Bl. Com. 181; 1 Litt. see. 304 2 Woodd. Lect. 127; 2 Preston on Abst. 67; 5 Binn. Rep. 18; Joint tenant; Survivor; Entirety.
46.-3. An estate in common, is one which is held by two or more persons by unity of possession.
47. They may acquire their estate by purchase, and hold by several and distinct titles, or by title derived at the same time, by the same deed or will; or by descent. In this respect the American law differs from the English common law.
48. This tenancy, according to the common law, is created by deed or will, or by change of title from joint tenancy or coparcenary; or it arises, in many cases, by construction of law. Litt. sec. 292, 294, 298, 302; 2 Bl. Com. 192; 2 Prest. on Abstr. 75.
49. In this country it maybe created by descent, as well as by deed or will. 4 Kent, Com. 363. Vide Cruise, Dig. tit. 20 Com. Dig. Estates by Grant, K 8.
50. Estates in common can be dissolved in two ways only; first, by uniting all the titles and interests in one tenant secondly, by making partition.
51.-4. An estate in coparcenary, is an estate of inheritance in lands which descend from the ancestor to two or more persons who are called coparceners or parceners.
52. This is usually applied, in England, to cases where lands descend to females, when there are no male heirs.
53. As in the several states, estates generally descend to all the children equally, there is no substantial difference between coparceners and tenants in common. The title inherited by more persons than one, is, in some of the states, expressly declared to be a tenancy in common, as in New York and New Jersey, and where it is not so declared the effect is the same; the technical distinction between coparcenary and estates in common may be considered as essentially extinguished in the United States. 4 Kent, Com. 363. Vide Estates.
54.-IV. An estate upon condition is one which has a qualification annexed to it by which it may, upon the happening or not happening of a particular event, be created, or enlarged, or destroyed. Conditions may be annexed to estates in fee, for life, or for years. These estates are divided into estates upon condition express, or in deed; and upon conditions implied, or in law.
55. Estates upon express conditions are particularly mentioned 'in the contract between the parties., Litt. s. 225; 4 Kent, Com. 117; Cruise, Dig. tit. 13.
56. Estates upon condition in law are such as have a condition impliedly annexed to them, without any condition being specified in the deed or will. Litt. s. 378, 380; Co. Litt. 215, b; 233, b; 234, b.
57. Considered as to the title which may be had in them, estates are legal and equitable. 1. A legal estate is one, the right to which can be enforced in a court of law. 2. An equitable, is a right or interest in land, which not having the properties of a legal estate, but being merely a right of which courts of equity will take notice, require the aid of such a court to, make it available. See, generally, Bouv. Inst. Index, h.t.