&i 7 (5ompU IGam ^rlinol ICibtaty Cornell University Library KF 570.G77 Notes on the law of real property, 3 1924 018 763 767 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018763767 NOTES ON THE LAW OF REAL PROPERTY BY CHARLES ALFRED GRAVES, A. M., LL. D. Professor of Law, University of Virginia INDIANAPOLIS THE BOBBS-MERRILL COMPANY PUBLISHERS /i? ^o6i COPTEIGHT 1912 BY CHARLES ALFRED GRAVES TABLE OF CONTENTS CHAPTER I. Classes of Pbopeett. Section. Page. 1. Ancient names of property 1 2. Tenements — Feudal system 3 3. Lands 5 4. Goods and chattels 6 5. Incorporeal tenements 6 6. Hereditaments 7 7. Real and personal property 8 8. Estates in lands, etc 9 9. Real estate 10 10. Personal estate in land or chattels real 11 11. Timber, grass, and crops 13 12. Mineral rights 14 13. Incorporeal personalty 15 14. House built by one man on the land of another 16 CHAPTER II. FiXTUEES. 15. Definition 18 16. Classification 19 I. Fixtures between tfie Heir and the Executor. 17. Introductory 19 18. The criterion of a fixture 22 19. The doctrine of TeafC r. Hewitt 22 20. Constructive annexation 23 21. Vendor and vendee and mortgagor and mortgagee 26 22. Examples of fixtures — Machinery 26 23. Rolling stock of railways 29 24. Miscellaneous fixtures 30 25. Rule relaxed in favor of the executor 31 26. General principles 32 27. What erections removable — Trade fixtures 33 iii iv TABLE OP CONTENTS. Section. Page. 28. Domestic fixtures 34 29. Agricultural fixtures 35 30. Manure 36 31. Qualification of the right of removal by tenant 37 32. Time of removal 37 CHAPTER III. Estates of Freehold. /. Freehold Estates of Inheritance. 33. Classification 39 34. Fee-simple — Nature of an estate in fee 39 35. Limitation of a fee hy feoffment 39 36. Limitation of a fee by devise 41 37. Base or qualified fee 42 38. Fee-conditional at common law 44 39. Estate-tail 46 40. Estates-tail in Virginia 49 41. Limitation of estates in fee and in tail 51 II. Freehold Estates not of Inheritance. 42. Estate for the tenant's own life 52 43. Tortious conveyances 52 44. Estovers and emblements 52 45. Lessees of tenants for life 53 46. Waste 54 47. Estate for the life of another than the tenant 55 48. Estates-tail after the possibility of issue extinct 55 CHAPTER IV. Estates Less than Freehold. I. Estate for Years. 49. An estate for years distinguished from an interesse termini 56 50. "Words proper to create a lease 56 51. Actual lease distinguished from a contract to lease. ... 58 52. Creation of leases for years 60 53. Rents reserved upon a lease 62 54. The effect of quia emptores on rents 63 55. Rents granted out of land 65 TABLE OP CONTENTS. v Section. Page. 56. Right of distress in Virginia 66 57. Out of what may rent be reserved 67 58. Mode of reserving rent 67 59. When is rent due 67 60. On the lessor's death to whom is the rent payable? 68 61. Apportionment of rent 69 62. Covenants in a lease 71 63. Do covenants in a lease bind the assignee or sub-lessee?. 72 64. Examples of covenants running with the land 75 65. Tenancy from year to year 77 66. Notice to quit 77 11. Estate at Will. 67. Creation of estates at will 79 III. Estate ly Sufferance. 68. Tenants by sufferance 80 69. Emblements when an estate is less than freehold 80 CHAPTER V. Descents. 70. Introductory 83 71. The Virginia statute of descents 86 72. Construction of the statute 87 73. Per stirpes and per capita 89 74. Descent from an infant 92 75. Collaterals of the half-blood 95 76. Bastards 97 77. Heirs not in esse at the ancestor's death 98 78. Descent in United States 99 79. Statute of distribution 100 CHAPTER VI. Devises. 80. The English and Virginia statutes 102 81. Who may make a will 103 82. What may be willed 104 83. Several sorts of wills 105 84. Formalities for making a will 106 85. Who are competent witnesses to a will Ill vi TABLE OF CONTENTS. Section. Pasb. 86. Effect of a duly executed codicil on a will not duly executed 113 87. Initials "116 88. Letters, etc., as wills 116 89. Time at which a will speaks 117 90. Lapsed devises 118 91. Revocation of a will 118 92. Lost wills 120 93. Testamentary capacity 120 94. Wills of personalty 121 95. Personal representatives 121 96. "Who may be an executor or administrator 121 97. Who is an executor de son tort 122 98. Temporary grant of administration 122 99. Is the executor of A's executor entitled to act as the executor of A 123 100. Powers of the executor before he proves the will 123 101. When the will appoints no executor, who is entitled to qualify as administrator? 123 102. Probate of wills 124 103. Appraisement of personal estate 125 104. Inventory of the personal estate 125 105. Powers of personal representatives 125 106. Liability of personal representatives 125 107. Order in which, on deiiciency, of assets, the debts, of the decedent are to be paid 126 108. Order in which, on sufficiency of assets, the decedent's property is to be applied to the payment of his debts. 127 109. Effect of a creditor's appointing his debtor his executor. 128 110. Right of retainer by executor, or administrator among debts of equal degree 128 111. The different sorts of legacies 128 CHAPTER VII. CONVETAJSrCES. I. Modes of Conveyance. 112. Conveyances at common law 132 113. Conveyances operating under the statute of uses 132 114. The statute of uses 132 115. Operation of covenant to stand seised, bargain and sale, and lease and release 134 TABLE OF CONTENTS. Vii Section. Page. 116. The statute of uses in the United States 136 117. The statutory deed of grant 137 118. Ut res magis valeat quam pereat as applied to deeds 138 119. Form of deed of grant in Virginia 139 120. Construction of deeds 140 121. Deeds poll and indentures 142 122. Deeds made by an attorney in fact 144 123. Deed by grantor out of possession with an adverse pos- session against him 144 II. Warranty, or the Ancient Covenant Real. 124. Definition of warranty 145 125. Two kinds of warranty 145 126. Examples of lineal and collateral warranty 145 127. Effect of the ancient warranty 147 128. Explanation of the apparent injustice of collateral war- ranty 147 129. Status now of thg ancient feudal warranty 148 III. The Modern Covenants of Title. 130. Implied covenants 148 131. Express covenants for title 151 132. Covenants to which the purchaser of land is entitled 154 133. Importance to the buyer of other covenants than that of general warranty 156 134. Covenants for title running with the land 158 135. Measure of damages 159 CHAPTER VIII. Title by Adverse Possession. 136. Introductory 162 137. The Virginia statute of limitations as to land 162 138. Effect of the statutes 163 139. What is adverse possession of land? 163 140. Distinction between claim of title without color and claim of title with color 167 141. Application of the doctrine of adverse possession to con- flicting patents or deeds to land 169 142. Disabilities of coverture, infancy, and insanity 174 143. Tacking disabilities 174 144. Period to be subtracted in computing time in Virginia. . 175 viii TABLE OF CONTENTS. CHAPTER IX. Co-tenants. I. Joint Tenants. Section. Page. 145. Definition 176 146. Unities of joint tenants 176 147. Unity of Interest 176 148. Unity of possession 177 149. The right of survivorship between joint tenants 178 150. Maxims applicable to survivirshop 178 II. Tenants hy Entireties. 151. Definition 180 152. Abolition of survivorship between joint tenants 181 153. Abolition of survivorship between tenants by entireties . . 181 154. ZoUman v. Moore 183 III. Tenants in Common. 155. Nature of tenancy in common 184 IV. Coparceners. 156. Nature of coparcenary 185 157. Trespass 187 158. Waste 187 159. Account 188 160. Receiving more than comes to his just share and propor- tion 189 161. Receiving more than his just share and proportion in Virginia 189 162. Partition 191 163. Partition in equity 192 164. Sale, Instead of partition in kind 193 165. Hotchpot 195 166. What is an advancement? 196 167. What is the evidence that a gift is by way of advance- ment? 196 168. To whom, and by whom, can an advancement be made? 198 169. What property can be given by way of advancement; and with what property shall it be brought into hotchpot? 198 170. For whose benefit is property brought into hotchpot?. . . 198 171. As at what time Is the advancement valued? 198 172. Has the person advanced his election to come into hotch- pot? 199 TABLE OF CONTENTS. ix CHAPTER X. Remainders. Section. Page. 173. Definition of remainder 200 174. The two kinds of remainders 200 175. The three great rules for remainders 202 176. Rules for remainders deduced from the three great rules 204 177. Examples of vested remainders 206 178. Fearne's four classes of contingent remainders 207 179. Remainders which do or do not come under Fearne's third class 208 180. The doctrine of abeyance of the fee simple 209 181. Fearne's view of abeyance 210 182. Additional rules for remainders 210 183. Contingency with a double aspect 211 184. Cross remainders 211 185. Destruction at common law of contingent remainders.. 213 186. Mode at common law of preserving a contingent remain- der from destruction 214 187. Rule of perpetuities for contingent remainders 215 188. The cy pres doctrine as to contingent remainders 215 189. Contingent remainders descendible and devisable 216 190. Assignment of contingent remainders 217 191. Sale of contingent interests under decree of court 218 192. Words of limitation and words of purchase 219 193. The rule in Shelley's Case 220 194. The five requisites to the operation of the rule in Shel- ley's Case : 221 195. Origin of the rule in Shelley's Case 222 196. The inflexible character of the rule in Shelley's Case. . . 224 197. How can. the operation of the rule in Shelley's Case be prevented 225 198. Status of the rule in Shelley's Case in the United States. 227 199. Virginia statutes intended to abolish the rule in Shel- ley's Case 228 200. Interpretation of the words "Heirs," "Heirs of the body," "Issue," and "Children" 230 201. The rule in "Wild's Case 235 202. Doctrine in Virginia as to the word "Children" 238 203. Surviving children 239 204. Examples of limitations to surviving children in Vir- ginia 240 X TABLE OF CONTENTS. Section. Page. 205. Virginia statutes altering the common law doctrine concerning remainders 241 CHAPTER XI. ExEOtTTOEY Interests. 206. Definitions 244 207. The sacred rule as to executory interests 244 208. How to recognize executory interests 245 209. Practical test of an executory interest 245 210. Examples of executory uses 245 211. Examples of executory devises 247 212. Conditional limitations 249 213. Remainders in deeds by way of use, and in devises 252 214. Rules for executory devises 253 215. Rule of perpetuities for executory interests 256 216. Examples of executory interests violating the rule against perpetuities 257 217. Examples of executory interests not violating the rule against perpetuities 258 218. Upon what state of facts does remoteness depend 259 219. Are there two rules against perpetuities, one for con- tingent remainders and another for executory in- terests? 261 220. Are there two rules against perpetuities in Virginia?. . . 261 221. Definite and indefinite failure of issue 263 222. Effect of a limitation over, dependent on if he die with- out issue, on a prior estate for life 265 223. Effect of the words if he die without issue on a prior fee simple 267 224. No estate tail by implication when the failure of issue is definite 269 225. If he die without issue now in Virginia 271 226. Effect of Virginia statutes on limitations contingent on dying without issue 273 227. Devise to A for life, and if A die without issue, remain- der to B and his heirs 274 228. Effect of definite failure of issue on rule in Shelley's Case — View of Professor Minor 276 229. Devise to A and his heirs; and if A dies without issue, remainder to B and his heirs 279 230. Devise to A and the heirs of his body; and if A die with- out Issue, then to B and his heirs 280 TABLE OF CONTENTS. xi Section. Page. 231. Devise to A and the heirs of his body; and if A die with- out issue living at his death, then to B and his heirs. 281 232. Executory limitations before and after January 1, 1820. . .282 233. Executory interests in personalty 285 234. Executory interests under Virginia statutes 287 CHAPTER XII. Powers. I. Powers of Appointment over Property. 235. Definition 291 236. Example of a power under the statute of uses 291 237. Examples of a power under the statute of wills 292 238. The several kinds of powers 293 239. Fraud on power 295 240. Aider in equity of the defective execution of a power. . . . 296 II. Estates in Land with a Power of Disposition Annexed. 241. Power of appointment distinguished from an interest in land 299 242. Effect of a power of disposition over property on the es- tate of the devisee — Validity of limitation over 300 243. When an express estate for life is given, and a power of disposition over the reversion is annexed 301 244. When a life estate is given devisee, with power of dispo- sition over the reversion — Exception to general rule . . 302 245. Cases following May v. Joynes 303 246. Cases distinguishing May v. Joynes 305 247. When an estate is given to a person generally, or indefi- nitely (as, "to A"), with a power of disposition 306 248. Status of the doctrine of Smith v. Bell 307 CHAPTER XIII. Estates of Condition. 249. Nature and classification of conditions — Precedent and subsequent 310 250. Conditions precedent and subsequent; how distinguished 312 251. Conditions precedent or subsequent; which favored in law 315 252. Words proper for a condition subsequent 318 253. Condition subsequent distinguished from a limitation. . . 321 xii TABLE OF CONTENTS. Section. Page. 254. Marriage as a limitation or condition subsequent 323 255. Collateral limitation 325 256. Collateral limitation by way of a base fee 328 257. Condition subsequent distinguished from a covenant; covenant favored 330 258. Condition subsequent distinguished from a trust 333 259. Not condition subsequent when a conveyance of land is for a particular purpose 334 260. Trust when a conveyance is for a particular purpose. . . . 337 261. Construction of conveyances providing for support of the grantor or a third person by the grantee 340 262. Construction of deeds containing building restrictions. . 343 263. Construction of deeds prohibiting the sale, etc., of in- toxicating liquors on the premises 347 264. Void conditions; precedent or subsequent 348 265. Conditions void because impossible 349 266. Conditions void because unlawful 352 267. Conditions void because repugnant or uncertain 354 268. Conditions in restraint of marriage 356 269. Summary of the effect of conditions in wills in restraint of marriage 362 270. Conditions in restraint of alienation — Forfeiture by ces- ser or by limitation over 365 271. Restraint on alienation without condition or conditional limitation 374 272. Condition subsequent — How created 380 273. Condition subsequent — Who is liable to forfeit for its breach 381 274. Condition subsequent — Who may perform 384 275. Breach of condition subsequent — ^Who may enforce for- feiture therefor 386 276. Breach of condition subsequent — Is a possibility of re- verter alienable in Virginia? 389 277. Condition subsequent — Mode of enforcement of forfei- ture for breach 394 278. Condition subsequent — No damages at law for breach . . . 399 279. Condition subsequent — No specific performance in equity 402 280. Condition subsequent — Injunction in equity 408 281. Breach of condition subsequent — Equity will not enforce forfeiture 410 282. Breach of condition subsequent — Equity will sometimes relieve against forfeiture therefor 418 TABLE OF CONTENTS. xiii Section. Page. 283. Breach of condition subsequent — Waiver of forfeiture.. 424 284. Discharge of condition subsequent — Doctrine of Dum- por's Case 430 285. Dumpor's Case in the United States 441 CHAPTER 3^IV. DOWER AND CtTETESY. 286. Definition of Dower 448 287. Definition of Curtesy 451 288. Origin of dower and curtesy 454 289. Differences between curtesy and dower 455 290. Difference between seisin in fact, seisin in law, and a right of action or entry ■ 456 291. Dower when the husband is a joint tenant or tenant by entireties 462 I. Dower. 292. Dower in equitable estates 465 293. Dower in equitable estates in the United States 467 294. Dower in equitable estates in Virginia 470 295. "What ownership of the husband entitles the wife to dower 473 296. Dower in reversions and remainders 476 297. Dower when husband has reversion on which rent is re- served 478 298. No dower out of dower 479 299. Dower in encumbered land 481 300. Purchase-money mortgage 483 301. Dower in the equity of redemption of mortgaged land . . 487 302. Dower in equity of redemption when mortgage is fore- closed in the husband's lifetime 490 303. Dower in equity of redemption — Extent of in the United States 493 304. Extent in Virginia of dower in equity of redemption. . . . 496 305. Exoneration of dower in mortgaged land out of the hus- band's personalty 500 306. Exoneration of dower in mortgaged land out of the hus- band's other land 505 307. Present value of the widow's vested right of dower 508 308. Present value of wife's contingent right of dower 510 309. For what proportion of the principal of a mortgage debt is the widow liable as between herself and the heirs 511 xiv TABLE OF CONTENTS. Section. Page. 310. Dower when the husband's estate of Inheritance termi- nates in his lifetime, or at his death 512 311. Cases in which the widow has dower, although the hus- band's estate of inheritance has come to an end 514 312. Cases in which there is no dower on the ending of the husband's inheritance 517 313. Widow's quarantine — Definition and extent 520 314. Widow's quarantine — Nature and incidents 522 315. Widow's quarantine — Privileges and obligations 525 316. Widow's unassigned dower — Nature and incidents 527 317. Assignment of dower — Procedure 532 318. Dower according to common right 536 319. Dower in kind impracticable 541 320. Dower when the husband dies seised of several tracts of land, which descend to the heir 547 REAL PROPERTY. CHAPTER I. The Classes of Peopeety. § 1. Ancient Names of Property. — The terms real and per- sonal, as applied to property, are of comparatively modern date, and the latter embraces at present many things which in early times were altogether unknown as the subjects of property. Let us first consider property in early times, and the ancient names which were used to designate the two great classes into which it has always been divided. In order to do this, we must transport ourselves in thought to England, and beneath the feudal system introduced by William the Conqueror in 1066. '^ ' Feudalism in England. — The feudal relation, as it existed on the continent, was founded on the feudal tenure of land, the essence of which is the "holding of land by the grant of a lord, instead of holding it simply as a member of the commonwealth." And the political principle was that "every tenant in chief of the Crown should make himself as nearly a sovereign prince as he could, and that his under-tenants should owe allegiance and obedience to their immediate lord only, and not to the royal or imperial head." Thus it destroyed national unity, and weakened the central power. (PYeeman, Norman Conquest, V., 246, 247.) Modern writers agree that the elements of feudalism existed in England before the Norman Conquest. "There was no sys- tematic feudalism, but the elements of feudalism were there in full vigor." (Freeman, Norman Conquest, I., 62.) The rela- tion of lord and man existed, but it was at first purely personal, and not necessarily connected with the holding of land. And so military service was required of the owners of land; but 1 1 2 REAL PROPERTY. [Chap. 1 Let us pay a visit to an Englishman or Norman of that period at his home in the country. We find him asserting his right to a certain number of acres of land, which he calls his own. It is his landed property, and he is a landed proprietor. But the ground is not all; he claims the dwell- ing he has erected upon it, the stable, the barn, and the other structures. In the fields there are horses and cattle, this was a service due from the citizen to the state, and not from a vassal to the lord. (Taylor, Origin and Orowth of the English Constitution, I., 133.) To create the true feudal relation, it was necessary to blend these two elements, so that the relation of lord and vassal should become that of lord and tenant; and so that the military service should be due from the tenant of land to the lord of whom he received it. This change was brought about after the Norman Conquest, and thus the feudal system was introduced into England. But it is said that it was not until the reign of William Rufus (1087-1100) that it grew into a methodical system of exactions and oppressions. This result is ascribed to Ranulf Flambard, justiciar to that monarch, in whose hands was the management of all the fiscal and judicial business. (Stubbs, Constitutional History of England, I., 339.) And Freeman says of Flambard, "Tendencies which had been at work before the Conquest, and to which the Conquest gave increased strength, were by him pushed to their logical results, and were worked into an harmonious system of oppres- sion." (Norman Conquest, V., 253.) But though the feudal tenure of land, with its onerous rents and services, was thus fastened on England, the political principle which weakened the Crown and strengthened the nobility never obtained a foot-hold there; for at the great Council of Salis- bury (1086), a decree was passed that every freeman in the realm should take the oath of fealty to King William, "thus break- ing in upon the feudal compact in its most essential attribute, the exclusive dependence of the vassal upon his lord." (2 Hallam, Middle Ages, 430.) For the oath was required, not only from the great land-owners, but from their tenants; and thereby William became sovereign of England, and not merely a feudal lord over a few feudal chiefs. Thus the "tendency of feudalism to a divided land, with a weak central government," was effectu- ally checked in England. (Freeman, Norman Conquest, IV., 472; v., 246.) §§1,2] CLASSES OP PROPERTY. 3 growing crops, and farming utensils; in the dwelling, house- hold and kitchen furniture; and in the barn, the garnered products of his fields. If you ask him, "What property do you possess?" he will claim as his own land and houses, cattle BJid furniture, growing and gathered crops. It is, he thinks, all his alike, and with his own he may do what he wills. There is one difference, however, which he will readily admit. The land, the houses, the trees, and the growing grain are fixed, and must remain where they are; they are immovable. But the horses and cattle, farming implements and furniture, and the severed crops, he may take with him wherever he goes. They are movable. This division of property nature has made and common sense teaches, and it is the division of the civil law, and holds to this day in Louisiana. Why, then, talk of real and personal f And why call his land a tenement, or dignify his humble dwelling with the high-sounding title of hereditament?, Eeason would never teach, and we must seek the answer elsewhere. § 2. Tenements — Feudal System. — Our landed proprietor lives in England towards the end of the eleventh century, some years after the N"orman Conquest. He may be a Nor- man, and have come over with the Conqueror; or he may be a Saxon franklin, who has not been entirely dispossessed of his land to satisfy the rapacity of the ISTorman soldiery. However this may be, he is the occupier of the land, and so far better off, perhaps, than many others. But he is bur- dened with onerous exactions, on many occasions and for various purposes. He must attend his superior lord (per- haps the king) to the wars, though this is the least of his hardships. He must pay aids to ransom his lord from prison, to make his eldest son a knight, and to provide a dowry for his eldest daughter. While a minor, the lord claimed the right of wardship, and, as guardian, took all the profits of his land, making him no return; he claimed 4 REAL PROPERTY. [Chap. 1 also the right to marry him to whom he pleased, or to ex- act the value of the connection in money; if he would sell his land, he must pay a sum of money to the lord, a fine for the right of alienation; should he not have been a minor at his father's death, he had yet to pay a sum of money before the lord would allow him to take possession of his little patrimony. To this lord he has done homage, kneeling before him and professing to become his man, and to him he has sworn the oath of fealty (fidelity). Should he hold directly of the crown {in capite), he is still further burdened by additional exactions. Should he inquire, "What does this mean?" he would learn that he is not the absolute owner of his land, but a tenant, though it should be in fee-simple; that he is "seised as of fee," and holds his land, not allodially, in his own right, but feudally, of a superior. If he is a Norman and holds under grant of the king, he is informed that his land was not given "freely and for nothing;" not as the reward of faithful service already performed, but on condition of return to be made hereafter, and services in future; that the crown is lord paramount of all the land in the king- dom; that all lands are held mediately or immediately of the crown that he holds his land as a vassal of a lord; and that the exactions of which he complains are the rents and services incident to the holding, or to the tenure. And the Saxon learns that the same rule applies to him — ^how- ever it may have come about — and that he, too, is but a tenant of land, and to the tenure are annexed the rents and services. "■ 1 Tenure of English Land. — "The great facts of William's reign did everything to strengthen the doctrine that land should be held of a lord. We have seen that, from the beginning, he dealt with all lay estates in England as land forfeited to the Crown, which the king granted out afresh, whether the grant was to the former owner or to some new grantee. The foreign soldier who received his reward in a grant of English land, held that land as a plain matter of fact, and without any legal subtleties, as a personal gift §§2,3] CLASSES OF PROPERTY. 5 If he askSj "Is not my land mine?" he is answered, "No; not the land absolutely; that belongs to the king; you have an interest in the land, which is all any subject can have; that interest, which may vary in degree, is called your estate. It may be for years, or for your life, or to you and your heirs, but still it is only an estate, a certain amount of interest in the land, and not the land itself." If the Saxon should inquire the origin and reason of such a rule, the re- ply of the Norman would be: "It is the Feudal System. Your land is a feud or fief, as mine is. Mine was really given as the reward of military services, on condition of such and other services in future. Yours is constructively on the same foundation." § 3. Lands. — The Saxon begins to look about him ; "And so you say my land is not my own; how as to those other things, my house and barn, for instance; and how as to my timber and growing crops; are these land also?" The reply is : "Yes, land is of far more importance than any- thing that can be affixed to it, quidquid plantatur solo, solo cedit. Land includes everything above, usque ad ccelum; everything below, usque ad orcum. The houses were but timber and brick, but these being fixed to the soil belong to it, and so do your timber and growing crops, and the from William. The Englishman who bought back his land, or re- ceived it back again as a loan, did not hold it as a gift in exactly the same sense as his Norman neighbor, but it was a royal grant by something more than a legal fiction. His land had been, if only for a moment, in the king's hands, to be dealt with as the king chose, and the king had chosen to give it back to him, rather than to keep it himself, or to give it to anybody else. The law- yer's doctrine, that all land must be a grant from the Crown, is thus accidentally an historical truth." (Freeman, Norm. Conq., v., 248.) And he adds: "Let it once be established that land is held as a fief from the Crown, and the whole of the feudal in- cidents follow naturally." — Hid. 253, 254, where this proposition is demonstrated. 6 REAL PROPERTY. [Chap. 1 ores and minerals under the ground. Should you sell your land, you would be considered as including all these." § 4. Goods and Chattels. — The Saxon glances over the fields, and sees his horses and cattle. "Are these my own?" he asks, "or have I in them, too, merely an estate?" "No," he is told, "they are yours absolutely. The feudal system cares nothing for such trifles; there are no degrees of in- terest in them, no estates; they are not the objects of tenure, are not holden by you of any one. But your lands and houses are holden of a superior. They are called tenements {teneo, to hold) for that very reason. These movables, household and kitchen furniture, cattle, etc., are goods and chattels, but we call your lands and houses tenements."^ § 5. Incorporeal Tenements. — So far we have noticed only such things as are corporeal, having body and substance, and which may be seen and handled. We have seen that land includes all that is afiixed to it of a corporeal nature. But can nothing be annexed to land except what is visible and tangible? The Norman may be lord of a manor. As an- nexed to his land, by virtue of his ownership of it, he may have a right to present a priest to the parish church which he has built and endowed. Should he sell his manor, how- ever, the right to present to the church would pass with it, ^ No Tenure of Chattels. — "The feudal law and feudal tenures pertained only to land. It can he easily seen from the very na- ture of the relation between lord and vassal, and the peculiar character of the tenure, that personal property could not with any propriety be made the subject of these relations. Personal property is too transitory in its nature, too much consumed in the using, to be the sign of the permanent tie between the su- perior lord and his tenants. In addition to this consideration was the fact that movable property, in the flourishing times of the feudal system, formed but an insignificant part of the gen- eral wealth, and had attained none of the importance which it has reached in modern times." (Pomeroy, Introduction to Mu- nicipal Law, § 449. See lb. § 417 to § 495, for an extended discus- sion of the feudal system.) §§3-6] CLASSES OP PROPERTY. 7 and belong to the new owner. This right, called an advow- son, is incorporeal, but being annexed to the land, it is a tenement. Again, as incident to the land he owns, the pro- prietor may have a right to pasture his cattle on the land of his neighbor, a i-ight of common; or to have a path over his neighbor's land, a right of way. So, too, as incident to his land in the hands of another, he may have a right to receive an annual rent. So we see there may be incorporeal tenements as well as those which are corporeal.^ § 6. Hereditaments. — The term hereditaments signifies anything which may be inherited; anything which on the death of the ancestor descends to his heir. By the law of England and the United States, when a man dies, his goods and chattels (now called personal property) do not belong at once to his children or next of kin; there are no heirs to inherit personalty; the title to it vests in the per- sonal representative, the executor nominated in the will, or the administrator appointed by the court, whose duty it is to pay the debts, and then to divide the surplus, if any, among those entitled by law. But the title to land, real property, realty, is upon the ancestor's death intestate at once in the heir, or heirs, who are said to inherit it. Every- thing, then, which can descend to the heir is called heredita- ment. Nothing which goes to the administrator can be ^INCOEPOEEAL TENEMENTS. — It has been doubted whether, prop- erly speaking, there are incorporeal tenements. (2 Washburn, Real Prop., 250.) Preston says: "Perhaps a rent or a common is not a tenement, agreeable to the strict rules of the law of ten- ures; it is a tenement, however, in reputation; It is a tenement within the meaning of several statutes, particularly the statute (de donis) of intails." (Preston on Estates, p. 8.) Lord Coke, however, is express that "tenement is a large word to pass, not only lands and other inheritances which are holden, but also of- fices, rents, profits, a prendre out of lands, and the like, wherein a man hath any frank tenement, and whereof he Is seised ut de libera tenemento." — (1 Thomas's Coke, 219. See to same effect. Tan Rensselaer v. Read, 26 N. Y., 558, 566.) 8 REAL PROPERTY. [Chap. 1 more than a chattel. Like tenements, hereditaments are both corporeal and incorporeal. Hereditaments are usually also tenements, but not necessarily so. Thus, a chattel which by special custom goes to the heir with the land (heirloom) is for that reason a hereditament; but it is not a tenement, for there is no tenure of chattels. For the learning as to tenements and hereditaments, see Preston on Estates, pp. 6-14.1 § 7. Eeal and Personal Property. — ^Let us now consider the origin of the terms real and personal as applied to property. Actions for the recovery of land had, long before the use of the word as to property, been called real actions, because, the land being immovable and indestructible, the identical land, the very thing (res), could be recovered. The action ' Tenements, etc., Meaning of. — As used with reference to corporeal property, the words lands, tenements and hereditaments, denote things real, the subjects of ownership, and not the estate or interest which the tenant may have in such subjects. Thus, one may hold a tenement for a term of years, and a devise at common law of the testator's Hereditaments conferred on estate for life only. See Moor v. Denn, 2 Bos. & Pul. 247, where it is said of the word hereditament occurring in a will: "The settled sense of that word is to denote such things as may he the subject-mat- ter of inheritance, but not the inheritance itself; and [it] cannot, therefore, by its own intrinsic force, enlarge an estate prima facie a life estate into a fee." (See 3 Jarman on Wills, 44; 2 Redfield on Wills, 330; 1 Sharswood & Budd's Leading Cases on Real Property, 60.) But it would seem that as to incorporeal realty the idea of tenement or hereditament is inseparable from the degree of in- terest. As to land, we cannot conceive of it without the exist- ence of the fee-simple and freehold in some one, though the pos- sessor may have a mere chattel interest, as a tenant for years. Such land is therefore a tenement or hereditament with reference to the higher estate subsisting somewhere, and is therefore cap- able of being inherited, and may be holden. But as to incorporeal rights issuing out of land, or exercisable within it, if the owner of the right has a term of years only therein, non constat, that any higher estate exists anywhere, and therefore tenure and in- §§6-8] CLASSES OF PROPERTY. 9 to recovex a chattel was not called reaJ, because the action was for damages, and not for the thing itself. Indeed, ex- cept in the action of replevin, there was no way at common law to compel the defendant to restore the very thing if he chose to withhold it. Hence the action was in personam, to obtain in damages a useful vindication {vindicatio utilis), and not in rem, to recover the specific res (vindicatio rei). It followed that, though lands and chattels were equally real, land was called real, because the action to recover it was in rem, and chattels were called personal, because the action as to them was in personam. This is the view taken by "Williams, who rejects Blackstone's explanation, that things personal "may attend the owner's person wherever he thinks proper to go," remarking that goods and chattels were not usually called things personal until they had be- come too numerous and important to attend the person of their ovmers. He adds that the words real and personal, as applied to property, were not in common use until the beginning of the eighteenth century, after the statute of 12 Charles II., ch. 34 (1660), had given a final blow to the feudal system by turning the military tenure by knight service into tenure by free and common socage.^ (Williams, E. P., p. 6.) § 8. Estate in Lands, etc. — We have now completed our consideration of things real; i. e., lands, tenements and hereditaments, or, to use the modern term, real property. Jieritance cannot be predicated of it. (See Cooley's Blaclistone, Book II., p. 14, n. 1; 1 Tho. Co. (219); Preston on Estates, 12.) ^ No Tenuee is Virginia. — Though the statute of 12 Charles II., ch. 24 (1660), changed knight service into socage, it did not abol- ish tenure, and it is still a received maxim in English law that "all lands are holden," except those belonging to the crown. In Virginia, the letters patent of James I. granted the land "to be holden of us, our heirs and successors, as of our manor of East Greenwich, in the county of Kent, in free and common socage only," etc. (1 Hen. Stat., 66 and 88.) But there is now no tenure of land In Virginia, it having been enacted in 1779, "That the 10 REAL PROPERTY. [Chap. 1 Let us next consider estates in things real. And these are, (1), Estates real; and (3), Estates personal. Per there may be personal estate in a real thing, though there cannot be real estate in a thing personal. § 9. Real Estate. — According to Blackstone (2 Bl. Com. 103), an estate in lands, tenements and hereditaments, signifies such interest as the tenant has therein, the word signifying the condition, or circumstance, in wliich the owner stands with regard to his property. Estates in land are divided into estates of freehold, and estates not of free- hold. And an estate of freehold under the feudal rules answers to real estate, and estates less than freehold are re- garded as personal estate only. A freehold estate in lands, tenements and hereditaments, is an estate for the tenant's own life, or for the life of an- other {pur autre vie), or any larger estate; for example, an estate-tail, or a fee-simple. And the law considers any es- tate to be for life, if by possibility it may endure so long. For this reason an estate to a widow during her widowhood reservation of royal mines, of quit rents, and all other reserva- tions and conditions in the patents or grants of land from Great Britain under the former government shall be, and are, hereby declared null and void, and that all lands thereby respectively granted shall be held in absolute and unconditional property to all intents and purposes whatsoever, in like manner with the lands hereinafter to be granted by this commonwealth." (10 Hen. Stat. pp. 64, 65.) This makes the ownership of land in Virginia allodial, and the same is true in the other States of the Union. "So that fidelity to the State is now the only fealty that any man owes for his lands; his only lord paramount is the peo- ple of the State where such lands are situated." (Taylor, Land- lord and Tenant, § 11; Pomeroy, Municipal Law, § 464.) And Judge Cooley says: "In America, as in England, the sovereignty is recognized as the source of all title, and the State succeeds thereto in default of heirs; but this right is not peculiar to the feudal system; neither is the eminent domain, which is some- times referred to as a remaining incident of the feudal system." (2 Bl. Com. (102), n. 7.) §§8-10] CLASSES OF PROPERTY. 11 is a life estate. We may, therefore, define a freehold as such an estate in a real thing as is of indefinite duration, and by possibility may last for life. And this is also the definition of real estate. Under this definition, estates at will and by sufferance are to be excepted, as they are certainly not estates of freehold, being scarcely Regarded, because of their precarious character, as estates at all; and estates by statute-merchant, statute-staple and elegit, are also to be excepted because they are merely securities for debts; and, as they pass with the debts to the personal representatives, they are treated as personal estates. (2 Bl. Com. 163.) A mortgage debt is treated as an interest in land of a per- sonal nature in a court of equity, but at law the estate of a mortgagee in fee-simple is real estate, and passes to the mortgagee's heirs. (Williams Eeal Prop. 431.) We thus see that the proper and technical meaning of "real estate" is a certain degree and quantity of interest in real property; but the words are sometimes used to de- scribe land itself, as when one says, "my estate at A." And this popular meaning may be given to "real estate," even when the words occur in a statute, if the context clearly shows this to be the legislative intent. See Troth v. Robert- son, 78 Va., 46, 55, § 10. Personal Estates in Land; or Chattels Eeal. — The most important estate under this head is a term of years in land, or as it is commonly called, a lease.^ Is this real or personal estate? If for one hundred years, will it on the death of the owner (tenant, lessee) go to his admin- istrator or to his heir? Such a term is personal estate, although it is an interest in land; but as it savors of land, it is therefore, says Lord Coke, called a chattel-real. (3 Tho. Coke, 293.) ' For other examples of chattels real, see 2 Bl. Com. 386. These are not in existence in the United States, except the estate by the writ of elegit, and that has been abolished in Virginia. (Code, § 3581.) 12 REAL PROPERTY. [Chap. 1 The reason why a term of years is not real estate is of feudal origin. We have seen that freehold and real estate are the same degree of interest in land. But an estate for life, when the Conqueror parcelled out the land of England to his chiefSj was the smallest degree of interest a freeman would consent to hold. So a life estate was the lowest freehold estate, as we have seen. And when terms of years came to be recognized as estates, they were considered in- ferior to estates of freehold, and the doctrine was established that a freehold is larger in contemplation of land than a term of years, however long. (Williams, E. P., 413.) Again, a freehold estate required a peculiar ceremonial in its bestowal, called livery of seisin; i. e., delivery of the seisin or feudal possession. This was the feudal investiture. The lord went with the vassal upon the land and gave him a twig or turf, in token of the delivery of the possession, in the presence of the countryside as witnesses. A lease, not being a feudal grant, required no such procedure. It would pass by a mere verbal agreement, completed by the tenant's going alone and entering upon the land. Hence Blackstone's definition of a freehold estate as one that requires livery of seisin. (3 Bl. Com., ch. 7.) But a lease was not re- garded as really giving the lessee the ownership of the land, even for the term. The lessor did not part with the seisin; there was no livery of seisin. It was a mere contract be- tween the lessor and the lessee, by which the latter became ■steward or bailiff of the former, holding the land at an annual valuation. A lease is to this day in England, and generally in the United States, a mere chattel, no matter what its duration.^ Williams, E. P. 8; Taylor, Landl. and Ten. § 14, n. 2. 'The Code of Virginia (§ 5, cl. 10) gives these statutory defini- tions ("unless such construction would be inconsistent with the manifest intention of the legislature") : "The word 'land' or 'lands,' and the words 'real estate,' shall be construed to include lands, tenements and hereditaments, and all §§10,11] CLASSES OF PROPERTY. 13 § 11, Timber, Grass, and Crops, — We have now seen that personal property passes to the administrator of the deceased owner, and that there may be a personal estate in land (chattel real) which also goes to the administrator, whereas all other estates in land which do not cease with the owner's death (estates of inheritance) descend to the heir. And we have seen that if the owner of land sells it, all the timber and growing crops pass with the land to the grantee. And the same is true on a devise of land; the devisee is entitled to timber, fruit, grass, wheat, corn, tobacco, etc., the gift of the land importing a gift of all that is affixed to it. West v. Moore, 8 East. 339; Bradner v. Favlhner, 34 N. Y. 347; 1 Lomax Ex'ors, 420 ; 3 Eedfield on Wills, 154. But when the owner of land dies intestate, and it descends to the heir, a distinction is made between such unsevered vegetable products as are raised annually by cultivation and labor {fructus industriales) , and such as are the natural pro- duce of the ground {fructus naturales). The former class, called emblements, are considered personalty, and pass to the administrator, while the latter class, those not emblements, are regarded as part of the realt}^, and go with the land to the heir. Emblements may be defined as the annual results of agricultural labor; i. e., the crops which repay the labor bestowed upon them within the year, and they belong to the administrator, because the personal estate is expended in their production, and should therefore be increased by their value. Accordingly, crops of corn, wheat, and other cereals, potatoes and other root crops, cotton, hemp, flax, etc., are emblements, and go to the administrator; while timber, fruit trees, fruit, grass, clover, etc., are not emble- ments, and pass to the heir. (3 Redf., Wills, 150-155 ; 4 Lead. Cases, Real Prop., 517; Tied. Real Prop., § 71, note 4.) rights thereto and interests therein, other than a chattel interest; and the words 'personal estate' shall include chattels real, and such other estate as upon the death of the owner intestate would devolve upon his personal representativa." 14 REAL PROPERTY. [Chap. 1 But on a devise of land, as we have seen, the devisee is entitled to all Tinsevered vegetable products, those which are emble- ments, as well as those which are not.^ Dennet v. HopTcinson, 63 Me. 350 (18 Am. E. 227). § 12. Mineral Rights. — "We have seen that the ownership of land usually extends usque ad orcum; i. e., to the centre of the earth. But the owner of land may divide by a horizontal plane, granting the surface freehold, while he re- tains the substratum; or granting the substratum, while he retains the surface. This is very common in Pennsylvania and other mining regions, the surface right being in one man, and the mineral right in another. It then becomes important to ascertain the nature of the mineral right, wheth- er it is to be regarded as corporeal or incorporeal; for if incorporeal, it can pass on a grant of the land to which it is appurtenant, as we have seen with reference to easements and profits a prendre annexed to land; but if corporeal, the doctrine is that land cannot be appurtenant to land, and if not parcel thereof, requires a separate conveyance. Again if the right be incorporeal, it is said to be indivisible; but if corporeal, it may be conveyed in parts like any other land. (25 Am. D. 582; 121 d. 760.) ^ In Shelton v. Shelton, 1 Wash. (Va.) 53, It was held that, un- der the statute then in force, a devise of land, where the testator died after March 1, would not pass to the devisee the crops un- severed at the testator's death, unless such intent was manifested by the will. And see Fleming v. Boiling, 3 Call. 75, 82, explain- ing Shelton v. Shelton as a case under the statute, and admitting the common law to have been otherwise. And see 1 Lom. Ex. 421, as to the effect of the Code of 1849, ch. 139, § 2. But however the law may have been formerly, it is believed that now in Virginia a devise of land will carry the emblements to the devisee, unless a contrary intention is expressed in the will. For the Code of 1887, § 2806, declares that "in all cases the right to emblements shall be as at common law;" and byNthe common law a devise of land to A gave him the emblements. And see Bradner v. Faulk- ner, 34 N. Y. 347, which is e contra to Shelton v. Shelton on the construction of a very similar statute. §§11-13] CLASSES OP PROPERTY. 15 It is now settled that, if the grant or reservation of the right to dig minerals is exclusive and unlimited in all respects, it will be regarded as carrying the entire ownership of the ore in place beneath the ground; that this exclusive and unlimited right to take minerals is equivalent to a grant or reservation of the minerals themselves, and constitutes a corporeal hereditament, not a mere privilege, or profit a prendre; but on the other hand, if the right to take the min- erals be not exclusive, so that the grantor may dig as well as the grantee, or if it be restricted to a specified quantity or to certain purposes, it is an incorporeal hereditament, because it is not a grant or reservation of the entire owner- ship of the ore beneath the grantor's land. See Caldwell v. Fulton, 31 Pa. St. 475 (72 Am. Dec. 760), where the cases are reviewed. McClintock v. Bryden, 5 Cal. 97 (63 Am. Dec. 87, and monographic note at 101) ; R. Co. v. Trirrible, 10 Wall. 367; Reynolds v. Cool, 83 Va. 817 (5 Am. St. E. 317) ; Lee v. Bumgardner, 86 Va. 315; Barhsdale v. ParTcer, Va. Ct. App., Dec. 1890; 15 Va. L. J. 133) ; List v. Cotts, 4 W. Va. 543; Wililams V. Gilson, 84 Ala. 228 (5 Am. St. E. 368.)! § 13. Incorporeal Personalty. — The division of property into corporeal and incorporeal applies as well to personalty ' License to take Minerals.— In Hodgson v. Perkins, 84 Va. 706, it is held that an indenture between a landowner and certain skilled miners, giving them the privilege of digging for gold, etc., on the former's land, and to hold the same for such purpose, and none other, so long as they may deem it worth while to search for gold, etc., creates no estate in the land, corporeal or incor- poreal, but only an unassignable license. See, too, Barksdale v. Hairston, SI Va. 764, where a mining agreement was held a mere license, and revocable at the will of the licenser, so long as it re- mained executory. See also Hamleton v. Putnam, 3 Pinney (Wis.J 107 (54 Am. D. 158); Bush v. Sullivan, 3 G. Greene (Iowa), 334 (54 Am. D. 506); Riddle v. Brown, 20 Ala. 412 (56 Am. D. 202), for the distinction between a license and an incorporeal heredit- ament. 16 REAL PROPERTY. [Chap. 1 as to realty. Thus goods and chattels in possession are corporeal, while bonds, notes, and other money rights lying in suit, called choses in action, are incorporeal. As to stock in jointstock companies, it is in its nature incorporeal per- sonal property, even in the case of railroad and other internal improvement companies vrhose operations concern land. The reason is that the land is vested in the ideal person, the cor- poration, and is realty; but the stock, which is a right to share in the dividends, is in the nature of a chose in action, and in the hands of the stockholders is personalty.^ Angell & Ames, Corp., § 557. § 14. Houses Built by One Man on the Land of Another. — We have seen that a house erected on land becomes real property, as part of the land. And this rule applies at com- mon law even when A erects a house on B's land under a mistake as to the title; the house still becomes a part of the soil and the property of B. (4 Leading Cases, Eeal Prop., 518.) But it is otherwise where A erects a house on B's land with B's permission, and with the understanding, ex- press or implied, that A may remove it at pleasure. The house then remains the property of A, and is considered per- sonal property. Russell v. Richards, 11 Me., 371 (36 Am. D., 533) ; Curtis v. Hoyt, 19 Conn., 154 (48 Am. D., 149) ; Dame v. Dame, 38 IST. H., 439 (75 Am. D., 195) ; Andrews V. Auditor, 38 Gratt. 115. Questions as to the character of annexations to land also ' Vifhether the stock of a corporation Is realty or personalty is sometimes settled by its charter. Thus the stock of the old "James River Company" (chartered 1784) was declared to be real estate. (11 Hen. Stat, p. 455; Revised Code, 1802, p. 442.) So of the stock of the "Dismal Swamp Canal Company," chartered In 1787. (12 Hen. Stat., 484.) So in England as to New River shares. (Dryiutter v. Bartholomew, 2 P. Wms., 127.) In Virginia it is en- acted: "Shares of stock shall be deemed personal estate, and as such shall pass to the personal representative or assignee of the stockholder." (Code, § 1125.) §§13,14] CLASSES OF PROPERTY. 17 arise on a conveyance or mortgage thereof; and, on the death of the owner, between the heir and administrator; and like- wise when the annexations are by a life tenant or tenant for years. These are reserved for the next chapter, to be con- sidered under the head of Fixtures. REAL PROPERTY. [Chap. 2 CHAPTEE II. Fixtures. § 15. Definition, — iBy the term fixtures are denoted those articles which were chattels, but which, by being physically annexed or aflSxed to real estate, become a part of, and ac- cessory to, the freehold, and the property of the owner of the land. Hill on Fixtures, § 1 ; Taylor on Landl. and Ten- ant, § 544; 1 Wash, on Eeal Prop. (10) ; 3 Eedf. Wills, 156; 2 Devlin on Deeds, § 1191, and n. 2; Teaf v. Hewitt, 1 Ohio St. 511 (59 Am. D. 634) ; Green v. Phillips, 26 Gratt. 752-'9 (31 Am. E. 333). Fixtures are sometimes defined in a manner precisely the reverse of the above, viz., as those chattels, which, although physically annexed to real estate, do not become a part of, and accessory to, the freehold, but remain chattels, and the personal property of the tenant, or other person by whom they are so annexed. (3 Min. Inst. (3rd. ed.) 604; Sheen v. Richie, 5 M. & W. 175, per Parke, B. ; Amos & Ferard, Fixtures, 3.) It has been proposed to avoid this conflict by defining fixtures as "anything annexed to the freehold," without refer- ence to the question whether realty or personalty, whether removable or not removable. (3 Sm. L. C. 187, note to Elwes V. Maw; 1 Schouler on Pers. Prop. 137; Wms. on Pers. Prop. 13.) It is thought best, however, to adopt the definition first given, as it is less liable to confuse than the others, and is recognized by the greater number of decisions.^ " "The term fixture, In the ordinary signification, is expressive of the act of annexation, and denotes the change which has oc- curred in the nature and legal incidents of the property; and it 18 §§ 15-17] FIXTURES. 19 § 16. Classification. — Questions as to fixtures may arise, as was explained by Lord Ellenborough in Elwes v. Maw, 3 East. 38, between — 1. Heir and executor. 2. Executor of a tenant for life and the remainderman or reversioner. 3. Landlord and tenant. Let us consider these in their order. I. Fixtures between the Heir and the Executor. § 17. Introductory. — The ancient common law, regarding land as of far more consequence than any chattel which could be affixed to it, always considered everything attached to land as part of the land itself. The property in the thing must accede to that in the land. As between heir and executor, this rule benefited the heir, who has been a great favorite of the common law from the earliest times. And while the ancient strictness of the rule as to fixtures has been greatly relaxed in other cases, and especially as between landlord and tenant, yet between heir and executor there has been but little change. And it seems reasonable that whatever is once annexed to the freehold, for the benefit of the inheritance, and for purposes connected with its use and enjoyment, should go with the inheritance to the heir, rather than that the inheritance should be dismembered and disfigured in order to increase the personal estate. The rule a^ laid down in Sheppard's Touchstone, p. 470, is that the executor shall not have the "incidents of a house," as windows, doors, wainscot, and the like; that they shall not be "divided and sold from the house." "But if the appears to be not only appropriate but necessary to distinguish this class of property from movable property possessing the na- ture and incidents of chattels. It is in this sense that the term is used in far the greater part of the adjudicated cases." {Teaft V. Hewitt, supra.) 20 REAL PROPERTY. [Chap. 2 glass be from the windows, or there be wainscot loose, or doors more than are used that are not hanging, or the like, these things shall go to the executor or administrator." See Peck v. Batchelder, 40 Vt, 233; 94 Am. D. 392. From the above extract, and also from the definition of fixtures, it will be seen that annexation to the freehold is considered necessary. It has been said that to constitute annexation the chattel ' should be let into the soil, or cemented to, or otherwise united with, something previ- ously let into or forming part of the soil; and that simply laying a thing upon the land will not be sufficient. And that if a chattel is kept in place merely by the force of gravitation, so that the only impediment to its removal is its own weight, it is not a fixture. Thus a barn placed on blocks of timber lying upon the ground, but not let in, is not a fixture. Gulling v. Tufnall, Bull. IST. P. 34. See 3 Redf. Wills, 157. So a gin-stand not attached to the soil except by its own weight, though it may be used for the purposes of the farm, is not a part of the realty. Cole v. Roach, 37 Texas, 412; 2 Dev. Deeds, § 1205. Nor is a saw- mill built upon timbers lying on the surface of the ground. Brown v. Little, 6 Nev. 244. And in Carlin v. Bitter, 68 Md. 478 (6 Am. St. R. 467), it is held that a wooden structure or a building merely resting by its own weight on flat stones laid upon the surface of the ground, and hav- ing no other foundation, is not a fixture. On the other hand, in SnedeJcer v. Warring, 12 IST. Y. 170, it was held that a colossal statue resting by its own weight on a perma- nent pedestal, was a fixture. The court said: "A thing may be as firmly affixed to the land by gravitation as by clamps or cement. Its character may depend much upon the object of its erection. And in Massachusetts, a cistern sitting against the wall was held to be a fixture. Bainway v. 0066, 99 Mass. 457. And in Cole v. Roach, 37 Texas, 412, it is said: ''"Where a cistern has been placed against the house for the purpose of supplying the inmates with . § 17] FIXTURES. 21 water, and has been used and depended upon for that pur- pose, it should be considered as part of the realty as much as the key to the door, or the fence around the yard or field." See 2 Dev. Deeds, § 1305, n. 2. In regard also to the method of annexation, we may ob- serve that some things which come within the rule of fix- tures are very slightly annexed to the freehold. Thus the doors, windows, shutters, the locks, bolts and bars of a house can generally be removed at any time without the slight- est damage to the freehold; and yet these are fixtures. Heavy articles, on the other hand, like mirrors,^ pictures, and wardrobes, though strongly fastened to the wall by screws, are mere chattels. "The difficulty is somewhat increased," says Chief Justice Shaw, "when the question arises with respect to a mill or manufactory, when the parts are often so arranged and adapted, so ingeniously combined, as to be occasionally connected or disengaged, as the ob- jects to be accomplished may require." Winslow Y. Ins. Co., 4 Met. 314 (38 Am. D. 368) ; 1 Schoul. P. P. 139. ^ In McKeage v. Ins. Co., 81 N. Y., 38 (37 Am. R. 471), it Is said: "The mirrors were not set in the walls, but were put up after the house had been built, being supported in their places by hooks or supports, some of which were fastened by screws to the woodwork, and others driven into the walls, and were capable of being easily detached from these supports, without interfering with or injuring the walls. All these articles were in their nature mere furniture, and therefore chattels, and not appurtenances to the building. . . . They no more constitute part of the realty than would pictures supported by fastenings driven into the wall." But it does not follow that mirrors may not be so fitted to a house as to become fixtures. Thus in Ward v. EilpatricTc, 85 N. Y. 413 (39 Am. R. 674), mirror frames were held to be part of the realty. The court said: "The mirror frames in the present case were actually annexed to the realty. They were so annexed during the process of building, and as a part of that process. They were not brought as furniture into the completed house, but themselves formed part of such completion. Those in the hall 22 REAL PROPERTY. [Chap. 2 § 18. The Criterion of a Fixture. — ^The difiSculties grow- ing out of the test of annexation have led judges and text- writers to seek for some more satisfactory criterion. Thus, in some of the authorities, the intention of the party mak- ing the annexation is laid down as the true test of a fixture. Winslow Y. Ins. Co., supra, 2 Sm. L. C. 208. Others hold that the test of a fixture is its adaptation to the use and pur- poses for which the realty is appropriated, however slight its physical connection with it may be. Voorhis v. Free- man, 2 Watts & S. 114 (37 Am. D. 490) ; Ooffe v. 0' Conner, 16 111. 431 ; Tabor v. Bohinson, 36 Barb. 483. In a note to Minn. Go. v. St. Paul Co. 2 Wall. 609, 646, it is said that in the United States there are three different rules as to annexation established in different States : li. The thing must be so fastened to the estate that its removal would seriously injure the freehold, beyond the loss of the thing removed. 2. If the chattel is essential to the use of the real estate, and actually though slightly attached, it will pass with the freehold. 3. If the thing be essential to the use of the real estate, and has uniformly been used with it, then it passes, though not fastened to it. § 19. The Doctrine of Teaff v. Hewitt.— In Teaff v. Hew- itt, 1 Ohio St. 511 (59 Am. D. 634), it is said, in an able opinion by Bartley, C. J., that "the great difficulty which has always perplexed investigation upon this subject filled up and occupied a gap left in the wainscoting. They were an essential part of the inner surface of the hall, and of a ma- terial and construction to correspond with and properly form part of such inner surface. Those in the parlor fitted into a gap purposely left in the baseboard. Both those in the hall and those in the parlor were fastened to the walls with hooks and screws. They could be removed, but their removal would leave unfinished walls, and require work upon the house to supply and repair their absence." And see also Maokie v. Smith, 5 La. Ann. 717; 52 Am. D. 615. §§ 18, 19] FIXTURES. 23 has been the want of some certain, settled, and unvarying standard by which it could be determined what amounts to a fixture, or what connection with the land will deprive a chattel of its peculiar legal qualities as such, and make it accessory to the freehold." And the learned judge con- cludes that "the united application of the following requi- sites will be found the safest criterion of a fixture: 1 Actual annexation to the realty, or something appurtenant thereto; 2, Appropriation to the use or purpose of that part of the realty with which it is connected; 3, The intention of the party making the annexation to make the article a permanent accession to the freehold; this intention being in- ferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made." This criterion of a fixture seems to have met with general approval. See 14 Am. D. 303, note to Hunt v. Mullanphy, 1 Mo. 508; 1? Am. D. 695, note to Gray v. HoldsUp, 17 S. & E. 413 ; 2 Dev. Deeds, § 1311 ; 1 Jones, Mortgages, § 439 ; Potter V. Cromwell, 40 N. Y. 387 (100 Am. D. 485) ; Rogers V. Man. Co., 81 Ala. 483 (60 Am. E. 171) ; Atchison, &c., R. Co. V. Morgan, 43 Kans. 33 (16 Am. St. E. 471) ; Green v. Phillips, 36 Gratt. (Va.) 753 (31 Am. E. 333). ^ *In Ottumwa Woolen Go. v. Hawley, 44 Iowa, 57 (20 Am. R. 719, 724), It is said: "The three requisites laid down in the case of Teaff V. Hemtt, as constituting a fixture, it is said must all combine. The first, being physical attachment, all the cases hold is a very uncertain and unsatisfactory criterion, and in our opinion the only value to be attached to it is in determining the intention of the owner of the freehold in making the annexation. . The third requisite, being the intention of the party making the annexation to make a permanent accession to the freehold, is to our minds the controlling consideration in deter- mining the whole question." And in an elaborate note to Oray v. HoldsMp, 17 Am. D. 695, it is said: "The decision in Teaft v. Hemtt satisfactorily solves the whole question by declaring that the degree or nature of annexation to the soil is only an element or 24 REAL PROPERTY. [Chap. 2 § 20. Constructive Annexation. — In Wolford v. Baxter, 33 Minn. 12 (53 Am. E. 1), the law is thus laid down by Mitchell, J. : "While not agreeing as to the necessity for or the degree of importance to be attached to the fact of actual physical annexation, yet the authorities generally unite in holding that to constitute a fixture the thing must be of an accessory character, and must be in some way in actaal or constructive union with the principal subject, and not merely brought upon it; that in determining whether an article is personal property, or has become a part of the realty, there should be considered the fact and character of annexation, the circumstance (and even a subordinate circumstance tending to throw light upon the more material inquiry as to the intent in appropriating the chattel) In determining whether or not the chattel has become a fixture. . . . The true criterion of a fixture, in our judgment, is the united application of the follow- ing requisites: 1, 'Actual annexation to the realty or something appurtenant thereto,' with this modification, that the annexation is not of necessity an absolute fastening, or a continued physical union in all cases; 2, 'Application to the use or purpose to which that part of the realty with which it Is connected is appropriated; 3, The intention of the party making the annexation to make a permanent accession to the freehold.' The requisite of intention is the most important, and should be clearly understood; the word 'intention' here having its broad and comprehensive signifi- cation, and not merely implying the secret action of the mind of the owner of the property. The owner of an important lot might deposit thereon a block of dressed stone, with no outward indica- tion of appropriation to any use in connection with the land, and it could remain a chattel, notwithstanding some secret mental purpose of the owner that it should be and remain a part of the soil, and this even though the stone should in time settle par- tially into the earth; but if the owner should erect a building on the lot, and place this stone upon the surface of the ground in front of a door in such a manner as to become a step by which to reach the door and enter the house, and all the surrounding architecture, etc., indicated that it was intended for permanent use as a part of the general plan, it would at once become a fix- ture, and this, although the owner might entertain some secret intention of taking it away at some future time." § 20] FIXTURES. 25 natm-e of the thing annexed, the adaptability of the thing to the use of the land, the intent of the party in making the annexation^ the end sought by annexation, and the relation of the party making it to the freehold. These other tests named, while having an important bearing upon the questions whether theie has been an annexation, and if so its effect, do not, however, do away with the necessity of annexation, either actual or constructive, to constitute a fixture. This would involve a contradiction of terms, and wipe out the fundamental distinction between real and per- sonal property. A thing may be said to be constructively attached when it has been annexed, but is separated for a temporary purpose, as in the case of a mill-stone removed for the purpose of being dressed; or when the thing, though never physically fixed, is an essential part of something which is fixed, as in the case of keys to a door, or the loose cover of a kettle set in brick work. It is perhaps somewhat on this principle that the pcTmanent and stationary ma- chinery in a structure erected especially for a particular kind of manufacturing has been held fixtures, although very slightly or not at all physically connected with the building, because without it the structure would not be com- plete for the purpose for which it was erected. Ponderous articles, though only annexed to the land by the force of gravitation, if placed there with the manifest intent that they shall permanently remain, may be fixtures."^ See Wadleigh v. Janvrin, 41 N". H. 503 (77 Am. D. 780) ; Patton v. Moore, 16 W. Va. 428 (37 Am. E. 789). 'The learned judge further says: "It has often been remarked, that the law of 'fixtures' is one of the most uncertain titles in the entire body of jurisprudence. The line between personal property and fixtures is often so close and so nicely drawn that no precise and fixed rule can be laid down to control all cases. It is difiicult, if not impossible, to give a definition of the term which may be regarded as of universal application. Each case must be more or less dependent on its own peculiar facts. Whether a thing is a fixture or not has been sometimes said to 26 REAL PROPERTY. [Chap. 2 § 21. Vendor and Vendee and Mortgagor and Mortgagee. — The same rule as to fixtures which applies in favor of the heir, as between heir and executor, also applies in favor of the vendee, as between vendor and vendee; and in favor of the mortgagee, as between mortgagor and mortgage.©, and this although the chattels were annexed to the land after the mortgage was made. And the same rule applies between a debtor and an execution debtor, and as to what is a part of the freehold and so subject to the mechanic's lien law. Gray v. EoldsUp, 17 S. & K. 413 (17 Am. D. 680) ; Ward V. Eilpatrich, 85 N. Y. 413 (39 Am. E. 674). Hill, Fixtures, § 60 ; Wms. Pers. Prop. 16, note ; Voorhis v. Freeman, 2 W. & S. 116 (37 Am. D. 490) ; Witmer's Appeal, 45 Pa. St. 455 (84 Am. D. 505) ; James v. B. Co., 6 Wall. 750; Cullwich v. Swindell, L. E. 3 Eq. 249 ; 2 Dev. Deeds § 1193 ; 1 Jones on Mortgages, § 438 et seq. § 22. Examples of Fixtures. — Machinery .^A number of illustrations of what are or are not considered fixtures as between the heir and the executor have already been given. The rule is the same, as we have seen, as between vendor and vendee, and mortgagor and mortgagee; and the cases deciding what shall pass under a sale or mortgage are very numerous. For full information, reference is made to 2 Devlin on Deeds, §§ 1191-1230; 1 Jones on Mortgages, §§ 428-456. It is practicable here to give a few instances only. 1. Machinery in Mills and Factories. — ^The eases on this subject are said to be in irreconcilable conflict. The diversity of decisions springs, no doubt, from the varying degrees of be a question partly of law and partly of fact." See as to defini- tion and test of fixtures, 37 Am. D. 494; 59 Id. 657; 62 Id. 69; 64 Id. 64; 77 Id. 780; 79 Id. 511; 83 Id. 475, 668; 85 Id. 747; 91 Id. 209; 92 Id. 243, 741; 100 Id. 485; 1 Am. Rep. 372; 26 Id. 286; 27 Id. 310; 49 Id. 152; 60 Id. 171; 13 Am. St. R. 147; 16 Id. 471; 18 Id. 903; 19 Id. 598; 21 Id. 231; 22 Id. 373. §§ 21, 22] FIXTURES. 27 importance attached by different courts to the several req- uisites for a fixture, as laid down in Teaff v. Hewitt, supra. Thus, if the mode of annexation is chiefly considered, one result is reached; if the intention of the owner to make a permanent accession to the freehold is magnified, a con- trary conclusion is arrived at. In 1 Jones on Mortgages, § 444, it is said : "There is no certain criterion by which to determine in all cases what belongs to the one class, and what to the other. Different courts decide differently in re- gard to the same articles; and even the decisions of the same court do not always seem to be perfectly consistent. The varying circumstances of the cases seem sometimes to have an immediate influence upon the determination of the courts greater than the statement of them in the reports would seem to warrant." And Mr. Devlin says: "Perhaps the only rule that can be evolved from the mass of conflicting decisions is, that whether an article is a fixture or not must depend upon the combination of several tests, any one of which alone is not conclusive." He then gives the three requisites laid down in Teaff v. Hewitt, and adds that the presumption, in case of doubt, is that, as the interest of the vendor of real estate is permanent, all annexations that he has made are for his prolonged enjoyment, and for the substantial and con- tinued enhancement in value of the property; and that the majority of the decisions consider everything which has been attached to the realty for the purpose of adding to its value as a fixture, passing with a conveyance of the land. 2 Dev. Deeds, §§ 1211, 1218. In Green v. Phillips, 26 Gratt. 762, it is said : "The true rule deduced from all the authorities seems to be this: That where the machinery is permanent in its character, and essential to the purposes for which the building is occu- pied, it must be regarded as realty, and passes with the building; and that whatever is essential for the purpose for which the building is used will be considered as a fixture, although the connection between them is such that it may 28 REAL PROPERTY. [Chap. 2 be severed without physical or lasting injury to either." See this rule approved in Patton v. Moore, 16 W. Va. 428 (37 Am. E. 789) ; Fratt v. WUttier, 58 Cal. 126 (41 Am. E. 251).i 1 The following are instances of machinery held a fixture as be- tween vendor and vendee, or mortgagor and mortgagee: Mill- chains, dogs, and bars in a saw-mill. Farrar v. Stackpole, 6 Greenl. (Me.) 154 (19 Am. D. 201). A gin-mill, erected in the gin-house, and fastened to it by nails and braces. Degraffenreid, v. Scruggs, 4 Humph. (Tenn.) 451 (40 Am. D. 658). A boiler set in brick- work, and not removable without taking down brick-work, and steam-engine annexed by being bolted to granite block. Richar<3r son V. Copeland, 6 Gray (Mass.) 536 (66 Am. D. 424). Machinery of a sash and blind factory, without which it cannot be operated, and attached to the mill by spikes, nails, bolts, and screws, and operated by belts running upon permanent horizontal shafting, driven by a water-wheel under the mill. Symonds v. Harris, 51 Me. 14 (81 Am. D. 553). Steam-engine and boiler, attached to the freehold, and furnishing the motive power for mill machinery. Sweetzer v. Jones, 35 Vt. 317 (82 Am. D. 639). Machinery for tool-making, when annexed to the freehold by being attached with bolts to a block set in the ground, and with screws and bolts to a building. McLaughlin v. 2>lasn, 14 Allen (Mass.) 136 (92 Am. D. 741). A steam-engine, moulding and planing machines, at- tached to a sash, blind, and door factory. Green v. Phillips, 26 Graft. 752 (21 Am. R. 323). The engine in a woolen mill by which the machinery was propelled, and the shafting, pulleys, and belts, and the carders, spinning jacks, and looms, although only at- tached to the building by cleats or screws to keep them in place. Ottumwa, &c., Co. v. Hawley, 44 la. 57 (24 Am. R. 719). Machin- ery used in canning business, when parts of it are annexed to the soil, and the other parts are necessary to the use of the parts so attached. Dudley v. Hurst, 67 Md. 44 (1 Am. St. R. 368). Ma- chinery, shafting, rollers, &c., constituting a marine railway. Tyson v. Post, 108 N. Y. 217 (2 Am. St. R. 409). A steam-boiler and looms used in a mill as necessary parts of the machinery thereof, though held in position merely by their own weight. Cows V. Beckford, 62 N. H. 229 (13 Am. St. R. 554). Heavy ma- chinery procured for use in manufacturing cloth, and placed in a mortgaged cotton mill, and attached to the building by being fastened to the floor, and connected with the motive power, with §§ 22, 23] FIXTURES. 29 § 23. — 2. EoUing Stock of Hallways. — The locomotives and cars of a railroad have been held fixtures in some cases, on the ground that they are annexed to the rails, and are adapted and appropriated to the use of the road, and essen- tial to its working. But the later authorities are to the con- trary. See 1 Jones on Mortgages, § 453, where the cases are collected, and the conclusion reached "that while there are many and strong arguments for holding that rolling stock is a part of the realty of a railroad — and this view has the support of the United States courts — the weight of authority in the state courts seems to b6 against that position." See Palmer v. Forbes, 23 111. 300; Pennock v. Coe, 33 How. 117; StricMand v. Parher, 54 Me. 263; Farmers' Loan, &c. V. Banh, 11 Wise. 307; Phillips v. Winslow, 18 B. Monroe, 431 (68 Am. D. 679) ; Minn. Co. v. St. Paul Co., 3 Wall. 609, and note. The following cases hold rolling stock to be personal property, Sangamon, &c. R. Co. v. County of Morgan, 14 111. 163 (56 Am. D. 497) ; Coe v. Columbus &c. a, view to permanence, and to be used with tlie building until worn out. Hopewell Mills v. Bank, 150 Mass. 519 (15 Am. St. R. 235). Saw-mill, and engine and boiler connected with and used to operate it, all attached to the land in the usual way. Home v. Smith, 105 N. C, 322 (18 Am. St. R. 903). On the other hand, there are cases in which machinery in a mill or factory is held not to be a fixture, sometimes for want of annexation, and sometimes for want of sufficient annexation. Thus in Hubbell v. Bank, 132 Mass. 447 (42 Am. R. 446), it was held that heavy machines in a factory, steadied by being screwed to the floor, but removable without injury to the building and use- ful elsewhere, are not fixtures within a mortgage of the land. And in Teaff v. Hewitt, supra, it was held that machinery in a fac- tory is not a fixture where it is connected with the motive power by means of bands and straps, and attached to the building only so far as to confine the different parts in their proper places for use, and is subject to removal as the interest of business or con- venience may require, without injury to the machinery itself or the building. And in Devlin on Deeds, § 1214, this is said to be the general American doctrine, though there are many cases to the contrary. 30 REAL PROPERTY. [Chap. 2 R. Co., 10 Ohio St. 372 (75 Am. D. 518) ; Chicago, &c. R. Co. V. Ft. Howard, 21 Wise. 44 (91 Am. D. 458) ; Randall v. M- well, 52 N. Y. 521 (11 Am. E. 747) ; Hoyle v. Plattsburgh, &c. R. Co., 54 N. Y. 314 (13 Am. K. 595). In many of the States mortgages of rolling stock are regulated by statute. In some rolling stock is declared personal property hy con- stitutional provision. See 1 Jones Mortgages, § 452, and notes. § 24. — 3. Miscellaneous Fixtures. — Gas-fixtures. — These consist of burners, brackets, and chandeliers, attached to gas-pipes, from which they may be removed without injury to the building. By the weight of authority they are but chattels, and do not pass by a deed of the premises. On principle, it would seem that such appendages to gas-pipes are true fixtures, and this view is vigorously maintained in note to Gray v. HoldsJiip, 17 Am. Dec. 691, where the eases are reviewed. See 2 Dev. Deeds, § 1225; McKeage V. Ins. Co., 81 ]Sr. Y. 38. Stoves are not usually fixtures, but they become so when they are so surrounded by the brick-work of the chimney that it is necessary to take it down in order to remove them. See 42 Am. Eep. note; Blethen v. Towle, 40 Me. 310; Goddard v. Chase, 7 Mass., 432. Furnaces may or may not be fixtures, according to the mode of connection with the building and facility of re- moval. See 1 Jones, Mortgages, § 433 a; 42 Am. Eep. note; Mather v. Fraser, 2 Kay & J. 536; Rahway Sav. Ins. V. Baptist Church, 36 IST. J. Eq. 61. Manure made in the ordinary course of husbandry upon a farm is a fixture, and passes by a deed of mortgage. But this doctrine does not apply to manure made in a livery stable. Wetherbee v. Ellison, 10 Vt. 379 ; Proctor v. Gilson, 49 K. H. 62. A worm fence is a fixture. Climer v. Wallace, 28 Mo. 556 (75 Am. D. 135); Mott v. Palmer, 1 K Y. 564. Hop-poles are held fiLxtures not only while in use but also while piled upon the premises awaiting use the next season. Bishop V. Bishop, 11 N. Y. 123 (63 Am. D. 68). An organ is a §§ 22-25] FIXTURES. 31 fixture in a recess in a church, if the space was left in the building of the church exclusively for the organ, so that the edifice was left incomplete and unfinished until the organ was put into position. Rogers v. Crow, 40 Mo. 91 (93 Am. D. 299). A bathing tub and lead water-pipes fastened to the walls and floor of a building by nailing are fixtures. Cohen, V. Kyler, 27 Mo. 122. A hotel sign may be a iixture. Redlon V. Barlcer, 4 Kans. 382 (96 Am. D. 180). A church bell is a fixture. Cong. Soc. v. Fleming, 11 la. 533 (79 Am. D. 511). II. Fixtures between the Executor of a Tencmt for Life and the Remainderman or Reversioner. § 25. — ^Rule Relaxed in Favor of the Executor. — The strict common law as to fixtures is somewhat relaxed in this case in favor of the executor, who may, therefore, claim against the reversioner things which he cannot claim against the heir. For example, a steam or fire engine erected in a colliery will go as assets to the executor of a life tenant. Dudley v. Warde, Ambl. 113; Lawton v. Lawton, 3 Atk. 13. And in Estate of Hinds, 5 Whart. (Pa.) 138, (34 Am. Dec. 543), it was held that a steam engine erected by -a tenant for life, for the purpose of carrying on a trade, may be removed after his death by his representative. The favor shown the executor is intended to encourage tenants for life to carry on trades and mining operations, and to provide suitable machin- ery therefor. But the extent to which the law favors the executor in this case is not well settled, as few cases have come bejfore the courts. It may be doubted whether the executor would be allowed to remove any ornamental fixtures, or, in England at least, those intended for agricultural purposes. And even as to trade fixtures, it is said that the right or removal will be limited to such as are erected for the purposes of trade proper, and will not be extended to occupations having merely an afiinity or resemblance to trade. See 2 Sm. Lead. Cas. 246; 1 Schoul. Pers. Prop. 144; 1 Lead. 32 REAL PROPERTY. [Chap. 2 Cas. Eeal Prop. (Sharsw. & Budd), 208; D'Eyncourt v. Greg- ory, L. E. 3 Eq. 380. And it is said that a tenant for life or his representative cannot remove buildings of a perma- nent character; and that it is presumed that improvements put on the property by life tenants are designed, not for the temporary use of such tenants, but as permanent additions. Cannon v. Hare, 1 Tenn. ch. 22, per Cooper, C. III. Fixtures between Landlord and Tenant. § 26. General Principles. — The law in this case, in order to promote industry and encourage trade, is exceedingly liberal to the tenant. In fact, the ancient rule that chattels aflSxed to the freehold cannot be removed, has hardly any application at all, provided the appendages are for the benefit of trade; and in the United States, the tendency is to put agricultural fixtures upon the same footing. Public policy, especially in this country, requires that the tenant should be permitted so to use the premises he occupies as to derive the greatest amount of profit and comfort con- sistent with the rights of the owner of the freehold. It is obvious that the rule which obtains where the owner of land makes annexations thereto, should not be applied to tenants with a mere temporary interest. Their erections can hardly be intended to enhance the value of the inher- itance, and to be permanent accessions to the freehold; and to refuse them permission to remove chattels affixed during the term for purposes of trade, manufacture, or do- mestic purposes, would be unreasonable and unjust. See Taylor Landlord & Ten. §§ 545-555; 2 Dev. Deeds, § 1193; 2 Lead. Cas. Real Prop. 96-99; Wall v. Hinds, 4 Gray (Mass.), 256 (64 Am. Dec. 64); Lacey v. Gihoney, 36 Mo. 320 (88 Am. Dec. 145) ; Conrad v. Mining Co. 54 Mich. 249 (52 Am. E. 817). §§ 25-27] FIXTURES. 33 § S7. — What Erections Removable. — 1. Trade Fixtures.^ — It is well settled that whatever erections or additions a ten- ant makes for the purposes of trade, even though aiBxed to the soil or building, remain chattels, and are removable by the tenant; and so completely are they considered the prop- erty of the tenant, that they may be levied on and sold, under an execution against him, as his goods and chattels, and on his death, they will go to his personal represent- ative. As to what are trade fixtures, this will of course vary with the nature of the business. In Seeger v. Pettit, 17 Pa. St. 437 (18 Am. E. 452), a tenant in trade was allowed to remove a coal bin, gas fixtures, stairway and banisters, oloset, platform scales, etc. And in Carlin v. Bitter, 68 Md. 478 (6 Am. St. E. 467), the following were held trade- fixtures when erected by the tenant of a hotel : A bake- house and oven, the fountain in ' the yard, the awning in front of the house, the furnace in the cellar for heating the ' building, the wash-tubs in the laimdry, the grates for burn- ing coal fastened into the fire places in the rooms, the in- side shutters to the windows, the counter in the office rooms, the counter and shelving in the cigar store, the counter, shelving, and mirrors in the bar-room (the mirrors being glasses framed and fastened into panels made in the wall, and not merely framed mirrors hung on hooks), the shelving in the pantry store-room, and the inside iron doors in ^ It will be observed that the term "Trade Fixtures" describes chattels which, although annexed to the land by the tenant, do not become part of the freehold, but are removaMe by the tenant. The same is true of the term "Domestic Fixtures," and in some of our States of "Agricultural Fixtures." This use of the word "fixture" is contrary to the definition adopted in § 15, supra; but the above expressions are too well established to be altered or ignored. The student must remember, however, that in them the word "fixture" means no more than a chattel annexed to the soil or building, and does not imply that it has ceased to be re- movable, and become part of the freehold. 34 REAL PROPERTY. [Chap. 2 the stable. And in Van Ness v. Pochard, 2 Pet. 137, it was held that a tenant was not liable for waste for pulling down and removing a wooden dwelling-honse, with a stone cellar and brick chimney, which he erected upon a lot of land he had rented for a term of years, for the purpose of carrying on the business of a dairyman, and for the residence of his family and servants engaged in the business. The principle has been held to extend to gardeners and nursery- men, who are considered tradesmen, and who may take away from leased premises their green-houses and hot-houses, and all trees, shmbbery, etc., planted for the purposes of sale. Tayl. L. & T., § 546.^ § 28. 2. Domestic Fixtures. — A tenant is also allowed to disannex and take away what are called domestic fixtures, i. e., such as he puts up for ornament and the more conve- nient use of the premises. Under this class come bells, bell-pulls, gas-fixtures, wainscots, marble chimney-pieces grates, etc. It is manifest that the same article may be a trade or domestic fixture, according as the building is oc- cupied for business or for /residence purposes only. Thus in ^Wall V. Hinds, 4 Gray (Mass.) 256 (64 Am. D. 64), the premises were leased for a tavern and boarding-house. The tenant put in a water-tank and sinks, fastened to the build- ing by nails, or fitted to the floor by cutting away flooring; and also extended gas and water-pipes through the buildings, passing through holes in floors, ceilings and partitions cut for the purpose, and kept in place by hooks and metal '■ But as between vendor and vendee, mortgagor and mortgagee, nursery stock Is a fixture, and will pass on sale or mortgage. And if a person occupies land as a tenant, but is merely a farmer, and not a professional nurseryman or gardener, lie cannot carry away young fruit trees raised on the demised premises for the purpose of planting in his garden or orchard. Coombs v. Jordan, 3 Bland's Ch. 284 (22 Am. D. 236); Smith v. Price, 39 111. 28 (89 Am. D. 284); Kelly v. Austin, 46 111. 156 (92 Am. D. 243); Mol- brook v. Chamberlin, 116 Mass. 155 (17 Am. R. 146) ; Adams v. Beadle, 47 la. 439 (29 Am. R. 487). §§ 28, 29] FIXTURES. 35 bands; the bnilding having previously been supplied with water and light by other means. He was allowed to remove all these articles, the court saying that they were "of a mixed nature, and might well be regarded as combining the qualities of both domestic and trade fixtures." But all domestic fixtures are not removable by a tenant. The exceptions grow out of the mode of annexation, and the fact that the article is necessary for the completion of the huilding, as well as for the comfort and enjoyment of the tenant in its use. In such case, the chattel is considered as irrevocably appropriated to the building, being afiBxed per- petui usus causa, or as . it is sometimes expressed, pour un profit del inheritance. In this class of irremovable domestic fixtures, Mr. Taylor ranks hearthstones, doors, windows, locks and keys, etc. See Taylor L. & T. § 547. Wall v. Hinds, supra. § 29. — 3. Agricultural Fixtures. — As to buildings, out- houses, etc., which have been erected for agricultural pur- poses, it has been held in England that they are fixtures which the tenant cannot remove. This was decided in the leading case of Elwes v. Maw, supra. There the tenant of a farm, under a lease for twenty-one years, was held liable for waste for removing a beast-house, a carpenter's shop, a wagon-house, a fuel-house, etc., which he had erected. The ground of the decision was that these were not trade fix- tures. But the tendency in the United States is to make no distinction between trade and agricultural fixtures, but to allow the removal of both. See Van Ness v. Packard, 2 Pet. 137, per Story, J.; Whiting v. Brastow, 4 Pick. 310. And in Alabam^a it was held that the common law rule as to agricultural fixtures, as laid down in Elwes v. Maw, was inapplicable in that State; and that agricultural fixtures erected by tenants should receive the same protection in favor of the tenant as fixtures made for the purposes of trade. Earhness v. Sears, 26 Ala. 493 (62 Am. D. 742). But in New York the Court of Appeals refused to sanction a de- 36 REAL PROPERTY. [Chap. 2 parture from the English rule. Ombony v. Jones, 19 N. Y. 234. § 30. — Manure. — We have seen that manure made in the ordinary course of husbandry on agricultural land is a fix- ture, and passes to a vendee or mortgagee. Kittridge v. Woods, 3 K H. 503 (14 Am. D. 393). And this too though the manure is not spread on the ground, but is lying in the barnyard, though there is one case to the contrary. Ruck- man V. Outwater, 28 N. J. Law 581. But not only is ma- nure a fixture as between vendor and vendee, etc., but the same doctrine applies even as between landlord and tenant; and manure made on a farm occupied by a tenant, consist- ing of the collections from the stable, etc., is considered so inseparably annexed to the freehold that it cannot be re- moved by the tenant at the end of his term. See Tayl. L. & T. § 541; 14 Am. Dec. 397, note to Kittridge v. Wood, supra, citing many cases. But in one case, Smithwich v. Ellison, 2 Ired. Law (N. C.) 326 (38 Am. D. 697), it is held that an outgoing tenant may remove the manure made by him during the term, if he does so before its expiration. And everywhere manure made in a livery stable belongs to the tenant. See Tyler, Fixtures, § 356. Daniels v. Pond, 21 Pick. (Mass.) 367 (32 Am. D. 269) ; Lewis v. Jones, 17 Pa. St. 262 (55 Am. D. 550) ; Chase v. Wingate, 68 Me. 204 (28 Am. E. 36, and note).^ ^Manure. — Code Virginia, § 2779, enacts: "If a tenant at will or for years, without special license so to do, remove by sale or otherwise from the leased premises, manure made thereon in the ordinary course of husbandry, consisting of ashes leached or un- leached, collections from the stables, barnyard, cattle pens, or other places on the leased premises, or composts formed by an admixture of these or any of them with the soil or other sub- stances, such removal shall be deemed waste, and within the pro- visions of the preceding sections of this chapter" [i. e., § 2778, giving an action on the case for waste, and directing judgment for treble damages when waste is wanton; and the three preced- ing sections.] §§ 29-32] FIXTURES. 37 § 31. ftualification of the Right of Removal by Ten- ant.— In Taylor L. & T. § 550, it is said: "The rule in regard to the removal of fixtures, however, requires that the article be capable of removal without the destruction or serious injury of the freehold; that is, the premises must be in as good plight and condition as they were before the annexation." Thus, in Cullamore v. Gillis, 149 Mass. 578 (14 Am. St. E. 460), it was held that a baker's oven is not a removable fixture when built by the tenant upon the land- lord's premises in such manner that it becomes a iixed and permanent structure, so united with the building that the two are inseparable without the destruction of the one and substantial injury to the other, and so built that when taken down it loses its character as an oven, and with the exception of an iron lining and door becomes mere brick and mortar. And when the tenant exercises the right of removal, he must repair any damages the premises may have sustained by the act of removal, beyond the loss of the thing removed. Seeger v. Pettit, supra. And if the ten- ant has taken down an article and put another of his own in its place, if he removes his own, he is bound to restore the other, or to replace it by a similar article. Tayl. L. & T. § 550. § 32. Time of Removal. — Whatever fixtures the tenant has a right to remove must be removed before his term ex- pires, or at least before he quits possession; for if the tenant leaves the premises without removing them, and the landlord takes possession, they become the property of the landlord. And the true principle seems to be that the annexation of a chattel to the freehold by a tenant is a conditional gift thereof to the landlord, which may be defeated by its timely removal, but otherwise becomes absolute. 2 Sm. Lead. Cas. 257; Taylor Landl. & Ten. § 551; Holmes v. Tremper, 20 Johns. 29 (11 Am. Dec. 238, and note) ; Gaffield v. Hap- good, 17 Pick. (Mass.) 192 (28 Am. Dec. 290) ; Stochwell v. Maries, 17 Me. 455 (35 Am. Dec. 266) ; CUlds v. Hurd, 32 38 REAL PROPERTY. [Chap. 2 W. Va. 66; Kutter v. Smith, 2 Wall. 491. And if, without surrendering the possession, the tenant renews his lease, mak- ing no reservation of a right to remove the fixtures already erected by him, the right to remove such fixtures is lost. For the new lease supersedes the old, and the fixtures were not removed during the continuance of the old term. See Taylor Landl. & Ten. § 552 ; Loughran v. Boss, 45 N. Y. 792 (6 Am. E. 173) ; Watriss v. Banh, 134 Mass. 571 (36 Am. E. 694) ; Carlin v. Bitter, 68 Md. 478 (6 Am. St. E. 467). ^ The rule laid down above as to time of removal always applies where the term is of certain duration, as under a lease for a term of years, which contains no special provi- sions as to fixtures. But where the term is uncertain, or de- pends upon a contingency, as when a party is in as tenant for life or at will, fixtures may be removed within a reason- able time after the tenancy is determined. Watriss v. Bank, supra. And if a tenant leaves a fixture after the expiration of his term, by reason of the landlord's promise to sell it for the tenant's benefit, the tenant still has a reasonable time after the term to remove it; for otherwise the landlord would work a fraud on the tenant. Torrey v. Burnett, 9 Vroom (N. J.) 457 (30 Am. E. 431). ^In Carlin v. Bitter, 68 Md. 478 (6 Am. St. R. 467), it is said: "All the elementary writers concur in laying down the proposi- tion, that if a tenant having the right to remove fixtures erected by him on the demised premises accepts a new lease of such premises, without reservation or mention of any claim to such fixtures, and enters upon a new term thereunder, the right of removal is lost, notwithstanding his actual possession has heen continuous. And the reason given is because the fixtures set upon the premises at the time of the lease are part of the thing de- mised, and the tenant by accepting a lease of the land without reserving his right to the fixtures, has acknowledged the right of his landlord to them, which he is afterwards estopped from denying." The above is the well-nigh universal doctrine; but It is denied by Judge Cooley in Kerr v. Kingsbury, 39 Mich. 150 (33 Am. R. 362), on the ground that it is against public policy, and that the second lease ought not to be held to include the re- movable fixtures, unless from the lease itself an understanding to that effect is plainly inferable. CHAPTER III. Estates of Freehold. I. Freehold Estates of Inheritance. §33. Classification. — The estates of inheritance are, (1), Fee-simple; (3), Base or qualified fee; (3), Fee-conditional at common law; and (4), Fee-tail. Of these in their order. § 34. 1. Fee-Simple. — Nature of an Estate in Fee. — The word fee originally signified land holden of a superior, as distinguished from allodial land, fee and feud being synony- mous. But fee is now employed to denote the quantity of in- terest the tenant has in land, and is confined to estates of in- heritance, i. e., those which may descend to a man's heirs. When the word fee is used alone it means fee-simple. An estate in fee-simple is the entire interest and property in land, from which it follows that no peTson can have a greater estate or interest. Accordingly, whenever a man grants his land in fee-simple, he cannot make any further disposition of it; he has already granted the entire interest, and there is nothing left in him upon which any further grant can oper- ate. The exceptions to this doctrine in the cases of a con- tingency with a double aspect, uses, and executory devises, will be considered hereafter. The word "simple," in the combination fee-simple, is used to distinguish this estate from a base fee and from the fee- conditional at common law. But estates in fee-simple may be granted upon express conditions, of which hereafter. § 35. Limitation of a Fee by Feoffment. — A fee-simple at common law is that interest which the tenant has in land given to him and his heirs. And at common law the words 39 40 REAL PROPERTY. [Chap. 3 "and his heirs," are indispensable. No circumlocution has ever been held sufficient to create a fee-simple by a common law conveyance.^ If a feoffment or grant be made, "To A and his heirs," the word "heirs" is called a word of limita- tion, i. e., a word used to mark out, define, and limit A's es- tate, and to make it a fee-simple. The heirs of A are not in existence during his life — nam nemo est haeres viventis — and hence they take nothing under the feoffment to A and his heirs. A takes the whole interest, with full power of disposi- tion. "All his heirs are so totally in him," says Lord Coke, "that he may give the land to whom he will." Co. Litt. 33 b. Wms. on E. P. (39) n. 1. By the policy of the Feudal System, lands, although holden in fee-simple, were inalienable by the tenant without the con- sent of his lord. But as early as the reign of Hen. III. (1316- 1373), the right to sell had been acquired by tenants in fee- simple; and this right was expressly recognized by the stat- ute of Quia Emptores, 18 Ed. I. (1390), by which it was declared that it should be "lawful for every freeman to sell at his own pleasure his lands and tenements, or part thereof." Wms. on E. P. (61). From this time, certainly, there have been no restraints imposed by law on the alienation of the fee-simple, but on the other hand, the doctrine has been es- tablished that if the grantor of a fee imposes a condition in total restraint of alienation, it is repugnant to the estate ' That in a deed at common law the word "heirs" was indis- pensahle to confer a fee-simple, see Hollingsworth v. McDonald, 2 Harr. & J. (Md.) 230 (3 Am. Dec. 545) ; Leitensdorfer v. Delphy, 15 Mo. 160 (55 Am. Dec. 137); and, especially, Adams v. Ross, 1 Vroom (N. J.) 505 (82 Am. Dec. 237; 1 Sh. & B. L. C, Real Prop. p. 11). But in 1 Washh. R. P. it is said that "if an estate he granted clearly in fee, and the deed hy which it is again granted, instead of being to the grantee and his heirs, be to him as fully as it was granted in the former deed, referring to it, it is only borrowing the words of limitation from the former deed, and conveys a fee." See, too, Gould v. Lamb, 1 Mete. (Mass.) 84 (45 Am. Dec. 187), where this apparent exception is recognized. §§35-36] ESTATES OF FREEHOLD. 41 granted, and, therefore, void. 2 Tho. Coke (26). 1 Prest. on Est. (477). An estate in fee-simple, on the death of the owner intes- tate, will descend to his kindred, lineal or collateral, no mat- ter how remote, in an order marked out by the statutes of descent. And a limitation to one and his right heirs is the same as to him and his heirs. And a limitation directly "to the heirs of B" conveys a fee-simple to such heirs, without adding, "and their heirs." Wms. on E. P. (255). Co. Litt. 10 a. 4 Cruise 276. § 36. Limitation of a Fee by Devise. — We have seen that at common law, by feoffment or grant, the word "heir^" is absolutely necessary in order to limit a fee. But a different rule, by indulgence to testators, prevailed as to wills, and in a devise the doctrine was that any words showing the inten- tion would pass the fee. Thus, to A forever, to A in fee- simple, etc., gave the fee-simple.^ And now in England by the Wills Act of 1837, taking effect January 1, 1838, where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee-simple, or other the whole estate or interest which ^ The doctrine at common law that even a devise to A, without more, passed only a life estate to A, no doubt caused the frequent defeat of the intention of testators, and the courts, we are told, were astute in seizing on every circumstance or expression which tended to show that the gift was meant to embrace the inherit- ance, and was not to be confined to a mere life estate. See Wms. R. P. (19); Id. (215) and note. Thus the use by the testator of the word "estate" might sufBce to carry the fee; as where the devise was of "all my real and personal estate" (Godfrey v. Humphrey, 18 Pick. 537; 29 Am. Dec. 621); and so where the testator devised "all the estate called Marrowbone, in the county of Henry" (Lambert's Lessee v. Paine, 3 Cr. 97) ; and so even where the devise was, "to my son all that farm or estate I bought of B, containing about twenty acres, situated at Q, in the parish of H," etc. (Burton v. White, 7 Bxch. 720). Again the use of the word "property" may carry the fee, as in Mayo v. Garrington, 4 Call (Va.), 472 (2 Am. Dec. 580), where "all my other property" 42 REAL PROPERTY. [Chap. 3 the testator had power to dispose of by will in such real es- tate, unless a contrary intention shall appear by the will. Wms. on E. P. (306). It will be seen that this statute only applies to a devise; and the rule in England is still inflex- ible that in a deed a fee cannot pass without the magic word "heirs." In Virginia, however, by a statute taking effect January 1, 1787, it is enacted that words of limitation may be dis- pensed with in the creation of a fee-simple in all cases; and the language of the Code is now identical with that of the English Wills Act, quoted above, except that the words "con- veyance" and "grant" are added to "devise." Code 1849, ch. 118, § 8. Code 1877, § 2420. So now in Virginia, a limita- tion, either by deed or by will, "to A," without adding other words, will pass to him the fee-simple, if the grantor or tes- tator is seised in fee, unless a contrary intention be made to appear. And this is the rule in the United States generally. Wms. on E. P. (19) n. 1; (20) n. 1; (141.) 2 Bl. Com. 107-'8. § 37. — 2. Base or Qualified Fee. — This estate is also called a determinable fee. Following Chan. Kent (4 Com. 9), we shall treat the terms base, qualified, and determinable, as synonymous. A base fee, then, is an estate which may last forever, but whose duration is circumscribed by something collateral to it, which may never happen; but, if it does happen, the es- served to pass a fee in lands. See also Jaclcson v. Sousel, 17 Johns. R. 281. And see Davies v. Miller, 1 Call, 127; Watson v. Powell, 3 Id. 306; Kennon v. McRo'berts, 1 Wash. (Va.) 96; Wyatt V. Sadler, 1 Munf. 537. And It was also held that a personal charge upon the devisee of land imputed a fee; hut it was other- wise when the charge was on the land only. See Tied. R. P. § 37; Wms. R. P. (215) n. 1. But it was held that the words "lands and tenements," and even "hereditaments," would not pass the fee, as they are descriptive of the tMng devised, and not of the quan- tum of interest. See § 7, Supra, note 1. See, especially, WrigUt v. Denn, 10 Wh. 204. §§36,37] ESTATES OF FREEHOLD. 43 tate is, immediately and ipso facto, at an end. The estate is a fee, but limited to end upon an event which may never take place. The event is in the nature of a limitation of the estate, and not an express condition, whereby to defeat it. An estate is limited until the event and no longer; but, as the event may not happen, the law considers the estate a fee. 2 Bl. Com. (109). These examples of base fees may be given: (1), To A and his heirs so long as B shall have heirs of his body; (2), To A and his heirs until B's marriage; (3), To A and his heirs till B shall attain the age of 21; (4), To A and his heirs till B returns from Eome. In the first example, the estate of A is a base fee, and it can never become absolute, for it is never possible to say that the issue of B will not fail. But in the last three ex- amples, the estate, though at first base, may become abso- lute. For if B dies before marriage, or before he reaches twenty-one, or before he returns from Eome, it becomes im- possible that the event expressed for the determination of the estate of A should ever arise, and it is, therefore, no longer qualified or determinable. If, in the examples above, the word "heirs" be omitted in the limitation to A, he will have a life estate only. It cannot last longer than for his life, though it may end sooner. And it should be observed that an estate, to A and his heirs during the widowhood of B, or during the time B shall remain at Eome, is merely an estate of freehold meas- ured by a life; for the widowhood of B or the residence of B at Eome will determine with her death. And it is one of the essential qualities of an estate in fee that it may last forever. An estate, to A and his heirs during the life of B is merely a freehold with a descendible or transmissible quality, and the heir is entitled as special occupant. (1 Prest. Est. 481; Wms. on E. P. 20.) So long as a base-fee continues, the owner has all the rights with respect to it which he would have as to a fee- 44 REAL PROPERTY. [Chap. 3 simple. It will descend to his heirs, if not sold; and if sold, it will determine (end) upon the happening of the event upon which it was limited into whosesoever hands it may have come. (1 Prest. Est. 440; 1 "Wash. E. P. 63.) § 38. 3. Fee-conditional at Common Law. — A fee-condi- tional at common law was limited by the words, "To A and the heirs of his body," the identical words which by and after the statute of De Bonis Conditionalibus^ gave an estate-tail. So the fee-conditional at common law is the parent of the fee- tail by the statute. 2 Bl. Com. (110). When after the Conquest estates first became hereditary in England, upon a feoffment to A and his heirs, the word "heirs," for feudal reasons, was considered to mean lineal heirs only, or the descendants of the body of A, to the ex- clusion of his collateral relations, such as brothers and cousins. The descent was to the blood of the first purchaser; and the fiction of novum feudum held ut antiquum had not yet been invented whereby to let in collateral heirs. There were at this time no estates in fee-simple, and therefore a limitation, "To A and the heirs of his body," was held to give him the entire estate or interest, leaving no reversion in the feoffor, but merely a possibility or chance of receiving back the land if A died without issue, which possibility was called his right of reverter. But the word "heirs" having in course of time come to signify collateral as well as lineal heirs, it became necessary for the feoffor, if he wished to confine the estate to the lineal heirs of the feoffee, to limit it expressly to him and the heirs of his body. And this estate was called a fee or fee-simple conditional, because of the condition implied in the donation, that if the feoffee died without heirs of his body, or in case of the failure of such heirs at any future time, the land should return to the feoffor. The entire interest in the land was still considered to pass to the feoffee as soon as the feoffment was made; the feoffor had no reversion, nor could he grant a re- mainder after the fee-conditional. The condition was the birth §§37-38] ESTATES OF PEBEHOLD. 45 of issue. The fee, however, was in the feoffee at once; the birth of issue was not the cause of his having the fee — a condition precedent to its vesting in him ; but the non-birth of issue was the cause of his losing the fee — a condition subsequent upon the failure of which a fee already vested was divested and lost. The condition was subsequent to the vesting of the fee. 2 Bl. com. (110) n. 11; Id. (154). It was the intention of the givers of fee-conditional es- tates that, by their right of reverter, the land should return to them not only when the feoffee never had issue, but when, although there was issue born, such issue failed at any time whatever. The language of De Bonis is express upon this point. But the judges, favoring freedom of alienation^ held that upon the birth of issue the estate was at once absolute in the donee for the three purposes of selling, forfeiting, and encumbering, as if the estate had been an original fee-simple. See as to this 3 Bl. Com. (110). The effect given by the judges to the birth of issue operated to the injury of the lords in two ways: 1. If a lord was the owner of a fee-conditional, it enabled him, upon issue born, to sell or encumber it. It might also be forfeited for his trea- son. Thus the power of the great families was weakened; 2. If a lord had given a fee-conditional to a vassal, such lord lost his chance of reverter by the mere birth of issue, which enabled the vassal to sell the land. For these reasons, the nobility procured the enactment of the statute of De Bonis ConditionaLihus^ (13 Ed. I. (1385) 'Db Bonis. — The full text of the famous statute of De Bonis GonditionaWbus (also called Statute of Westminster, 2d), is as follows : "1. First, concerning lands that many times are given upon condition, that is, to-wit, where any giveth his land to any man and his wife, and to the heirs begotten of the bodies of the same man and his wife, with such condition expressed that if the same man and his wife die without heirs of their bodies between them begotten, the land so given shall revert to the giver or his heir. In case also where one giveth lands in free marriage, which gift 46 REAL PROPERTY. [Chap. 3 c. 1), which was intended to render lands inalienable, and to keep Tip the feudal system, which the lords held in high es- teem. §39.-4. Estate-tail.— The effect of the statute of Be Bonis upon a gift "To A and the heirs of his body," was to cut the entire interest, which, as we have seen, passed before this to the donee of a fee-conditional, into two estates, viz.: an estate-tail in the donee, and a fee-simple in reversion after failure of issue in the donor. A fee-tail was regarded hath a condition annexed, though it be not expressed in the deed of gift, which is this, that if the husband and wife die without heirs of their bodies between them begotten, the land so given shall revert to the giver or his heir. In case also where one giveth land to another and the heirs of his body issuing; it seemed very hard, and yet seemeth to the givers and their heirs, that their will being expressed in the gift was not heretofore, not yet is observed. In all the cases aforesaid, after issue begotten and born between them (to whom the lands were given under such condition) heretofore such feoffees had power to alien the land so given, and to disherit their issue of the land, contrary to the minds of the givers, and contrary to the form expressed in the gift. And further, where the issue of such feoffee is failing, the land so given ought to return to the giver or his heir, by form of the gift expressed in the deed, though the issue (if any were) have died; yet by the deed and feoffment of them (to whom the land was so given upon conditions), the donors have hereto- fore been barred of their reversion, which was directly repugnant to the form of the gift." "2. Wherefore our lord the king, perceiving how necessary and expedient it should be to provide remedy In the aforesaid cases, hath ordained, that the will of the giver, according to the form ip the deed of gift manifestly expressed shall be from henceforth observed; so that they to whom the land was given under such condition, shall have no power to alien the land so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert unto the giver, or his heirs, if issue fail (whereas there is no issue at all), or if any issue be, and fail by death, or heir of the body of such issue failing. Nei- ther shall the second husband of any such woman, from hence- forth, have anything in the land so given upon condition, after §§38,39] ESTATES OF FREEHOLD. 47 as a smaller estate carved out of the fee-simple. Hence the donor had a true reversion^ not a mere reverter; and hence, after a fee-tail, a remainder may be granted of the fee-simple. The name fee-tail, or feodum-talliatum, was borrowed from the feudists, amongst whom it signified any mutilated or truncated inheritance, from which the heirs general were cut off. The word tail is from Fr. tailler to cut. And, under De Bonis, the term fee-tail might also be considered, to refer to the fact that the estate is cut or carved out of the entire fee which had been before held to pass. For the effect of the strict entail produced by De Donis, see 2 Bl. Com. (116). And for the way in which, after two hundred years, relief was obtained by that "bold and un- exampled stretch of judicial legislation — a Common Eecov- ery" (4 Kent. Com. 13), see Taltarum's Case,^ 2 Bl. Com. the death of his wife, by the law of England, nor the issue of the second husband and wife shall succeed in the inheritance, but immediately after the death of the husband and wife (to whom the land was so given), it shall come to their issue, or re- turn unto the giver, or his heir, as before is said. And forasmuch as in a new case a new remedy must be provided, this manner of writ shall be granted to the party that will purchase it." See 2 Washb. Real Prop., Appendix, p. 694. ^ Common Recoveet.- — The procedure in a common recovery is thus clearly described in Williams on Real Property, pp. 45, 46: "In this case, called Taltarum's Case, the destruction of an entail was accomplished by Judicial proceedings collusively taken against a tenant in tail for the recovery of the lands entailed. Such proceedings v/ere not at that time quite unknown to the English law, for the monks had previously hit upon a similar device for the purpose of evading the statutes of mortmain, by which open conveyances of lands to their religious houses had been prohibited; and this device they had practiced with con- siderable success till restrained by act of parliament. In the case of which we are now speaking, the law would not allow the entail to be destroyed simply by the recovery of the lands entailed by a friendly plaintiff on a fictitious title; this would have been too barefaced; and in such a case the issue of the tenant, claiming under the gift to him in tail, might have recovered the lands by 48 REAL PROPERTY. [Chap. 3 (117) and (357). Both fines and recoveries were abolished in England in 1833, and an estate-tail may now be passed there by a simple deed enrolled in Chancery. Wms. on K. P. (48). The right to suffer a recovery was held an insepa- means of a writ of formedon, so-called because they claimed per formam doni, according to the form of the gift, which the statute had declared should be observed. The alienation of the lands en- tailed was effected in a more circuitous mode, by Judicial sanc- tion being given to the following proceedings, which afterwards came into open and frequent use, and had some little show of justice to the issue, though without any of its reality. The ten- ant in tail, on the collusive action being brought, was allowed to bring into court some third person, presumed to have been the original grantor of the estate-tail. The tenant then alleged that this third person had warranted the title; and accordingly begged that he might defend the title which he had so warranted. This third person was accordingly called on; who, in fact, had had nothing to do with the matter; but, being a party in the scheme, he admitted the alleged warranty, and then allowed judgment to go against him by default. Whereupon judgment was given for the demandant, or plaintiff, to recover the lands from the tenant in tail; and the tenant in tail had judgment empowering him to recover a recompense in lands of equal value from the defaulter, who had thus cruelly failed in defending his title. If any such lands had been recovered under the judgment, they would have been held by the tenant for an estate-tail, and would have de- scended to the issue in lieu of those which were lost by the war- rantor's default. But the defaulter, on whom the burden was thus cast, was a man who had no lands to give, some man of straw, who could easily be prevailed on to undertake the respon- sibility; and in later times the crier of the court was usually employed. So that, whilst the issue still had the judgment of the court in their favor, unfortunately for them it was against the wrong person; and virtually their right was defeated, and the estate-tail was said to be barred. Not only were the issue barred of their right, but the donor who had made the grant, and to whom the lands were to revert on failure of issue, had his reversion barred at the same time. So, also, all estates which the donor might have given to other persons, expectant on the decease of the tenant in tail without issue (and which estates are called remainders expectant on the estate-tail) were equally §§39,40] ESTATES OF FREEHOLD. 49 ralle incident to an estate-tail. So now as to right to bar by a deed enrolled. Any condition to the contrary is null and void. Wms. on E. P. (47). § 40. Estates-tail in Virginia. — ^Upon the first settlement of Virginia (1607), the statute of De Bonis became part of the law of the Colony, and before the Kevolution entails were greatly favored. The colonists also brought with them fines and recoveries as a means of barring entails, but these, by Act of the Assembly in 1705, were abolished, and estates-tail could only be barred by special act of the legislature, though this stringency was somewhat relaxed, as to small estates, in 1734. 3 Hen. Stats. 320; 4 Id. 400. And in 1727 slaves were allowed to be entailed with land. 4 Id. 225. But at the Eevolution, so calculated did our ancestors consider es- tates-tail to sustain the principles of aristocracy, and so va- riant to the spirit of our institutions, that, instead of tam- pering with so noxious a plant, they resolved to lay the axe to its root by a total abolition. An act was passed for this purpose on October 7, 1776, but not being quite effectual, another to complete the work was enacted to take effect Janu- ary 1, 1787. The language of the Code now is : "Every estate in lands so limited, that as the law was on the seventh day of October in the year 1776, such estate would have been an estate-tail, shall be deemed an estate in fee-simple." Code Va. § 2421 ; 9 Hen. Stats. 226 ; Eoy v. Garnett, 2 Wash. 9 ; 1 Lom. Dig. 31. It will be remembered that estates-tail are not abolished in England. It is in the power of each tenant to bar the entail, but if he chooses he may leave it undisturbed. But in Virginia no estates-tail, however created, can continue barred. The demandant in whose favor judgment was given be- came possessed of an estate in fee-simple in the lands; an estate the largest allowed by law, and bringing with it the fullest pow- ers of alienation, as will be hereafter explained; and the demand- ant, being a friend of the tenant in tall, of course disposed of the estate in fee-simple according to his wishes." 4 50 REAL PROPERTY. [Chap. 3 such, the statute operating as one great universal recovery, and docking all estates-tail whatever; those created before its enactment instanter and ipso facto, those created there- after, from the moment of their commencement. 1 Lorn. Dig. (27); Carter v. Tyler, 1 Call, 195; Jiggetts v. Davis, 1 Leigh, 418-'24. Though estates-tail cannot now exist in Virginia, since every estate in lands so limited as to be a fee-tail on October 7, 1776, shall be (Jeemed a fee-simple, it is nevertheless neces- sary to understand the rules by which they were aforetime created,' since such limitations will be considered fees-simple. The doctrines which teach the nature of fees-tail, and how created, thus survive the destruction of the estates them- selves. 1 Lom. Dig. (20). And this remark is applicable in the United States generally. For an account of the status of estates-tail in America, see 1 Wash. E. P. (84). They are either changed into fees-simple in the tenant himself, as in Virginia, or else the tenant is given an estate for life only, and the fee-simple vests in his issue by way of remainder. In Delaware, how- ever, estates-tail still exist, though they may be barred by ' To create a fee-tail by deed, the regular words are, "To A and the heirs of his body." The word "heirs," as a word of inherit- ance, is Indispensable; and it must be coupled with words of procreation, either "of the body," or other words of similar im- port. Beresford's Case, 7 Rep. 41. .In HolUngsworth v. McDonald, 2 H. & J. (Md.) 230 (3 Am. Dec. 545) it is said: "It is estab- lished that the words de corpore suo are not indispensably neces- sary, but may be supplied by words equipollent or tantamount, plainly designating or pointing out the body from which the heirs inheritable are to issue or descend." Thus the words "of himself issuing or lawfully begotten"; "of his flesh"; "of his wife be- gotten"; "which he may happen to have to beget"; are all words of procreation, and coupled with the word "heirs," create an es- tate-tail. But in a grant or feoffment, the words "to A and his seed," or "to A and his offspring," or to A and the issue of his body," are insufficient to confer an estate-tail, and only give A an estate for life, for want of the word "heirs." (Wms. R. P. 144; §§40,41] ESTATES OF FREEHOLD. 51 deed. Daniel v. Whartenby, 17 Wall. 639. 2 Bl. Com. (119) n. 18. § 41. — ^Limitation of Estates in Fee and in Tail. — The fol- lowing siinunary of the words of limitation sufficient to create a fee-simple or fee-tail, by deed or will, in England and Vir- ginia, formerly and now, may prove useful to the student. I. In England. — A. Fee-simple. (1). By Deed. (a). For- merly: "To A and his heirs." (6)^ Now: "To A and his heirs." (2). By will (devise), (a). Formerly: "To A forever, in fee-simple, etc." (6). Now: "To A." (Wills Act 1837, 1 Victoria.) B. Fee-tail. (1). By deed. (a). Formerly: "To A and the heirs of his body." (&). Noto: "To A and the heirs of his body." (2). By will (devise), (a). Formerly: "To A and his issue, seed, etc." II. In Virginia. — (Same in the United States generally.) A. Fee-simple. (1). By deed. (a). Formerly: "To A and his heirs." (&). Now: "To A," by statute taking effect Jan- uary 1, 1787. (2). By will (devise), (a). Formerly: "To A forever in fee-simple, etc." (6). Now: "To A" (by statute of 1787). B. Fee-tail. (1). By deed. (a). Formerly: "To A and the heirs of his body." (&). Noiv: "To A and the heirs of 2 Bl. Com. 115.) Thus in Pennsylvania, in Foster v. Joice, 3 Wash. C. C. 498, a conveyance to three Indian chiefs "and their generation, to endure as long as the waters of the Delaware shall run," was held to pass but a life estate, a decision which must have surprised the "untutored" minds of the grantees. In a will, however, the same doctrine of indulgence to testators prevails as to a fee-tail which applies to a fee-simple; and a devise "to A and his issue," "to A and his seed," etc., confers a fee-tail. (2 Bl. Com. 115.) In wills, indeed, a fee-tail is frequently raised hy im- plication, to effectuate intent, as will be explained hereafter in the chapter on Executory Interests. 52 REAL PROPERTY. [Chap. 3 Ms body." But since 1776 such fee-tail is at once changed into a fee-simple. (3). By will (devise) . Formerly^and now: "To A SLnilais, issue, seed, etc.," but since 1776 such estate-tail is at once converted into fee-simple. II. Freehold Estates not of Inlieritance. § 42. Estate for the Tenant's Own Life. — ^As to civil death see 1 Bl. Com. (132). There is no civil death in Virginia, and it is necessary to provide against it by limiting the estate during the natural life of the tenant. See 2 31- Com. (122) ; 2 Minor's Inst. 90. § 43. Tortious Conveyances. — A tenant for his own life would at common law forfeit his estate to the remainder- man or reversioner, by conveying to another a larger estate than he could rightfully convey; as, e. g., an estate for the life of another, in tail, or in fee-simple. But this doctrine of forfeiture was confined to a conveyance by feoffment, fine, or common recovery, and these, because they enabled the tenant to worh a wrong, were called tortious conveyances, whereas conveyances under the statute of uses, such as bar- gain and sale, lease and release, were called innocent convey- ances. See 2 Bl. Com. (274). But now in England and Virginia no conveyance can operate tortiously (or by wrong), it being provided by statute that no conveyance shall pass a greater estate than the grantor has the right to convey. Code Va. § 2419 ; Elys v. Wynne, 32 Grat. 334. § 44. Estovers and Emblements. — For the incidents of an estate for life, see 2 Bl. Com. (123). As to the right of tenant for life to estovers, see Miles v. Miles, 33 E". H. 147; 64 Am. Dec. 363 & n. 367-68. As to emblements, see 64 Am. Dec. 369. Formerly the subject of emblements was reg- ulated in Virginia by statute ; but the Code of 1887 declares (§ 2806), "In all cases the right to emblements shall be as at common law." But it is enacted by § 3807 that, "The §§41-45] ESTATES OF FREEHOLD. 53 tenant who is entitled to emblements, or his personal repre- sentative, shall pay a reasonable rent for so much land as the emblements shall occupy, in the same proportion as it shall bear in quantity and value to the entire premises; and such rent shall be apportioned among the owners of the reversion, if there be more than one, according to their respective inter- ests." And § 2808 enacts : "If any land has been prepared by the tenant previous to the expiration of the lease, for the purpose of putting a crop into the ground, under such circum- stances as would have entitled the tenant, or his personal representative, to emblements, if the crop had been put in, those who succeed to the land shall pay a reasonable compen- sation for such preparation." Whether the tenant shall pay rent for the premises occupied by the emblements is doubtful at common law; § 2807 settles it in favor of the landlord. And at common law the mere preparation of the soil for crops will give the tenant no right to emblements, if they have not been actually sown or planted when his estate terminates; § 2808 allows reasonable compensation to the tenant in this case. § 45. Lessees of Tenants for life. — As to the privileges of the under-tenant, or lessee, of a tenant for life, see 2 Bl. Com. (123). By Code, Virginia, § 2809, it is enacted: "If there be tenant for life or other uncertain interest in land which is let to another, upon the determination of such life or other uncertain interest the lessee may hold the land to the end of the current year of the tenancy, paying rent therefor; the rent, if it be reserved in money, shall be apportioned between the tenant for life or other uncertain interest, or his personal representative, and those who succeed to the land." For rent reserved in kind a special provision is made, for which see § 2809. But suppose the lessee does not choose to hold the land to the end of the current year? It is then provided by Code of Virginia, § 2810, "on the determination, by death or otherwise, of the estate or other thing, from or in respect of which any rent, hire, or money, coming due at fixed periods. 54 REAL PROPERTY. [Chap. 3 issues, or is derired, or on the death of any person interested in such rent, hire, or money, the person, or the personal representative or assignee of the person, who would have been entitled, but for such death or determination, to the rent, hire, or money coming due at any such period, shall have a proportion thereof, according to the time which shall have elapsed of the time for which the said rent, hire, or other money was growing due, including/the day of such death or determination, deducting a proportional part of the charges." § 46. Waste. — For the general doctrines, see 3 Bl. Com. (281) to (284); Bisph. Bq. §§ 429-435. In general, the law in the United States is the same as in England, with , some modifications growing out of the difference between an old and a new country. Thus, the cutting of timber is waste in England if it go beyond the right to reasonable estovers; but in the United States the clearing of land for cultivation may be a necessity, and for the benefit of the inheritance, and so not waste when done by a tenant. See Findlay v. Smith, 6 Munf. (Va.) 134 (8 Am. Dec. 133) ; Owen v. Hyde, 6 Yer- ger (Tenn.) 334 (27 Am. Dec. 467). Again, converting meadow into pasture by life-tenant is waste in England, but not so in Ehode Island, unless detrimental to the inheritance, and contrary to the ordinary course of good husbandry. Clemence v. Sieere, 1 K. I. 272 (53 Am. Dec. 621). But in University v. Tucker, 31 W. Va. 621, it is held that taking clay from the soil by a life-tenant, and manufacturing it into bricks, and selling them, is waste, the court saying: "Accord- ing to all the authorities tliis is waste. It is taking the very substance of the inheritance. There is no evidence that brick was made on the land in the life-time of the testator. In Smith V. Rome, 19 Ga. 89, it was held to be waste to take rock from land for the purpose of paving the streets of a city. The life-tenant cannot cut turf on bog lands for sale. 1 Co. Litt. 54 &. He cannot dig for gravel or lime, clay, brick, earth, stone, or the like, except for repairs of the buildings, or the manuring of the lands. Dickinson v. Jones, 36 Ga. 97. The §§45-48] ESTATES OF FREEHOLD. 55 life tenant has the usufruct of the land. He can enjoy the annual produce of the land during life, but he must not do any damage to the absolute property in the remainderman." There is now no forfeiture in Virginia for waste, but if it it be found by the jury that the waste was committed wan- tonly, judgment shall be for three times the amount of the damages assessed therefor. Code Va. § 2778. § 47. 2. Estate for the life of Another than the Tenant. (pur auter vie.) — For the doctrine of general and special occupancy, see 2 Bl. Com. 258. Neither kind of occupancy now exists in Virginia, it being provided by statute that "any estate for the life of another shall go to the personal repre- sentative of the party entitled to the estate, and be assets in his hands, and be applied and distributed as the personal estate of such party." Code Va., § 2653. § 48. 2. Estate-tail after the Possibility of Issue Extinct. — (See 2 Bl. Com. 124.) This estate does not now exist in Virginia, every estate-tail becoming a fee-simple immediately on its creation. Orndoff v. Turman, 2 Leigh (Va.) 200; Outland v. Bowen, 115 Ind. 150 (7 Am. St. Eep. 420). ^ '■ The estates for life arising out of the relation of husband and wife — Dower, Curtesy, and Jointure — will be treated of hereafter in a separate chapter, as some of the doctrines cannot be well understood until after the discussion of remainders, conditions, and other topics. CHAPTEE IV. Estates Less than Feeehold. I. Estate for years. § 49. An Estate for Years Distinguished from an Interesse Termini. — "Tenant for term of years is where a man let- teth lands or tenements to another for a term of certain years after the number of years that is accorded between lessor and lessee ; and when the lessee entereth by force of the lease, then is he tenant for term of years." Litt. § 58 ; 1 Tho. Co. 628 ; 2 Bl. Com. (144). The lessee for years does not acquire an estate in the demised land until he enters thereon; the lease of itself gives him only the right of entry on the land, which right is called his interest in the term, or interesse termini. Tied. E. P. § 174. And before entry by the lessee on the land, no release of the reversion can be made to him by the lessor. Thus, if A leases Blaekacre to B for one year, and then, before B enters on the land, releases to him the rever- sion, the release is void. The importance of this doctrine will be seen hereafter with reference to deeds of lease and release. § 50. Words Proper to Create a Lease. — The ordinary and most formal words are "demise, lease and to farm let"; but any words, whether they are in the form of a license or agree- ment, which indicate the intention of the parties that one shall divest himself of the possession, and that the other shall come into it for a certain time, will, in construction of law, amount to a lease. ^ And as to the certain time, it is enough that there ' "What Constitutes a Lease, — "A lease for years Is a contract between lessor and lessee for possession and profits of lands, etc., on the one side, and a recompense by rent, or other consideration, on the other." (5 Bac. Abr. 433; Thomas v. R. Co., 101 U. S. 71, 56 §§ 49, 50] ESTATES LESS THAN FREEHOLD. 57 is a limit (terminus) beyond which the lease cannot extend, though it is liable to end at any time, and before the limit is reached. Thus, "To A for 100 years, if he shall so long live," gives A a term of years (chattel real), because the lease cannot extend beyond the 100 years, though it may end at any time by A's death ; and tliis although it may be certain that it can- not reach the limit, and so will surely end at A's death, and not by efflux of time. See 2 Bl. Com. (143). 78.) The above definition is faulty in not stating that a lease for years is for a determinate period. No set form of words is necessary to constitute a lease. (Michie V. Wood, 5 Rand. (Va.) 571; Upper Appomattox Co. v. Hamilton, 83 Va. 319.) "Very frequently it is a matter of great difficulty to determine whether the agreement under which the tenant holds is technically a lease or a license. The decisions on this subject are numerous and extremely difficult to reconcile." Hanks V. Price, 32 Grat. 107, 110, per Staples, J. See Barksdale v. Hairston, 81 Va. 764; Hodgson v. Perkins, 84 Va. 706. For examples of what are called "mining leases," see Gowan v. Radford Iron Co., 83 Va. 547; Deaton v. Taylor, 90 Va. 219; Young V. Ellis, 91 Va. 297; Shenandoah Land, etc., Go. v. Hise, 92 Va, 238. As to agreements for the cultivation of land on shares, see note to Putnam v. Wise (N. Y.), 37 Am. Dec. 317-323. In 4 Am. & Eng. Enc. of Law (1st ed.), 895, it is said, "That when a farm is let out on shares it depends upon the stipulations of the contract, and the intention of the parties, whether they are ten- ants in common or partners, or whether the relation of landlord and tenant, or of master and servant, exists; and the rights of the parties to the crops raised are determined accordingly." For a case in which the contract between the parties as to land, v/hereby they became for the period of a year associated in the tillage thereof, constituted them joint tenants of the crop of corn raised, see Lowe v. Miller, 4 Grat. 196; cited in Hanks v. Price, 32 Grat. 107. In Lowe v. Miller the alleged lessor was not the owner of the land, but acted under a license from the owner, and the court held that the agreement between the parties "could not be treated as a lease, rendering rent in kind, inasmuch as the reservation of one-half of the crop was not incident to the re- version, and consequently gave no right of distress." In Reynolds v. Pool, 84 N. C. 37 (37 Am. Rep. 607), the follow- ing contract was held to make the parties partners: "On the 58 REAL PROPERTY. [Chap. 4 § 51. Actual Lease Distinguished from a Contract to Lease. —See Tied. E. P., § 179. The fact that no particular words are required for actual leases often renders it difficult to say whether the words that are used create an actual present lease, or merely amount to a contract to create a lease in future. "As the law stands with us, the whole question resolves itself into one of construction, and an instrument will be construed first Monday in February, 1878, I agreed with McPheeters to farm for the year 1878 on these terms: He was to furnish the outfit and the land. I was to hire hands, and superintend the malting of the crop. He was to provide money to pay the hands and carry on the business; for one-half of which, as well as for the like proportion of the hire and cost of feeding the mules and horses, he was to be repaid by having the amount applied in reduction of his indebtedness to me previously incurred, and we were to divide the profits." In the note to this case it is said: "The contract In this case seems an exception to the usual contract in cases of working farms on shares. Generally the contract is to share the produce, and this does not constitute a partnership. But here the agreement was to share the profits, and not ex- plicitly as compensation. Sharing profits as such, and not as compensation, may constitute a partnership." In Parrish v. Commonwealth, 81 Va. 1, it is held that under the contract between Parrish and Mitchell, the latter was a mere em- ploye or cropper, and no tenant. Parrish employed Mitchell to cultivate and secure the crops on his farm during the current year, and agreed to pay him in part — one-half — of the crops, instead of money, for his labor and services. Mitchell was entitled to nothing until Parrish had been fully reimbursed, out of Mitch- ell's share of the crop, for whatever Mitchell might owe him for supplies or otherwise. The court said that the arrangement was only a mode of paying for Mitchell's labor, and that before a settlement and division, Mitchell had no interest in the corn and other crops. And the court cited this language, with approval, from State v. Gay, 1 Hill (S. C), 304: "One who is entitled to a share of the crop for his services on the plantation of another is not a joint tenant nor tenant in common with his employer in the crop produced. It is exclusively the property of the em- ployer, though he has made an executory contract to allow a certain portion of it to the cropper; and the latter may commit larceny in stealing a part of the gathered crop." And see Mc- GutcJien v. Crenshaw (S. C), 19 S. E. 140. §51] ESTATES LESS THAN FREEHOLD. 59 as a lease, or as merely an agreement for a lease, according to what appears to be the paramount intention of the parties." Taylor, Landlord and Tenant, § 38. The distinction is im- portant, for it may happen that what was intended by the lessor as a mere agreement for a future lease may really amount to an actual present lease, and thereby the lessee may escape covenants which would have been imposed on him if the negotiation had amounted to no more than an agreement, and had required to be perfected by an actual lease, just as a con- tract to sell land in fee-simple requires to be consummated by a deed of conveyance. So where there is an actual lease, com- But it must not be supposed that an agreement for the cultiva- tion of land on shares may not amount to a lease, creating be- tween the parties the relation of landlord and tenant. See 37 Am. Dec. 319, where it is said: "In a large number of cases it is laid down in unmistakable terms that if in a contract for the cultivation of land on the shares there are clear words importing a present demise, or that the occupier is to have the exclusive pos- session of the land, or that he is to pay or deliver the owner's por- tion of the crops as rent, the relation between them is that of landlord and tenant." And see 76., p. 320, where it is said: "A 'cropper' is thus defined in Fry v. Jones, 2 Rawle (Pa.), 11: 'If one hires a man to work his farm and gives him a share of the produce, he is a cropper. He has no interest in the land, and re- ceives his share as the price of his labor.' That is to say, if the general possession of the land remains in the owner, and the occupant cultivates it for a share of the produce as compensation, he is a cropper. The question, then, in every case of cultivation of land on the shares is. Does the contract give the owner his share as rent, or the occupant his share as compensation? If the former, according to the oases above cited, the occupant is a tenant; if the latter, he is a cropper." And see 4 Am. & Bng. Enc. of Law, 897, where it is said: "Where the owner parts with his entire possession of the land to his lessee or tenant, and is to receive his half by way of rent in kind, the relation of ten- ants in common does not exist, but it is that of lessor and lessee. The lessor has no right to disturb the lessee in his possession, or to interfere with or take his [the lessor's] half; for the pos- session of the land being in the lessee, the property in the crop must necessarily follow the interest in the land until the time for division." 60 REAL PROPERTY. [Chap. 4 pleted by the lessee's entry, he has a legal title for the term, and can resist an action of ejectment brought against him by the lessor, which would not be the case if there was merely an agreement for a lease. Price v. Williams, 1 M. & W. 6.^ § 52. Creation of Leases for Years. A. In England. (1). At common law. (a). Actual lease. By verbal agreement between lessor and lessee, followed by the lessee's entry upon the land. iSTo writing required. ^Agkeemest fob a Lease. — In Upper Appomattox Company v. Hamilton, 83 Va., 324, it is said: "The language of the instru- ment is certainly peculiar, and it is not easy to determine from its terms whether a lease, or merely an agreement to lease, was intended. No set form of words, however, is necessary to con- stitute a lease, and in doubtful cases, like the present, the nature and effect of the instrument must be determined in accordance with the intention of the parties, as such intent may be collected from the whole instrument." And in Wms. R. P. (17th ed.) 561, it is said: "The Act of 1845 (8 and 9 Vict., c. 106, § 3), to amend the law of real property, provided that a lease required by law to be in writing [by the statute of frauds] of any ten- ements or hereditaments shall be void at law, unless made by deed. But such a lease, although void as a lease for want of its being by deed, may be good as an agreement to grant a lease, ut res magis valeat quam pereat. ... It does not require any formal words to make a lease for years. The words com- monly employed are 'demise, lease, and to farm let'; but any words indicating an intention to give possession of the lands for a determinate time will be sufficient. Accordingly, it some- times happened, previously to the act of 1845, that what was meant by the parties merely as an agreement to execute a lease, was in law construed as itself an actual lease; and very many lawsuits arose out of the question whether the effect of a mem- orandum was in law an actual lease, or merely an agreement to make one. Thus, a mere memorandum in writing that A agreed to let, and B agreed to take a house or farm for so many years, at such a rent, was, if signed by the parties, as much a lease as if the most formal words had been employed. By such a mem- orandum a term of years was created in the premises, and was §§ 51, 52] ESTATES LESS THAN FREEHOLD. 61 (&). Agreement for a lease, as distinguished from a pres- ent actual lease. Verbal agreement, no writing required. (3). Under Statute of Frauds (29 Car. II.) (a). Actual lease. If not exceeding three years, and if two-thirds of the annual value of the land be reserved as rent, then by word of mouth, without writing. But if for more than three years, or if less than two-thirds of the annual value be reserved as rent, then by writing signed. (See §1 of Statute of Frauds.) But now by 8 and 9 Vict. c. 106, § 3 (1845), "a lease required by law to be in writing of any tene- ments or hereditaments shall be void at law unless made by deed." (6). /4(7reemeni for a lease. This is an interest in or con- cerning land, and so comes under § 4 of the Statute of Frauds, and requires writing signed in all cases. B. Ill Virginia. (1). At conimon law. Same as in England. (2). By statute. (a). Actual lease (Code of Va. § 2413). If for more than five years, then by deed; but if for five years or less, then by word of mouth. See 2 Min. Ins. (4th ed.) 185. There is no decision on this point in Virginia, but the above is believed to be the law. (6). Agreement for a lease. If for more than one year, then by writing signed ; for one year or less, by word of mouth. Code of Va. § 2840.^ vested in the lessee immediately on his entry, instead of the lessee acquiring, as at present, a right to have a lease granted to him in accordance with the agreement." See Swain v. Ayres, 21 Q. B. Div. 289. In Marshal v. Berridge, 19 Ch. D., 233, it was held that an executory agreement for a lease does not satisfy the statute of frauds unless it can be collected from it on what day the term is to begin; and there is no inference that the term is to commence from the date of the agreement, in the ab- sence of language pointing to that conclusion. 1 Creation of Leases is Virginia. — In Burruss v. Hines (Va.), 26 S. E. 875 (S. C. 3 Va. Law Reg. 130), it is assumed (though 62 REAL PROPERTY. [Chap. 4 § 53. Rents Reserved Upon a lease. — The law recognizes three kinds of rent, viz. : (1) Rent services; (3) Rent charge; and (3) Rent sech. And besides rents reserved upon a lease of land, there are also rents granted out of land, which may be rent charge or rent seek, but cannot be rent service. Rent service is the return of the vassal made the lord for the land he held of him. This was, therefore, incident to tenure and of feudal origin. And for rent service not paid or rendered not necessary to the decision in the case), that an agreement for a lease for one year is unenforceable, if the lease is to begin at a future date. Thus, if on the lirst day of January A makes a verbal agreement to rent certain premises to B for one year from the first of February following, the agreement would be invalid, and no action could be brought thereon. If this view be correct, as the agreement is not for the lease of real estate "for more than one year," it must be by reason of Code of Va. § 2840, cl. 7, which declares that no action shall be brought "upon any agreement that is not to be performed within a year"; "from the making thereof," being added as the meaning of the statute. And this doctrine is sustained by the weight of authority. See 17 Am. St. Rep. 752-'57, note to Wallace v. Scoff- gins, 18 Or. 502, where the cases are collected. And see the ar- ticle by Prof. E. H. Bennett, "Agreements not to be Performed within one Year," 29 Am. Law Review, 481, 484 (reprinted in 1 Va. Law Reg. 553.) See, also, 12 Am. & Eng. Enc. Law, p. 978, and note. The conflict of decisions disclosed by the cases cited by the authorities referred to above is due to diversity of opinion on the question whether an agreement to give a verbal lease for one year, to begin at a future date within one year, is capable of being fully performed, on the part of the lessor, within one year. For the statute does not require performance on both sides within one year. See Seddon v. Rosenhaum, 85 Va. 928, following the leading English case of Donellan v. Bead, 3 B. and Ad. 809. On the one hand it is contended that such an agreement is fully per- formed by the lessor's merely giving the lease, which can be done within one year; on the other, it is claimed, that in order to the full performance of his agreement by the lessor, he must actually permit the tenant to occupy for the term stated, which, of course, could not be within one year, when the lease for a year is to begin at a future date. §§53,54] ESTATES LESS THAN FREEHOLD. 63 when due, the lord (now landlord) may distrain the goods and chattels of the tenant, as of common right, and without any agreement to that effect. Hence the right of distress is inci- dent to rent service ; and this distinguishes rent service from rent charge, as to which the right of distress exists by express stipulation, and from rent seek, as to which it does not exist at all. § 54. The Effect of ftuia Emptores on Eents. — ^Before this statute which abolished subinfeudation on grants of the entire fee-simple, if A enfeoffed B of land, reserving rent, the rent was always rent service. For before the statute, whether A conveyed his entire estate (fee-simple), or any smaller estate carved out of it (in- tail, for life, or for years), there was tenure between A and B (feofier and feoffee), and the Upon principle, it would seem that the lessor does fully per- form his agreement by giving the tenant the lease, and this may be (and is to be), in the case stated, within one year. A fail- ure to give the lease at the day named would be a breach of the lessor's contract; and if on that day the lease is given, any sub- sequent interference with the tenant's possession by the land- lord would simply be an act of trespass. As for wrongful intru- sions by third persons, the tenant must take care of himself. And if it be said that there is an implied warranty of quiet en- joyment on the part of the lessor, the reply is that this may be performed (if the occasion arise) within one year; but aside from this, that such obligation, imposed by law, would no more make the lessor's agreement invalid as not capable of performance within one year, than would the implied warranty of title at- tached to the sale of a chattel make the verbal agreement to sell in one month unenforceable. As said by Gray, in Yiterlio v. Friedlander, 120 U. S. 712, the common law regards a lease as the grant of an estate for years, in which the lessee takes a title. It is true that a contract of personal service for one year to be- gin in future is within the Statute of Frauds {Lee v. Hill, 87 Va., 497; but here there is the continuous duty of giving and re- ceiving services. It Is stated in the text, following Professor Minor, that an actual lease in Virginia, for five years or less, can be made by word of mouth. Such an actual lease is not a contract for the 64 REAL PROPERTY. [Chap. 4 rent being incident to the tenure was rent service. And it mattered not that A had no reversion. Though A enfeoffed B in fee-simple (to B and his heirs), A had a seignory, and to this the rent and fealty were incident. This was the time of the creation of manors, before the year 1390. But after quia emptores, tenure was abolished between A and B, if A granted to B his entire fee-simple; and B held not of A, but of A's lord. Hence, the rent reserved between A and B could not be incident to tenure, and so could not be rent service. If the land was by express stipulation charged with a right of dis- tress, the rent was called rent charge; if not so charged, the lease of real estate, and so does not require writing under Code of Virginia, § 2840, cl. 6; and the estate created thereby does not require to be by deed by § 2413, because by supposition it is not for a term of more than five years. It would seem, therefore, to be effectual to all intents and purposes, as coming within § 2413 as to conveyances, and not at all affected by the provisions of § 2840, which refer only to promises, contracts, agreements, etc. In no view, therefore, could it be called an "agreement not to be performed within a year." But under the English Statute of Frauds, in the corresponding case of an actual lease not exceed- ing three years, upon which a certain rent is reserved, it was held that the case was not entirely without the operation of § 4 of the statute; that "the leases are valid, and what remedy can be had upon them in their character of leases may be re- sorted to; but they do not confer the right to sue the lessee for damages for not taking possession." See Inman v. Stamp, 1 Starkie, 12; Edge v. Strafford, 1 C. and J., 391; Lord Bolton v. Tomlin, 5 Ad. and E., 856; Wright v. Stavert, 2 E. and E., 721; Smith on Cont. (108). As to the effect of an actual lease for one year, made verbally to begin at a future date, see Young v. Bake, 5 N. Y. 463; Becar v. Flues, 64 N. Y. 518; WJiiting v. Ohlert, 52 Mich. 462 (50 Am. Rep. 265), where such a lease was sustained. Qucere, under the Virginia statute, as to the effect of an actual lease made verbally, for five years or less, to begin in futuro. In 2 Lorn. Dig. (93), the Virginia statutes are quoted, and it is said, disregarding the distinction between an actual lease and an agreement for a lease: "It would seem, therefore, that a mere parol, unwritten demise for a year will be valid; or a written demise for five years or less; but a demise beyond five §§54,55] ESTATES LESS THAN FREEHOLP. 65 rent was called rent seclc (dry rent) because lacking the best remedy for its recovery — the right of distress. Since quia emptores, the doctrine is established that tenure is incident to reversion. Hence, since rent service is incident to the tenure, rent service is incident to the reversion. Eents, therefore, which are reserved to grantors, or assignors, who convey their entire interest in land, cannot be rent service, but become rent charge, or rent seek, as explained above. ^ § 55. Rents Granted Out of Land. — ^We have seen the ef- fect of quia emptores on rents reserved on grants of land. But rent may be granted out of land, the grantee taking the rent only, and the grantor retaining the land. These granted rents obviously cannot be rent service, for there is no tenure between the grantor and grantee of a rent. Hence, such rent is rent charge, if the land out of which it is granted is charged with the right of distress ; and rent seek if it is not so charged. This sort of rent charge and rent seek existed prior to quia emptores, and was not affected by that statute. Such a rent charge is in common use now in England as a part of the machinery of marriage settlements, the land years must be by deed." And considering the unsettled state of the law in Virginia, and the difficulty of distinguishing be- tween an actual contract of lease, and an executory agreement for a lease, It is the part of prudence to reduce to writing all contracts for the possession of land for more than one year, and also all such contracts for one year only, since the operation of the lease is often postponed until a day subsequent to its date. 'Rent Service in Vieginia. — Although there is no tenure in Virginia (see ante, § 7, note 1), yet the consequences of tenure, which were interwoven with the common law, still continue as to rents, and determine what is, and what is not, rent service. And though quia emptores was abolished in Virginia in 1792, it is not considered that the common law was thereby restored; but the doctrine still continues that rent service is incident to the reversion. (1 Tuck. Com. Bk. 2 (18); Wms. R. P. 118, note; Wallace v. Harmstead, 8 Wright, 492, overruling Ingersoll v. Sergeant, 1 Whart. 337; Lowe v. Miller, 3 Grat. 196.) 66 REAL PROPERTY. [Chap. 4 being settled on the eldest son to be born of the contemplated marriage, subject to a rent charge in favor of his (prospec- tive) brothers and sisters. There are, therefore, now in Eng- land two kinds of rent charge and rent seek, viz. : that arising on grants of rent out of land, which is unaffected by quia emp- tores; and that arising when the grantor of land reserving rent has no reversion, which kind is created by quia emptores. § 56. Bight of Distress in Virginia.. — In Virginia the right of distress is now given by statute as to all rents alike, without express stipulation. Code of Va. § 3787. This had been done in England by 4 Geo. II., chap. 38. And in Vir- ginia the distress may be levied on any goods of the lessee, or his assignee, or under-tenant found on the premises, or which may have been removed therefrom not more than thirty days. Code of Va., § 2791; Hutchins v. Commercial Banh, 91 Va. 68. At common law, all goods on the leased premises, whether the tenant's or a stranger's, were liable to be dis- trained on for rent ; while, on the other hand, no distress could be levied on the tenant's goods unless they were found on the leased premises.^ Clarice v. Millwall DocTc Co., 17 Q. B. D. 494. ^ Distress foe Rent. — See on general subject, note to Lidh- tenthaler v. Thompson (Pa.), 15 Am. Dec. 584-'88. For the meas- ure of damages under Code of Va., § 2898, when property is "dis- trained for any rent not due," see FisWburne v. Engledove, 91 Va. 548. And hy § 2791, it is provided: "If the goods of such lessee, assignee or under-tenant, when carried on the premises, are subject to a lien which is valid against his creditors, his interest only In such goods shall be liable to such distress. If any lien be created thereon while they are upon the leased prem- ises they shall be liable to distress, but not for more than one year's rent, whether it shall have accrued before or after the creation of the lien." For the construction of this statute, see City of Richmond v. Duesierry, 27 Grat., 210; Wades v. Figgatt, 75 Va., 575; Upper Appomattox Go. v. Hamilton, 83 Va., 319. For procedure when goods are distrained for rent reserved in a share of the crop, see Code of Va., § 2795. §§55-59] ESTATES LESS THAN FREEHOLD. 67 § 57. Out of What May Rent be Reserved. — Blackstone says out of lands and tenements corporeal whereunto the owner (landlord) may have recourse to distrain. 2 Bl. Com. (41) . And he adds that an annual sum reserved on the grant of an incorporeal hereditament, though recoverable in an action, is merely a personal contract, and not rent, because could be no remedy by distress, if it was in arrears. And so no rent, eo nomine, and with right of distress, can be reserved on the grant of a chattel. And yet there may be a personal contract as before. But it seems that in one sense rent may be said to issue out of incorporeal realty, or out of personalty. As to the peculiar remedy by distress, it can only issue out of land; but in point of render or return, it may be considered to issue out of incorporeal tenement, as a common, or out of personal chattels. Thus in Newton v. Wilson, 3 H. and M. (Va.) 470, a mill was leased out, together with a negro miller, reserving rent. But the negro was, in fact, a free man, and evicted himself by title paramount. It was held that the rent abated according to the value of the negro's services, which shows that in point of render, the rent was supposed to issue out of both mill and miller, though in point of remedy the whole sum stipulated to be paid was to be taken as rent issuing out of the real estate. See MicJcie v. Wood, 5 Band. 573. § 58. Mode of Reserving Rent. — The best way to reserve rent is to make it payable during the term, without saying to whom. This method is recommended by Lord Coke, and is adopted in the form of lease given in the Code of Virginia, § 2440. The rent will then follow the reversion, and will go to the lessor's heir or administrator accordingly. For the questions which arise when rent is reserved otherwise than "during the term," see 2 Tuck. Com. (25) ; Taylor L. and T., §156. § 59. When is Rent Due. — In general, rent is not due im- til after midnight of the day on which it is made payable. A 68 REAL PROPERTY. [Chap. 4 distress, therefore, at any time on the day on which rent is payable would be premature ; nor would an action lie for rent until the next day. Taylor L. and T., § 391. But when it is necessary to make a demand for rent in order to enforce a condition of re-entry for its non-payment, the demand must he made for the precise sum due, on the day it is payable, be- fore sunset on that day, on the premises and at the most no- torious place thereon, or if there be a dwelling-house, at the front door thereof. See Tied. R. P. § 193. And this rule as to the necessity for demand remains unaltered in Virginia, whenever the lessor desires, by re-entry, to enforce a condi- tion of forfeiture for non-payment of rent. See Johnson v. Hargrove J 81 Va., 118. But if an action of ejectment be brought in such cases, it is provided by the Code of Virginia, §2796, that the service of a declaration upon the tenant in possession shall be in lieu of a demand and re-entry. But this applies to an action of ejectment only, and not to an action of unlawful detainer. See to this efEect, Johnston v. Har- grove, 81 Va., 118. For relief against forfeiture of his term by the tenant, for non-payment of rent at the day set, see Code of Virginia, § 2797 and § 2800. As to forfeiture by tenant, see further Guffy v. Hukill, 34 W. Va., 49 ; HuTcill v. Meyers, 36 W. Va., 639 ; Clator v. Otto, 38 W. Va., 89 : Henderson v. Carhondale, etc., Co., 140 U. S. 25. § 60. On the Lessor's Death to Whom is the Rent Payable ? — The general principle is, that rent due on the lessor's death goes to the lessor's personal representative (executor or ad- ministrator) like any other debt; but rent not due on the les- sor's death follows the reversion, i. e., it goes with the land, and whosoever is entitled to it receives the rent also as inci- dental. As to rent not due on lessor's death see the follow- ing three cases : (a) . A, seised in fee, leases to B for twenty years, reserv- ing the rent, and dies during the term. The reversion in fee passes to A's heir, and he is entitled to the rent. Lightner v. Spech, (Va.), 28 S. E., 326. §§59-61] ESTATES LESS THAN FREEHOLD. 69 (&). A, possessed of a term of 100 years, subleases it to B for 20 years, reserving rent, and dies during the term. The reversion in the term of 100 years passes to A's personal representative, and he is entitled to the rent. (c). A, possessed of an estate for his own life, leases to B for 30 years, reserving rent, payable quarterly, beginning on January 1. A dies on March 1, a month before the quarter's rent becomes due. Here A's estate ends by his death, and there is no reversion for the rent to follow ; and, at common law, B could quit the premises and pay no rent to anybody for the two months from January 1 to March 1. This was changed in England by statute, requiring B to pay to A's personal representative the proportion of the rent for two months. In Virginia, Code, § 3809, provides that B may hold the land to the end of the current year of the tenancy, paying rent therefor; and if paid in money, the rent shall be appor- tioned between the reversioner and the personal representa- tives of A. See also Code of Va., § 3810. § 61. Apportionment of Rent. (a). If the tenant is evicted by a stranger, with title para- mount, of all the land demised, he is excused from the pay- ment of any rent except that already due before eviction. But if he is evicted by a stranger from part of the land only, the rent is apportioned, and he must pay rent for the residue of the land. (6). If the tenant is ousted by the lessor himself from the whole, or any part of the land demised, all rent not due is extinguished as to all the land. This, when the tenant re- tains part of the land, is by way of forfeiture for the lessor's wrong. See Briggs v. Hall, 4 Leigh, 484; Tunis v. Grandy, 33 Grat. 109. See further as to rights of tenant when evicted or disturbed by landlord, 38 Am. St. Eep. 485; Robrecht v. Marling, 39 W. Va. 765; HuUle v. Cole, 85 Va. 87 (S. C. 88 Va. 336). (c). If a tenant loses a leased house without fault or 70 REAL PROPERTY. [Chap. 4 negligence on his part, by fire, flood, etc., during the term, there was at common law no abatement of the rent, and the tenant was compelled to continue to pay the whole rent during the whole term. See Taylor L. and T., § 376 ; 94 Am. D. 663.^ But now Virginia, by statute, taking effect May 1, 1888 (Code of Va., § 2455), it is provided, that in case of such destruction by fire or otherwise, without fault or negli- gence on the part of the tenant, there shall be a "reasonable reduction of the rent for such a time as may elapse until there be again upon the premises buildings of as much value to the tenant for his purposes as what may have been so destroyed." And the same doctrine now applies in Virginia when the ten- ant is deprived of the possession of the premises by the public ^In Viterbo v. FrieOlander, 120 U. S. 707, 712, it is said by Gray, J.: "The common law and the civil law concur in holding that in the case of an executed sale, a subsequent destruction of the property from any cause is the loss of the buyer. Res perit domino. They also concur in holding that performance of an executory obligation to convey a specific thing is excused by the accidental destruction of the thing without the fault of the obligor before the conveyance is made. But as to the nature and effect of a lease for years, at a certain rent which the lessee agrees to pay, and containing no express covenant on the part of the lessor, the two systems differ materially. The common law regards such a lease as the grant of an estate for years, which the lessee takes a title in, and is bound to pay the stipulated rent for, notwithstanding any injury by flood or Are or external vio- lence, at least unless the injury is such a destruction of the land as to amount to an eviction, and by that law the lessor Is under no implied covenant to repair, or even that the prem- ises shall be fit for the purposes for which they are leased. The civil law, on the other hand, regards a lease for years as a mere transfer of the use and enjoyment of the property, and holds the landlord bound, without any express covenant, to keep it in repair and otherwise fit for use and enjoyment for the pur- pose for which it is leased, even when the need of repair or unfitness is caused by inevitable accident; and if he does not do so, the tenant may have the lease annulled or the rent abated." See Thompson v. Pendell, 12 Leigh (Va.), 591; White v. Bvr chanan, 76 Va. 546. §§61,62] ESTATES LESS THAN FREEHOLD. 71 enemy. Code, § 2455; Scott v. Scott, 18 Grat. 150, 175. And it is also enacted that no covenant by a lessee that he will "leave the premises in good repair" shall bind him, if the buildings thereon are destroyed without his fault, to erect such buildings again, unless there be other words showing it to be the intent of the parties that he should be so bound. Code, § 2453. For the harsh rule of the common law, see Ross V. Overton, 3 Call 308 ; Maggort v. Bansbarger, 8 Leigh (Va.), 532. § 62. Covenants in a Lease. — The usual covenants in a modern lease are said to be: (1), On the part of the lessor, (a), for the lessee's quiet enjoyment, (6), against encum- brances, (c), for further assurance, {d), to keep the premises in repair; (2), and on the part of the lessee, (a), to pay the rent, (&), to pay the taxes and assessments, (c), to keep the premises insured, {d), to reside on the premises, (e), not to carry on certain trades on the premises, (/), not to assign or sublet the premises, etc. And some covenants are implied by law, in the absence of express stipulation. Thus, the lessor, from the use of the word demise, etc., impliedly warrants quiet enjoyment. Scott v. Rutherford, 92 U. S. 107. And when the lease is silent on the subject, the law imposes on the lessor the duty to pay the taxes and assessments, and if the tenant is compelled by the authorities to pay them, he may set off the amount against the landlord's claim for rent. 12 Am. and Eng. Ency. Law, 692. On the other hand, the law im- plies a duty on the part of the tenant to keep the premises in repair, and a failure to do so is permissive waste. Kline v. McLain, 33 W. Va. 32; Hoyleman v. R. Co. lb. 489.^ ' Ltability of Tenant foe Permissive Waste. — It is certain that there is no Implied covenant on the part of the landlord to keep the premises in repair during the term; nor is there any implied warranty by the landlord that a building leased is safe, or that it is suitable for the tenant's purposes. In Sutton v. Temple, 12 M. & W. 52, 63, Baron Parke said: "With respect to the other and principal question in this case, whether a con- 72 REAL PROPERTY. [Chap. 4 § 63. So Covenants in a Lease Bind the Assignee or Sub- lessee? — ^An assignment is the transfer of the lessee's whole estate to the assignee; a sub-lease is the transfer of less than the lessee's whole estate, leaving in him a reversion, and creat- tract or a condition is implied by law, on the demise of the land, that it shall be reasonably fit for the purpose for which it is taken. . . . The word 'demise' certainly does not carry with it any such implied undertaking; the law merely annexes to it a condition that the party demising has a good title in the prem- ises, and that the lessee shall not be evicted during the term." And in Ward v. Fagin, 101 Mo. 669 (20 Am. St. Rep. 650), it is held, in accordance with all of the authorities, that a landlord is not bound to keep the leased premises in repair, nor is he responsible to the tenant for the injuries resulting to the latter from their non-repair. See 12 Am. & Eng. Ency. Law, 723, 1103 ; 50 Am. Dec. 776-'83, note; 38 Am. St. Rep. 477, note; 52 Id. 884, note. On the other hand, there are many cases which sustain the doctrine of the text, that the law implies a duty on the part of the tenant to keep the premises in repair, and that a failure to do so is permissive waste. See 2 Min. Ins. (4th ed.) 614; 12 Am. & Eng. Ency. Law, 721; 95 Am. Dec. 121, note; Windon v. Stuart (W. Va.), 28 S. E. 776. But when it is asked tohat repairs must the tenant make, and what amounts to permissive waste, it is difficult to obtain a satisfactory answer from the cases. This is, doubtless due to a growing tendency to relieve the ten- ant from liability for non-repair. Indeed, it has recently been decided in England (contrary to the former opinion), that a tenant for life is not liable for permissive waste at all {Cart- wright V. Newman, 41 Ch. D. 532); and in a note to the seven- teenth edition of Williams on Real Property, p. 565, it is said by the English editor: "The old opinion was that a tenant for years was liable for permissive as well as voluntary waste. Litt. § 71. But in modern times, conflicting opinions have been ex- pressed on this point. Heme v. Beml>ow, 4 Taunt. 764; Yel- lowly V. Oower, 11 Ex. 293-94; Woodhouse v. Walker, 5 Q. B. D. 499, 503; Re Cartwrlght, 41 Ch. D. 532. As we have seen, it has now been decided that a tenant for life is not liable for permissive waste, and, on principle, this decision should govern the case of a tenant for years, though it may be pointed out that anciently tenants for life and [for] years were equally in the position of farmers, while m modern times tenants for life are § 63] ESTATES LESS THAN FREEHOLD. 73 ing tenure between the lessee and sub-lessee. The sub-lessee holds of the lessee, but the assignee holds of the lessor. (a). No covenants in a lease bind the sub-lessee, for want of privity either of contract or of estate. usually life owners rather than farmers." In United States v. Bostwicic, 94 U. S. 53, it Is said by Waite, C. J., at p. 65: "But in every lease there is, unless excluded by the operation of some express covenant or agreement, an implied obligation on the part of the lessee to so use the property as not unnecessarily to injure it. . . . Whatever damages would necessarily result from a use for the same purposes by a good tenant must fall upon the lessor. All that the relation of landlord and tenant implies in this particular Is, that the tenant while using the property will exercise reasonable care to prevent damage to the inheri- tance." And again at p. 68: "The implied obligation is not to repair generally, but to so use the property as to make repairs unnecessary, as far as possible. It is, in effect a covenant against voluntary waste, and nothing more." In 2 Min. Ins. (4th ed.) 615, United States v. Bostwick is re- ferred to us a case in which "C. J. Waite propounds some re- markable views touching permissive waste; views which the writer conceives to be unwarranted either by authority or sound policy, and contradictory of the terms of the statute of waste." And the learned author thus lays down the law of permissive waste, going to the opposite extreme: "Permissive waste, some- times called negligent waste, is generally defined, as we have seen, as a matter of omission only, such as suffering a house to fall, or to be injured, for want of necessary reparations. It will seem, however, to be somewhat more comprehensive than this language would imply. Thus, if destruction be done by a stran- ger, or a mob; or if fire, originating by the act of an incendiary, or by neglect in a neighboring tenement, consumes the premises, it is supposed to be undeniably waste; and yet, as it cannot with propriety be termed voluntary waste, which supposes the action of the tenant, it is believed to fall within the designation of such as is permissive. Upon this idea, permissive waste would include not only all destruction arising from neglect of the neces- sary reparations, but also such as proceeds from the acts of strangers, not public enemies, and from all casualties, not oc- casioned immediately by the act of God." See the Nitro-Glycerine case, 15 Wall, 524. As has been said, the law as tp the implied obligation of the 74 REAL PROPERTY. [Chap. 4 (&). Some covenants in a lease bind the assignee, because, though there is no privity of contract between the lessor and assignee, there is privity of estate by reason of the tenure between them. (c). The covenants in a lease which bind the assignee are such as run with the land, i. e., such as are not collateral to the land, but relate to it and concern it. Under this head come all implied covenants, and such express covenants as re- late to things in esse which are parcel of the demise. If they relate to a thing not in esse, but which concerns the demised premises, as a wall to he built thereon, they do not bind the assignee, unless the lessee covenanted for himself and his assigns. Otherwise if it were to repair a wall already on the premises. Wms. E. P. (397) ; Tayl. L. and T. § 260. But tenant to keep the premises In repair seems to be undergoing change, and even when the landlord is under no contract obliga- tion to repair, it is believed to be usual for reparations to be voluntarily made by him, and not by the tenant. In 95 Am. Dec. 121, note, the law is thus laid down as to the tenant's implied duty to repair: "It is not, however, an obliga- tion resting upon the tenant to repair generally, but only to keep the premises in as good repair as he receives them, ordinary wear and tear, and accidental injuries excepted. Thus in the case of buildings, a tenant from year to year is bound to keep them wind and water-tight, In the absence of any special agree- ment on the subject; but is not bound to make substantial and lasting repairs, such as putting on a new roof; nor is he bound to rebuild when the premises have accidently become ruinous, or are destroyed, unless by special agreement. But it is the duty of a farm tenant to make all needed current repairs on fences in the absence of a contrary covenant. This implied duty grows out of the occupancy of the land." See 12 Am. & Eng. Ency. Law, 720, note. And see Windon v. Stuart (W. Va.) 28 S. E. 776, where it is said, that a tenant must make ordinary repairs to buildings, repair and keep' up fences, remove and keep down filth, such as elders, briars, etc., growing on farming and graz- ing lands, at his own expense, unless otherwise provided in the lease. §§63,64] ESTATES LESS THAN FREEHOLD. 75 now in Virginia all covenants extend to assigns without ex- press mention of them. Code of Virginia, § 3445.^ § 64. Examples of Covenants Running with the Land. — We have seen that all implied covenants run with the land, and are binding on the assignee, but not on the sub-lessee; 'Assignees and Sublessees. — For the distinction between an assignment and a sublease, see 15 Am. Dec. 543-545, note. It is there said ; "The lessor has against the assignee of the lessee the same right of action that he has against the original lessee for the breach of all covenants in the lease that are annexed to the estate [i. e., which run with the land] as long as he [i. e., the assignee] is in possession. . . . Between the lessor and the under-tenant of the original lessee [i. e., the sub-lessee] there is neither privity of estate nor privity of contract; the lessor, therefore, cannot sue the under-tenant upon the lessee's covenant to pay rent." And see 10 Am. St. Rep., 557-565, note, where there is a full discussion of the assignment of leases, and the respective rights and liabilities of the lessor, assignor and assignee thereafter. It is there laid down that "the lessee of land, notwithstanding his assignment of the lease, continues liable upon express covenant therein. The reason of this rule is, that although by the assignment the privity of estate be- tween the lessor and lessee is terminated, there still remains the privity of contract between them created by the lease, which is not affected by the assignment, although made with the assent of the lessor. . . . Thus the assignment of a lease does not annul the lessee's obligation on his express covenants to pay rent, even though the lessor has accepted the assignee as his tenant, and collected rent from him." And see to the same effect, 1 Am. St. Rep. 83, and note; WasMngton Natural Gas Go. V. Johnson, 123 Pa. St. R., 576 (10 Am. St. Rep. 553). But it should be remembered that the above doctrine of continued liability of lessee after assignment applies only to the lessee's express covenants, and not to those implied by law. 1 Washb. R. P. (326) ; Tayl. L. & T., § 371; 10 Am. St. Rep. 563. We have seen that the assignee of a lease is liable to the lessor on cov- enants which run with the land. But this liability, being based on privity of estate, continues so long only as the assignee re- tains the lease; and can be terminated by him at any time by assigning over to another. Farmers Bank, v. Mutual, etc., Society, 4 Leigh (69), (84). And though, as we have seen, the sub- 76 REAL PROPERTY. [Chap. 4 and also that express covenants run with the land when they relate to or concern it, but not when they are collateral or aside from the land. Applying this distinction, covenants to cultivate land in a particular manner; to maintain a par- ticular fence, etc., run with the land; but a covenant to pay the debt of a third person does not run with the land; nor would a covenant to keep up a fence on other land belonging to the lessor, but which was not parcel of that demised to the tenant. But a covenant to renew the lease runs with the land in favor of the assignee.'^ lessee is not bound by the lessee's covenant to pay the rent, and the lessor can maintain no action thereon against the sub-lessee, for want of privity either of contract or estate, it must not be supposed that the goods of the sub-lessee In possession cannot be distrained by the lessor for the lessee's rent. The right to distrain follows the land; for otherwise, by the lessee's sub- lease, the lessor would lose his right of distress altogether. See Tayl. L. & T., § 109; 15 Am. Dec. 554. And the Code of Virginia expressly declares (§ 2791) that the distress may be "levied on any goods of the lessee, or his assignee, or under-terMnt." Hutch- ins \. Commercial Bank, 91 Va., 68, 77. ' Covenants Running 'with the Land. — Besides the examples given in § 64, the following covenants are held to run with the land: To insure if the insurance is to be laid out in rebuilding; to discharge the lessor from taxes and assessments; not to carry on particular trades; not to erect certain buildings, etc. See Tayl. L. & T., §§ 261, 262; 2 Min. Ins. (4th ed.), 797; 15 Am. Dec. 545; West Virginia, etc., R. Co. v. Mclntire, 28 S. B. 696. For a full discussion of covenants restricting the use of land, see 21 Am. St. Rep. 484-508; Hublyle v. Cole, 85 Va., 87. As to covenants to renew leases, see Upper Appom,attox Company v. Hamilton, 83 Va., 319, 325, where the lease was held not to be a "renewed and extended lease," as was contended by counsel; "for it was not made in pursuance of any covenant or stipulation contained in the original lease, and it not only created a new term after the regular expiration of the first, but it prescribes terms and conditions materially different in several particulars from those contained in the original lease." In James v. Kitler (Va.), 26 S. E., 417, it is held that a lease for five years, with a provision that if at the end of the five years the lessee desires to retain §§64-66] ESTATES LESS THAN FREEHOLD. 77 § 65. Tenancy from Year to Year. — ^This is considered an estate for years; and the best way to create this kind of ten- ancy is to let the lands to hold "from year to year" simply, without saying more. Wms. E. P. (393). But a tenancy from year to year frequently arises by implication, as to which see infra under "Estate at Will." But a lease from year to year is much more advantageous to both landlord and tenant than a lease at will. In the language of "Williams : "The ad- vantage consists in this, that both landlord and tenant are entitled to notice before the tenancy can be terminated by the other of them. This notice must be given at least half a year before the expiration of the current year of the tenancy; for the tenancy cannot be terminated by one only of the parties, except at the end of any number of whole years from the time it began. So that if the tenant enter on any quarter day, he can quit only on the same quarter day; when once in possession, he has a right to remain for a year; and if no notice to quit be given for half a year after he has had posses- sion, he will have a right to remain two whole years from the time he came in ; and so on from year to year." Wms. E. P. (390). § 66. Notice to Cluit. — For a full discussion of this sub- ject, see Stedman v. Mcintosh, 4 Iredell's Law (N. C), 891; S. C. 43 Am. Dec. 123, and note 135-140. A tenant whose lease is for one year, or for a certain number of years, is not entitled to notice to quit; for he knows beforehand just when his lease will expire. So tenants at will are liable to be dispossessed at any time; and are at common law not en- titled to notice to quit, except when the landlord takes this means of terminating the estate, which he may do whenever tlie premises for the next five years, he may do so on giving six months' notice, is not a present lease for ten years; and so does not require to be by deed under the statute of conveyances. Code of Virginia, § 2413. For a case in which specific perform- ance was granted of a covenant to renew a lease for ninety-nine years, see Selden v. Camp (Va.), 28 S. E, 877. 78 REAL PROPERTY. [Chap. 4 he chooses. Bat a tenancy from year to year requires, as we have seen above, a half year's notice to terminate it at common law; or, as it is usually put, six months' notice before the ex- piration of the current year of tenancy. But the Virginia statute now enacts (Code, § 2785) : "A tenancy from year to year may be terminated by either party giving notice, in writ- ing, prior to the end of any year, for three months, if it be of land within, and for six months, if of land without a city or town, of his intention to terminate the same." The statute also provides upon whom the notice may be served, whether given by the landlord or tenant; and that the parties may contract by special agreement that no notice shall be given. ^ ^ Estoppel of Tenant to Dent Landlord's Title. — It is well settled that a tenant who receives possession of land from another as his landlord is estopped to deny the latter's title in the premises demised. Nil fiabuit in tenementis is not a good plea to the land- lord's action for rent. The Qoctrine has been considered of feudal origin, but this seems to be a mistake. See Wms. R. P. (247), note 2, where the rule Is said to be of recent introduction, and to be intended to prevent a tenant from compelling his landlord to prove his title in an action of ejectment, in which the rule is that the plaintiff must recover on the strength of his own title, and not on the weakness of his adversary's, so that but for the estoppel the tenant, though having no title himself, could not be compelled to restore the possession to a landlord whose title was defective. But in Bigelow on Estoppel, 349, while it is ad- mitted that the rule is modern, a different explanation is given of its origin, to which the reader is referred. For a discussion of the general rule and its exceptions, see 1 Greenl. Ev., § 25; 2 Bl. Com. (143) n. 5; 13 Am. Dec. 68-92, note; 69 Id. 510-511. In 13 Am. Dec. 68 it is said: "There is some conflict in the de- cisions upon the point as to whether when one who is already in possession of land accepts a lease thereof from a claimant of the same from whom he did not receive the possession, he is or is not estopped from denying the title of such claimant, and whether, if he is estopped, such estoppel endures after the ex- piration of the term. The difficulty upon this head arises from the fact that the estoppel of a tenant to deny his landlord's title is commonly founded upon the position that, having re- ceived the possession under such title, he is bound in equity and §§66,67] ESTATES LESS THAN FREEHOLD. 79 II. Estate at will. § 67. Creation of Estates at Will. — This estate may be created by the express or implied agreement of the parties, or it may arise by construction of law. Thus the parties may agree in terms that the lessee shall hold at the will of lessor; and then "as he may be turned out when his landlord pleases, so he may leave when he likes." Wms. E. P. (389) ; Cowan V. Radford Iron Co., 83 Va. 547. Again, if under an agree- ment for a lease, the tenant enters, but no certain period of holding is fixed, and the tenant either pays no rent, or pays it without reference to a year's holding, this is impliedly a tenancy at will. But if under such a lease the tenant enters and pays an annual rent, or rent with reference to a year, he then becomes a tenant from year to year. See Braythwayte V. Hitchcock, 10 M. & W. 494; Wms. R. P. (389) ; Tied. E. P. § 314; 43 Am. Dec. 138. A mortgagor in possession is con- structively a tenant at will to the mortgagee; and so is a vendee of land, who enters under a contract of purchase, but who has not received a deed, and such vendee cannot be ousted without previous demand or notice by the vendor. William- good conscience to restore the possession to him from whom he had it before he undertakes to dispute his title." In Jordan v. Katz, 89 Va. 628, it is held that the general rule that a tenant cannot deny his landlord's title is not affected by the fact that the tenant is in actual possession at the time he ac- cepts the lease; and that by such acceptance he as effectually recognizes the title and possession of the lessor as if he hai en- tered and taken possession under and by virtue of the lease itself. But in that case there was no proof of fraud, imposition or un- fairness; and if it should appear that the tenant was Induced to accept the lease through the landlord's fraud or misrepresenta- tions the tenant would not be estopped. See Emerick v. Tavener, 9 Grat. 220; Creigh v. Henson, 10 Id. 231; Alderson v. Miller, 15 Id. 279; Doison v. Culpepper, 23 Id. 352, 361; Allen v. Paul, 24 Id. 332; Wilcfier v. Robertson, 78 Va. 602; Looke v. Frasher, 79 Va. 409; Rakes v. Rustin Land, etc., Co. (Va.), 22 S. E. 498; 13 Am. Dec. 68. For the law in West Virginia, see Camphell v. Fetterman, 20 W. Va. 398; Yoss v. King, 33 W. Va. 236. 80 REAL PROPERTY. [Chap. 4 son V. Paxton, 18 Grat. 475; Twyman v. liawley, 24 Id. 499; Loche V. Frasher, 79 Va. 409; Jones v. Temple, 87 Va. 210. For the rights whicli an estate at will confers, and the means by which it may be terminated, see 2 Bl. Com. (146). III. Estate by Sufferance. § 68. Tenants by Sufferance. — "A tenant by sufferance is one that comes into possession of land by lawful title, but holdeth over by wrong after the determination of his interest. He has only a naked possession, and 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, nor is he entitled to notice to quit." 4 Kent's Com. 117; 42 Am. Dec. 130. Thus, if the tenant holds over by the laches of the land- lord, without fresh leave or permission, he is a tenant by suf- ferance; but when the tenant by the landlord's permission holds over after the expiration of the term, the presumption is that he is tenant from year to year, though this may be re- butted. Thus in Allen v. Bartlett, 20 W. Va. 46, it is held that where the tenant holds over after the expiration of his lease, and the lessor receives rent accruing subsequently to the expiration of the term, or does any act from which it may be inferred that he intends to recognize him still as such ten- ant, he becomes thereby tenant from year to year, upon the conditions of the original lease. See also Crawford v. Morris, 5 Grat. 107; Emerich v. Tavener, 9 Id. 230; Creigh v. Hen- son, 10 Id. 231 ; Harrison v. Middleton, 11 Id. 527 ; Pierce r, Grice, 92 Va. 763 ; Voss v. King, 38 W. Va. 607. To regain the possession from a tenant by sufferance, the landlord may enter peaceably, or he may bring ejectment. And in Virginia a very summary remedy is given the land- lord — an action for unlawful detainer. See Code, § 2716. § 69. Emblements when an Estate is Less than Freehold. — For the definition of emblements, see § 11 supra. As to the right of tenant for life to emblements, see 2 Bl. Com. (122) ; §§67,68] ESTATES LESS THAN FREEHOLD. 81 also § 44, supra. When the tenant holds for a certain number of years, the doctrine is that he is not entitled to emblements ; "for the tenant knew the expiration of his term, and, there- fore, it is his own folly to sow what he could never reap the profits of." 2 Bl. Com. (145). In England, however, the tenant for a term certain may be entitled, as emblements, to the crops sown before his lease expires (called the way-going crops), by the particular custom of the district where the land is situated. See Wigglesworth v. DalUson, 1 Doug. 201. But it is settled that no particular custom of this kind can exist in Virginia, and in Harris v. Carson, 7 Leigh, 630, it is held : (1) That at common law where land is leased for a fixed and determinate period, the offgoing tenant is not enti- tled to the waygoing crop; (2) That parol evidence of a usage for the offgoing tenant to have the waygoing crop is not ad- missible to explain a written contract of lease for a fixed and certain period; and (3) That a practice or usage in opposi- tion to the common law, however general it may be, has no force in Virginia on the ground of custom, because not imme- morial. But in other States the offgoing tenant has been al- lowed the waygoing crop on the ground of usage and custom ; immemoriality not being so strictly insisted on as to make such a custom impossible in America. See Stultz v. Diclcey, 5 Binn. (Pa.) 285.^ 'Usage in Virginia. — In Reese v. Bates (Va.), 26 S. E. 865 (3 Va. Law Reg. 136), it is said: "It is, of course, well settled that a usage in opposition to the common law, however general it may be, has no force in this country on the ground of cus- tom (Harris v. Carson, 7 Leigh, 632), and there is no customary law in Virginia which per se can vest a right in a party claim- ing under it (Delaplane v. Crenshaw, 15 Grat. 457); but a usage or custom of trade may be shown." See, as to such usage of trade, Hansirough v. Neal (Va.), 27 S. E. 593; Southwest Land Co. v. Chase (Va.), 27 S. E. 826; Reese v. Bates, supra. In 2 Min. Ins. (4th ed.) 105, it is said with reference to Harris V. Carson, that if the lease were not in writing, perhaps the usage might be provable, if it were shown that the parties prob- ably contracted with reference to it. For cases in which Harris 6 82 REAL PROPERTY. [Chap. 4 A tenant at will is entitled to emblements when the tenancy is determined by the landlord. 3 Bl. Com. (146) ; Harris v. Frank, 49 JST. Y. 24. But a tenant by sufferance is said not to be entitled to emblements. Doe v. Turner, 7 M. & W. 226 ; 1 Washb. E. P. (103). V. Carson was distinguislied and the tenant allowed to reap the waygoing crop, see Mason v. Mayers, 2 Rob. (Va.) (606); Kelly V. Todd, 1 W. Va. 197. CHAPTEE V. DESCENTS. § 70. Introductory. — "Property of lands by descent," says Lord Bacon, "is where a man hath lands of inheritance, and dieth, not disposing of them, but leaving them to go (as the law casteth them) to the heir. This is called a descent of law." Bae. Law Tracts, 138. For the distinction between descent and purchase, see 3 Bl. Com. (301) n. 1. The heir is the only person who by law becomes the owner of land with- out his own agency or assent. A title by deed or devise re- quires the assent of the grantee or devisee before it can take efEect.^ But in the case of descent, the law casts the title on the heir without any regard to his wishes or election. He cannot disclaim it if he wishes to do so. 3 Wash. E. P. (403) . And an heir at law cannot be disinherited by any wish ex- pressed in a will, however strong, that he should not inherit, unless the estate is actually devised to some other person. All the real estate of inheritance which the testator does not dis- pose of otherwise goes to the heir by descent — cast upon him '^ Disclaimer. — In Ouggenheimer v. LooJcridge (W. Va.), 19 S. B. 874, It is held: "A deed must not only be delivered by the grantor, but must be accepted by the grantee. Acceptance may be express by signing the deed or otherwise, or may be implied from circumstances. The asset of the grantee will be presumed when the deed is beneficial to him until dissent appear. Where dissent or disclaimer appears the deed is inoperative, and the title to the thing granted reverts to the grantor by remitter from such disclaimer." As to mode of disclaimer, it is said in Suttle V. Richmond, etc., R. Co., 76 Va. 284, 286: "It has been long set- tled in this State that the disclaimer of a freehold can only be by deed or in a court of record. See the case of Bryan v. Eyre, 1 Rob. (Va.) 101, a conclusive authority on this subject." 83 84 REAL PROPERTY. [Chap. 5 by the law. Doe v. Lanius, 3 Ind. 441 ; Mclntire v. Cross, lb. 444 ; Irwin v. Zane, 15 W. Va. 646 ; Oraham v. Graham, 23 "W. Va. 36; Coffman v. Coffman, 85 Va. 459.=^ The term "ancestor," as used in a statute, means any one from whom an estate is inherited. In this sense an infant brother may be the ancestor of an adult brother, or the child of its father. PricJcett v. Parker, 3 Ohio St. 394. Upon the death of the ancestor, the real estate he may leave undevised vests at once in the heir, subject to be divested if needed for the payment of the ancestor's debts. Chubb v. Johnson, 11 Tex. 469; Wilson v. Wilson, 13 Barb. 252. And the law pre- sumes descent to the heir until a devise is affirmatively shown. ■ iNHEMTANOE FKOM MuRUERED ANCESTOR. — Can Ell hsir appar- ent who murders his ancestor, in order to inherit his land, talce title thereto by descent, notwithstanding his crime? See this question discussed in 1 Va. Law Reg. 383, 847. In Shellenherger V. Ransom, 31 Neb. 61 (28 Am. St. Rep. 500), it was held that a father who has wilfully murdered his child for the purpose of acquiring her estate, cannot inherit as her heir; and that a pur- chaser from the father acquires no title to the child's estate, which passes at her death lo her other heirs. But in SUellen- berger v. Ransom, 41 Neb. 631 (59 N. W. 935), the previous de- cision is reversed, and it was held that under the statute of de- scents of Nebraska a man may inherit the property of one whom he kills for that purpose. On the other hand, in Riggs v. Palmer, 115 N. Y. 506 (12 Am. St. Rep. 819), it was held (Gray, J., dis- senting) that one who murders his ancestor, or a testator, in order to attain property as heir or devisee, will not be allowed to acquire title by crime. The difficulty in denying title to a murderer heir or devisee arises from the fact that no such exception is made by the stat- utes of descents or wills; and it is claimed that an exception made by the courts is judicial legislation. On this point it is said by Judge Thompson, in The American Law Review, No- vember-December, 1894, p. 919: "The true way to reason upon such a question is to consider whether the legislature ever in- tended to authorize or sanction such a result. The right is statutory. Is it to be supposed that the legislature, in enacting the statute and creating the right, intended that the right should extend to a man who should bring himself within the letter of § 70] DESCENTS. 85 The heir need never prove his ancestor's intestacy ; the devisee must prove the will. Baxter v. Bradbury, 20 Me. 260 ; Lyon Y. Kain, 36 111. 368; 3 Wash. E. P. (414). And as a title by descent is deemed worthier than a title by devise, the com- mon law rule was that if an ancestor devised to his heir just the estate in quantity and quality which he would have taken by descent, the heir should be deemed to take by descent, and not by devise. Hoover v. Gregory, 10 Yerg. 444; Posey v. Budd, 21 Md. 480 ; Biedler v. Biedler, 87 Va. 300 ; Wms. E. P. (218). But now by the statute of 3 and 4 Wm. 4, c. 106, § 3, such heir shall be considered to have acquired the land as a devisee and not by descent. By the civil law, one may designate or appoint his heir. Bisph. Eq. § 50. But the maxim of the common law is, solus deus facit hceredem non homo, and heirship depends on consanguinity.^ The title of the heir is called into existence the statute by committing the crime of murder? . . . Another and a just way of viewing it is to consider that but for the crime of the heir in murdering his ancestor, he might die in advance of his ancestor, so that some other person would inherit under the statute. He thus by crime seizes that which otherwise might never come to him. He is no heir until murder makes him so, for nemo est hwres viventis." Perhaps the true view to take of the question is, as has been suggested, that, in spite of the crime, the legal title passes to the heir or devisee in accordance with the statutes; but that equity will not allow the murderer to profit by his own wrong, and will consider him to hold the legal title for the benefit of others, thus making of him a trustee ex delicto on the same prin- ciple by which those who obtain the legal title to property by fraud are held to be trustees ex maleflcio. See Bispham's Equity, § 218. ' Childken bt Adoption. — See now in Virginia, Acts 1891-'92, p. 262 c. 170 (amended by Acts 1897-98, p. 38 c. 39), legalizing the adoption of minor children. By § 3 of the Act, it is declared that, when the provisions of the statute are complied with, "such child shall be, to all intents and purposes, the child and heir- at-law of the person so adopting him or her, entitled to all the rights and privileges, and subject to all the obligations of a 86 REAL, PROPERTY. [Chap. 5 by the death of the ancestor, for nemo est hwres viventis. As to heirs presumptive and heirs apparent, see 2 Bl. Com. (308). § 71. The Virginia Statute of Descents. — For the com- mon law canons of descent, which were in force in England until January 1, 1834, see 2 Bl. Com. chap. 14. For the new rules of descent introduced by 3 and 4 Wm. 4, c. 106, see Wms. E. P. (100). The law of descent in the United States difEers largely from both the common law canons and the statutory rules. We shall discuss the subject by an examin- ation of the Virgiaia statute of descents, explaining as we pro- ceed in what it differs from the law of England. The Vir- ginia Statute was enacted in October, 1785, to take effect Jan- uary 1, 1787. It was the work of Jefferson, assisted by Pen- dleton and Wythe, and is regarded as a master-piece of legis- lation. It has been substantially followed in many of the states. The first section of the statute is as follows (Code 1887, § 2548) : "When any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in parcenary to such of his kindred, male and female, as are not alien enemies, in the following course : First. To his children and their descendants. Second. If there be no child, nor the descendant of any child, then to his father. Third. If there be no father, then to his mother, brothers and sisters, and their descendants. Fourth. If there be no mother, nor brother, nor sister, nor child of such person begotten in lawful wedlock; but on the de- cease of such person, and the subsequent decease of such adopted child, without issue, the property of such adopting parent still undisposed of, shall descend to his or her next of kin, and not to the next of kin of such adopted child." For a discussion of the whole subject of adoption, see 39 Am. St. Rep. 210-'31, mono- graphic note to Tan Matre v. Sankey, 148 111. 536. For a criti- cism of the Virginia statute, see 1 Va. Law Reg. p. 463, by Prof. Lile. §§ 70-72] DESCENTS. 87 any descendant of either, then one moiety shall go to the paternal, the other to the maternal kindred in the following course : Fifth. First to the grandfather. Sixth. If none, then to the grandmother, uncles and aunts on the same side, and their descendants. Seventh. If none such, then to the great-grandfathers, or great-grandfather, if there be but one. Eighth. If none, then to the great-grandmothers, or great-grandmother, if there be but one, and the brothers and sisters of the grandfathers and grandmothers, and their descendants. Ninth. And so on in other cases, without end, passing to the nearest lineal male ancestors, and for want of them, to the nearest lineal female ancestors, in the same degree, and the descendants of such male and female ancestors. Tenth. If there be no father, mother, brother, or sister, nor any descendant of either, nor any paternal kindred, the whole shall go to the maternal kindred; and if there be no maternal kindred, the whole shall go to the paternal kindred. If there be neither maternal nor paternal kin- dred, the whole shall go to the husband or wife of the in- testate; or if the husband or wife be dead, to his or her kindred, in the like course as if such husband or wife had survived the intestate, and died entitled to the estate." § 72. Construction of the Statute. — It will be seen that the statute, at the very outset, changes the common law in several essential particulars. (1) It makes the stock of descent the person having title, whereas by the common law the stock is the person last seised, and by the English statute of 1833, the slock is the last purchaser. (2) It abolishes primogeniture, and the preference of males over females; for the estate "shall descend and pass in parcenary to his kindred, male and female." (3) The language of the statute, as above given, excludes alien enemies only. And by Code of Virginia, § 43, it is declared that, "any 88 REAL PROPERTY. [Chap. 5 alien, not an enemy, may acquire by purchase or descent and hold real estate in this State ; and the same shall be transmit- ted in the same manner as real estate held by citizens." And see the "Naturalization Act of 1870" in England, 43 Vict., chap. 14, § 2, to the same effect. Wms. E. P. (136). The rules of descent by the A'irginia statute, as set out above, are so plain that they need scarcely any explana- tion. Attention should be directed, however, to the fol- lowing points : (1) The common law maxim, seisina facit stipitem (as to which see 2 Bl. Com. 209 n. 8), being abolished, all real estate of an intestate to which he has any title, whether present or reversionary, whether in possession or in action, will descend to the same heirs, and that without any regard to the seisin. Carney v. Eaiii (W. Va.), 23 S. E., 650. (2) The Virginia statute, in default of children or the descend- ants of children of the intestate, makes his father his heir. This is also done by the English statute of 1833. Wms. E. P. (105). But at common law lands would escheat rather than go to any lineal ancestor.^ 2 Bl. Com. (212). (3) It should be observed that the principle on which the statute is framed is stated under "Ninth" above. In default of children, the estate passes to the nearest lineal male ances- tor or ancestors, and for want of them to the nearest lineal female ancestor or ancestors, in the same degree, and the descendants of such male and female ancestors. Thus while lineal male ancestors constitute a class by themselves, the lineal female ancestors are called to the inheritance together with their children. So the mother of the intestate and her children (his brothers and sisters) form a class; also the grandmother of the intestate and her children (his uncles and aunts) and so on. And the existence of a single member of any class, or any descendant of a member, will cause the entire estate to vest in such member or descendant, to the exclusion of a more remote class, however numerous. (4) The division into moieties between the paternal and §§ 72, 73] DESCENTS. 89 maternal lines takes place when there is no father or mother, no brother or sister, nor the descendants of any of them. But after the diA'ision is once made at this point, each moiety- goes to the proper kindred as a class, on the paternal and maternal side respectively, and there is no further division into moieties as betvv'een the branches of paternal and ma- ternal kindred. And each moiety keeps on its own side, regardless of the other, so long as there are any kindred, however remote, on that side. But if there be no kindred on its side, either moiety may then go to the other. At com- mon law there was nothing analogous to this division into moieties. For if the inheritance was novum feudum held ui antiquum, the whole went to the paternal kindred, if any; if none, then the whole to the maternal kindred. If it was really feudum antiquum, the inheritance went to the col- laterals on the side from which it descended, and would escheat rather than go to the other side, because collaterals on that side were not of the blood of the first purchaser. 2 Bl. Com. (222). And by the English statute of 1833, there is no division into moieties, but the paternal kindred are pre- ferred to the maternal. Wms. E. P. (107). (5) The Vir- ginia statute, in default of all other heirs, allows husband or wife to be heir to the other. This is contrary to the common law, which gave the wife dower and the husband curtesy, but preferred that the lands should escheat rather than allow husband or wife, as such, to inherit from the other. § 73. Fer Stirpes and Per Capita. — The right of repre- sentation, or taking per stirpes, prevails universally in the English law of descents, without reference to the nearness or remoteness, and alike as to lineal and collateral inheritance. 2 Bl. Com. (317). The principle was unchanged by the English statute of 1833. The Virginia statute retains the right of representation to a certain extent, though it sub- stitutes per capita for per stirpes, when justice seems to demand it. The statute is as follows: "Wben the children of the intestate, or his mother, brothers and sisters, or his 90 REAL PROPERTY. [Chap. 5 grandmother, uncles and aunts, or any of his female lineal ancestors living, with the children of his deceased lineal ancestors male and female, in the same degree, come into the partition, they shall take per capita, or by persons; and where a part of them being dead and a part living, the issue of those dead have a right to partition, such issue shall take per stirpes, or by stocks, that is to say, the shares of their deceased parents; hut whenever those entitled to partition are all in the same degree of kindred to the intes- tate, they shall take per capita, or by persons." Code, § 2550. The statute as drawn by Jefferson did not contain the last word in italics. These were added in the revision of 1849 (taking effect July 1, 1850), as legislative sanction of the decision in Davis v. Bowe, 6 Eand. 355, as to which see hereafter. "I understand the rule thus broadly," said Carr, J., in Davis v. Rome, construing the statute in its original form : "Wherever several persons succeed to the inheritance at the same time, if they are all related to the intestate, in equal degree, they shall take by persons; but if part of them be more remote, those shall take the shares of their deceased parents." See also Browne v. Turherville, 2 Call 390; Templeton v. Steptoe, 1 Munf. 339. It will be seen that the statute names the several classes, and provides that the members of each class, if all are liv- ing, shall take per capita; and also that if some are living and some are dead, the issue of those dead shall take per stirpes. But before 1850 (when the words in italics above were added), it did not in express terms provide for a case where all the members of a class were dead, and partition was to be made between their descendants. Thus, in Davis V. Bowe, supra, Anthony Gardner died intestate in 1819, leaving no children, nor the descendants of any. He left no father, nor mother, nor brothers, nor sisters, but he had had a brother and a sister who died before him; and at A. G.'s death there were living a niece, Mrs. Davis, the § 73] DESCENTS. 91 only child of the brother, and two nephews, James and Francis Eowe, children of the sister. The sister had also had two daughters who married, and died before A. Gr., leaving issue (his grand-nephews and grand-nieces), the one, two children and the other six children. It was claimed by Mrs. Davis that the statute did not apply to the case, and that she was entitled, as representing her father, to one-half of the estate. But the court held that the case was within the spirit of the statute, and that as Mrs. Davis was in equal degree with the Eowes, the estate should be divided into five parts, counting Mrs. Davis, the two Eowes, and the sister's two daughters who died leaving issue; and that Mrs. Davis and the two Eowes should each have one- fifth, and that the other two-fifths should go to the issue of the dece'ased daughters of the sister per stirpes, giving to the two children of the one one-tenth each, and to the six children of the other one-thirtieth each. As the law is now settled by Davis v. Rowe, and by the statute of 1850, it is easy to determine whether those called to the inheritance take per stirpes or per capita. Thus if the intestate leaves children only, or grandchildren only, or great grandchildren only, they take per capita, because in equal degree. So if there are nephews only, or great-nephews only. But if there should be children and grandchildren called together to the inheritance, the children would take per capita, the grandchildren per stirpes. So if there be no children, but grandchildren are called to the inheritance together with great-grandchildren, the former would take per capita, the latter, per stirpes. The per capita line, or line of equal division, runs with the heirs who are nearest in degree to the ancestor. The number of shares in that line is found by counting those who are living, and those who are dead leaving issue. Below the per capita line, the division is always per stirpes. Thus in Davis v. Jlowe, the per capita line ran with the nephews and nieces, as they were nearest of kin to the intestate. But the great nephews and nieces 92 REAL PROPERTY. [Chap. 5 took per stirpes. And in Ball v. Ball, 27 Grat. 325, where the intestate left as her heirs five children of her deceased son S.J six children of her deceased son W., and a grandchild of W., the only child of a deceased daughter of W., it was held, that the estate should be divided into twelve equal parts, of which the five children of her son S., the six children of her son W., and the grandchild of W., representing her de- ceased mother, should each have one part.^ § 74. Descent from an Infant. — The original statute of descents, as framed by Jefferson, did not contain any special ^ Pee Stirpes or pee Capita Uisdee Wills. — In Walker v. Web- ster (Va.), 28 S. E. 570, the residuary clause of a will was as follows: "All the rest and residue of my estate, real, personal, and mixed, I desire shall go to, and be divided in equal parts among, those who would be my heirs-at-law under the statutes of descents and distributions in Virginia, in case I had died intestate." Held, that the heirs-at-law took, under this clause, per capita and not per stirpes. Judge Riely, in delivering the opinion of the court, said: "The reference to the statute of descents and dis- tributions was simply to designate the persons who were to take the residuum of the estate. The testator did not thereby intend to prescribe also the manner of the division. He does not say that the persons designated were to take as if he had died in- testate, which would give some color to the contention that they take in the manner prescribed by the statute, but merely that those persons should take who would be his heirs in case he had died intestate. The reference to the statute ascertains who shall take, but not how they shall take. How they are to take is other- wise prescribed. They are to take 'in equal parts.' If the testator had meant that both the persons who were to take and the man- ner of the division should be in accordance with the statute, as if he had died intestate, then this clause in his will was entirely useless; for in that case the same persons would take, and in the same manner, as if he had died intestate. It is to be pre- sumed that he had some object in inserting this clause in his will. That object is, to my mind, unmistakable. He meant that these persons who would be his heirs-at-law, under the statute, in case of intestacy, should have the residuum of his estate; yet he did not intend that they should take it in the manner pre- scribed by the statute, but equally. ... If they were held §§ 73, 74] DESCENTS. 93 provisions as to the estates of infants. Statutes, however, upon this subject, were passed in 1793 and in 1819, which gave rise to many doubts. In the revision of 1849, the law was enacted as it now appears in the Code of 1887, chap. 113, § 2556: "If an infant die without issue, having title to real estate derived by gift, devise or descent, from one to take per stirpes instead of per capita, then they would take in unequal instead of equal parts. Helen Kemple and Mary E. Webster, sisters of the testator, would each receive, under that construction, one-third of the residuum, while Elenia P. Walker, a daughter of Eliza Brannon, a deceased sister of the testator, would receive one-sixth, and Lena Leadbetter, Mariana Newman and Bessie Newman, children of Eliza Newman, deceased, another daughter of Eliza Brannon, would divide the remaining one- sixth between them, making the share of each of them one- eighteenth, in direct violation of the principle of equality of division expressly prescribed by the testator in the clause of the will making the gift." In Hoxton v. Griffith, 18 Grat. 574, 577, the general principle is thus laid down: "When a bequest is made to several persons, in general terms indicating that they are to take equally as tenants in common; each individual will, of course, take the same share; in other words, the legatees will take per capita. The same rule applies when a bequest is to one who is living, and to the children of another who is dead, what- ever may be the relations of the parties to each other, or how- ever the statute of distributions might operate upon those rela- tions in case of Intestacy. Thus when property Is given 'to my brother A and to the children of my Brother B, A takes a share only equal to that of each of the children of B. So that when the gift is 'to A's and B's children,' or 'to the children of A and the children of B,' the children taka, as individuals, per capita. The substance of this rule of construction is that, in the absence of ex- planation, the children, in such a case, are presumed to be re- ferred to as individuals and not as a class." It is added that "this rule is not inflexible, and will yield to the cardinal rule of con- struction, which requires that effect shall be given to the inten- tion of the testator, to be collected from the whole will"; and in the case at bar the general rule was held to yield to the manifest intention of the testatrix. For cases in which the general rule was applied, see Crow v. Crow, 1 Leigh (Va.), 74; McMaster v. McMaster, 10 Grat. (Va.), 275; Senger v. Senger, 81 Va., 687. 94 REAL, PROPERTY. [Chap. 5 of his parents, the whole of it shall descend and pass to his kindred on the side of that parent from whom it was so derived, if any such kindred be living at the death of the infant. If there be none such, then it shall descend and pass to his kindred on the side of the other parent." It is manifest that the old feudal idea of the Hood of the first 'purchaser is here recognized. But the principle of the law is a natural one. It is to prevent the transfer of estates from one family to another under the following cir- cumstances : B marries F, who has title to real estate. A child is born to P who survives his mother only a few hours, she dying in child-birth. It would be unjust that B should inherit P's estate from the child, and transmit it to his heirs, perhaps his children by a second wife. It is enough, in such a case, that B should have curtesy. See Vaughan V. Jones, 23 Grat. 444. It should be borne in mind that the real estate of an infant will descend in the same manner as that of an adult: (1) Unless it is derived by gift, devise or descent from one of his parents; i. e., unless it is derived from his father or mother, not grandfather or grandmother, or any other rela- tion than parents. (2) Unless the estate is derived directly from one of his parents; e. g., if the estate descends from a parent to a h'other of the infant, and from the brother to the infant, this estate is not derived from the parent in the meaning of the statute. A good example of the descent of an infant's estate is found in Davis v. Christian, 15 Grat. 11, 32. There J. B. C. devised two-ninths of his realty to each of his three daughters, Hannah, Jane, and Sarah. All three died before their mother, Abby C. ; Hannah, in 1839, an infant; Jane, in 1840, an adult; and Sarah, in 1841, an infant. On the death of Hannah, her two-ninths, derived directly by devise from her father, went to her sisters equally, to the exclusion of her mother. When Jane died next, an adult, her estate passed to her mother and her sister Sarah in equal shares. §§ 74, 75] DESCENTS. 95 In the death of Sarah, an infant, her estate descended as follows: the two-ninths received directly from her father could not go to Abby C, her mother, but went to an aunt on the side of the father. But the shares inherited from her sister, viz., one-ninth from Hannah, and three-eighteenths from Jane, went to her mother, as these were not derived directly from the father. So that Abby C. inherited from her daughters four-ninths in all. The above example shows the importance in tracing descent of paying strict attention: (1) to the order in which deaths occur; (3) to the age of each decedent, whether infant or adult; and (3) the source from which interests in land are derived, when an infant dies without issue, having title to real estate. In Vaughan v. Jones, 23 Grat. 444, the real estate of F, a female infant, was sold by decree of court under Code, Va., § 2616, and the proceeds reinvested under § 2623. P married B, and died under twenty-one, leaving a child who survived her but a few hours, and her husband who sur- vived the child. Held, (1) that though the real estate of F. had been sold, yet by Code of Virginia, § 2636, the pro- ceeds descended as realty, and went in the first place to the child of P, subject to a life estate in B; (2) that on the death of the child, the proceeds, as realty derived from the mother, passed to the heirs of the child on the part of the mother, and not to the father. § 75. Collaterals of the Half-Blood. — For full discussion, see 61 Am. Dec. 655-'67; also 12 Am. St. Eep. 110, 111. At common law, collaterals of the half-blood were totally excluded from the inheritance. 2 Bl. Com. (224). But it should be remembered that if the descent is lineal, the doctrine of the half-blood has no application; for the heirs, though of half-blood to each other, are of the whole blood to the an- cestor. Thus, if the descent be from a father, all of his children, though by different wives, are of the whole blood to the father, and, if daughters, would be entitled in England as eo-parceners. But at common law if a man should die 96 REAL PROPERTY. [Chap. 5 seised of land, and have no kindred except brothers of the half-blood, the land would escheat to the lord. The explanation of the maxim, possessio fratris facif sororem esse liceredem (as to which see 2 Bl. Com. (228) n. 26), depends on the foregoing principles. Suppose P mar- ries two wives, M and X, and has by M a son. A, and a daughter, B, and by ]S^, the second wife, a son, C. N'ow, on the death of P, if A enters and is seised, A will be the stock of descent, and on A's death, the land will descend to B, his sister of the whole blood, and C, the brother of the half-blood, will be excluded. Here the possession (or seisin) of A (the brother) makes his sister (B) his heir, be- cause when A is the stock the descent is collateral, and only the whole blood can inherit. But suppose A had died without entry. Then the descent would be lineal, i. e., from P, the person last seised, and C would take over B by preference of males, both B and C being equally of the whole blood to P, their father. The Virginia law as to the half-blood is as follows: "Col- laterals of the half-blood shall inherit only half so much as those of the whole blood; but if all the collaterals be of the half-blood, the ascending kindred, if any, shall have double portions." Code § 2549. It will be seen that in Virginia collaterals of the half-blood are called to the inheritance in the same class with the whole blood, taking half portions. But in England, by the statute of 1833, the half-blood are postponed to the whole blood, i. e., if there is a brother of the whole blood, half-brothers would not inherit at all. Wms. E. P. (109). Under the Virginia statute, an easy rule by which to de- termine the proportions is to double the number of the col- laterals of the whole blood, and then add those of the half- blood. This will give the parts into which the estate is to be divided, and the whole blood take each two parts, the half-blood each one part. Thus if the descent is from A, and his heirs are two brothers of the whole blood, and a §§ 75, 76] DESCENTS. 97 sister of the half blood, the inheritance will be divided into fjve parts, of which the brothers will each receive two parts, and the sister one part. And in this case, if we sup- pose the mother of A living, the inheritance would be divided into seven parts, of which she would receive two parts, and the other five parts would be divided as before. If, however, the mother of the half-blood, the stepmother of A, be living, she would inherit nothing from A, because not of his blood. And if the mother of A be living, and also children of hers by a second husband, but A is the only child by the first husband, then on the death of A, there being no collaterals of the whole blood, the mother would take twice as much as any one of her children, for this is the case in which the statute declares that "the ascending kindred shall have double portions. Moore v. Connor (Va.), 20, S. E. 936. § 76. Bastards. — At common law a bastard cannot inherit even from his mother. 2 Bl. Com. (247). He cannot transmit inheritance even ex parte materna. And as a bas- tard can have no heirs but those of his own body, neither his mother, nor brothers, etc., can inherit from him. Wms. E. P. (126). By statute in Virginia, "Bastards shall be capable of in- heriting and transmitting inheritance on the part of their mother as if lawfully begotten." Code § 2552. And this is the rule generally in the United States. Wms. E. P. (126), n. 2. But as to the father and the paternal kindred, a bastard's disability to inherit and transmit inheritance remains the same as at common law. In Garland v. Harrison, 8 Leigh 368, a question arose as to what is meant by "transmitting inheritance on the part of the mother." Does it mean only that from her through her bastard child, an estate may pass to his de- scendants? Or does it mean that all the rules of descent apply to bastards, in respect to kindred, the mother included, ex parte materna? The latter was considered to be the 98 REAL PROPERTY. [Chap. 5 construction, though the Supreme Court of the United States had decided otherwise in Stevenson v. Sullivant, 5 Wheat. 201'. It was held, therefore, in Garland v. Harrison, where a bastard died intestate, without issue, leaving a mother and two bastard uterine brothers, that the mother and half- brother should inherit together from him, the mother taking a whole share, and the half-brothers half shares. A bastard cannot have whole brothers, but every uterine brother, whether legitimate or spurious, is his half-brother. See also Hepburn V. Dundas, 13 Grat. 219; Bennett v. Toler, 15 Id. 588.^ § 77. Heirs not in esse at the Ancestor's Death. — The common law rule upon this subject was extremely liberal. It was not even necessary that the heir should be en ventre sa mere at the ancestor's death; he was still allowed to take, though born many years after. And in this way it might happen that an estate would vest successively in several heirs presumptive before finally descending to him whose title was indefeasible. Thus, let P and M be husband and wife, and suppose the parents of P are living. P has a son. A, who dies seised of land. This land might descend first to the aunt of A, the sister of P. But as the parents ^ 1. Who are Bastabds in Vibginia. — By Code of Virginia, § 2553: "If a man having had a child or children by a woman, shall afterwards intermarry with her, such child, or children, or their descendants, if recognized by him before or after the mar- riage, shall be deemed legitimate." And by § 2554 : "The Issue of marriages deemed null in law, or dissolved by a court, shall, nevertheless, be deemed legitimate." On the construction of § 2554, see Stones v. Keeling, 5 Call (Va.) 148; Greenhow v. James, 80 Va. 636; Heclcert v. Hile, 90 Va. 390. For the construc- tion of Code of Virginia, § 2227, legitimating the children of col- ored persons, when prior to the 27th day of February, 1866, they "agreed to occupy the relation to each other of husband and wife, and were cohabiting together as such at that date, whether the rites of marriage had been celebrated between them or not," see Fitchett V. Smith, 78 Va. 524; Smith v. Perry, 80 Va. 563. And see on the whole subject of descents, 12 Am. St. Rep., mono- graphic note, pp. 80-111. §§ 76-78] DESCENTS. 99 of P are living, a son might be bom to them, and he wonld take the land as uncle of A in preference to the aunt. If, now, a daughter is born to P and M, this sister of A will take the land from the uncle, as nearer in degree to her brother. And, finally, a son born to P and M will take the land from the sister by preference of males over females. See 2 Bl. Com. (208), n. 6. For a long time, the law of Virginia as to heirs not in being at the ancestor's death was very strict. By the act of 1875, it was declared, that, "No right in the inheritance shall acrue to any persons whateTi'er, other than children of the intestate, unless they be in being, and capable in law to take as heirs at the time of the ancestor's death." 1 Eev. Code, p. 357. By this statute even infants en ventre sa mere, unless children could not take. And the word chil- dren did not extend to grand-children. Blunt v. Gee, 5 Call, 512. But by a statute passed February 31, 1840, it is provided that, "Any person en ventre sa mere, who may be born in ten months after the death of the intestate, shall be capable of taking by inheritance, in the same manner as if he were in being at the time of such death." Code of Virginia § 2555. By this statute not only children, but any person en ventre sa mere at the death of the intestate can inherit. A case, however, might occur in Virginia, even under the present law, in which those who would have been heirs if en ventre sa mere at the death of the intestate, would be excluded from the inheritance. Thus, suppose A should die intestate, leaving his mother and brothers his heirs. Now; if his mother should marry again after the death of A, and have a child, such child would be of the half blood to A, but he could not claim any part of A's estate, because not en ventre sa mere at his death. § 78. Descent in the United States. — The statutes of de- scents of the several States have many minor differences, but they all depart widely from the canons of the common 100 REAL PROPERTY. [Chap. 5 law. In all of them, the descent is in the first place to the children, though in some the husband and wjlfe inherit with the children. If no children, the rules are various. In some of the States the Virginia rule is followed, and the father takes first, and, if none, mother, brothers and sisters take together. But in Alabama the descent is, if no children, first to brothers and sisters, then to father, then to mother; in Arkansas, first to the father, then to the mother, then to the brothers and sisters; in Texas, to father and mother, and then to brothers and sisters; in Missouri, to father, mother, brothers, and sisters, in equal shares. 3 Wash. E. P. (412). In some of the States, inquiry is made from whom the estate was derived; and if from either parent, it goes first to the kindred on that side, as in Virginia when the descent is from an infant. The rules as to per stirpes and per capita are various. As to the half blood, in some of the States no distinction is made between them and the whole blood; in some the half blood take half portions, as in Virginia; in some they are postponed to the whole blood, as is now the case in England; but in none are they totally excluded as at common law. § 79. Statute of Distribution. — For the English statute, see 2 Bl. Com. (575). The Virginia statute is as follows: "When any person shall die intestate as to his personal estate, or any part thereof, the surplus, subject to the provisions of chapter 178, after the payment of funeral expenses, charges of administration and debts, shall pass and be distributed to and among the same persons, and in the same propor- tions, to whom and in which real estate is directed to descend, except as follows: (1) The personal estate of an infant shall be distributed as if he were an adult. (3) If the intestate was a married woman, her husband shall be entitled to the whole of the said surplus of the personal estate. (3) If the intestate leaves a widow, and issue by her, the widow shall be entitled to one-third of the said surplus. (4) If the in- §§ 78, 79] DESCENTS. 101 testate leave a widow, but no issue by her, the widow shall be entitled absolutely to such of the personal property in the said surplus as shall have been acquired by the intestate, in virtue of his marriage with her, prior to April 4, 1877 [date of first Married Woman's Act in "Virginia. See Acts 1876-77, c. 349], and remain in kind at his death; she shall also be entitled, if the intestate leave issue by a former marriage, to one-third; if no such issue, to one-half the residue of such surplus." Code of Virginia, § 3557. "The foregoing provisions in favor of the wife are all subject to this qualification, that if she, of her own free will, leave her husband and live in adultery, she shall have no part of the personal estate as to which he dies intestate, unless her husband, after she so left him, was reconciled to her, and suffered her to live with him." Code of Vir- ginia, § 2560. And by § 2296 : "If a husband wilfully de- serts or abandons his wife, and such desertion or abandon- ment continues until her death, he shall be barred of all interest in her separate or other estate, as tenant by the curtesy, distributee, or otherwise." CHAPTEE VI. Devises. § 80. The English and Virginia Statutes. (1). In England. By statute of 1 Victoria, ch. 26, § 9 (taking eSect January 1, 1838), "No will shall be valid un- less it shall be in writing, and executed in the manner here- after mentioned; that is to say, it shall be signed at the foot or end thereof by the testator, or some other person in his presence and by his direction, and such signature shall be made or acknowleged by the testator in the pres- ence of two or more witnesses present at the same time; and such witnesses shall attest, and shall subscribe the will in the presence of the testator; but no form of attestation shall be necessary." See 3 Jarman on Wills, Appendix, 731-805, for the whole "Wills Act of 1837. This statute is substantially followed in many of our states. By it the same formalities of execution are required of wills of both realty and personalty, and all wills (olograph or not olo- graph) are required to be attested by at least two witnesses. The English Statute of Frauds required three witnesses; but this applied to wills of land only. It has been fol- lowed as to the number of witnesses in some of the Ameri- can states (Georgia and Maryland, for example), which re- quire three witnesses to a will. (2). In Virginia. By Code of Va., § 2514: "Ko will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name was intended as a signature; and moreover, un- less it be wholly written [olograph] by the testator, the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present 102 §§ 80, 81] DEVISES. 103 at the same time; and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary."^ This statute took effect July 1, 1850 (Code of 1849, ch. 123, § 4), and is based on the Wills Act of 1 Victoria. Rudisill v. Bodes, 29 Grat. 147. But observe these differences between England and Virginia: (a). As to signature. The English statute requires a will to be signed "at the foot or end thereof," but the Virginia statute says, "signed in such manner as to make it mani- fest that the name was intended as a signature." As to the effect of these words, see hereafter. (6). As to witnesses. The English statute requires all wills to be attested by two witnesses; the Virginia statute requires no witnesses when the will is "wholly written by the testator," i. e., in the case of an olograph will. § 81. Who May Make a Will. — All persons who are of sound mind and over twenty-one. And in Virginia minors eighteen years old may dispose of personal property by ^Veebal Testamentaet Trusts. — In Sims v. Sims (Va.), 27 S. E., 436, it is said by Rlely, J.: "Each and every part of the last will and testament of a decedent must be in writing, and be exe- cuted in the mode prescribed by the statute; and if any part is in parol, such part is void and inoperative in the absence of fraud. In SprinTcle v. JSayworth, 26 Grat., 392, it was said by Judge Moncure, in delivering the opinion of the court, that the statute of wills 'plainly forbids that a parol will, whether in the form of a trust or otherwise, shall be set up and established.' An exception to the rule is allowed and enforced in equity, where the devisee or legatee has procured an absolute devise or bequest to himself by promising the testator that he would hold it for the benefit of another, and afterwards refuses to perform his prom- ise, but claims to hold the property in his own right and for his own benefit. The exception to the rule is allowed upon the ground of the trust resulting from the confidence reposed in him by the testator, and because not to do so would permit the devisee or legatee to profit by his own fraud, and in such a case to convert the statute of wills into a law for the consummation of fraud in- stead of being a law for its prevention." 104 REAL PROPERTY. [Chap. 6 will. A married woman can make a will of her separate estate, or in the exercise of a power of appointment. See Code of Va., § 3286 and § 2513.i § 82. What May be Willed. — All of a person's property, real or personal, which would, if not willed, descend to his heirs, or pass to his personal representative. But in Vir- ^ Contract to Make a Will. — In Rice v. Eartman, 84 Va. 251, it is held that when one in his lifetime, for a valuable considera- tion, promises to make a provision hy his will for another, and dies without doing so, the promisee is entitled, in a suit against the promisor's estate, to receive such sum as the promisor, in pursuance of his contract, ought to have bequeathed the prom- isee. And in Thomas v. Armstrong, 86 Va. 323, It is decided that a promise to leave the promisee a support at the death of the promisor, in consideration of services during the remainder of the promisor's life, to be performed by the promisee, is enforce- able against the estate of the promisor; and this, though the con- tract is not in writing, as Code of Va., § 2840, cl. 7, prohibiting an action "upon any agreement that is not to be performed within a year," does not apply "if by its terms, or by reasonable con- struction, a contract not in writing can be fully performed within a year, although it can only be done by the occurrence of some improbable event, as the death of the person referred to." See Seddon v. Rosenhaum, 85 Va. 928. In Hale v. Hale, 90 Va. 728, it is said: "There is no doubt, not- withstanding a will is in its nature ambulatory until the tes- tator's death, and cannot be made irrevocable, that a person may, by a definite and certain contract, bind himself to dispose of his estate by will in a particular way, and that such a contract, in a proper case, will be specifically enforced in equity; that is to say, the property will be held charged with a trust in the hands of the heir at law, devisee, personal representative, or purchaser with notice of the agreement, as the case may be, and a convey- ance or accounting directed in accordance with the terms of the agreement." But in this case the contract was in respect to land, and it held unenforceable under Code of Va., § 2840, cl. 6, requir- ing contracts for the sale of real estate to be in writing. And it was further held that the circumstances did not amount to part performance so as to make a case for specific performance of the unwritten contract in a court of equity. See Maddison v. Alder- son, 8 App. Cas. (H. of L.) 467. §§81-83] DEVISES. 105 ginia a man cannot will away his wife's dower (Code Va., §§ 2270-'71), nor her "thirds" in his chattels. (Code Va., § 2559.) ISTor can a woman deprive her husband of his curtesy in her land "by her sole act," whether by a deed or iby will. (Code Va., § 2286.) But in the absence of a statute, a father can disinherit his children, cut them off without a shilling. But the property must be actually devised to others, or the children (heirs) will inherit, as we have already seen.^ 2 Bl. Com. (503). § 83. The Several Sorts of Wills. (a). Nuncupative {i. e., verbal). Only as to personalty. Not now allowed in England nor in Virginia, except in case of "a soldier being in actual military service, or a mariner or seaman being at sea." Code Va., § 2516; 1 Vict. chap. 26, § 13. ^ Peeteemitted Children. — By Code of Va., § 2527: "If any per- Bon die leaving a child, or his wife with child which shall be born alive, and leaving a will made when such person had no child living, wherein any child he might have is not provided for or mentioned, such will, except so far as It provides for the pay- ment of the debts of the testator, shall be construed as if the de- vises and bequests therein had been limited to take effect in the event that the child shall die under the age of twenty-one years, unmarried and without issue." And by § 2528: "If a will be made when a testator has a child living, and a child be born after- wards, such after-born child or any descendant of his, if not provided for by any settlement, and neither provided for nor expressly excluded by the will, but only pretermitted, shall suc- ceed to such portion of the testator's estate as he would have been entitled to if the testator had died intestate; towards rais- ing which portion, the devisees and legatees shall, out of what is devised and bequeathed to them, contribute ratably, either in kind or in money as a court of equity in the particular case shall deem most proper. But if any such after-born child, or descend- ant, die under the age of twenty-one years, unmarried and with- out issue, his portion of the estate, or so much thereof as may remain unexpended in his support and education, shall revert to the person to whom it was given by will." See Conlam v. Doull, 133 U. S. 216. 106 REAL PROPERTY. [Chap. 6 (&). Olograph. These in England and in most of our States are required to be witnessed, no distinction being made between a will wholly written by the testator himself and one written for him, in whole or in part, by the hand of another. But in sis or seven of the States (including Virginia and West Virginia) an olograph will need not be attested, but is probated on proof of the testator's hand- writing. For discussion of olograph wills, see 52 Am. Dec. 591-593, note; see also 99 Am. Dec. 729; 17 Am. St. Eep. 798; 28 Id. 498. (c). Not olograph, i. e., not wholly in the testator's hand- writing. These everywhere require to be attested by sub- scribing witnesses — ^by two witnesses in England, Virginia, and many of the States; and by three witnesses in some of the States. A will of land is governed by the law of the situs {lex loci rei sitae) ; a will of personalty by the law of the domicile of the testator (lex domicilii). Robertson v. Pichrell, 109 U. S., 608; Dc Vaughn v. Hutchinson, 165 TJ. S., 566; Boiling v. Boiling, 88 Va., 524; White v. Ten- nant, 31 W. Va., 790. For what constitutes domicile, and how it may be changed, see Lamar v. Micou, 114 TJ. S., 218; Chicago, etc., R. Co., v. Ohle, 117 U. S., 123; Anderson Y. Watt, 138 U. S., 694; Lindsay v. Murphy, 76 Va., 428. § 84. Formalities for Making a Will. (1). What is a sufficient signing by the testator? (a). In England. "At the foot or end thereof." For meaning of these words, see statute of 15 and 16 Vict, eh. 24. explaining 1 Vict., ch. 26 ; Wms. Real Property, 205. (6). In Virginia. "In such manner as to make it mani- fest that the name was intended as a signature." Code of Va., § 2514. See these words explained in Ramsey v. Ram- sey, 13 Grat., 664; Roy v. Roy, 16 G-rat., 418; and especially in Warwick v. Warwick, 86 Va., 596. The doctrine estab- lished in Virginia is that unless it appears affirmatively on the face of the paper that the name of the testator was intended as a signature, it is not a sufficient signing under §§ 83, 84] DEVISES. 107 the statute; and that the testator's name at the to^ or begin- ning of the will is an equivocal act, and will therefore be insufficient, unless there be on the face of the will evidence to make it manifest that the name was regarded as a signature, and that the instrument was to be complete without further signing. So that in "Virginia not to sign a will at the foot or end is hazardous in the extreme. In Warwich v. Warwick^ supra, the will began thus : "I, Abraham Warwick, Jr., declare this to be my last will and testament." Then followed the provisions of the will without a signature at the end. The testator placed the paper in an envelope and sealed it, and vsTote on the envelope: "My will, Abraham Warwick, Jr." Held, that the will was not so signed as to satisfy the Virginia statute. Por the signature at the top of the will was an equivocal act per se, and there was nothing on the face of the will to remove the equivocation; and as to the name on the envelope, it was not a signature at all to the will, but a mere label or endorsement of the envelope which contained what the testator supposed was already a validly executed will. (3). Does an unsigned attestation clause invalidate an olograph will signed iy the testator? This question is an- swered in the negative in Perkins v. Jones, 84 Va. 358, on the ground that an olograph will is perfect without any attestation, and so the incomplete attestation clause is simply a nullity, not afEecting the validity of the already complete will. (3). When a will is not olograph, and must have two wit- nesses, in whose presence must the testator sign his name? He must sign in the presence of the two witnesses, present at the same 'time. He cannot sign or acknowledge the will at different times, in the presence of one witness only at each time, but he must sign, or acknowledge, in their joint pres- ence. This is absolutely essential to the validity of the will. (4). In whose presence must the witnesses sign? They must sign in the presence of the testator, but need not sign 108 REAL PROPERTY. [Chap. 6 in the presence of each other. This is the law ia England and in Virginia, and is said to be the general rule. Tied. E. P., § 877. That subscribing witnesses need not sign in each other's presence, see in Virginia, Parramore v. Taylor, 11 Grat. 220; Beane v. Yerly, 12 Id. 239; Green v. Crain, 12 Id. 252. But the West Virginia Code declares that the subscribing witnesses "shall subscribe the wUl in the pres- ence of the testator and of each other." Code of W. Va., chap. 77, § 3; and this is no doubt law in other States. (5). What is meant by "in the presence of the testator"? In Tiedeman E. P., § 877, it is said : "What is a sufficient 'presence' is governed largely by circumstances. In de- termining this question, there are only two elements to be considered — first, were the witnesses at the time of the sign- ing so situated that the testator could see them; and, secondly, was he in a conscious state? It is not necessary that the testator should actually see the signing, if he was in a posi- tion to see it if he wanted to. Not only is this true, but if the testator is blind, the will will be properly attested if the witnesses when signing were in such a position that the testator could have seen them if he had had his sight And it is not even necessary that the testator should be in the same room with the witnesses. Attestation in a different room, although presumptively bad, will be good if the testator could see the performance of the act of attestation." The Virginia cases are in accord with the above statement of the law. As to subscription within the testator's potential vision, see Neil v. Heil, 1 Leigh (6) ; Moore v. Moore, 8 Grat. 307; Noclc V. Noclc, 10 Id. 106; Young v. Earner, 27 Id. 96; Baldwin v. Baldwin, 81 Va. 405. That it must be in the testator's conscious presence, i. e., in the presence of a con- scious testator, see Cheatham v. Hatcher, 30 Grat. 56 ; Bald- win V. Baldwin, 81 Va. 405; Tucker v. Sandidge, 85 Va. 546 ; Chappel v. Trent, 90 Va. 849, 935. (6). Can the testator acknowledge in the presence of wit- nesses his signature made previously, and not in their pres- i 84] DEVISES. 109 ence? Yes, under Wills Act of 1 Victoria. In Virginia the language is, "the signature shall be made, or the will acknowl- edged," in the presence of the witnesses. (7). Gan a subscribing witness acknowledge, in the testa- tor's presence, his signature previously made out of the testa^ tor's presence? No, in England, by 1 Victoria. See Hind- marsh V. Charlton, 8 H. of L. Cas. 159. Yes, in Virginia, by statute before July 1, 1850. Sturdivant v. Birchett, 10 Grat. 67, two Judges dissenting. Quwre, now in Virginia, under statute taking effect July 1, 1850, whose phraseology is differ- ent from the former statute. The decision in Birchett v. Sturdivant has been regretted. See 2 Min. Ins. (930). (8). What must the subscribing witnesses attest by their signatures ? (a). In England. That the testator has already signed the will in the presence of the two witnesses, both present together. Until the testator has so signed, there is nothing to be attested. See Hindmarsh v. Charlton, 8 H. of L. Cas. 159, 161, 168. Here the testator, in the forenoon, signed, in the presence of one of the witnesses, a certain Pred. Wm. Nap. Wilson, who signed his name in the presence of the testator, but did not cross the "P" in "Pred." In the afternoon, the other witness. Dr. White, was present, and the testator acknowledged his signaturei in the presence ' of Wilson and White, both present together. White then signed in the presence of the testator, and Wilson added the cross to the "P" in "Pred," and wrote the day and month. Held, an invalid execution. Por when Wilson signed his name in the forenoon, when the testator has signed in his presence only, there was nothing to attest; and though the testator in the afternoon acknowledged his signature in the joint presence of both witnesses, Wilson did not, after that, subscribe his name, an acJcnowledgment by him not being suflScient, and the crossing of the "P" not amounting to a new signature. (6). In Virginia. It is held contrary to Hindmarsh v. 110 REAL PROPERTY. [Chap. 6 Charlton, that a witness may subscribe the will before it has been signed or acknowledged by the testator in the presence of two witnesses, both present together, if it is subsequently acknowledged by the testator in the joint presence of the two witnesses. See Parramore v. Taylor, 11 Grat. 226 ; Beane v. Yerby, 12 Id. 237 ; Green v. Crain, 12 Id. 252. This Virginia doctrine is not to be commended. See in favor of the English doctrine, 87 Am. Dec. 687; 1 Eedfield on "Wills, 226, and note 6. (9). What amounts to a signature as a subscribing wit- ness? The signature must be by way of attestation, not as an agent only. See Peake v. Jenkins, 80 Va. 293, where the execution of the will was as follows: "Ansta L. Jenkins, "By Mary F. Holladay." "April 13, 1870. "Witness : "Lucy P. B. Lipscomb." Held, Mary P. Holladay, who had written the will for Anna L. Jenkins, and signed Anna L. Jenkins' name, had written her own name, not as a witness, but to indicate agency, and so the will failed for lack of two witnesses. (10). Form of Attestation. No form is required, but it is better to have the subscribing witnesses sign a form of attestation, reciting compliance with all the formalities re- quired. The following form is believed to be sufBcient every- where : "Signed, sealed, published, and declared by "William Brown (the testator), as and for his last will and testament, in the presence of us, all three present at the same time, who, at his request, in his presence, and in the presence* of one another, have hereunto subscribed our names as attesting wit- §§ 84 ,85] DEVISES. Ill nesses." Then follow the signatures of three attesting wit- nesses.^ The above contains more than is required in Virginia. We require two witnesses only, and the witnesses need not subscribe in the presence of each other, but only in the presence of the testator. And a will, unlike a deed, does not require to be sealed. But the above formalities can do no harm, and it is better to observe them; and it is safer to have three witnesses. §85. Who are Competent Witnesses to a Will? — The Virginia statute says that the testator must sign "in the presence of at least two competent witnesses." At common law interest in the result of a suit disqualified a witness to testify; but the general disqualification is removed in Vir- ginia by Code of Va., § 3345, enacting that "no person shall be incompetent to testify by reason of interest." But § 3346 qualifies § 3345 by declaring that "the competency of at- testing witnesses to wills and deeds shall be determined by the law in force the day before this code takes effect"; i. e., by the common law as modified by previous statutes. And by § 3346 husband and wife were disqualified stiU, as at common law, to testify for or against each other. Hence, legatees and devisees, and the husband or wife of a legatee or devisee, remained in Virginia incompetent witnesses to wills.^ But it is provided by Code of Va., § 2539, that ^In 4 Mln. Ins. (3rd ed.), pp. 1613-1618, the form of attestation given is as follows: "Signed and published by T. T., as and for his last win, In the presence of us, who In his presence, and in the presence of each other, have hereunto subscribed our names as witnesses." This Is defective, because of its omission to state that the testator signed in the presence of the witnesses present at the same time. The statement that the subscribing winesses signed in the presence of each other is not necessary in Vir- ginia, as is stated above. = Husband and Wife as Witnesses to Wills. — Are husband and wife now In Virginia competent witnesses to wills, under Acts 1893-94, p. 722, c. 619, declaring that, "husband and wife shall be 112 REAL PROPERTY. [Chap. 6 "if a will be attested by a person to whom, or to whose wife or husband, any beneficial interest in any estate is thereby devised or bequeathed, if the will may not be otherwise proved, such person shall be deemed a competent witness, but such devise or bequest shall be void, except that if such witness competent to testify for and against each other in all civil cases," with certain exceptions not relating to wills? Suppose, (1) that a wife attests the will of her husband under which she is not a beneficiary; (2) that she attests his will and is also a legatee or devisee; and (3) that she attests the will of a third person under which he is a beneficiary. Is she a competent witness? In Pease v. AlUs, 110 Mass., 157 (14 Am. Rep., 591), it appeared that one of the three witnesses to the will of William S. AUis was his wife. It was held that she was incompetent and the will in- valid. The following is the opinion by Chapman, C. J.: "By the Gen. Stats, [of Massachusetts], ch. 92, § 6, a will must be sub- scribed by three or more competent witnesses. They must be competent at the time of the attestation of the will. By the com- mon law it is a settled principle that husbands and wives could not, in any case, be admitted as witnesses for or against each other independently of the question of interest. None of our statutes have changed the rule in this respect as to the attesta- tion of wills, and the rule applies to such attestation. As the wife of the testator, in this case, was not a competent witness when the will was executed, his death did not make her com- petent." In Virginia, Code of Va., § 3345, enacting that, "no person shall be incompetent to testify because of interest," was qualified by § 3346, which declared that it should not affect "the competency of husband and wife as witnesses for or against each other during the coverture or after its termination"; and that "the competency of attesting witnesses to wills, deeds and other instruments shall be determined by the law in force the day before this Code takes effect." But now, by Acts 1893-'94, c. 619, above cited, it is de- clared that husband and wife shall be competent witnesses for or against each other in all civil cases. If this was not intended to extend to wills, it should have been so stated in the proviso as a third exception to the two that are there made. But Code of Va., § 3346, after abolishing the disqualification of interest, declares that this shall not affect the competency of at- testing witnesses to wills, deeds, etc. It would seem to follow, therefore, construing Acts 1893-94, c. 619, in connection with §§ 85, 86] DEVISES. H3 would be entitled to any share of the estate of the testator, in case the will was not established, so much of his share shall be saved to him as shall not exceed the value of what is so devised or bequeathed." The statute destroys the interest of the devisee or legatee witness, and thereby makes him compe- tent to prove the will for the benefit of the other devisees or legatees. By Code of Va., § 3530, creditors are competent, although the vrill may charge the estate with the payment of debts. And by § 3531, executors are competent.^ § 86. Effect of a Duly Executed Codicil on a Will not Duly Executed. — The effect is to establish the will as well as Code of Va., § 3346, that husband and wife are now in the situa- tion of persons no longer under a general disqualiiication to tes- tify for or against each other in civil cases, but that they are still Incompetent, as before the statute, as witnesses to wills, deeds, etc., just as if their general incompetency as witnesses had been removed by the Code of Va., § 3345 followed by § 3346, de- claring that this should not affect the competency of subscribing witnesses to wills, deeds and other instruments. From this point of view, Code of Va., § 2529, so far as it relates to a will attested by a person to whose wife or husband any beneficial interest in any estate is thereby devised or bequeathed, remains unaffected by Acts, 1893-'94, declaring that, "husband and wife shall be competent to testify for or against each other in all civil cases." ^ Devisee oe Legatee as an Attesting Witness. — In Davis v. Davis, (W. Va.), 27 S. B. 323, there is an elaborate discussion of Code of W. Va., c. 77, § 18 (the same as Code of Va., § 2529, supra), and it is held that if a will can be proved at the probate independently of the testimony of an attesting witness beneficially interested therein, a devise or bequest to such witness, or her husband, is not void. In this case, the will of Charles W. Davis was attested by Mrs. Delilah Davis, to whom and to whose hus- band, devises and bequests were made. The other subscribing witness (two being required) took nothing under the will. The will was probated upon the testimony of the disinterested wit- ness; and a bill to declare void the legacies and devises to De- lilah Davis and her husband was dismissed. The decision was placed on two grounds: (1) That there were two competent wit- nesses at the time of the attestation of the will; (2) That a will must be subscribed, but need not be proved, by two attesting wit- 114 REAL PROPERTY. [Chap. 6 the codicil^ and the codicil amounts to a repuhlication of the will, and brings it down to the date of the codicil, so that they both speak as of the date of the codicil. See Corr v. Porter, 33 Grat. 278 ; Hatcher v. Hatcher, 80 Va. 169 ; Barney V. Hayes (Mont.), 28 Am. St. E. 495; Gilmor's Estate (Pa.), 35 Am. St. K. 855; HohaH v. Hoiart (111.), 45 Am. St. E. 151. But in order that the codicil may have this effect, the execution of the codicil must be such as would have sufiBced for the will if the will had been so executed. Thus the following papers do not constitute a valid will in Vir- ginia, No. 1 and No. 2, being offered together for probate : nesses, even though the other attesting witness be alive and within the jurisdiction of the court. Hence, as in this case, the will was "otherwise proved," viz., by the other attesting witness, Mrs. Davis was not needed as a witness at the probate, and so her interest and that of her husband was not forfeited. Upon the first point, it is conceded by the court that under the statute (Code of W. Va., c. 77, § 18; Code of Va., § 2514), there must be two witnesses competent at the time of the attestation. But the court says: "The only reasonable way to construe §§ 3, 18, c. 77, Code [Code of Va., §§ 2514, 2529], is that the word 'com- petent,' as used in each one of them, refers to the separate time to which they relate; the first to the attestation, the second to the proof of the will. Mrs. Davis was competent as an attesting witness. While she was interested in the will, the testator was alive, and if the question of the attestation had arisen during his life, they were both competent to testify in relation thereto. Hence, the word 'competency,' in so far as it relates to an attest- ing witness, excludes the question of interest, and has reference to age, sanity and moral integrity. As used in the eighteenth section, in relation to the proof of the will, it has reference merely to the question of beneficial interest, its object being to remove all motive for false swearing or forgery, and also the incompe- tency of the witness, occasioned by the death of the testator, thus throwing on the beneficiaries thereunder the burden of sustain- ing the will independently of their own testimony. If the will can be thus sustained, it is sustained as a whole, and not in parts, and none of the provisions are void, but all the beneficiaries take under it, even though the attesting witnesses were incompetent [i. e., to testify at the probate] on account of interest. . § 86] DEVISES. 115 No. 1. "I, Elizabeth Holmes, do make the following as my last will and testament. I give all my estate, both real and personal, to my two sisters, Margaret and Sally." No. 1 is not in the handwriting of the testatrix, nor signed by her. About an inch below, on the same sheet of paper, is written the codicil. No. 2. "As Margaret is dead, I give her share to my niece, Lizzie Leigh Gibson." This last was wholly in the handwrit- ing of the testatrix, and signed by her. Held, that the codicil. No. 3, does not snfBee to make No. 1 and No. 3 the will of Elizabeth Holmes ; but it would have been otherwise if No. 1 had been wholly in the testatrix's handwriting, or if No. 2 The will is fully established by the other attesting witness. It might have occurred that the will could not have been established without the evidence of Mrs. Davis, and in such case to make her competent as against the heirs of the testator, her beneficial interest would have to be avoided." See Grr Question in Vibginia. — In StuU v. Rich Patch Iron Co., 92 Va. 281, it is thus stated by Buchanan, J.: "Does the ad- verse possession of a claimant under a junior title extend to the whole of his tract, or only to the extent of his enclosures, where there are conflicting grants or deeds to land causing an inter- lock, the claimant under the older title being in actual possession of a part of his land outside of the interlock, when the claimant under the junior title entered upon and took actual possession of part of the interlock, claiming title to the whole extent of his boundary." It will be seen that the doubt arises from the fact that the senior patentee or grantee was already in possession outside of the interlock at the time when the junior patentee or grantee takes possession of part of the interlock. The Virginia statute which causes the doubt went into effect December 19, 1792 (see "Acts of General Assembly, 1794," ch. 76, § 28, p. 119), where the language is the same as in Code of 1887, except that "real estate" has been substituted in the Code for "lands, tenements and hereditaments." The occasion for the passage of the statute is not manifest, and very diverse views have been, and are, held as to Its meaning and construction. It §141] TITLE BY ADVERSE POSSESSION. 173 II. When the patents exactly coincide. Here the inter- lock includes all the land patented to both A and B. (1). When neither A nor B is in possession. Then, of course, A has the better right, having the senior patent. And this is true, a fortiori, -where A has actual possession of part of the land, and B is not in possession of any part. (2). When A has no actual possession, and B has actual possession of part of the land. Then B has adverse pos- session of the whole, under principle laid down in I. (3), supra. (3). When A has actual possession of part of the land, and B has possession of another part. Then B's adverse pos- session is confined to the limits of his actual possession on principle laid down in I. (4), supra. N". B. — As the two patents precisely coincide, neither A nor B can be in possession of any part of his tract outside of the interlock, and hence it is impossible for the cases under I. (3) and (5), supra, to arise. III. When B's patent is entirely within A's. The same would seem that it should be read thus: "In controversies affect- ing real estate, possession [by the senior patentee or grantee] of part [of his tract] shall not be construed as possession [by him] of the whole [of his tract] when an actual adverse possession [by the Junior patentee or grantee of part of the land in contro- versy] can be proved." See Garrett v. Ramsay, 26 W. Va. 376, where it is said by Snyder, J., delivering the opinion of the court: "The 'real estate in controversy,' referred to in the statute, is necessarily the land in the Interlock, because the land outside of this, whether within the elder or the junior grant, is not in controversy; and the words 'actual adverse possession,' used by the statute, just as necessarily and certainly refer to the posses- sion of the junior claimant, for the word adverse, if applied to the elder title, would be meaningless, there being no such thing as an adverse possession by the true owner. . ^ . The owner or elder grantee never holds adversely to the junior claimant, who has no title, but merely a color of title. If the owner is in possession at all, he is there as owner and by virtue of his title, and not as an adverse claimant." 174 REAL PROPERTY. [Chap. 8 principles apply as under I., supra. See Stull v. Rich Patch Iron Co., 93 Va. 353. IV. When A's patent is entirely within B's. The same principles apply as under I., supra. § 142. Disabilities of Coverture, Infancy, and Insanity. — By Code Va. § 3917 : "If at the time at which the right of any person to make entry on, or bring an action to recover, any land, shall have first accrued, such person was an infant, married woman, or insane, then such person or the person claiming through him, may, notwithstanding the said period mentioned in § 3915 [fifteen or ten years, as was stated in § 137, supra^ shall have expired, make an entry on or bring an action to recover such land within ten years next after the time at which the person to whom such right shall have first acrued as aforesaid, shall have ceased to be under such disability as existed when the same so accrued, or shall have died, whichever shall first have happened." Buford v. Land and Imp. Co., 90 Va. 419. But this indulgence does not apply as to a married woman's separate estate. C. V. § 3917. See Randolph v. Casey (W. Va.), 37 S. E. 331. And by § 3918, it is provided that in no case shall the indulgence allowed by reason of the above disabilities extend beyond twenty years after the right of entry or action shall have first accrued. § 143. Tacking Disabilities. — This is not allowed. Thus, if when the cause of action arises, the person entitled is an infant, but marries under twenty-one, coverture cannot be added to infancy; and the bar of the statute attaches as soon as ten years elapse after full age. And this is the case, a fortiori, if one is an infant when the cause of action arises, and does not marry until some time after reaching twenty-one. See Blachwell v. Bragg, 78 Va. 539. If, how- ever, when the cause of action arises, the owner is both an infant and a feme covert, the statute does not begin to run until loth disabilities cease. See Wilson v. Branch, 77 Va. 65. §§141-144] TITLE BY ADVERSE POSSESSION. 175 § 144. Period to be Subtracted in Computing Time in Vir- ginia. — By Code Va., § 3919, the period between April 17, 1861 (secession of Virginia) and January 1, 1869 (expira- tion of the Stay Law), is to be subtracted in estimating the time which has elapsed under the statute of limitations, and under the doctrine of adverse possession of land. See Brewis V. Lamson, 76 Va. 36; Ufdihe v. Lane, 78 Va. 133; Norvell V. Little, 79 Va. 141 ; H oiling sw or th v. Sherman, 81 Va. 668 ; Va. Mining Co. v. Hoover, 83 Va. 449; Alexander v. Byrd, 85 Va. 690. CHAPTEE IX. CO-TENANTS. Under this head are to be considered (1) Joint Tenants; (2) Tenants by Entireties; (3) Tenants in Conunon; and (4) Coparceners. I. Joint Tenants. § 145. Definition. — Joint tenancy is a joint seisin of the freehold or a joint possession of an estate not of freehold. This mode of holding feuds was greatly favored in ancient times, as insuring to the lord an adult retainer (or vassal) to attend the lord to the wars, etc.; for the land, and with it the feudal obligations, devolved upon the survivor (or survivors) of several joint tenants, instead of descending in parts to the heirs of each. Besides, the common law "loves not fractions of estates, nor to divide and multiply tenures." 2 Bl. Com. (193), n. 25. § 146. Unities of Joint Tenants. — For the four unities which characterize joint- tenancy, see 2 Bl. Com. (180). As to unity of timCj this was essential where joint tenants re- ceived the land hy feoffment; but it is now settled that under a devise^ or by a conveyance to useSj several may be joint tenants though their estates vest at different times. In a devise or in a deed by way of use, it is the joint claim by the same conveyance which makes joint tenants, and not the time of vesting. And in Virginia the same doctrine is doubtless applicable, since 1850, to the statutory deed of grant. See 2 Min. Ins., -103. § 147. Unity of Interest. — Joint tenants have unity of in- terest in two senses : (a) they have the same estate in the land, i. e.^ each has a fee-simple, fee-tail, etc.; and (6) 176 §§ 145-148] CO-TENANTS. 1T7 they have, as between themselves, eqvul shares, i. e., each is entitled to the same proportion of the rents and profits, and each can convey to a stranger his interest in the land, which is just the same as that of each of his companions, viz: one-third if there are three joint tenants, one-fourth if there are four, etc. § 148. Unity of Possession. — Joint tenants have unity of possession, and this also in two senses. They have, in the first place, unity of possession in the sense in which all tenants who do not hold in severalty have, i. e., they hold the land together, and not separately, and each being in rightful possession of all the land, no one can sue another for trespass. But, in the second place, unity of possession, as applied to joint tenants, denotes that oneness or entirety of interest which the law describes by the • maxim that joint tenants are seised "per my et per tout," i. e., by nothing and by all. The meaning is, that joint tenants are not seised, like tenants in common, each of his undivided share, but each joint tenant is seised of all the land. Survivorship is the necessary result of such holding. For each has all together with the rest, and nothing separately by himself, which is the meaning of their being seised per my et per tout. Hence, when one joint tenant dies, he (or his heir) has nothing separately, and all remains with the survivor (or survivors) as before. And as each joint tenant is seised of all the land, it follows that one joint tenant cannot convey his interest to his companion by livery of seisin, for the other is already seised. Hence, a release is the proper form of conveyance by one joint tenant to the other. As to the mode of operation of such release, with the "diversity" according as one of two joint tenants releases to his com- panion, or one of the three to one only of the other two, see 1 Tho. Co. (765) ; 2 Id., 514. Under C. V., § 3417, one joint tenant can convey his interest to the other by deed of grant. 2 Min. Ins. (4th ed.), 479. But the law does not push the fiction of one person so far as to deny to each 12 ITS REAL PROPERTY. [Chap. 9 joint tenant an equal share of the rents and profits; or an equal interest in the land or a conveyance by one joint tenant to a stranger (third person). As to per my et per tout, see 2 Bl. Com. (182), where it is wrongly translated "hj the half or moiety, and by all." This is a mistake, as "my (or "mie") signifies nothing, and not a moiety. See Wms. E. P. (136), n. 2; 2 Bl. Com. (182) n. (5). § 149. The Right of Survivorship Between Joint Tenants {jus accrescendi) . — This is the great incident of joint ten- ancy, and grows, as we have seen, out of the doctrine that joint tenants are seised per my et per tout. By it, if a deed be made "to A, B and C, and their hei/rs" if C dies first, C's heirs get nothing; but the whole interest accrues (accumu- lates or concentrates) upon A and B. If now B dies next, B's heirs get nothing; but the whole interest accrues to A in severalty, and, on A's death intestate, descends to the heirs of A; so though the gift is in terms "to A, B and C, and their heirs," only the survivor's heirs have a chance of in- heriting the land. To this right of survivorship (formerly greatly favored) several maxims are applicable. § 150. Maxims Applicable to Survivorship. (1). Jus accrescendi pvcefertur ultimw voluntati, i. e., survivorship is paramount to a will {ultima voluntas), by which one joint tenant (who is not the survivor) endeavors to dispose of his share. The technical reason is said to be that on the joint tenant's death, survivorship takes place per mortem, while the will operates post mortem; and the per precedes the post. 2 Bl. Com. (176) n. 20. The real reason would seem to be that the quality of survivorship is annexed to the estate in joint tenancy at its original creation, and so must take effect at the death of the tenant unless previously defeated, as by an alienation of his un- divided share by deed in his lifetime. Hence, the ivill of the joint tenant cannot operate on his share, for it certainly does not precede the tenant's death; and, therefore, at his §§ 148-150] CO-TENANTS. 179 death survivorship takes place by reason of the original in- herent quality of the estate. (2). Alienatio rei prafertur juri accrescendi, i. e., an alienation of the land is paramount to the right of sur- vivorship. By alienation is meant a conveyance of the land itself, as distinguished from a mere charge or encumbrance put upon it. (See next maxim.) But even as to convey- ance, a distinction must be made. For while every imme- diate alienation of the land is paramount to the jus accres- cendi (even a lease beginning in fuiuro), yet it is not true that every alienation severs the jointure; for survivorship may take place subject to the alienation made. Thus if one or two joint tenants in fee-simple conveys his share to a stranger for a term of years, this is no severance of the jointure, because the lessee has not the seisin; and on the death of either joint tenant survivorship takes place in favor of the other, but subject to the lease. The lease, therefore, did not "destroy the jointure or prevent survivor- ship, but nevertheless it was paramount to the survivor- ship. 1 Tho. Co. (749), (751) ; 4 Com. Dig. Estates, K 5, p. Ill; 1 Lom. Dig. 617, 621. But see Freeman, Cot. and Part., § 30, where it is said: "A demise by one of the joint tenants severs the joint tenancy, and turns it into a tenancy in common, although the lease is not to commence until after the lessor's death," citing Doe v. Read, 12 East 57; Roe V. Lonsdale, lb. 39 ; Cleric v. Cleric, 2 Vern. 323 ; Gould V. Kemp, 2 Myl. & K. 310. Again, if one of two joint tenants in fee conveys his undivided interest to a stranger for life, this is paramount to survivorship, but it does not necessarily prevent survivorship. For if the life tenant should die in the lifetime of both joint tenants, they would again be jointly seised as before the conveyance, vrith sur- vivorship on the death of either. But if while the stranger lived, and the life estate (and the seisin) was outstanding in him, either joint tenant should die, there could be no survivorship; but the share of the deceased tenant would 180 REAL PROPERTY. [Chap. 9 descend to his own heirs, leaving the other half for the other tenant. 1 Tho. Co. (764) ; 3 Min. Ins. 479. (3). Jus accrescendi prwfertur oneribus, i. e., the right of survivorship is paramount to encumbrances. See 2 Bl. Com. (183), n. 13. This maxim is essential to the beneficial exist- ence of the right of survivorship; for otherwise, though the survivor received the title to the land, it might have to be sold to pay the deceased tenant's debts. Hence, when sur- vivorship takes place, there is neither dower nor curtesy in the deceased tenant's, share, nor is the land bound in the hands of the survivor for the other's debts, even though Judgments have been obtained against him in his lifetime, nor for any other mere charge or encumbrance put upon the land by the deceased tenant. But a mortgage given to secure a debt by the deceased tenant has been held a severance of the jointure, and paramount to the right of survivorship, as amounting to a disposition of the land {alienatio rei). York v. Stone, 1 Salk. 168; Simpson v. Ammons, 1 Binney (Pa.), 175 (2 Am. Dec. 435); Tied. E. P. 238, n. 5; 2 Bl. Com. (185), n. 7; Freeman, Co-ten- ancy and Partition, § 30. II. Tenants by Entireties. § 151. Definition. — ^This estate is to be carefully distin- guished from joint tenancy, which, however, it greatly re- sembles. Tenancy by entireties arises where an estate in land is given, after marriage, to a man and Ms wife jointly, who would be joiat tenants but for the fact that the husband and wife are in law one person; "and from the unity of their persons by marriage, they have the estate entirely as one individual." 1 Prest. Est. 131. Hence the seisin of the husband and wife in such a case is said to be per tout et nan per mie; i. e. by all and not by nothing. It follows that on the death of either husband or wife, survivorship takes place between tenants by entireties. During the cov- erture, however, the husband has the control, and he may convey all the land for his life; but he cannot, without the §§ 150-153] CO-TENANTS. 181 wife's concurrence, affect the inheritance, even as to one- half of the land. Unless she unites in the deed, the ten- ancy by entireties continues, and the survivor gets all the land. The husband has, therefore, less power to dispose of the land than a joint tenant; for the latter can always convey his undivided interest. But if a man and woman are joint tenants before marriage, they remain joint ten- ants and their intermarriage does not convert them into ten- ants hy entireties. 2 Bl. Com. (182) n. -10. § 152. Abolition of Survivorship Between Joint Tenants. — This right for which there were, as we have seen, sub- stantial feudal reasons has been abplished generally in the United States. This was done in Virginia as to joint tenants, as early as July 1st, 1787, in these words : "When any joint tenant shall die, whether the estate be real or personal, or whether partition could have been compelled or not, his part shall descend to his heirs, or pass by devise, or go to his personal representative, subject to debts, curtesy, dower or distribution, as if he had been a tenant in common." See 1 Eev. Code (1819) p. 359 (ch. 98, § 3) ; Code (1887) § 2430. But § 24311 provides that § 2430 shall not apply "to an estate which joint temants have as executors or trustees, nor to an estate conveyed or devised to persons in their own right, when it manifestly appears, from the tenor of the instrument, that it was intended that the part of the one dying should then belong to the others. Neither shall it affect the mode of proceeding on any joint judgment or decree in favor of, or on any contract with two or more, one of whom dies." And to abolish survivorship between joint tenants does not abolish joint tenancy which still con- tinues with its other incidents. See Patton v. Hoge, 23 Grat. 443. § 153. Abolition of Survivorship Between Tenants by En- tireties. — ^We have seen that at common law survivorship is an incident common to joint tenancy and to tenancy by entireties. But while this is so, the two estates are by no 182 REAL PROPERTT. [Chap. 9 means identical, and it is held that a statute abolishing sur- vivorship between joint tenants does not apply to tenants by entireties, who are not joint tenants, though occupying a some- what similar relation. "We have seen that in Virginia, as between joint tenants, survivorship was abolished as early as July 1, 1787; but this act was held to have no application to tenants by entireties. See Thornton v. Thornton, 3 Eand. (Va.) 179; Norman v. Cunningham, 5 Grat. 63. And sur- vivorship between tenants by entireties continued in Vir- ginia, as at common law, until July 1, 1850, when it was partially abolished. See Code (1849) ch. 116, § 18, enact- ing as follows: "And if hereafter an estate of inheritance be conveyed or devised to a husband and his wife, one moiety of such estate shall, on the death of either, descend to his or her heirs, subject to debts, curtesy, or dower, as the case may be." It will be seen that the above statute is confined to estates of inheritance in lands. But by Code (1887), taking effect May 1, 1888, tenancy by entireties is itself abolished, except where the deed or will manifests an intent that it shall continue. 2 Min. Ins. (4th ed.) 471. Por § 2430 enacts: "And if hereafter any estate, real or personal, be conveyed or devised to a husband and his wife, they shall take and hold the same by moieties, in like manner as if a distinct moiety had been given to each by a separate conveyance." But § 3431 declares that this shall not apply "when it appears from the tenor of the instrument that it was intended the part of the one dying should then belong to the others."^ "^TEJSTANCT BT Bntieeties. — It has usually been held that the Married Woman's Acts, making the property of the wife her legal separate estate, do not affect the creation of a tenancy by en- tireties upon a devise or grant of land to a husband and his wife. See 51 Am. St. R., 372, note. But the Virginia statute above cited, Code § 2430, undoubtedly abolishes tenancy by entireties, turn- ing it into a tenancy in common, by declaring that husband and wife shall "take and hold," the estate conveyed or devised by moieties "in like manner as if a distinct moiety had been given to each iy a separate conveyance." And Prof. Minor says (2 §§ 153, 154] CO-TENANTS. 183 § 154. ZoUman v. Moore. — ^The importance of distinguish- ing tenants by entireties from joint tenants, and of bear- ing in mind the different dates at which survivorship was abolished between them, is sliown by tlae case of ZoUman V. Moore, 21 Grat. 313. In this case, the father of the wife, by a deed of gift made in 1887, conveyed the land to B and F (husband and wife) and their heirs. B died in 1863, leaving F surviving him. F was advised by counsel that she was entitled to only one-half of the land, and that the other half descended to B's heirs; and so consented to a sale of the land, and a division of the purchase-money be- tween herself and her children. The land was sold to Zollman in 1863, and paid for in Confederate money. After the war, F filed a bill to set aside the sale to Zollman, she being then advised that, on the death of B, she was entitled to the whole land, instead of to one-half merely. Minn. Ins., 477): "It would seem that now, under the Code of 1887, in case of tenancy by entireties, the parties may separately aliene their respective shares." A question might possibly be raised, however, as to whether tenancy by entireties is embraced by the exception in § 2431, declaring that § 2430 shall not apply "to an estate conveyed or devised to persons in their own right, when it manifestly appears, from the tenor of the instrument, that it was intended that the part of the one dying should then belong to the others." In Hunt V. BlacTCburn, 128 U. S. 464, it is said by Fuller, C. J.: "Undoubtedly, at common law husband and wife did not take, under a conveyance of land to them jointly, as tenants in com- mon or joint tenants, but each became seised of the entirety, per tout et nan per my; the consequence of which was, that neither could dispose of any part without the assent of the other, but the whole remained to the survivor under the original grant. . . . But it was also true at common law that as, "in point of fact, and agreeable to natural reason, free from artificial de- ductions, the husband and wife are distinct and individual per- sons, . . . where lands are granted to them as tenants in common, thereby treating them without any respect to their so- cial union, they will hold by moieties, as other distinct and indi- vidual persons would do.' " 184 REAL PROPERTY. [Chap. 9 The bill was dismissed on the ground that a mistake of law will not be relieved against, certainly not as against a bona fide purchaser for value; and so F lost her land. Here P was clearly entitled to the whole land, and the advice of her lawyer was plainly erroneous. Por B and P were not joint tenants, but tenants iy entireties, and so survivor- ship as between them was not abolished by the statute taking effect July 1, 1787, which applied to joint tenants only. And as to the statute taking effect July 1, 1850, which did abolish survivorship between tenants by entireties of estates of inheritance, this had no application, not being retrospective, to a deed made in 1827. If the deed had been made after July 1, 1850, then P would have been entitled to one-half only of the land, and the other half would have descended to B's heirs, subject, however, to a right of dower in favor of P. The mistake of counsel may have been caused (1) By not distinguishing between joint tenancy, and tenancy by entireties; or (3) By not adverting to the fact that survivor- ship between tenants by entireties continued until July 1, 1850, in Virginia; or (3) By not examining the date of the deed, and supposing it was after July 1, 1850, or (4) By sup- posing that the act of July 1, 1850, was retrospective. But however occasioned, the result was the same, and the widow lost her land. III. Tenants in Common. § 155. Nature of Tenancy in Common. — Tenants in com- mon need have no unity but unity of possession, and that only in the sense of holding together, and not in severalty. 2 Bl. Com. (192); Carneal v. Lynch, 91 Va. 114. They differ widely from joint tenants in the nature of their seisin, which is not joint, but several. Each has seisin only of his part; and though that part is not in fact separate from the residue, yet in legal idea it is separate. Hence the mode of conveyance by one tenant in common to another is by livery of seisin, which each can make of his own part ; where- §§ 154-156] CO-TENANTS. 185 as joint tenants must release the one to the other, as we have seen. As to suits by tenants in common at common law, see 1 Tho. Coke, 777-782 ; Clarhson v. Booth, 17 Grat. 490. By Code Va. § 3256 : "Tenants in common may join or be joined as plaintiffs or defendants." At common law joint tenants must join and be joined.^ IV. Coparceners. § 156. Nature of Coparcenary.^ — Coparceners are those who have become entitled by descent as co-heirs. 2 Bl. Com. 'Creation of Tenancy in Common. — See 2 Bl. Com. (Sharsw. ed.) (180), n. 3, (192), n. 25, where it is said that in wills, the expressions "equally to he divided," "share and share alike," "re- spectively between and amongst," have been held to create a tenancy in common. And this is now true of these and similar expressions, not only in wills but also in deeds. 2 Min. Ins. (4th ed.), 467, 496; Freeman, Cot. & Part, §§ 23, 25; Skipwith v. Cabell, 19 Grat. 758, 787. It is highly important to decide, as to legacies or devises given to two or more by will, whether they take as joint tenants or tenants in common, in order to determine the effect of the death of one or more of the co-tenants in the lifetime of the testator. If they are tenants in common, each has a separate interest, and the death of any one before the testator causes a lapse of his share at common law (1 Jarman, Wills (340); Freeman, Cot. & Part. § 109), which now in Virginia, by C. V. § 2523, would pass to such tenant's issue, if he leaves issue who survive the testator. But it is otherwise if they are joint tenants. In Jarman on Wills, p. 340, the law is thus stated: "Where there is a devise or bequest to a plurality of persons as joint tenants (i. e., who are not made tenants in common), no lapse can occur unless all the objects die in the testator's lifetime; because as joint tenants take per my et per tout, or, as it has been expressed, 'each is a taker of the whole, but not wholly and solely,' any one of them existing when the will takes effect will be entitled to the entire property. Thus, if real estate be devised to A and B, or personal property be bequeathed to A and B, and A die in the testator's lifetime, B, in the event of his surviving the testator, will take the whole." See also 1 Jarman, Wills (353); 3 Lom. Dig. (112); Freem. Cot. & Part. § 28; 2 Min. Ins. (4th ed.), 1049. Is the doctrine above stated affected by Code Va. § 2430, 186 REAL PROPERTY. [Chap. 9 (187). Hence, only estates of inheritance can be held by tenants in coparcenary; whereas not only estates in fee simple or fee tail, but also for life or for years may be held in joint tenancy and in tenancy in common. The seisin of copar- ceners is to some extent joint, and to some extent several. Hence, one parcener may convey to another either by feoff- ment or by release. It must also be observed that Joint ten- ants and tenants in common always take by purchase, i. e., by act and agreement of the parties ; and in this they both differ from parceners who take by descent, i. e., by operation of law. It follows from this that in several respects the law as to joint tenants and tenants in common is the same, while a different rule prevails as to coparceners. '^ abolishing survivorship between joint tenants. It seems not. On the ground that the surviving joint tenant does not take the whole by survivorship from the other joint tenant (as the estate was never vested in both by the death of the testator), but he takes by the devise or bequest of the testator, whose intention it is, as shown by uniting their names, and making them potential joint tenants, that if the number of takers shall be lessened by death or otherwise (as if some, though living at the testator's death, cannot or will not take), the whole shall pass to the other, or others. See Freeman, § 28; 2 Min. Ins. 1049. ' Privitt Between Co-tenakts. — In Turner v. Sawyer, 150 U. S. 578, 586, it is said: "It is well settled that co-tenants stand in a certain relation to each other of mutual trust and confidence; that neither will be permitted to act in hostility to the other in reference to the joint estate, and that a distinct title acquired by one will enure to the benefit of all. . . . We think the gen- eral rule as stated in Bissell v. Foss, 114 U. S. 252, 259, should apply; that 'such a purchase' (of an outstanding title or encum- brance upon the joint estate for the benefit of one tenant in com- mon) 'enures to the benefit of all, because there is an obligation between them, arising from their joint claim and community of interest, that one of them shall not affect the claim to the preju- dice of the others.' " See Pillow v. Southwest Imp. Co., 92 Va. 144; Battin v. Woods, 27 W. Va. 58; Gilchrist v. BesmcTc, 33 Id. 168. And see the same doctrine laid down in Freeman, Cot. & Part., § 154. But in § 155 it is stated that the rule is not al- ways applicable to tenants in common. "Joint tenants, tenants §§ 156-158] CO-TENANTS. 187 Let US now consider, as to the several kinds of co-tenants, trespass, waste, account and partition. § 157. Trespass. — ^As a general rule, one co-tenant cannot be guilty of trespass against the other, because the possession is undivided, and each tenant has a right to enter upon any part of the land. But if the act of one co-tenant amounts to the destruction of the property, or to the ouster of his com- panion, then an action of trespass will lie against him. Free- man on Cot. and Part., §§ 298-303 ; Bigelow on Torts, 171 ; Stonestreet v. Doyle, 75 Va. 356. As to ejectment for the ouster of one co-tenant by another, see 50 Am. St. E. 843-45, note. § 158. Waste. — No tenant at common law is liable for waste to his co-tenant. The statute of 13 Ed. I., chap. 33, made joint tenants and tenants in common responsible for waste, but it did not extend to coparceners, on the ground that as they could compel partition, they could thus save themselves from injury. 3 Bl. Com. (194). In Virginia, however, it is enacted (Code, § 3776) : "If a tenant in com- by entirety, and coparceners," it is said, "always hold by and under the same title. Their union of interest and of title is so complete that, beyond all doubt, such a relation of trust and confi- dence unavoidably results therefrom that neither will be per- mitted to act in hostility co the interests of the other in refer- ence to the joint estate. Tenants in common, on the other hand, may claim under separate conveyances, and through different grantors. Their only unity is that of right to the possession of the common subject of ownersnip. . . . But an examination of the decisions clearly shows that tenants in common are not necessarily prohibited from asserting an adverse title. If their interests accrue at different times, and under different instru- ments, and neither has superior means of information respecting the state of the title, then either, unless he employs his co-ten- ancy to secure an advantage, may acquire and assert a superior outstanding title, especially where the co-tenants are not in joint possession of the premises." And see this exception as to ten- ants in common, under some circumstances, recognized in Turner V. Sawyer, 150 U. S. 576; but it was held inapplicable in that case. 188 REAL PROPERTY. [Chap. 9 mon, joint tenant, or parcener commit waste, he shall be liable to his co-tenants jointly or severally for damages. § 159. Account. — At common law, although one co-tenant took the whole profits, no action of account lay against him, unless the receiving co-tenant had been made their bailiff by his companions. See 2 Bl. Com. (183-'84) ; 1 Tho. Coke (787). But to remedy this defect of the common law, the statute of 4 and 5 Anne, ch. 16, gave an action of account in favor of one joint tenant or tenant in common against another "for receiving more than comes to his just share and propor- tion." And the Va. Code, § 3294, is to the same eiiect. But neither the English nor the Virginia statute mentions copar- ceners; the action of account is given to joint tenants and ten- ants in common only. But equity has always entertained a bill for account by one coparcener against another; and such bill may also be filed by a joint tenant or tenant in common. Early v. Friend, 16 Grat. 21; 2 Min. Ins. (4th ed.), 506.^ ^Accounting by Parceners. — In Fry v. Payne, 82 Va., 759, it is assumed, without discussion, that Code of Va., § 3294, giv- ing an action on account to join tenants and tenants in common, extends to parceners. But in Ward v. Ward, 40 W. Va., 611 (52 Am. St. R., 911), there is an elaborate examination of the ques- tion, and the conclusion is reached that the West Virginia Statute (same as that in Virginia) does not embrace parceners, and that they cannot, even in equity, demand an account of use and occu- pation; the reasoning of Prof. Minor (2 Min. Ins., 506) being dis- approved. But in note to Ward v. Ward (52 Am. St. R.), 930, it is said: "No opinion other than that in the principal case, has, so far as we can ascertain, considered whether the statute of Anne and similar enactments apply to parceners. It is true that they are not mentioned in the statute, but the wrongs it was In- tended to redress apply to them as well as to other co-owners, and we should be much surprised at a decision holding that a co- parcener receiving the entire rents of the common property was under no obligation to account therefor; and yet the liability to account for rents received, where the one party has not collected them as bailiff or agent of the other, is dependent on the statute." See also Ward and Ward, and note thereto (52 Am. St. Rep. 934- 941), for a discussion of the subject of the liability of one co- §§ 158-161] CO-TENANTS. 189 § 160. Receiving More than Comes to His Just Share and Proportion. — These words occur in the English statute giv- ing to joint tenants and tenants in common a right to bring action of account. A question arose in England in Henderson Y. Eason, 79 E. C. L. E., 701, as to the meaning of "receiv- ing," and it was held that the co-tenant was bound to account when he receives money or something else which a third per- son gives or pays for the use of the common property, and of which such tenant retains more than his just share or propor- tion ; and that the statute does not render a co-tenant account- able who occupies a house owned in common, or who occupies and cultivates the common land; as such tenant merely oe- ■ cupies and enjoys, taking the profits to himself, but not receiv- ing them from a third person. The result is that one co- tenant cannot, under the statute, any more than at common law, keep out of the possession, and make the other who occu- pies accountable to him. But if neither occupies, and one re- ceives from a third person in possession more than comes to his just share and proportion, the one receiving must account to the other for the other's share. And this construction of "re- ceiving" is followed in many of the American States. See 52 Am. St. E., 934-934, where all the cases are collected, and a preference is expressed for the English rule, except when the occupying tenant has been guilty of the ouster of his fellow tenant. § 161. Receiving More than His Just Share and ProporT tion in Virginia. — The statute of Anne containing these words was re-enacted in Virginia before the decision of Hen- derson V. Eason, supra, which decision was, therefore, not tenant to another for expenditures made upon their common prop- erty. It is there said: "For expenditures made upon the com- mon property, we doubt whether there is any instance in which one co-tenant can be held personally answerable to another, in the absence of an agreement, either made in direct terms, or implied from the conduct of the parties, and the attendant cir- cumstances." 190 REAL PROPERTY. [Chap. 9 binding on the Virginia court. See Parramore V. Taylor, 11 Grat. 220. The question as to what is meant by "receiving" arose in Virginia in Early v. Friend, 16 Grat., 21, and the court declined to follow Henderson v. Eason, and construed the word "receiving" as follows : "Whenever the nature of the property is such as not to admit of its use and occupation by several, and it is held and occupied by one only of the tenants in common, or whenever the property, though capable of use and occupation by several, is yet so used and occupied by one as to exclude the others, he receives 'more than his just share and proportion,' in the meaning of the statute, and is account- able to the others." And the same construction is adopted in West Virginia and many other states. Ward v. Ward, (W. Va.), 52 Am. St. E., 911, and monographic note; McGalian V. Banh, 156 U. S., 218, 236, a case arising under the law of South Carolina. But even under the Virginia rule it is possible for one co- tenant to receive profits from the common property without being liable to account to the others. For such tenant has a right to occupy the common property, though not to the ex- clusion of the others. But the occupation of one does not necessarily exclude the others; and when it does not exclude them, they cannot, by voluntarily remaining out of possession, hold him responsible. Thus, if there are two houses of equal value, and one of two co-tenants occupies one house, leaving the other to his companion ; or if there should be large estates or extensive mines held in common, and one cultivates or mines a part of the property only; in neither of these cases would the occupying tenant be accountable to the other. But if there were but one small house, and one tenant occupied it all with his wife and children ; or if there should be a hotel or furnace; the occupation by one would be in its nature exclu- sive, and he would be held to account to the other or others. As to the mode of accounting, whether for actual profits less expenses, or for an annual rent, see Ruffners v. Lewis, 7 Leigh, 720; Graham v. Pierce, 19 Grat., 28; Newman v. Newman, 27 §§ 161-162] CO-TENANTS. 191 Grat., 714; White v. Stuart, 76 Va., 546; Fry v. Payne, 83 Va., 759; Dodson v. Hays, 29 W. Va., 578; 52 Am. St. E., 931, 934. § 162. Partition. — Parceners only at common law could compel partition; but joint tenants and tenants in common could not do so until the statute of 31 Henry VIII. The reason of this diversity at common law was that as parceners held together by operation of law {i.e., by descent as co-heirs), it would have been unjust to compel any one of them to so hold against her will (parceners at common law were females only) ; but as joint tenants and tenants in common became so by their own act (or, at least, acceptance), the law would not allow a relation entered into by mutual consent to be termi- nated except by mutual consent. Holding in severalty, how- ever, is so much more beneficial to all parties that it is now the policy of all legislation to encourage and facilitate partition. And by Code Va., § 2562, amended by Acts, 1897-'98, c. 452, p. 488 : "Tenants in common, joint tenants, and coparceners shall be compelled to make partition; and a lien creditor or [of] any owner of undivided estate in real estate may also compel partition for the purpose of subjecting the estate of his debtor, or the rents and profits thereof, to the satisfaction of his lien. Any court having general equity jurisdiction of the county or corporation wherein the estate or any part there- of is, shall have jurisdiction in cases of partition; and in the exercise of such jurisdiction may take cognizance of all ques- tions of law afEecting the legal title that may arise in any proceedings." As to the right of a lien creditor to compel partition, the statute settles a doubt. See 2 Va. Law Reg., 423. That the provision of .the statute giving to a court of equity in a suit for partition authority to take "cognizance of all questions of law afEecting the legal title" is constitutional, see Pillow v. Southwest Improvement Co., 92 Va., 144. For an instance of the exercise of this jurisdiction, see Bradley v. Zehmer, 82 Va., 685. See also Moore v. Harper, 27 W. Va., 362; Hinton v. Bland, 81 Va., 588. That a Virginia court 192 REAL PROPERTY. [Chap. 9 has no jurisdiction to decree partition of land lying in another state, see Wimer v. Wimer, 83 Va., 890; Pillow r. Southwest Improvement Co., 92 Va., 144; 1 Va. Law Eeg., 673, note by Judge Burks. § 163. Partition in Equity. — The mode is for the court to appoint commissioners who enter on and survey the estate, and make a return to the court. The return, if satisfactory, is confirmed by the court. The confirmation, however, did not, like a judgment on the common law writ of partition — "that the partition remain firm and stable forever" — operate on the legal title to the land so as to divest the parties of their undi- vided shares, and invest them with their respective allotments. Gay V. Parpart, 106 TJ. S. 679, 691; Langdell Eq. PI. (2d ed.), § 43, n. 4. The partition, therefore, required to be per- fected by mutual conveyances made by the co-tenants in pur- suance of the decree. See Boiling v. Teel, 76 Va. 487; Bis- pham's Eq., §§ 490-493; Freeman, Cot. and Part., § 396, § 427. But to avoid the necessity for mutual conveyances, the Code of Va., § 2565 enacts : "A decree heretofore or here- after made, confirming any partition or allotment in a suit for partition, shall vest in the respective parties, between or to whom the partition or allotment is made, the title to their shares under the partition, in like manner and to the same extent as if the said decree ordered such title to be conveyed to them, and the conveyance was made accordingly."^ ^Peocedtjrb on Paetition. — In Broolcs v. Huihle (Va.), 27 S. E. 585, it Is said: "It seems to be well settled that by the com- mon law coparceners could make partition of their land by parol as well as by deed; and that this was the law in this State until changed by § 2413 of the Code of 1887. Jones' Devisees v. Carter, 4 Hen. & M. 190; Boiling v. Teel, 76 Va. 487; Yancey v. Radford, 86 Va. 638; 1 Lom. Dig. 494, and 2 Min. Inst. 439." By § 2413 of Code Va., it is declared that no voluntary partition of land by coparceners shall be made except l)y deed. As to who may maintain suit for partition, it is said in Carneal V. Lynch, 91 Va. 114, 119: "We are, therefore, of opinion that un- der the statutes of Virginia [C. V., §§ 2432, 2562], as well as upon §§ 162-164] CO-TENANTS. 193 § 164. Sale, Instead of Partition in Kind. — It was for- merly held, even in equity, that the difficulty of making parti- tion in Tcind was not sufficient to justify the court in refusing to make it, and that if the parties did not agree to waive par- tition in kind, it was an absolute right, though the result might divide a single house or mill between two or more. The precedent, a tenant for life in one moiety of property may main- tain a suit against those who own the estate in remainder of the said moiety, whether in esse or not, and the fee-simple owners of the other half, and compel partition of said property; and if not susceptible of partition in kind, may have a sale and division of the proceeds." As to owelty (equality) of partition, see Freeman, Cot. and Part., § 507, where it is thus defined: "When an equal partition cannot be otherwise made, courts of equity may order that a cer- tain sum be paid by the party to whom the most valuable prop- erty has been assigned. The sum thus directed to be paid to make the partition equal is called owelty." For an example of owelty, see Jameson v. Rixey (Va.), 26 S. E. 861, where it is said: "A lien for owelty of partition partakes of the nature of a vendor's lien, and constitutes a prior encumbrance upon the land on which it is charged, and follows the land into whosesoever hands it may come." And see Martin v. Martin (Va.), 27 S. B. 810, where it is held that in partitioning lands which are incapable of exact or fair division, a court of equity has power to charge one portion with an easement in favor of another portion, to make the parti- tion equitable. As to improvements put by one co-tenant on the common prop- erty, it is held in Ballou v. Ballou (Va.), 26 S. B. 840, that when a co-tenant has improved the property at his own expense, equity will not grant partition without directing an account and suit- able compensation for the improvements. And it is not necessary for the improving tenant to show the assent of his co-tenants to such improvements, nor a promise on their part to contribute their share of the expense, nor a request by him to join in the improvements, and their refusal. But this is an equity which arises in the suit for partition. No action of assumpsit can be brought under the above circumstances to recover any part of the cost of the improvements from the other tenants. See Free- man, Cot. and Part., § 510; Ward v. Ward (W. Va.), 52 Am. St. R. 911, and 938-941, note. 13 194 REAL PROPERTY. [Chap. 9 court could not order a sale and a division of the proceeds. The doctrine of partition in kind, as has been well said, was applied "disastrously to the interests of all parties, but in magnanimous vindication of their rights." 2 Minor's Ins. 421. But now in England, by statute, a court of equity may order a sale of property instead of partition. 31 and 33 Vict, eh. 40. And this is now the law in the United States gener- ally. By Code Va. § 2563 : "Any two or more of the parties, if they so elect, may have their shares laid off together, when partition can be conveniently made in that way." And by § 2564 : "When partition cannot be conveniently made, the en- tire subject may be allotted to any party who will accept it, and pay therefor to the other parties such sums of money as their interests therein maj' entitle them to ; or in any case now pending, or hereafter brought, in which partition cannot be conveniently made, if the interests of those who are entitled to the subject or its proceeds will be promoted by a sale of the entire subject, or allotment of part, and sale of the residue, the court, notwithstandiag any of those entitled may be an infant, insane person, or married woman, may order such sale, or such sale and allotment, and make distribution of the pro- ceeds of the sale, according to the respective rights of those entitled, taking care, when there are creditors of any deceased person who was a tenant in common, joint-tenant, or co-par- cener, to have the proceeds of such deceased person's part ap- plied according to the rights of such creditors." For further provisions, reference is made to the statute.^ '■ Sale Instead of Pabtitiox. — In Roberts v. Coleman, 37 W. Va. 143, 157, it is said by Brannon, J., with reference to the West Virginia statute (same as that of Virginia): "By common law partition must be in kind, however inconvenient. By statute in- troduced into the Code of Virginia of 1849, this inconvenience was remedied by the provision that in any case 'in which par- tition cannot conveniently be made, if the interests of those who are entitled to the subject, or its proceeds, will be promoted by a sale,' etc., a sale may be decreed. Such is our Code of 1887 (eh. 79, § 3). Now, remembering that the common law gave right to §§ 164-165] CO-TENANTS. 195 § 165. Hotchpot. — This is a matter of great importance under the American statutes. We shall discuss the subject in connection with the Virginia statute (Code, § 3561), which is as follows : "Where any descendant of a person dying intes- tate as to his estate, or any part thereof, shall have received from such intestate in his lifetime, or under his will, any estate, real or personal, hy way of advancement, and he, or any descendants of his [see C of man v. C of man (W. Va.), 33 S. B. 523] shall come into the partition and distribution of the estate, with the other parceners and distributees, such advance- ment shall he brought into hotchpot with the whole estate, real and personal, descended or distributable, and thereupon such party shall be entitled to his proper portion of the estate, real and personal." The effect of this statute is to ex- tend the doctrine of hotchpot almost as far as it could be carried. Biedler v. Biedler, 87 Va. 300. have partition in kind, and this statute, being an innovation upon the common law, and, taking away from the owner the right tO' keep his freehold in kind, to justify a sale in any case it must, come within the statute, and it must appear In some way by the record both that partition cannot be conveniently made, and that, the interests of the owners will be promoted by sale. Such is the letter of the statute. I think so, as did Judge Staples in ZirTcle V. McCue, 26 Grat. 532." And see Casta v. Kintzel, 27 W. Va. 750.. As to the method of ascertaining in a suit for partition whether or not the land can be conveniently divided, it is said in Stevens V. McOormiok, 90 Va. 735: "The appellants insist that the usual and correct practice is to appoint not less than five commission- ers to go upon the land, any three of whom may act, and to re- port their views on the subject to the court. This was not done in the present case, but the matter was referred to a master, whose report was confirmed. In Zirkle v. McCue, 26 Grat. 532, Judge Staples speaking for the court said that to warrant a de- cree for a sale, it must appear that partition cannot be conveni- ently made, and that the interests of the parties will be promoted by a sale, but that these facts need not appear from the report of commissioners, or by the depositions of witnesses. It is sufli- cient, he added, if the facts appearing in the record reasonably warrant the decree of sale. In other words, the matter of pro- cedure is left to the discretion of the court." 196 REAL PROPERTY. [Chap. 9 § 166. What is an Advancement ? — "The true notion of an adyancement is the giving by anticipation of the whole or a part of what it is supposed the child would be entitled to on the death of the parent." Chinn v. Murray, 4t Grat. 438; Dame v. Lloyd, 82 Va. 859 ; 27 Am. St. E. 748, note. It is an anticipatory gift by way of advancement to the child, to he accounted for by Mm at the father's death, in the distribu- tion of his estate, in order that all the children may then receive equal shares. An advancement differs from a pure gift in that it is to be deducted hereafter in estimating the receiver's portion of the giver's estate, and it differs from a debt in that the receiver need not account for it if he chooses to allow the residue of the property to go to the other heirs or distributees. § 167. What is the Evidence that a Gift is by Way of Ad- vancement? — This a question of intention. The character of the gift should be such as to show that it is really antici- patory, and that in making it the father has in mind the final division of his- property. It is usually by way of portion on marriage, or to set up in business. But it seems that any gift to a child, whether of land or money, to a large amount, is presumed prima facie to be an advancement, though it may be shown that it was not so intended. Watkins v. Young, 31 Grat. 84; McDearman v. Hodnett, 83 Va. 281; McOlanahan V. McClanahan, 36 W. Va. 34; Roberts v. Coleman, 37 W. Va. 143 ; 40 Am. St. E. 539, note. But on the other hand, money expended in the maintenance and education of a child is not to be deemed an advancement, unless it clearly appears that such was the parent's intention. Kor are mere presents, In Turner v. Dawson, 80 Va. 841, it is held that when a court of equity causes land to be sold for partition, the person entitled to the proceeds, if sui juris, may elect to hold them as realty or personalty; but that if such person does not elect, or is not sui juris, and so is Incapable of electing, the court will consider the proceeds as realty, and subject, as to succession and marital rights, to the rules of law governing real estate. §§ 166, 167] CO-TENANTS. 197 such as money, a gold watcli, a horse, etc., to be considered advancements; nor permissive. and precarious benefits. Rid- dle's Estate, 19 Pa. St. 43 ; Edwards v. Freeman, 2 P. Wms. 436; Williams v. Stonestreet, 3 Band. 559; 1 Tuck. Com. Book 3, 181. Por full discussion, see Miller's Appeal, 40 Pa. St. 57; S. C. 80 Am. Dec. 555, and note 559-566; also see Gregory v. Winston, 23 Grat. 103; Lewis v. Henry, 38 Id. 193; Biedler v. Biedler, 87 Va. 300; Moorman v. Crockett, 90 Va. 155 ; Brock v. Brock, 93 Va. 173 ; Brock v. Latimer (Kansas), 31 Am. St. E. 393.^ ^GiFT BY Wat of Advancement. — When a child has received from his father a sum of money, it may have heen a loan, by which a deht was incurred to the father; a gift by way of ad- vancement; or a pure gift, involving neither the obligation of payment, nor the necessity of bringing into hotchpot as the con- dition of sharing in the -post mortem distribution of the father's estate. As between a loan, a gift, and an advancement, the pre- sumption is said to be in favor of an advancement, because of its tendency towards that equality of distribution among the children which is presumed to have been intended. Patterson's Appeal, 128 Pa. St. 269 (27 Am. St. R. 748, note). In BrocTc v. Latimer (Kansas), 21 Am. St. R. 292, it is held that an absolute promise in the form of a note to pay a certain sum of money, given by a child to a parent, may be shown by parol evidence to be intended between the parties to it as a mere receipt or memorandum to show that the parent has made an advancement of that amount to the child, and that it was the intention of the parent that it should never be collected. And in Dame v. Lloyd, 82 Va. 859, It is held that what was in its inception a loan may be subsequently converted by will into an advancement. The court says: "A tes- tator can dispose of his estate by will just as effectually as he could by gift during his life, and, if he pleases, turn a loan into an advancement, or, to speak more accurately, require that it may be treated as an advancement." And see Moorman v. Crock- ett, 90 Va. 185. But, on the other hand, an advancement is an ir- revocable gift, and a donor cannot change what was an advance- ment into a debt or trust. See 21 Am. St. R. 292, 295, and cases cited; 80 Am. Dec. 564, note; 1 Am. & Eng. Ency. Law (2d ed.) 780. In Bruce v. Slemp, 82 Va. 353, it is held that a gift by a father to his daughter's husband during coverture is deemed an ad- 198 REAL PROPERTY. [Chap. 9 § 168. To Whom, and by Whom, Can an Advancement be Made ? — The language of the Virginia statute is : "When any descendant of a person dying intestate," etc. It follows, therefore, that the person alvanced must be a descendant of the person advancing; and that only a lineal ancestor can make a gift by way of advancement, and not a son to his mother, nor a brother to his sister, etc. But "descendant" is equivalent to "issue," and includes grandchildren, etc., as well as children. But in some of the states, advancements are confined to children. 4 Kent's Com., 419. § 169. What Property Can be Given by Way of Advance- ment; and With What Property Shall it be Brought into Hotchpot? — This will depend upon the statutes. The Vir- ginia statute answers both questions by saying, "any estate, real or personal." This makes hotchpot indeed, "not one thing alone, but one thing with other things together." For the common law, see 2 Bl. Com. (515). § 170. For Whose Benefit is Property Brought into Hotch- pot? — If a man dies leaving a widow and several children, one of whom he has advanced in his lifetime, and such child brings the advancement into hotchpot, this will increase the shares of the other children, but not that of the widow, who takes her share as distributee in the estate of the intestate of which he died possessed, and who has no interest whatever in the advancement. See Knight v. Oliver, 13 Grat., 33; Per- singer v. Simmons, 25 Id., 338 ; 80 Am. Dec. 559, et seq. § 171. As at What Time is the Advancement Valued? — The rule is that advancements are valued at the date of the gift, and not as at the death of the ancestor. And the person advanced cannot be charged, in estimating the amount of the vancement to the daughter; and this is again decided in MoDear- man v. Hodnett, 83 Va. 281, where it is held that the Married Woman's Act (Acts 1876-77, p. 333) does not affect the doctrine. See 80 Am. Dec. 561, note. §§ 168-172] CO-TENANTS. 199 advancement, with interest on money, or with rents and profits of land, from the date of the gift to the death of the ancestor. But on the other hand, he is chargeable with the value at the date of the gift, although the property before the ancestor's death has greatly diminished in value, or even perished alto- gether; and interest may be charged on an advancement from the ancestor's death to the time of division or distribu- tion. See Puryear v. Cabell, 34 Grat., 260; Cabell v. Puryear, 27 Id., 902 ; Barrett v. Morris, 33 Id. 273 ; West v. Jones, 85 Va., 616 ; Kyle v. Conrad, 25 W. Va., 760 ; 1 Am. & Bng. Ency. Law (2nded.), 783. § 172. Has the Person Advanced His Election to Come into Hotchpot? — Undoubtedly, but if he does not come in, he is debarred from claiming any part of the property of which the ancestor died seised or possessed ; he must allow the other heirs or distributees to take it all. It is, therefore, a question of calculation in order to decide whether the child advanced should come into hotchpot, or let well enough alone, and stay out. If, for example, a man dies leaving three sons, and an estate worth $50,000, and the eldest son has been advanced $10,000, he would come in, and thereby get $10,000 more. But if the advancement was $20,000, and the residue of the estate only $10,000, if the eldest son came in he would lose $10,000. In such a case, therefore, he would choose not to come into hotchpot. 1 Am. & Bng. Ency. Law (2nd ed.), 785, note 7. CHAPTEE X. EEMAINDEES. § 173. Definition of Remainder. — "A remainder is a resi- due of an estate in land, depending upon a particular estate, and created together with the same." 2 Tho. Co. (126). In order that there may be a remainder, there must be a particu- lar estate upon which it may depend; hence, a freehold to commence in futuro is no remainder, and is void at common law. But by "residue" it is not meant that every remainder must be of all the estate or interest of the feoSor remaining in him after parting with the particular estate ; for any num- ber of remainders for years, for life, or in tail, may be created, and yet the feofEor retain the reversion in fee simple. By the words "created together with the same" a remainder is dis- tinguished from the grant of a reversion. For if A, seised in fee, conveys land to B for life, and afterwards grants the fee simple to C, this is not the creation of a remainder in C, but the assignment to him of the reversion. See 1 Bl. Com. (164), (175) ; Wms. E. P. (17th ed.) 386; 2 Min. InS. (4th ed.) 390-94; Pearne on Eemainders, (3), note (c). § 174. The Two Kinds of Remainders. — Eemainders are either vested or contingent. Blackstone thus defines them: "Vested remainders (or remainders exceeded, whereby a pres- ent interest passes to the party, though to be enjoyed in futuro) are, where the estate is invariably fixed, to remain to a determinate person after the particular estate is spent. . . . Contingent or executory remainders (whereby no pres- ent interest passes) are where the estate in remainder is limited to take effect, either to a dubious and uncertain per- son, or upon a dubious and uncertain event." 2 Bl. Com. 200 g§ 173, 174] REMAINDERS. 201 (168-'69). These definitions are believed to be accurate, unless, in the definition of a vested remainder, by the words "where the estate is invariably fixed," it is intended that a vested remainder cannot be limited to be defeated by a condi- tion subsequent. That a vested remainder may be thus de- feated, see Gray, Rule against Perpetuities, § 103. It must be remembered that a remainder contingent in its creation may, by after event, become vested prior to the time of its taking effect in possession; and that if the remainder be less than the fee simple, it may expire by limitation during the continuance of the particular estate. So that in considering a remainder we must assume that it still exists as a remainder, and we must judge of its character as vested or contingent under the facts as they were at the moment that the question arises. Bearing this in mind, a vested remainder may be defined as follows: A remainder is vested when it is sub- ject to no condition precedent, and is always ready, during its continuance, to come into the possession of a certain per- son, already existing and ascertained, on the determination of the particular estate, now or hereafter, in any manner whatsoever. And any remainder not so ready is contingent.' ^ Definition of Vested and Contingent Remainders. — See in substantial accord with the above definition of a vested remainder, 20 Am. & Eng. Ency. Law, 838; Gray, Rule against Perpetuities, §§ 101-108; 2 Min. Ins. (4th ed.) 396. It will be observed that the definition requires that the remainderman, at the time the ques- tion arises, should already be in existence and ascertained; and it is not enough, in order to consider the remainder now vested, that he will become ascertained at the moment the particular es- tate ends and the possession becomes vacant. Thus there are cases where the same event that ends the particular estate ascer- tains the remainderman; and whenever the possession becomes vacant there will then be a certain person ready to take posses- sion; as in the limitation. To A for the life of B, remainder to the heirs of B, or To A and B for life, remainder to the survivor and his heirs. Here the remainder will vest and come into pos- session eo instanti on the death of B in the one case, or the sur- vivorship of A or B in the other; but meanwhile it remains con- 202 REAL PROPERTY. [Chap. 10 § 175. The Three Great Rules for Hemainders. — It is im- portant to remember that remainders proper are governed by the rigid rules of the common la^^', which are based on feudal principles. No estate of freehold could be created except by a livery of seisin, a ceremony corresponding to the feudal investiture, and intended to give publicity to the transfer of land. And the seisin could never be in abeyance, for the law was jealous that there should always be a tenant of the free- hold to whom the lord might have recourse for rents and services. Hence originated these rules as to the seisin, which tingent, because, as yet, there is no "determinate person" in whom "the estate is invariably fixed"; for nemo est Uceres viventis, and who can now tell whether A or B will be the survivor? A test suggested by Prof. J. Randolph Tucker will clearly show that these remainders are contingent, viz.: Is the remainderman a person to whom you could give livery of seisin now, if his estate were present and not future? How could livery be made to the heirs of B while B is living, or to the survivor of A and B while both are alive? And see Tiedeman, Real Prop., § 397, note 2, where it Is said that a reliable test of a vested remainder Is "the present capacity [of the grantor] to convey an absolute title to the remainderman." See Chapman v. Chapman, 90 Va. 410. For the reasons above stated, Fearne's test of a vested remain- der, viz.: "The present capacity of taking effect in possession, if the possession were to become vacant" (Fearne, 216), is open to exception in omitting to add, after "taking effect in possession," the words "of an already existing and ascertained person"; but the whole tenor of his discussion of remainders shows that this was intended. And the same criticism may be made on the defi- nition of Williams, (though it is believed to be a verbal inac- curacy only) : "If any estate, be it ever so small, is always ready, from its commencement to its end, to come into possession the moment the prior estates, be they what they may, happen to de- termine, it is then a vested remainder," meaning, no doubt, "ready to come into the possession" of a person already in existence and ascertained. Wms. R. P. (17th ed.) 397. In 20 Am. & Eng. Ency. Law (1st ed.), p. 841 the importance of adding to the definition of a vested remainder the requisite that, at the time of inquiry, the remainderman shall be already in existence and ascertained is thus stated: "The fact that the remainder from the very instant of its creation is capable of § 175] REMAINDERS. 203 underlie the whole doctrine of remainders (Wms. E. P. (17th ed.) 416) : (1). On the creation of any estate of freehold, whether in possession or in remainder, the seisin must pass out of the feoffor. (2). The seisin must always have a homej i. e., there taking effect in possession or enjoyment at any moment the pos- session or enjoyment may become vacant by the determination of the particular estate does not, as is frequently asserted, neces- sarily show that it is vested; nor yet is it quite accurate to say that 'when it is certain that the remainder may take effect in pos- session on the determination of the preceding estates of free- hold at whatever time and however early and by whatever means these estates may determine' (1 Preston, Estates, 79), the re- mainder must be considered as vested. Thus if an estate be lim- ited to two for life, remainder to the survivor of them in fee, the remainder is contingent, for until one of them die, it is uncertain which will be the survivor (Pearne, Cont. Rem. 9), or if land be limited to A for life, remainder to 'such of his children as shall be living at his decease,' each child has but a contingent re- mainder during A's life, since until his death it is impossible to tell which of the children will answer the description; and yet inasmuch as under both these limitations the person or persons who are to take are ascertained immediately on the determination of the particular estate, the remainders may well be said to be capable of taking effect in possession or enjoyment at any mo- ment the possession or enjoyment may become vacant by the death of the life tenant, knd may even be said to be certain to take effect on that event, unless the remainderman predecease the life tenant." Another example of what is a contingent re- mainder, but which, by the language of the definition of Fearne and Williams, might seem vested is. To A for life, remainder to the heirs of A, supposing the rule in Shelley's Case abolished, and that the particular estate can end only by the death of the tenant for life, and not by his forfeiture in his lifetime. But see as to this example, Moore v. Littell, 41 N. Y. 66, and § , infra, note; Croxall v. Shererd, 5 Wall. 268, 288. In 20 Am. & Eng. Ency. Law, p. 840, this definition is given of a contingent remainder: "A remainder is contingent when it is so limited as to take effect to a person not in esse, or not ascer- tained, or upon an event which may never happen, or may not happen until after the determination of the particular estate." It 204 REAL PROPERTY. [Chap. 10 must always be a tenant of the freehold in whom the seisin may vest and reside. (3). If at any time the seisin happens to be left without a home, it immediately returns to the feoffor from whom it passed out. And in that case all limitations dependent on the seisin are annulled and destroyed. All the rules usually laid down as governing remainders are corollaries of {i. e., deduci- ble from) the three rules above given. § 176. Eules for Remainders Deduced from the Three Great Rules. (1). A contingent remainder of freehold must vest, if at all, during the continuance of the particular estate, or eo instanti (at the very instant) that it determines (ends). This is because the seisin must have a home. Thus, let a feoffment be made by the lord (say X), "To A for life, re- mainder to the heirs of B." Now, suppose A dies before B. Then at A's death the seisin is without a home, as A can no should be borne in mind, however, that the courts favor the vest- ing of estates, and will not hold remainders to be contingent if it is possible to consider them as vested. And for this reason, as is said by Tiedeman (Real Prop., § 401, note 2) : "Very often a remainder will be construed to be a vested estate upon a condi- tion subsequent, liable to be divested by the happening of the contingency, rather than declare it to be a contingent remainder," as it would be if the condition were precedent. See Gray, Rule against Perpetuities, §§ 102-106; also Moore v. Littell, 41 N. Y. 66; Kelso v. Lorillard, 85 N. Y. 177; Avery v. Everett, 110 N. Y. 317; Thaw v. Ritchie, 136 U. S. 519. For cases In which the court was called on to decide as to the character of a remainder whether vested or contingent, see Wal- lace V. Minor, 86 Va. 550 (quwre as to the Rule in Shelley's Case) ; Gish V. Moormaw, 89 Va. 345; RoMnson v. RoMnson, lb., 916; Chapman v. Chapman, 90 Va. 409; Crews v. Hatcher, 91 Va. 378; Wilson V. White, 109 N. Y. 59; McArthur v. Scott, 113 U. S. 340, 378; Miller v. Texas, etc., R. Go., 132 U. S. 662; Tham v. Ritchie, 136 U. S. 519; In re Deighton's Settled Estates, 2 Ch. D. 783; Cunliffe v. Brancker, 3 Ch. D. 393. §§ 175, 176] REMAINDERS. 205 longer hold it, and the heirs of B, who is alive, have no exist- ence ; nemo est hmres viventis. Hence the seisin returns to X, the feoffor, and the limitation to the heirs of B is annulled and destroyed. In other words, the remainder to the heirs of B is contingent; and as it does not vest during A's life, nor at the moment A dies, it can never vest at all, and so fails altogether. 2 Bl. Com. (Cooley), 168 n. (6). (2). A contingent remainder of freehold requires a parr •ticular estate of freehold to support it. This is because the seisin must pass out of the feoffor, and must be able to find a home when it goes out. Thus, "To A for life, remainder to the heirs of B." Here the contingent remainder to the heirs of B is well limited, because the seisin finds a home in A, the tenant of the particular estate, who has a freehold, and so can take and hold the seisin. But if the limitation were "To A for ten years, remainder to the heirs of B," the remainder would be void db initio; for there is no home pro- vided for the seisin. A cannot hold it, for his estate is not freehold; B cannot take it, because it is not given to him, but to his heirs; and the heirs of B cannot take it, because while B lives his heirs are not in existence. Hence the seisin, for want of a home elsewhere, returns to the feoffor; and so the remainder to the heirs of B never takes effect. The remainder to the heirs of B was a contingent remainder of freehold (in fee-simple indeed), and did not have a freehold support, as the rule requires. Cunliffe v. BrancTcer, 3 Ch. D. 393, 399. (3). A vested remainder of freehold does not require a freehold support; i. e., it need not be preceded by a freehold particular estate. Thus, "To A for ten years, remainder to B and his heirs." Here B's remainder is vested, and well lim- ited. The remainder is to B in fee-simple (the word heirs being a word of limitation), and nothing is given to the heirs of B. In this case the seisin is received by A as the ten- ant in possession, but it immediately enures, or passes to B by virtue of his having the freehold. B is a certain living 206 REAL PROPERTY. [Chap. 10 person in whom the seisin can vest and reside, and the re- mainder is well limited. (4). A contingent remainder not of freehold does not re- quire a freehold support. Thus, "To A for ten years, re- mainder to the heirs of B for twenty years." The contingent remainder to the heirs of B is well limited. For the remaind- er is not freehold, and the seisin does not need to pass out of the feoffor ; and so it does not need to find a home in either A or the heirs of B, and the remainder is good because it is not dependent on the seisin. § 177. Examples of Vested Remainders. (1). To A for life, and after A's decease, remainder to B and his heirs. Doe v. Considine, 6 Wall. 458. (2). To A and the heirs of his body, remainder to B and his heirs. (3) . To A for life, remainder to B for life, remainder to C for life, remainder to D for life, etc., remainder to Z for life. Here all the life estates in the remainder are vested. It may be thought that Z has a very slight chance to outlive all of the preceding life tenants, and take possession of the land. This is true, but a remainder is none the less vested, because the chances are against its ever taking effect in possession. For, in referring to the definition of a vested remainder (§ 1741,SMpra),we see that Z is & certain person, ready to take possession of the land if the possession should become vacant in any way whatsoever, as by the death or forfeiture of all the preceding life tenants. It is true Z may die first of all, and so would never take possession; but Z's death ends his life estate, and there is no further question as to its being vested or contingent. While Z lives, however, i. e., during the con- tinuance of his estate, the remainder to him is always ready to come into the possession of a certain person, to-wit : Z, if the possession should become vacant, and this makes the re- mainder to Z a vested remainder. Crews v. Hatcher, 91 Va. 378. §§ 176-178] REMAINDERS. 207 § 178. Fearne's Four Classes of Conting-ent Remainders. — Fearne defines a contingent remainder (p. 3) as a remain- der limited so as to depend on an event or condition which may never happen to be performed, or which may not hap- pen or be performed until after the determination of the preceding estate. He then distributes remainders into these four classes : (1). When the remainder depends entirely upon the con- tingent determination {i. e., uncertain ending) of the par- ticular estate itself. Here the particular estate may end in either one of several ways, but the remainder is to take effect in possession if the particular estate ends in one of these ways, and not if it ends in any other. The remainder is therefore contingent, because it is not ready to come into the possession of a certain person when the particular estate ends in any way whatsoever, as is required by the definition given above. For example: "To A until B returns from Eome; and on B's return, to C and his heirs." Here A's estate has a double limitation, and is to end on A's death or B's return, whichever happens first. But C is to take on B's return, and not on A's death. Meanwhile A's estate is liable at any time to end in either of two ways, and yet C cannot take in whatever way it ends. It may end by A's death, and then C takes nothing. Hence by definition above, C's remainder is contingent. Fearne (5), n. (d). (2). When some uncertain event, unconnected with and collateral to the determination of the preceding particular estate, is by the nature of the limitation to precede, the re- mainder. For example : "To A for life, and if C dies before A, remainder to B and his heirs." Here B cannot take unless C dies before A, and yet C's death does not affect the particu- lar estate of A. This is what is meant by calling the event "unconnected with and collateral to the determination (end- ing) of the particular estate." (3). When a remainder is limited to take effect upon an event which must happen some time or other, but which 208 REAL PROPERTY. [Chap. 10 may not happen until after the determination of the particu- lar estate. For example : "To A for life, and after C's death, remainder to B and his heirs." Here C's death is a condition precedent to B's takiag. C must die, but he may not die until after A dies, i. e., until after the ending of the particular estate. Hence, if the particular estate should end now by A's death in the lifetime of C, B's remainder would not be ready to come into possession, and therefore is contingent. And on the death of A, living C, B's remainder fails. (■i). When a remainder is limited to a person not in be- ing, or not ascertained. For example: "To A for life, re- mainder to the heirs of B"; or, "To A for life, remainder to the first (as yet unborn) son of B, and the heirs of the body of such son." The following example is a curiosity as containing all of Fearne's four classes of contingent remainders: To A until B returns from Rome, and after the return of B and G from Eome, and the death of D, to the first unborn son of A and the heirs of his body. See Fearne on Eem., p. (9), note (g). § 179. Remainders wMcIi So or Do not Come Under Fearne's Third Class. (1). To A for twenty-one years, if he shall so long live; and after A's death, remainder to B and his heirs. Here A must die, but he may not die during the term of twenty-one years. The remainder is, therefore, contingent under Fearne's third class, and being freehold, is void for want of a particular estate of freehold to support it. Fearne (8). (2). To A for ninety-nine years, if he shall so long live; and after A's death, remainder to B and his heirs. Here it is considered that A cannot lire ninety-nine years, and that his death must occur during that term, when B will take. Hence there is no contingency, and B's remainder does not eome under Fearne's third class, but is vested. And being vested, it is well limited, as a vested remainder of freehold does not require a freehold to support it. But it must not be supposed that A has a freehold particular estate. That §§ 178-180] REMAINDERS. 209 remains a mere term of years, but the remainder iecomes vest- ed, and so does not need the prop of a preceding freehold. Pearne (20), n. (i). (3). To A for nine hundred and ninety-nine years, if he so long lives; and after A's death remainder to the heirs of B. This remainder is contingent under Fearne's fourth class (though not under the third), and being freehold, is void for want of a freehold support. The courts have not settled how long a term makes the remainder to a certain person vested or contingent, in cases like the first and second examples above. It must depend on circumstances. But it has been held that twenty-one years makes a remainder contingent, while eighty or ninety years makes it vested. See Fearne (20). § 180. The Doctrine of Abeyance of the Fee Simple. — Blaekstone declares (2 Bl. Com. 107) that the remainder must pass out of the feoffor at the same time with the creation of a particular estate. Now, conceding this to be true, if we take the example, "To A for life, remainder to the heirs of B," there must be an abeyance of the fee-simple until after the death of A or B. For the rule above requires the remainder (which is in fee) to pass out of the feoffor. But where can it go? Not to A, for his estate is for life only, and we are speaking of the fee simple. Not to B, for he takes nothing at all; and not to the heirs of B, for B is living, and his heirs are non-existent. Hence, as under the rule above the fee simple was declared "out," and as nobody knew its "where- abouts," it was said to be in abeyance — a confession of ignor- ance sometimes covered by Latin, declaring that the fee simple was in nubihus (in the clouds), or in gremio legis (in the bosom of the law). See Wallach v. Van Riswich, 92 U. S. 202, 212; Illinois, etc., R. Go. v. Bosworth, 133 U. S. 92, 100. The abeyance continues during the joint lives of A and B, and ends on the death of either. Por on B's death before A, the fee simple would pass to the heirs of B, now ascertained by B's death (eldest son, e. g.). On the other hand, if A died 14 210 REAL PROPERTY. [Chap. 10 before B, the remainder would fail for want of a home for the seisin, as it would not vest eo instanti the particular estate ended. The remainder failing, the fee simple returns to the feoffor, and this ends its abeyance. § 181. Feame's View of Abeyance. — Peame denies the universality of Blackstone's rule, and holds that a remainder continues in the feoffor until it has some one else to go to. Hence, iu the example above, the fee simple never leaves the feoffor until by B's death, living A, it can vest in the heirs of B. If A dies first, the remainder fails, and the fee simple never leaves the feoffor at all. See Fearne (361) ; Wms. E. P. (413); 2 Bl. Com. (Sharswood) 107, note 4; Bigley V. Watson, (Tenn.) 38 L. E. A. 679. § 182. Additional Rules for Remainders. (1). A remainder must always have the support of a particular estate in possession. Hence, a freehold to com- mence in futuro is no remainder, and is void at common law. For example : "To A for life from and after the first day of January." 2 Tho. Co. (348) n. (T). (2). A remainder must always await the regular expira- tion of the particular estate; it cannot take effect in deroga- tion of {i. e., by cutting short) the particular estate. For example: "To A (a widow) for life: provided, however, that if A marries again, her estate for life is to come at once to an end, and the land to go to B and his heirs." Here the lim- itation over to B after A's estate on condition is void as a remainder at common law ; but it is allowed in a devise, or in a deed by way of use, when it is called a conditional limita- tion. (3) . After a fee simple no remainder can be limited. For example : "To A and his heirs, remainder to B and his heirs" ; or, " To A and his heirs, but on B's marriage, remainder to B and his heirs." B's estate is void as a remainder in both examples. Another form of the rule is that there can be "no fee on a fee," or, "a fee cannot be mounted on a fee." §§ 180-184] REMAINDERS. 211 (4). A remainder must never be separated from its par- ticular estate. For example: "To A for life, and after A's death and one week, remainder to B and his heirs." B's re- mainder is void; and on A's death, the seisin returns at once to the feoffor for want of any other home. (Wms. E. P. (17th ed.) 417.) § 183. Contingency with a Double Aspect. — This is an ap- parent exception to the general rule that there cannot be a fee on a fee, although in reality it does not come within that rule. It is the name given to two fee simple contingent re- mainders in the alternative, where the second remainder in fee takes effect in lieu of the first, and only in case the first never takes effect at all. Even the vesting of the first fee utterly de- stroys the second. For example : "To A for life ; and if A shall have a son born to him, then to such son and his heirs; but if A have no son, then to B and his heirs." If A has a son, the remainder to such son vests, and destroys B's estate. If A never has a son, then at A's death B's remainder vests, and comes into possession. B cannot be said to take a fee after or on a preceding fee ; for B only takes in ease the fee to A's son never vests. B's fee is then a substitute for that lim- ited to the unborn son of A, but is not on it or after it. See Pearne Eem. 373; Cooper v. Heplurn, 15 Grat. 558; Walker V. Lewis, 90 Va. 578. § 184. Cross Remainders. — A cross remainder is where lands are given to two or more with reciprocal limitations of the lands of each to the other. For example : "Deed to A of Blackacre for life, and to B of Whiteacre for life, with cross remainders between them." This is a short way of saying what, written out in full, is as follows : Deed of Blackacre to A for life, remainder to B for life ; of Whiteacre to B for life, remainder to A for life. So there are two estates in both Blackacre and Whiteacre, one in possession, the other in re- mainder. A and B both have two estates, but only one in each piece of land. But as each has a remainder after the 212 REAL PROPERTY. [Chap. 10 death of the other in that other's land, these remainders are called cross remainders. But though there may be two separate estates held in sever- alty, the/ most common ease of cross-remainders is where land is held by several tenants in common, there being, of course, undivided possession. The same rules apply as if the shares were held in severalty, and each remainder was separate and independent. For example : Grant of Blackaere "To A and B and the heirs of their bodies, to hold as tenants in common, with cross-remainders, remainder to C and his heirs." Here on death of A or B, and failure of issue, his part goes to the other, and finally, on failure of the heirs of the body of the survivor, the estate goes to C. 1 Prest. Est. (105) . The obvious design and intention of such a limitation is that upon the share of one of the takers failing for want of heirs of the body, instead of its reverting to the original owner, or going at once to the final remainder-man, it shall go to the tenant of the other part of the estate, and the entire estate go over together on the final failure of issue of both, and not in parcels on the failure of issue of each. This reciprocal right of each to a remainder in the part of the other, expectant upon the determination of the par- ticular estate of that other in such part, whether for life or in tail, is, when the particular estates are for life, somewhat similar to the right of survivorship between joint-tenants. But notice that survivorship, even of a fee simple, takes place at once on the death of either tenant ; but where the particular estate upon which cross-remainders depend is an estate-tail, the remainder must await the determination of the estate-tail. And one joint-tenant can defeat survivorship by alienation; but the cross remainder is a subsisting vested right, not liable to be destroyed. Such remainders also resemble an estate held by several in coparcenary, who are heirs to each other, as three sisters in England. On the death of one, her share descends to the other two, and so on. But one coparcener can defeat such descent by alienation, and it only applies to estates of inheritance. §§184,185] REMAINDERS. 213 Cross remainders may be limited by deed or by will. But in a deed there must be express words, whereas in a will they are often implied in favor of the intent. They may be be- tween two or more. And in a will it seems the law favors cross remainder between twOj but not between a greater num- ber. 3B1. Com. (381). Cross remainders are more readily implied between mem- bers of a class than between strangers, e. g., more readily be- tween the children of A, than between A, B and C. 17 Ves. 64; 3 Hare 1. Thus in Powell v. Howells, L. E. 3 Q. B. 654, a testatrix devised land unto and between her three nephews, W., T. and D., in equal shares, and the heirs of their bodies respectively lawfully begotten, and in default of such issue of any of them, unto M. P. and her heirs. Held, that cross remainders were created by implication between W., T. and D., and that the words of any of them must be construed of all of them. See also Tehhs v. Duval, 17 Grat. 349;Cowper, 31, 717, 797 ; 1 Atk. 579 ; Tafe v. Conmee, 19 Ho. of Lds. Cas. 64; Athinson v. Holthy, lb. 313. § 185. Destruction at Common Law of Contingent £e- mainders. — For full discussion see 17 Am. St. R. 839-843, note. A contingent remainder at common law was liable to be destroyed {i. e., to come to a sudden and violent end) in several ways. Thus, take the example: "To A for life, re- mainder to the first unborn son of A and the heirs of his body, remainder to D and his heirs." Here the contingent re- mainder to A's unborn son would be destroyed either by a forfeiture incurred by A, or by the merger of A's life estate in the fee-simple. For suppose A forfeits before any son is born to him, or even begotten. Then A can no longer hold the seisin, and it goes to D, the vested remainderman, and this leaves the con- tingent remainder without a particular estate to support it (without a prop), and so it is at once destroyed. And if, after the forfeiture, a son is born to A, such son can never take the estate, because the remainder was not ready to vest eo in- 214 REAL PROPERTY. [Chap. 10 stanti that the particTilar estate determined. 2 Bl. Com. (171). Again, suppose that before the birth of a son to A, D releases to A the fee simple. Then A's life estate would be- come merged in the fee simple, the rule being that when a larger and a smaller estate meet in one and the same person, by two different conveyances, without any intervening vested estate, the smaller is at once merged into, or swallowed up by, the larger. Garland v. Pamplin, 32 Grat. 315 ; Little V. Bowen, 76 Va. 734; 1 Va. Law Eeg. 453, note by Judge Burks. Applying this rule, A's life estate is merged in the fee, and A has the fee simple in possession, which destroys the remainder to A's son (unborn), as no remainder is allowed after a fee simple. And as the remainder to A's unborn son is contingent, its intervention could not prevent the merger, but merger takes place in spite of it, and to its destruction. Wms. E. P. (436). And, finally, suppose A surrenders his life estate to D, before A's son is born. Here again, under the rule, merger takes place, and D has at once the entire fee-simple. A's life estate no longer exists, and the remainder to A's unborn son is destroyed at once for lack of a freehold support. For what constitutes a surrender, see Beall y. White^ 94 U. S. 382 ; Ed- wards Y. Hale, 37 W. Va. 193. § 186. Mode at Common Law of Preserving a Contingent Remainder from Destruction. — This was by the interposition of trustees to protect the contingent remainder. The form of limitation was as follows : "To A for life, remainder to B and C, trustees, for life of A, remaiader to the first unborn son of A and the heirs of his body, remainder to D and his heirs." Now, suppose A forfeits before he has a son, the seisin finds home in B and C, the trustees ; and if A has a son afterwards, the remainder to the son can then vest. Thus, while forfeit- ure is not prevented, its effect upon the contingent remainder is avoided. Again, suppose A surrenders to D, or D releases to A, no merger can now take place, and of course the re- §§ 185-188] REMAINDERS. 215 mainder to A's unborn son is unafEected. For the trustees have a vested right interposed between the estates of A and D, and the larger and smaller estates (those of D and A) cannot get together. 2 Bl. Com. (172; Wms. E. P. (17th ed.) 428). § 187. Rule of Perpetuities for Contingent Remainders. — The rule is thus laid down : "No estate in land can be given to an unborn person for life, followed by any estate to the child of such unborn person." In such case the estate of the unborn person's child is void, as violating the Kule against Perpe- tuities. See Wms. E. P. (17th ed.), 470-'71. Por example: "To A for life, remainder to B (first unborn son of A) for life, remainder to C (first unborn son of B) for life." Here A is living, and his life estate supports the contingent remainders to both B and C, but the Eule against Perpetuities pronounces C's estate void; not because it violates any rule to the seisin, but because it is against public policy. For if the law per- mitted a succession of life estates to the children of unborn children in infinitum, it would create a virtual entail, not bar- rable by a common recovery; and the land might thus be tied up for generations. For example : "To A for life, remainder to B (unborn son of A) for life, remainder to C (unborn son of B) for life, remainder to D (unborn son of C) for life, re- mainder to E (unborn son of D) for life," etc. Now all these remainders are well limited, and, if on A's death he has a son B, B can take the seisin, and, if on B's death he has a son C, C can take the seisin, and so on down indefinitely, until A's issue fails. To prevent this devolution of life estates, the law draws a line after the first unborn son, and annuls the re- mainders to all the rest, thus in effect permitting alienation in fee-simple to be postponed during lives in being, and twenty-one years thereafter, but no longer. Wms. E. P. (420), (469); 3 Jarman, Wills, 711. § 188. The Cy Pres Doctrine as to Contingent Remainders. — This is a rule by which when a testator has violated the Eule against Perpetuities, his intention is allowed efliect as far as {cy pres) is consistent with the rules of law. Thus, 216 REAL PROPERTY. [Chap. 10 in a devise "To A for life, remainder to B, (the unborn son of A), for life, remainder to C, (the unborn son of B,) and the heirs of C's body," the remainder to C is void; and striking it out would leave, "To A for life, remainder to B for life." But by the cy pres doctrine, as the testator has shown a purpose to tie up the land, the law, in favor of his intention, changes the estate to B, the unborn son of A, from a life estate to an estate-tail, so that the limitation becomes finally, "To A for life, remainder to B and the heirs of his lody." Wms. E. P. (17th ed.) 471; Hampton v. Holmon, 5 Ch. D. 183. ]Sr. B. — The cy pres doctrine is not applied (1) unless the estate to C, the unborn son of the unborn son, is an estate tail; and (2) unless the case occurs in a devise. Then the estate-tail given to C, which is void as to him, is transferred to B, taking the place of the life estate given him by the testator. 20 Am. & Eng. Ency. Law, 867 . § 189. Contingent Remainders Descendible and Devisable. — In Pearne, Eemainders (364), it is said: "Another ob- servation is, that a contingent remainder of inheritance is transmissible to the heirs of the person to whom it is limited, if such person chance to die before the contingency happens. But, of course, this will not be the case if the existence of the remainder man, at some particular time, enters into and forms part of the contingency itself upon which his interest is to take effect. Thus, if a limitation be to children who shall attain a certain age, or shall survive a given period or event, the death of any child pending the contingency has the effect of striking the name of such child out of the class of presumptive objects; but when the contingency on which the vesting depends is a collateral event, irrespective of attainment to a given age, or surviving a given period, the death of any child pending the contingency works no exclusion, but simply substitutes and lets in his heir-at-law. See 2 Jarman, Wills (860), where the doc- trine is thus laid down as to contingent interests in per- §§ 188-190] REMAINDERS. 217 sonalty, but it is equally applicable to contingent interests in land. And see Medley v. Medley, 81 Va. 365, where the same doctrine is laid down as to executory devises, which are said to stand, as respects transmissibility, on the same footing as contingent remainders. As to the devisability of contingent remainders, Williams says: "A contingent remainder was also deyisable by will under the old statutes, and is so under the present Wills Act (1 Vict., c. 26, § 3)." Wms. E. P. 433. Such re- mainder is undoubtedly devisable in Virginia. See Code Va., § 2513, authorizing a devise of any estate to which a person shall be "entitled at his death, and which, if not so disposed of, would devolve upon his heirs." That the person to whom a contingent interest is limited may be said to be "entitled" at his death, see Medley v. Medley, 81 Va. 365, 373. And see Code of Va., § 3418, declaring that "any interest in or claim to real estate may be disposed of by deed or ly will" See Wms. E. P. (17th ed.) 433; 3 Min. Ins. (4th ed.) 431. § 190. Assignment of Contingent Remainders. — At com- mon law the doctrine was that a contingent remainder was inalienable at law, and not grantable by deed. It could, however, be passed by fine, or released for the benefit of the reversion; and in equity an assignment for a valuable consideration was recognized and enforced. See Fearne, Eemainders, (365-'66) ; Wms. E. P. (17th ed.), 433. But now, in England, contingent interests may be conveyed by deed (8 and 9 Vict. c. 106, § 6) ; and so in Virginia, by Code, § 3418, enacting that "any interest in or claim to real estate may be disposed of ly deed or by will."^ 1 Inalienability of Contingent Remainders at Common Law. — In Williams, Real Property, (17th ed.) 423, it Is said: "The cir- cumstance of a contingent remainder having been so long in- alienable at law, was a curious relic of the ancient feudal system. This system, the foundation of our jurisprudence as to landed property, was strongly opposed to alienation. Its policy was to 218 REAL PROPERTY. [Chap. 10 § 191. Sale of Contingent Interests Under Decree of Court. ■ — By statute in Virginia, provision is made for the sale of contingent interests under decree of a court of chancery. See Code Va., § 2432, -n-hich enacts as follows : ''When any estate, real or personal, is given by deed or will to any person, subject to a limitation contingent upon the dying of any person without heir, or heirs of the body, or issue of the body, or children, or offspring, or descendant, or other relative [see Code, § 2432], it shall be lawful for the circuit or cor- poration courts, upon a bill filed by the person holding the estate subject to such limitation, in which bill all persons then living and contingently interested shall be made de- fendants, to decree a sale of such estate, real or personal, and to invest the proceeds of sale under the decree of the court, for the use and benefit of the person so holding the estate, subject to the limitations of the deed or will creating unite the lord and tenant by ties of mutual interest and affection; and nothing could so effectually defeat this end as a constant change in the parties sustaining that relation. The proper method, therefore, of explaining our laws, is not to set out with the no- tion that every subject of property may be aliened at pleasure; and then to endeavor to explain why certain kinds of property cannot be aliened, or can be aliened only in some modified man- ner. The law itself began in another way. When, and in that manner, different kinds of property gradually became subject to different modes of alienation, is the matter to be explained; and this explanation we have endeavored, in proceeding, as far as possible to give. But as to such interests as remained inalien- able, the reason for their being so was that they had not been altered but remained as they were. The statute of Quia Emptores (18 Edw. I., c. 1), expressly permitted the alienation of lands and tenements — an alienation which usage had already authorized; and ever since this statute, the ownership of an estate in land (an estate tail excepted) has involved in it an undoubted power of conferring on another person the same, or, perhaps more strictly, a similar estate. But a contingent remainder is no es- tate; it is merely the chance of having one, and the reason why it so long remained inalienable at law was simply because it had never been thought worth while to make it alienable." §§ 191, 192] REMAINDERS. 219 the estate; provided, however, that the bill of the plain- tiff shall set forth the facts which, in his opinion, would Justify the sale of the said estate, to be verified by the affidavit of the party." For further procedure, see §§ 2433-'35. And by §. S436: "The decree rendered in such suit shall be as binding on all persons who may be born thereafter, and become interested in the said estate, in like manner, and to the like extent, as it is upon the parties to the suit." See 3 Min. Ins. (4th ed.), 422; Faullmer v. Davis, 18 Grat. 651; Troth V. Robertson, 78 Va. 46. Knotts v. Stearns, 91 U. S. 638; Miller v. Texas, &c. R. Co., 132 U. S. 662. And see Acts 1897-'98, c. 358, p. 404, authorizing the sale by decree of court of "an estate, real or personal, given by deed or will to any person for his life, or the life of another, with vested remainder to another, whether the remainderman be an in- fant or adult." And see Code Va., § 2616, et seq. providing for the sale by a court of chancery of the estate of minors and insane persons, "whether the estate of the minor or insane person, or of any of the persons interested, be absolute or limited, and whether there be or be not limited thereon any other estate, vested or contingent." As to a sale in a suit for partition, see Carneal v. Lynch, 91 Va. 114; C. V. § 2562. § 192. Words of limitation and Words of Purchase. — A purchaser, in the technical sense of the term, is one who acquires real estate otherwise than by descent, as, for ex- ample, by deed or devise. And words of purchase- are those which describe the person or persons named in a deed or devise to whom the estate is given, and in whom it attaches or commences. Words of purchase are descriptio personarum, and designate the grantees in a deed, or the objects of a testator's bounty in a devise. On the other hand, words of limitation serve only to limit or define the estate or degree of interest conferred on those who are designated by the words of purchase. Thus, in a deed "To A and his heirs," "A" is the word of purchase, and "heirs" is a word of limi- 220 REAL PROPERTY. [Chap. 10 tation, whereby A's estate is made a fee simple. But in a deed, "to A for life, remainder to the heirs of B," the word "heirs" is a word of purchase, because it is descriptive of those who are to take the land on A's death. Yet in a deed "To A for life, remainder to the heirs of A," the word "heirs" is a word of limitation, and not of purchase, as we shall see in the next section. In the language of Fearne (79) : "When the words "heirs," etc., operate only to expand an estate in the ancestor^ so as to let the heirs described into its extent, and entitle them to take derivatively through or from him as he root of succession, or person in whom the estate is considered as commencing, they are properly words of limitation; but when they operate only to give the estate imported by them to the heirs described originally, and as the persons in whom that estate is considered as commencing, and not derivatiYely from or through the ancestor, they are properly words of purchase." § 193. The Rule in Shelley's Case. — This is by way of ex- ception to Pearne's Fourth Class of contingent remainders, and its effect is that in the limitation, "To A for life, re- mainder to the heirs of A," the heirs of A do not take a remainder at all, either vested or contingent, but the word "heirs" serves as a word of limitation to give A the fee simple. The Eule in Shelley's Case is as follows. When- ever the ancestor by any gift or conveyance takes an estate of freehold in lands or tenements, and in the same gift or conveyance an estate is afterwards limited by way of re- mainder, either mediately or immediately, to his heirs or the heirs of his body, the words "heirs" or "heirs of his body" are words of limitation of the estate, carrying the inheritance to the ancestor in fee simple or fee tail, and not words of purchase creating a contingent remainder in the heirs or heirs of the iody. An example of the immediate operation of the rule is given above, where "To A for life, remainder the heirs of A," gives A the fee simple. So "To A for life, remainder to the heirs of the body of A," gives §§ 192-194] REMAINDERS. 221 A a fee tail. The rule opexates mediately in the examples, "To A for life, remainder to B for life, remainder to the heirs of A," or "To A for life, remainder to B for life, re- mainder to the heirs of the body of A," and A takes in the one case a fee simple, and in the other a fee tail, subject, however, to the intermediate life estate vested in B. Shelley's Case, 1 Co. 93; 2 Tho. Co. (143); 3 Min. Ins. (4th ed.; 400; 11 Am. St. E. 100, note; 45 Id. 194, note. § 194. The Five Requisites to the Operation of the Rule in Shelley's Case.— See CMpps v. Hall, 23 W. Va. 504, 513. (1). There must be an estate of freehold in the ancestor, or, as he is sometimes loosely called, the first taker. (2). The ancestor must take the estate of freehold by or in consequence of the same conveyance which contains the limitation as to his heirs. (3). The word "heirs" must be used in its technical sense, as importing a class of persons to take indefinitely in suc- cession. Hargrave, 1 Law Tracts, 575. See De Vaughn V. Hutchinson, 165 U. S. 566, 578, where it is said: "The word 'heirs,' in order to be a word of limitation, must in- clude all the persons in all generations belonging to the class designated by the law as Tieirs.' " (4). The interests limited to the ancestor and to his heirs must be of the same quality, i. e., both legal or both equitable; for otherwise they could not coalesce to form one estate in the ancestor. Green v. Green, 23 Wall. 486; 2 Va. Law. Eeg. 39. (5). The estate limited to the "heirs" or "heirs of the body," must be limited by way of remainder. Fearne, Ke- mainders, (276); 2 Min. Ins. (4th ed.) 437; Hawthorne v. BecTcwith, 89 Va. 786.^ 'Rationale of the Rule in Shelley's Case. — Fearne thus ex- plains (Contingent Remainders, 200) the principle upon which the limitation, after a life estate to the ancestor, of a remainder to his heirs or heirs of the body, in the technical sense, gives the 222 REAL PROPERTY. [Chap. 10 § 195. Origin of the Rule in Shelley's Case. — On this sub- ject there are various theories. See Tied. E. P. § 433, and notes; 32 Am. & Eng. Ency. Law, 494, note; 3 Bl. Com. (Sharswood's Ed.) (173), note 13; 3 Bl. Com. (Cooky's Ed.) (172), note 11. Some of the theories are as follows: (1). That the rule is of feudal origin, and was introduced inheritance to the ancestor and nothing to the heirs, etc., unless hy descent from him as pars antecessoris : "If the testator meant, according to the terms of the proposi- tion, that the person who should take after the tenant for life should be any person indiscriminately answering the description of heir, etc., of such first taker, and entitled only in respect of such description; and that all other persons successively succeed- ing to the same description should eo nomine, and by virtue only of such relation to the ancestor, equally succeed to the estate; it follows that he could not have any particular object of attention among all this unknown class of successors, much less any prefer- ence of any one of them to that stock or source from which his bounty reaches them only by emanation, as it were. "The disposition, in its progress to heirs, etc., at large, is only a modified extension of the gift to the ancestor, the immediate and sole known object of the testator's favor, in relation to whom alone the eventual ulterior takers can bring themselves within the track of his notice. What ground have we, then, to ascribe to the testator any impulse of distinction among such equally un- ascertained accessory objects of his view? What pretence for in- ferring any such preference of any one individual of them to the rest, and even to the ancestor himself, as to intrust that one with the power of defeating the succession to all the rest while it is denied to their common ancestor? . "The law imposes the dilemma of committing such power either to the ancestor or to his next heir; will any reasonable inference of the testator's intention in the matter induce the preference of an unknown derivative character, accidentally meeting the terms of a general description, to the original attractive object, the ground work of the testator's bounty, and to which the attend- ant relative designations seem mere appendages? If not, there is no more apparent violence offered to the testator's presumable intention by vesting the inheritance in the ancestor than in his first heir, whenever that heir is not distinguished from the rest, but all heirs of the description used appear to be equally in his contemplation." § 195] REMAINDERS. 223 to prevent fraud upon tenure; for if the heir had been held to take by purchase, he would not, upon the death of the ancestor, have been liable to the burdens imposed upon a descent, and the lord would have been prejudiced by the loss of relief, wardship, marriage, and other fruits of tenure. (2). That the rule was intended to benefit the heir by giving his ancestor an estate of inheritance (to which the heir would be entitled by descent), instead of giving the lieir himself a contingent remainder, liable to destruction by forfeiture or by merger. (3). That the rule was intended to prevent the abeyance of the fee simple. (4). That the rule was intended to facilitate the alienation of land, by giving the ancestor a fee simple, instead of a life estate with a contingent remainder to his heirs. (5). That the rule was introduced prior to the time at which a contingent remainder was allowed by law, and so was intended to favor the ancestor and heir both, by giving the ancestor an estate of inheritance which would descend to the heir, instead of giving the ancestor a life estate only, and the heir nothing either by purchase or by descent. Wms. E. P. (17th ed.) 411, note (e) ; Gray, Eule against Perpe- tuities, § 100.1 ^In Williams, Real Property (ITth ed.), 398, this explanation is offered of the Rule in Shelley's Case: "We have seen that, ac- cording to the feudal law, the grantee of an hereditary fief was considered as being entitled during personal enjoyment only, that is, for his life, while his heir was regarded as having been endowed with a substantial interest in the land. And these con- ceptions seem to have been imported into the English law along with the principle of tenure. In early times after the Conquest, therefore, if a grant of land was made to a man and his heirs, his heirs, on his death, became entitled; and it was not in the power of the ancestor to prevent the descent of the estate ac- cordingly. He could not sell it without the consent of his lord; much less could he then devise it by his will. The ownership of a fee simple was then but little more advantageous than the pos- session of a life interest at the present day. ... A tenant 224 REAL PROPERTY. [Chap. 10 § 196. The Inflexible Character of the Eule in Shelley's Case. — It is a rule of law, and if the five requisites above laid down are present, its operation is not prevented even by express words in the deed or will declaring that it shall not operate. In other language, the requisites being present, the Eule in Shelley's Case will not yield to the intention, how- ever plainly expressed, but will operate, though the intention (even in a will) be manifestly defeated. Thus in the great case of Perrin v. Blake, 4 Burr. (3579), the testator declared his intention to be that his son should not sell or dispose of his estate for longer than his life; and to that intent he devised the same to his son for life, and after his death, to the heirs of the body of the said son. The Court of King's Bench held that the son only took an estate for Ms life, but this decision was reversed by the Court of Exchequer Cham- ber; and it is now well settled that the son took an estate tail by the Eule in Shelley's Case, notwithstanding the testa- tor's manifest intention to the contrary. For all the requisites for the operation of the ride are present, a freehold in the ancestor (testator's son), and by the same conveyance an estate given to the heirs of the body of the ancestor (the son) by way of remainder; and the words, "heirs of the body," are used in their technical sense, as importiag a class of persons to take indefinitely in succession, and both estates, viz. : that to the son and that to the heirs of the body, are of the same quality, both being legal. Under these circum- stances, the rule must operate, and the estates to the ancestor in fee simple was accordingly a person who held to him and his heirs; that is, the land was given to him to hold for his life, and to his heirs to hold after his decease. It cannot, therefore, be wondered at that a gift expressly in these terms, 'To A for his life, and after his decease to his heirs,' should have been an- ciently regarded as Identical with a gift, 'To A and his heirs,' that is, a gift in fee simple. Nor if such was the law formerly, can it be a matter of surprise that the same rule should have con- tinued to prevail up to the present time. Such, indeed, has been the case." §§ 196-197] REMAINDERS. 225 and to his heirs must coalesce and give the ancestor an estate of inheritance, just as when fire is applied to powder an explosion must follow, in spite of an intention to the con- trary. Hence, the rule is sometimes spoken of as tyrran- nical^ § 197. How can the Operation of the Rule in Shelley's Case be Prevented? — In the absence of statute, the rule must operate if all the requisites are present. To prevent its operation, therefore, in drawing a deed or will, the limitation ^ Effect of the Rule in Shelley's Case as a Rxjle of Law. — In Allen v. Graft (Indiana), 58 Am. Rep. 417, 433, it is said: "There, is, therefore, no escape from the force of the rule in Shelley's case, when the word 'heirs' [other requisites being present] is used in its strict legal sense as a word of limitation. But the word 'heirs' is not in every case a word of limitation, for it may be employed in a different sense. It has seemed to many that there is a conflict between the rule declaring that the inten- tion of the testator must govern, and the rule in Shelley's case; but the appearance of conflict fades away when it is brought clearly to mind that when the word 'heirs' is used as a word of limitation, it is treated as conclusively expressing the inten- tion of the testator. Where is appears that the word was so used, the law inexorably fixes the force and meaning of the instrument. If once it is granted that the word was used in its strict legal sense, nothing can avert the operation of the rule in Shelley's case. So the inquiry is. Was the word used as one of limitation? . It is because the word 'heirs' is not used in its legal sense that the courts do not apply the rule in Shelley's case; for when it is so used the rule must be applied." And see 11 Am. St. R. 100-107, note; 20 Id. 909; 45 Id. 186. In a notice of the recent English case of Van Grutten v. Fox- well [1897], A. C. 658, it is said in a note by Sir Frederick Pol- lock, in the Law Quarterly Review (London), January, 1898, p. 1: "The rule stands firm, notwithstanding strenuous assault, as a rule of law which is quite independent of the settlor's intention. If a testator said in so many words, 'The rule in Shelley's case shall not apply to any limitations contained in this my will,' it [i. e., the testator's declaration of intention] would be merely in- operative. There may be cases where 'heirs,' or like words, are clearly shown by the Immediate context to have an unusual sense, 15 226 REAL PROPERTY. [Chap. 10 must be so expressed as not to contain all the requisites; for if any one requisite is absent, the rule is powerless. Thus the . deed or will might be so drawn as to make the ancestor take the legal title, while the estate of the heirs is made equitable, or vice versa; or the freehold to the ancstor might be given by deed in the testator's lifetime, and the estate to the heirs be given afterwards by a will, so that the ancestor and the heirs would take by different conveyances. Another method would be not to use the word 'Tieirs" in its technical sense, as importing a "class of persons to take indefinitely in suc- cession," but in a limited and restricted sense, as embracing less than the whole line of heirs in indefinite succession, and whicli makes them words of designation and not of limitation. Such cases do not form an exception to the rule, for when a dis- tinct special meaning, ascertained by the special context. Is clear to the court, and is read in place of the words so qualified, there Is nothing to which the rule could apply." In some of the American States the rule In Shelley's case Is treated not as a rule of law, but as a legal rule of construction, and so liable to yield to the intention of the testator, apparent on the face of the will, that the rule shall not apply. Thus in Wescott V. Buford (Iowa), 74 N. W. Rep. 18, It was held that when the testator devised land to A for life, remainder to his heirs, the rule did not apply: and that A took only a life estate. Commenting on this decision, it is said in 12 Harvard Law Re- view (May, 1898), p. 64: "The court rests its decision on the ground that a strict application of the rule In Shelley's case would defeat the Intention of the testator as to the life estate to A. As was conclusively shown in Yan Orutten v. Foxwell [1897] A. C. 658, the rule in Shelley's case is not a rule of construction, but an absolute rule of property. Its object, it may be said. Is to defeat the Intentions of the testator when they run counter to it. Rules of construction may be employed to discover what he meant by the word 'heirs.' If it means a particular class, the rule does not apply. If It means heirs in a general sense, as it did in the principal case, the rule should be applied, notwith- standing the intention of the testator. The harshness of the rule, which Influenced the decision in the principal case, while it may be a good reason for its abolition, furnishes no excuse for con- struing It into something which it Is not." §§ 197, 198] REMAINDERS. 227 son or persons shall take the said land under that descrip- as being confined to such persons only as should answer that description at a designated time; as e. g., at the time of the ancestor's death. Thus in Taylor v. Cleary, 39 Grat. 448, a deed made in 1831 conveyed land "To A for and during his life only, and after A's death the said land to go to such person or persons as should at that time answer the descrip- tion of heir or heirs-at-law of the said A; and such per- tion as purchasers, under and by virtue of this deed, and not by inheritance as the heirs of said A"; and it was held that A took but a life estate in the land, and that the per- sons who at the time of A's death answered the descrip- tion of A's heirs took as purchasers under the deed. The ground of the decision was not the intention of the grantor as manifested by saying, "To A for and during his life only," and by saying that the heirs should take the land as pur- chasers; but the ground was that the word "heirs" was not used in its technical sense, and so one of the requisites for the operation of the rule was not present. Por a case similar to Taylor v. Cleary, see Earnhart v. Earnhart, 127 Ind. 397 (32 Am. St. Eep. 652). And see Daniel v. Whartenby, 17 Wall. 639 ; De Vaughn v. Hutchinson, 165 TJ. S. 566 ; Stokes V. Van Wyck, 83 Va. 724; Wallace v. Minor, 86 Va. 550 (criticised by Judge Burks in 2 Va. Law Eeg., p. 28) ; Nye V. Lovitt, 93 Va. 710; Nichols v. Gladden (N. C), 23 S. E. 459; 53 Am. Dec. 474, note. § 198. Status of the Rule in Shelley's Case in the United States. — The rule has been abolished in many of the States, but it is still in force in others. See Polk v. Paris, 9 Yerger (Tenn.), 309 (30 Am. Dee. 400, and note 415-'17) ; Hawk- ins on Wills (8d Am. ed.), 184, n. 2. In Virginia the rule is now supposed to be totally abolished, but it died hard, and the first attempt to kill it only "scotched the snake." The Virginia legislation is given in the next section. 228 REAL PROPERTY. [Chap. 10 § 199. Virginia Statutes Intended to Abolish the Rule in Sh£lley's Case. (1). First statute. By statute taking effect July 1, 1850, it was enacted: "Where any estate, real or personal, is given by deed or will to any person for his life, and after his death to his heirs or the heirs of his body, the conveyance shall be construed to vest an estate for life only in such person, and a remaiader in fee simple in his heirs or the heirs of his body." Code, 1849, ch. 116, § 11. But this attempt to abolish the rule was ineffectual in two cases, and in them the rule still applied, as is shown below under (a) and (&). (a). The language of the statute is, "Where any estate ... is given by deed or wiU to any person for Ms life." Now suppose the limitation is, "To A for the life of B, re- mainder to the heirs of A." This is not to A for his life, but to A for the life of another (pur autre vie), and the case is not within the statute, and so the rule operated as at common law, giving A the fee simple. (&). Again the statute declares: "The conveyance shall be construed to vest an estate for life only in such persons, and a remainder in fee simple in his heirs or the heirs of his body." But suppose no remainder can vest in the 'Tieirs or heirs of the bodjf"; then does the ancestor take only a life estate, and the heirs or heirs of the body nothing, or does the rule operate as at common law and give the ancestor a fee simple^ or a fee tail, as the case may be? It was held that the staute did not apply, and that the rule still operated in any case in which the remainder for any reason could not actually vest in the heirs, or heirs of his body. Thus in Hood v. Haden, 83 Va. 588, there was a power of appoint- ment conferred on X to devise land to A, but not to the issue of A. X devised the land "To A for life, and after A's death, remainder to the issue of A" ("issue" in a will being equiva- lent to "heirs of the bod3r"). Now under the power X can appoint lawfully to A only, and the appointment to A's § 199] REMAINDERS. 229 issue as purchasers, to take in their own right under the devise, is void^ and so no remainder can, as the statute directs, vest in the issue of A. Then what estate shall A take ? Held, that as the statute could not perform its dovhle purpose of giving the issue a remainder, as well as conferring on A a life estate, it had no application at all to such a case, and so the Kule in Shelley's Case gave A a fee tail, as it would have done before the statute was passed. (2). Second statute. By statute taking effect May 1, 1888, drawn by Judge E. C. Burks, it is now enacted as follows (C. v., § 2423) : "Wherever any person, by deed, will or other writing, takes an estate of freehold in land, or takes such an estate in personal property as would be an estate of freehold if it were an estate in land, and in the same deed, will, or other writing, an estate is afterwards limited by way of remainder, either mediately or immediately, to his heirs, or the heirs of his body, or his issue, the words "heirs," "heirs of his body," and "issue," or other words of like import used in the deed, will, or writing, in the limitation therein by way of remainder, shall not le construed as words of limitation, carrying to such person the inheritance as to the land, or the absolute estate as to the personal property, but they shall le construed as words of purchase, creating a remainder in the heirs, heirs of the body or issue. ^ By this statute it is thought that the Eule in Shelley's Case is at last entirely abrogated in Virginia. See 3 Va. Law. Eeg., 38, where it is said in a note by Judge Burks: "That rule [in Shelley's Case] was not abolished [in Vir- ginia] until the Code of 1849, and then not completely. It is believed that the abrogation is completed by § 2433 of the present Code." '■ Remainder to Heibs, Heies of the Body, ob Issue. — The ques- tion arises under the statute abolishing the rule in Shelley's case, as to the nature of the remainder, whether vested or contingent, which is created by the statute in the heirs, heirs of the body, or issue, as purchasers. As to the heirs and heirs of the body, it would seem clear that by the definition of a vested remainder 230 REAL PROPERTY. [Chap. 10 § 200. Interpretation of the Words "Heirs," "Heirs of the Body," "Issue," and "Children." (1). "Heirs." The technical meaning of the word "heirs" imports a "class of persons to take indefinitely in succes- sion," and this is the primary sense of the word in both wills and deeds. It is therefore a word of limitation, and not a word of purchase. And the same is true of the words, heirs of the body. But if the intention be manifest heretofore given (ante, § — and note), the remainder to them is contingent, and cannot vest in them until they are ascertained by the death of the ancestor. And see this view taken in Gray, Rule against Perpetuities, § 107; Tiedeman, Real Prop., § 433, n. 1 on p. 346. But in Moore v. Littell, 41 N. Y., 66, it was held that since the abrogation of the rule in Shelley's case, a grant "To A for life, and after his decease, to his heirs and their as- signs forever," gave to the children of A a vested interest in the land, though liable to open and let in after-born children of A; and liable also, in respect to the interest of any child, to be wholly defeated by his death before his father, thus treating the condition of survivorship as subsequent instead of precedent. Prom this conclusion, three of the justices dissented; and if ten- able, it must be by reason of the statutory definition of remain- ders in New York, assuming it to change the doctrine of the com- mon law, and on the supposition that there was no ground of forfeiture by which A's estate might end in his lifetime. By the New York Revised Statutes, under which Moore v. Lit- tell was decided, it is declared: "Future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent whilst the person to whom, or the event upon which, they are limited to take effect remains uncertain." Commenting on this statute, Prof. Gray says (Rule against Per- petuities, § 107): "It is doubtful whether this piece of legis- lative definition was intended to change the common law; but the courts [of New York] have decided, and it would seem, cor- rectly, that it has done so. And it would seem that the adoption of this view necessitates the decisions of the Court of Appeals, which at first appear rather startling, that since the abolition of the rule in Shelley's case, a remainder to heirs after a life estate to the ancestor is vested." On the other hand. Prof. Tiedeman § 200] REMAINDERS. 231 not to use the word "heirs" in its technical sense, but in the sense of "certain persons ans^rering that description at a certain time" (i. e., less than the whole line of heirs), (Real Prop., § 433, note 1) says: "This remarkable decision is altogether inconsistent with the rules of the law of remainders, and even with the New York statutory definition of a contingent remainder, viz., that they are contingent 'whilst the person to whom, or the event upon which, they are limited to take effect remains uncertain.' " It may be observed that the Virginia Code of 1849, ch. 116, § 11, in abolishing the Rule in Shelley's Case, declared, "the convey- ance shall be construed to vest an estate for life only in such person, and a remainder in fee simple in his heirs or the heirs of his body"; and upon the word "vest," it has been thought that the statute negatived a contingent remainder. But the Code of 1887 declares that the words "heirs," "heirs of the body," or "issue," shall be construed as words of purchase, creating a re- mainder in the heirs, heirs of the body, or Issue. As to the remainder to the "issue," the view is taken in 2 Min. Ins. (4th ed.) 463, that when issue is a word of purchase, it is equivalent to heirs of the l)ody; and that as no one can be heir to a living person, a remainder to the issue of A is for that reason contingent until the death of A. But the question there under consideration was the effect in Virginia since July 1, 1850, of the limitation, "To A for life, and if he die without issue, to B," in which the implied remainder in favor of the issue of A is made contingent by the statute of 1820, by which the implication is con- fined to "issue living at the time of his death, or born to him within ten months thereafter." (See Ya. Law Journal, April, 1880, article entitled "Dying without Issue under Virginia Stat- utes"). And it is believed that the maxim nemo est hmres viventis has no application to the word issue; and that an estate can vest in the issue of a living person, unless the language of the will shows a contrary intention. It may also be remarked that issue living at the death of a person may include a much larger class of objects than heirs of the iody. Issue when a word of limita- tion is equivalent to heirs of the body, but not when it is a word of purchase. 2 Jarm. Wills (5th Am. ed.), chaps 28 and 29; 2 Redfleld Wills, part II., chap. 1; Hawkins on Wills (2nd Am. ed.), 87, 191, 197; 11 Am. and Eng. Ency. Law, 869; GooTc v. Goolc, 2 Vern., 545; In re Watson's Trusts, L. R., 10 Eq., 36; Weldon v. Hoyland, 4 De G. F. and J., 564; Hohgen v. Tsleale, L. R., 11 Bq., 48. 232 REAL PROPERTY. [Chap. 10 it then ceases to be a word of limitation, and becomes a word of purchase, denoting those who are to take for them- selves under the deed or will. In Taylor v. Cleary, 29 Grat. 448, this use of the word 'Tieirs" prevented the opera- tion of the Eule in Shelley's Case in a deed made in Vir- ginia in 1821, as has been already explained. And see Norris v. Johnston^ 17 Grat. 8 ; Stohes v. Van Wyck, 83 Va. 724; Wallace v. Minor, 86 Va. 550; Bohinson v. Rohinson, 89 Va. 916; Buford v. North Boanoke, &c., Co., 90 Va. 418; Nye v. Levitt, 92 Va. 710; Beid v. Stuart, 13 W. Va. 338, 347; Milhollen v. Bice, lb. 510; Stuart v. Stuart, 18 W. Va. 675; Hinton v. Milium, 23 W. Va. 166; Hard v. Ashley, 117 JST. Y. 606 ; Hawkins on Wills, 182 ; 2 Jarman, Wills (5th Am. ed.), 585; 22 Am. & Eng. Ency. Law, 522 and note. (2). "Issue." The word "issue" in a deed is not a word of limitation. Hence, at common law, a deed "To A and his issue," gives A a life estate only. 2 Bl. Com. (115) ; Wms. E. P. (17th ed.), 177, 292; 11 Am. & Eng. Ency. Law, 869. At common law, if A has no issue at the date of the deed, he takes a life estate, and after-born issue nothing; if A has issue then living, he and the issue take jointly. 11 Am. & Eng. Ency. Law, 876, n. 1. See Bradford v. Griffin (S. C), 19 S. E. 76. Issue as a word of purchase means all of a man's descendants, as of a certain time. As to the time at which issue are to be ascertained, see p. 222, note 1. But in a will issue is prima facie equivalent to "heirs of the body," and therefore is a word of limitation. Hence a devise "To A and his issue," gives to A an estate-tail. So a devise "To A for life, and after his decease, remainder to his issue," gives A an estate-tail by the Eule in Shelley's Case; issue being a word of limitation and not a word of purchase. But though in a will "issue" is primM facie a word of limitation, yet this presimiption will be rebutted if there is anything on the face of the will to show that by the word "issue" the whole line of descendants in indefinite sue- § 200] REMAINDERS. 233 cession was not intended, but only certain descendants, as children only, or children and grandchildren only, or such descendants only as may exist at a particular time, as, for example, at a certain person's death. See Doe v. Collis, 4 T. E. 294; JtalpJi v. Carrich, 11 Ch. Div. 873; In re Warren's Trusts, 26 Id. 208; Slater v. Daingerfield, 15 M. & W. 263; AtJcinson v. McCormich, 76 Va. 791; Bolinson y. RoUnson, 89 Va. 916; 32 Am. St. E. 736; 45 Id. 194; Hawkins on Wills, 191; 11 Am. & Eng. Ency Law, 877; 1 L. C. E. P. 97. An example of "issue" used as a word of purchase is to be found in Wine v. Marhwood, 31 Grat. 43, where a devise "To A for life, and if he die without issue, to B and his heirs," was held to give A a life estate only, with a contingent remainder to the issue of A living at his death, or born to him within ten months thereafter, as purchasers. The will bore date in 1856, and the testator dies in 1865. (3). "Children." The word "children'^ is prima facie a word of purchase when it ocurs in a will, and is not the equivalent of "issue" or "heirs of the body." 2 Jarman, Wills, 690; 3 Id. 174; Hawkins, Wills, 80; 5 Am. & Eng. Ency. Law (2d ed.) 1092. Indeed, "children" is not only prima facie a word of purchase in a will, but it primarily signifies descendants of the first degree only, and does not include grandchildren, unless the intention to do so is mani- fest on the face of the will, or from the nature of the case; as when the gift is to the children of a person dead at the date of the will, who has left no children, but grandchildren only, which fact was known to the testator. Hawkins, Wills, 84; 2 Jarman, Wills, 690; In re Smith, 35 Ch. D. 558. If, therefore, there be a devise to the children of A, and there are both children and grandchildren of A, the children only of A take, and the grandchildren are ex- cluded. See Pichersgill Y. Bodgers, 5 Ch. D. 163; In re Hopkins' Trusts, 9 Id. 131; Miles v. Jarvis, 34 Id. 633; Matter of Patten, 111 N. Y. 480; Smith v. Chapman, 1 H. 234 REAL PROPERTY. [Chap. 10 & M. 390; Moon v. Stone, 19 Grat. 130; 19 Am. St. E. 644; 44 Id. 817; 53 Id. 456. In a will, however, (but not, it seems, in a deed) the prima facie meaning of "children," as a word of purchase, may be rebutted; and it may be considered a word of limitation, and equivalent to heirs of the body, provided such con- struction is required in order to effectuate the manifest intention of the testator. This is true whether the limitation be "To A and his children" (wliere there are children living at the time of the devise. See rule in Wild's Case, infra) ; or "To A for life, remainder to his children" (thus causing the operation of the Eule in Shelley's Case) ; or "To A for life, and if he die without children, to B" (thus denoting an indefinite failure of issue). And in one case the form of limitation, coupled with an extrinsic fact, changes the prima facie meaning of "children," and converts it into a word of limitation. This doctrine is known as the rule in Wild's case, and is explained in the next section. See Tyrone v. Waterford, 1 De G. F. & J. 613; Byng v. Byng, 10 H. of L. Cas. 170; 5 Am. & Eng. Ency. Law (3d ed.), 1093; 11 Id. (1st ed.) 903; 23 Id. 516; 3 Washburn E. P. 560; Tiedeman, E. P., § 434. As to the meaning of the word "family" (usually equivalent to children), see Phillips V. Ferguson, 85 Va. 509; Stuart v. Stuart, 18 W. Va. 675.^ 'The Woed "Childken" in a Devise. — (1). Bastards. It is well settled in England, that when "children" is a word of purchase, it means prima facie legitimate children only, and bastards are excluded. And this construction will be adhered to unless from the context of the will, or the circumstances of the case (as when there are only illegitimate children), it is manifest that it would defeat the intention of the testator. Hill v. Crook, L. R., 6 H. L. 265; Eagleton v. Horner, 37 Ch. D. 695; In Goods of Ashton (1892), P. 83; Hawkins, Wills, 80; 2 Jarman, Wills, 786. And the doctrine is the same in the United States generally. 5 Am. & Eng. Ency. Law, 1096. But in Virginia it is held In Bennett v. Toler, 15 Grat. 588, that upon a devise to a daughter for life, and at her death the property to be equally divided among her chil- dren, an illegitimate child of the daughter will take with her §§ 200, 201] REMAINDERS. 235 § 201. The Rule in Wild's Case. — This is an ancient rule of the common law, by which, under certain circumstances, the word "children" becomes a word of limitation, and equivalent to "heirs of the body." The rule in Wild's Case (6 Co. 17) is as follows: If in a devise there be a limita- legltimate children. But this decision is placed on the ground that the Virginia law of descents, declaring that "bastards shall be capable of inheriting and. transmitting inheritance on the part of their mother, as if lawfully begotten" (Code, § 2552), has changed the general rule by giving the bastard a mother, and making him one of her children; and as he is capable of taking by descent as her child, he Is also embraced under a will by the words "her children." The court says (p. 631) : "And so, adher- ing to the principle of the rule, where the law makes the bastard child of a woman her child, endows him with every attribute of a child born in wedlock. Includes him in the very class designated as children to whom her estate is to pass in the event of her dying intestate; a testator speaking of 'her children,' the words must be construed to include in the class all who in law are her children." Moncure, J., dissented. (2). After-torn Children. Whether, when there is a devise to children as purchasers, those born after the death of the testator are entitled to take as embraced in the class, depends upon whether the gift to the children is immediate or postponed. Thus, If the gift be immediate, as if there be a devise to A and his children, and A has children at the death of the testator, and others are born subsequently, only the children in being at his death (including a child en ventre sa mere) are entitled; and after-born children are excluded. But this construc- tion is prima facie only, and will yield to the intention; and it is rebutted if the testator devises "To A and his children, born or to be born" {Woodruff v. Pleasants, 81 Va. 37), or uses any expressions from which the intent to include after-born children can be inferred. See Buford v. Land Co., 90 Va. 418, a case of a deed; 2 Devlin, Deeds, § 864. But, on the other hand, if the gift to the children be postponed, as when the devise is "to A for life, and after his death to the children of B," then the rule is that the word "children" includes any child born before the termina- tion of the life estate of A, although not in being at the death of the testator. Here the remainder vests at once in the children living at the death of the testator, but will open and let in all children of B born after that time, but before the death of A. 236 REAL, PROPERTY. [Chap. 10 tion "To A and his children" and at the time of the devise A has children, A and his children take jointly as pur- chasers; but if at the time of the devise A has no children, then the word children is a word of limitation whereby A takes an estate tail, and not a word of purchase whereby the children take jointly with A. But in order that A may take an estate tail by the operation of this rule, these requisites must concur: (a) The limitation must be in a devise; (6) The form of the limitation must be, "To A and his children," not to A for life, remainder to his children; and (c) A must have no children at the time of the devise. If all these requisites do not concur, the word "children" is not a word of limitation, and so cannot enlarge the estate of A to a fee-tail. But when these requisites do concur, the primary sense of the word "children," which is issue of the first generation, is displaced by the rule in Wild's Case, and "children" becomes equivalent to "issue," as embracing all descendants to take indefinitely in succession. See Moon Hamletts v. Hamlett, 12 Leigh, 350; Cooper v. Hepiurn, 15 Grat. 551. But any children of B born after A's death will be excluded. And in this case the words "born or to be born," applied to the children of A, will not alter the construction, because these words are taken to refer to children born between the death of the tes- tator and the death of A. See 2 Jarman, Wills, 700-742; Hawkins, Wills, 68-80; 29 Am. & Eng. Ency. Law, 410-414. And the rule as to the time at which the number of objects is to be ascertained is the same as to all classes of relations, brothers, nephews, cousins, etc., including issue when it is a word of purchase. 2 Jarman, Wills, 703; Hawkins, Wills, 72. See p. 221, supra. In the above statement of the law as to immediate and future gifts to children, it has been assumed that there were one or more children living at the death of the testator or at the death of the life tenant. But as to immediate gifts, if there be no child in esse at the death of the testator, the gift will embrace all the children who may be born afterwards by way of executory be- quest or devise. And the same rule is applicable to a future gift, when not subject to the common law rule as to the time of vest- ing of contingent remainders. 2 Jarman, Wills, 721, 725. See Code Va., § 2424, cited, infra. § 201] REMAINDERS. 237 V. Stone, 19 Grat. 130; Byng v. Byng, 10 H. of L. Cases 121; Gilford v. Boe, 5 App. Cases 447; Smith v. Fox, 83 Va. 763; East v. Garrett, 84 Va. 533. And in Cliford V. Roe, supra, it is said that the rule in Wild's case, if only a rule of construction (and not a rule of law, like the Rule in Shelley's Case), is not now to be departed from, unless the context of the will excludes the operation of the rule. The expression "time of the devise," seems to refer to the date of the will, although it has been argued that it ought to have reference to the state of things (i. e., the existence or non- existence of children) at the death of the testator, and not at the time when the will was made. See 3 Jarm. Wills, 174; 2 Min. Ins. (4th ed.) pp. 84, 85; Hawkins on Wills, 198; 11 Am. & Bng. Ency. Law, 879, n. 1.^ ^TiME OF THE Devise tjndeb the Rule in Wild's Case. — In 11 Am. & Eng. Ency. Law, p. 884, note, it Is said: "Under the rule in Wild's Case, 6 Co. 16 b, 17 a, the existence of issue or children at the time the devise or hequest takes effect, and not merely at the time it is made, is important as affecting the construction of the instrument. Such is not the literal language of all the cases, hut since the impossibility of giving the children or issue an es- tate jointly with their ancestor Is the main reason for giving the ancestor an estate tall, and as this impossibility does not ex- ist if there are children or issue living at the time of the testa- tor's death, whatever might have been the case at the date of the will, the existence or non-existence of [children] or issue at the death of the testator, if the gift be immediate, would seem to be the Important point. . . . But in Goodright v. Wright, 1 Strange, 25, 32, and Lyon v. Mitchell, 1 Madd. 467, the limitations were held to create estates tail expressly on the ground that the testator could not be supposed to have any particular affection for the issue, there being none in esse at the time of the devise." It will be observed that in the above extract the rule in Wild's Case Is treated as equally applicable whether the devise be, To A and his children, or To A and his issue; and that in neither case will A take an estate tail if there are children or issue at the "time of the devise.'' See this view (which the language of Wild's Case would seem to sustain) contended for by the learned author of the article on "Issue," 11 Am. & EUg. Ency. Law, 881, note 1. He admits, however, that "opinions have been entertained that 238 REAL PROPERTY. [Chap. 10 § 202. Doctrine in Virginia as to the Word "Children." — Suppose there is a devise "To a woman and her children," and that there are children living at the time of the will. Then, by the rule in Wild's Case, "children" is not a word of limitation but a word of purchase, and the children would take jointly with their mother. But in. Virginia, in many cases, the court has refused to adopt this construction, and has held, instead, that the mother takes the whole estate, and the children nothing at all; the mother taking the fee simple by the statute of 1787 dispensing with words of Limitation in order to confer the fee, and the word "children" being neither a word of purchase nor a word of limitation, but a word used to denote the motive of the testator in making the devise, viz., to give all to the mother, that she might have the means to support and educate her children. See Wallace V. Dold, 3 Leigh, 258; Stinson v. Day, 1 Eob. (Va.) 459; Mosby V. Paul, 88 Va. 533, where all the previous cases are collected. And this construction has been adopted in "West Virginia. Wilmoth v. Wilmoth, 34 W. Va. 426; Seamonds V. Hodge, 36 Id. 304. The same doctrine has been held as to deeds convej'ing property in trust for a woman and her children. Mauzy v. Mauzy, 79 Va. 537; Seibel v. Rapp, 85 Va. 28; Stace v. Bumgardner, 89 Va. 418; Nye v. Levitt, 92 Va. 710; Fachlery. Berry, 93 Va. 565.i in a gift [by will] to A and his issue, the word issue is always a word of limitation, whether there he any issue or not; and that, therefore, under any circumstances, A takes an estate tail in realty, and an absolute interest in personalty," and it is believed that such is the law, and that the doctrine of Wild's Case is now inapplicable except to a limitation to A and his children. See 2 Jarman, Wills (411); Hawkins, Wills, 189, 197; 2 Wms. Exors. 1107. ^ To A Woman and Her Children in Vibginia. — For the general doctrine that a deed or devise "To A and his children," when there are children living at the time of the deed or devise, cre- ates a joint estate in A and his children as purchasers, see Free- man, Cot. & Part., § 26, where it is said: "A deed, devise, or be- quest to a man and his children, or to a woman and her chil- §§ 202, 203] REMAINDERS. 239 § 203. Surviving Children. — When a testator makes a be- quest or devise "To A for life, and at A's death, to my surviving children/' and some of the children who snrvive the testator die before A, the life tenant, dies ; the question arises, does the word "surviving" have reference to the death of the testator, or to the death of A? It is now settled in Virginia that it refers to the death of the testator, unless the will manifests a contrary intent, and this on the ground that the law favors the vesting of estates. Hansford v. Elliott, 9 Leigh, 79 (Tucker, P., dissenting) ; Martin v. dren, without any additional words, must be regarded in the same manner as if made to any other class or number of persons. The grantees, therefore, take as joint tenants." See also Devlin on Deeds, § 860. And see 2 Va. Law Reg. 39, note, by Judge Burks to Nye v. Lovitt, 92 Va. 710, where it is said: "All the Virginia cases on this subject, we believe, are cited by Judge Lewis In Stace v. Bwmgardner. We invite an examination of each one of them, and we think it safe to say that in no one of them is the decision that the children take no interest rested on the language alone that the gift is 'to the woman and her children.' The intention to give exclusively to the woman is deduced from the context, and the language of the instrument taken as a whole. We submit that if the language is 'to the woman and her children,' they take — the woman and her children — a joint es- tate, unless there is some other language in the instrument mani- festing the intention that the woman shall take the whole estate and the children nothing." But see Mosby v. Paul, 88 Va. 533, not cited in Stace v. Bumgardner, supra. And in FacTcler v. Berry, 93 Va. 565, it is said by Keith. P.: "There is a class of cases beginning with Wallace v. Dold, 3 Leigh, 258, and running down to Mosby v. Paul's Adm'r, 88 Va. 533, in all of which the language used is far more apt and proper to create an interest in the children than that upon which we are commenting, but in each of these cases it was held that the mother took a fee simple to the exclusion of any interest whatever in the children, who were named merely as indicating the motive or considera- tion for the gift." In all the Virginia cases the limitation has been to a woman and her children. Quwre: would the construc- tion be the same in Virginia if a gift or devise were made to a man and his children? 240 REAL PROPERTY. [Chap. 10 Eirby, 11 Grat. 67; Stone v. Lewis, 84 Va. 474; Sellers v. Reed, 88 Va. 377; Gisli v. Moomaw, 89 Va. 347; Chapman V. Chapman, 90 Va. 409; Crews v. Hatcher, 91 Va. 383; Stanley v. Stanley, 93 Va. 534. In England, on the other hand, it is now settled, after great fluctuation, that the word surviving in a bequest of personalty, is taken as referring to the period of distribution. Cripps v. Wolcott, 4 Madd. 11 ; Hawkins on Wills, 361 ; 39 Eng. & Am. Bncy. Law, 488. In devises of realty, it ought to be referred, if the same rule were applied, to the determination of the prior limitation. But it is said that it must be left to future decisions to tell what is the actual rule of construction applicable in England to this perplexing word in reference to real estate. Taaffe V. Conmee, 10 H. of L. Cas. 69, per Westbury, C. ; Winterton V. Crawford, 1 Euss. & M. 407; 3 Jarm. on WiUs, 53; 3 Eedf. on Wills, 371, 488 ; Hawkins on Wills, 363. For a collection of the American cases see 39 Am. & Eng. Ency. Law, 489. § 204. Examples of Limitations to Surviving Children in Virginia. (1). Hansford v. Elliott, 9 Leigh, 79 [in effect] : "I be- queath certain personalty to my wife for her life; and at her death to be divided among my surviving children." Held, that surviving meant surviving the testator, and that all the children living at the testator's death took vested inter- ests, which were not affected by their death before the wife, but passed to their personal representatives. (2). Martin v. Kiriy, 11 Grat. 67 [in effect]: "I devise to my wife my land during her widowhood, and at her death I wish it sold and the proceeds divided among my surviving children." Held, that children surviving testator took vested interests at that time. (3). Stone v. Lewis, 84 Va. 474 [in effect] : "I devise my land to my wife for her life, and after her decease I wish it sold, and the proceeds divided among my surviving brothers and sisters." Held, the brothers and sisters surviving the testator took vested interests as of that time. ii 203-205] REMAINDERS. 241 (4). Jameson v. Jameson, 86 Va. 51 [in effect] : "I be- queath personalty to my daughter for her life, and after her death the same to be equally divided amongst her surviv- ing children, and the issue of such as may be dead, such issue taking per stirpes, and not per capita. Held, that the taking of the children is expressly postponed to the death of their mother, and the gift is to such only as survive her; but that the gift to the issue of such of the children as do not sur- vive the mother is an original gift to such issue, and not by way of substitution, and that to such original gift no con- dition of survivorship of the life tenant is annexed by the testator. Here it will be seen that as to the children, the general rule was set aside in favor of the intention, and the word "surviving" was held to have reference to the death of the life-tenant (their mother), and not to the death of the testator. (5). Cheatham y. Gower (Ya.) 26 S. E. 853 [in effect]: "I devise to my nephew my land for his life, and at his death to his surviving children." Held, following Jameson V. Jameson, supra, that "surviving" has reference to the death of the nephew, and not to the death of the testatrix, and that such only of the nephew's children were entitled as were liv- ing at his death; but that a child surviving the nephew (its father) was entitled to take, although not born until after the death of the testatrix. The general rule was recognized, but the case was made an exception on the ground of inten- tion. Keith, P., dissented. It would seem, however, that the decision is correct, and that there is a material distinction between cases where the testator, after a life estate to A, gives property (1) "To my surviving children" (i. e., sur- viving me, the testator), and ('2) "To his surviving children" (i. e., surviving A, the life tenant). § 205. Virginia Statutes Altering the Common Law Doc- trines Concerning Eemainders. (1). Livery of seisin is not required in Virginia in order to create a freehold. "All real estate shall, as regards the con- veyance of the immediate freehold thereof, be deemed to lie in 16 242 REAL PROPERTY. [Chap. 10 grant as well as in livery." Code of 1849, ch. 116, §. 4, taking effect July 1, 1850. See Code of 1887, § 2417. (2). Protection of a contingent remainder from destruc- tion by forfeiture or merger. "The alienation of a particular estate on which a remaiader depends [t. e., an alienation by a tortious conveyance, which worked a forfeiture at common law. Archer's Case, 1 Co. 63], or the union of such estate with the inheritance by purchase or descent, shall not operate, by merger or otherwise, to defeat, impair, or otherwise affect such remainder." See 1 Eev. Code of 1819, ch. 99, § 20; Code of 1887, § 2425 : So that trustees are not needed in Virginia to protect contingent remainders. See 17 Am. St. E. 839, note. (3). Statute protecting a contingent remainder from fail- ing, although it is not ready to vest during the continuance of the particular estate, or eo instanti that it determines. "A contingent remainder shall in no case fail for want of a particular estate to support it." Code of 1849, ch. 116, § 12; Code of 1887, § 2424. Thus in the limitation, "To A for life, remainder to the heirs of B," if A dies before B, the remainder to the heirs of B does not fail, but takes effect whenever B dies.^ 1 Pbotection of a Contingent Remainder from FAiLimE. — ^Upon the construction of the emphatic language of the Virginia statute of 1849 (taking effect July 1, 1850), that "a contingent remainder shall in no case fail for want of a particular estate to support it," two points are to he noted: (1). The statute prevents the failure of a contingent remain- der. It is assumed that there is such a remainder well limited, which, however, is liable to fail (never take effect) for want of a particular estate to support it; as when, subsectuently to the creation of the remainder, the particular estate comes to a nat- ural end, or is destroyed (meets with a violent death, e. g. by merger), before the remainder is ready to vest. In such case, though the remainder does not vest during the continuance of the particular estate, or eo instanti that it determines, the statute saves it from failure, and allows it to take effect afterwards. But in a deed "To A for ten years, remainder to the heirs of B," there is really no contingent remainder, as the limitation to the § 205] REMAINDERS. 243 heirs of B is void ai initio for want of a freehold support. It is not a contingent remainder liable to fail for want of a particular estate (of freehold) to support it; but an abortive attempt to create such a remainder, void in its inception, and concerning which, as a nullity, no question of failure arises. Such a limita- tion, therefore, is not within the meaning of § 2424 of the Code. If it were in a devise, it would be good as an executory devise (as to which see hereafter) ; and it is now validated in a deed by C. v., § 2428, declaring that "any estate which would be good as an executory devise or bequest shall be good if created by deed." (2). Again, it is to be observed that the statute preserves a contingent remainder from failure "for want of a particular es- tate to support it." But a condition precedent to the vesting, im- posed by the grantor, expressly or by construction of law, must be performed before the remainder can vest and take effect. Fearne, as we have seen, defines a contingent remainder as "lim- ited so as to depend on an event or condition which may never happen or be performed, or which may not happen or be per- formed until after the determination of the particular estate." It is to the latter case that the statute refers; and the remainder (subject to the rule against perpetuities, as to which see here- after), is allowed to take effect on the performance of the condi- tion precedent, though it Is not performed until after the ending of the particular estate; so that there is an interval during which there was a "want of a particular estate to support it." Thus, in the limitation: "To A for life, and if B (a bachelor) have a son, then to such son and his heirs," a son of B could take under the statute, though not in being until after the death of A; and so in a deed "To A for life, and after C's death, to B and his heirs," it is presumed, under the statute, that B could take on C's death, though A dies before C. On the other hand, if a deed be made "To A for life, and if C dies under twenty-one, remainder to B and his heirs"; while, by the statute, B could take on the death of C under twenty-one, though after the death of A, yet B would not take if C lived to be over twenty-one. And the same is true when the remainder is contingent on the survivorship of one per- son by another, or survivorship of a certain time or event. The survivorship must take place, though under the statute it may not occur until after the determination of the particular estate. Thus, in a devise "To A for life, remainder to such of the children of A as shall be living at the death of B," only such children of A as survive B can take; but the statute permits them to take if they do survive B, though the death of B does not occur until many years after the death of A. CHAPTEE XI. BxECUTORT Interests. § 206. Definition, — Executory interests are divided into two classes: (1) Executory Uses, and (3) Executory Devises. An executory use is a limitation valid as a use, but void at common lav? as a remainder. An executory devise is a limi- tation valid in a will, but void at common law as a remainder. Pearne's celebrated definition of an executory devise is in substance as follows : "Such a limitation of a future estate in lands as the law admits in a will, though contrary to the rules of conveyancing at common law." See Fearne, pp. 386, 395.1 § 207. The Sacred Rule as to Executory Interests. — No limitation in a deed or will shall ever be considered an execu- tory use, or an executory devise, if it can possibly be good at common law by way of remainder. It is said that if there be one rule of law more sacred than another, it is this. The reason is that as executory interests allow modes of limita- tion contrary to the common law, they are in derogation of it, and so are construed strictly. The law favors the old feudal remainder, and treats every limitation by way of use, or by ^Definition of an Exbcutoby Devise. — In 2 Jarman on Wills (5th Am. ed.), 483, it is said: "An executory devise is a limita- tion by will of a future estate or interest in land which cannot, consistently with the rules of law, take effect as a remainder; lor it is well settled, and indeed has been remarked (as a rule without exception), that when a devise is capable, according to the state of the otjects at the death of the testator, of taking ef- fect as a remainder, it shall not be construed to be an executory devise." 244 §§206-210] EXECUTORY INTERESTS. 245 way of devise, as a remainder, whenever as a remainder it would be well limited at common law. Purefoy v. Rogers, 3 Saund. 380, 388; Fearne, 394; Gray, Perpetuities, § 59; 20 Am. & Eng. Ency. Law, 913; 2 Min. Ins. (4tli ed.), 431. § 208. How to Recognize Executory Interests. — The prima facie presumption is always in favor of remainders. See the "Sacred Rule" above given. Hence the first thing to be considered, in order to decide whether a given limita- tion is an executory interest or not, is whether it would or would not be good in feoffment, according to the common law rules governing remainders. If it can he good by way of remainder, then it is a remainder, and must stand or fall as such (see infra, § 313), and can never be regarded as an executory use or devise, although it may occur in a convey- ance to uses or in a devise. But if the limitation would be void at common law hy ivay of remainder, then, if it occurs in a conveyance to uses, it is called an executory use; and if it occurs in a devise, it is called an executory devise. § 209. Practical Test of an Executory Interest. — Examine the limitation, and decide whether as a remainder it is well limited. It will not be well limited as a remainder: (1) If by it a freehold is made to commence in futuro; or (2) if a fee simple is mounted on a fee simple, or if any limitation follows a fee simple; or (3) if a contingent remainder of freehold lacks a freehold support; or (4) if the limitation over is separated from the particular estate; or (5) if it is limited to take effect in derogation of the particular estate. See ante, § 183. Hence, in each of these cases the limitation cannot be good by way of remainder, and for this very reason it becomes an executory interest. 3 Jarm. Wills, 483. § 210. Examples of Executory Uses. — These occur in a conveyance to uses, and so there must be a feoffee to use, and a cestui que use. (1). Deed "To A and his heirs to the use of B and his heirs from and after the marriage of B with P." Now is 246 REAL PROPERTY. [Chap. 11 B's estate good by way of remainder? Manifestly not, since it is a freehold commencing in futuro. Therefore, B's estate cannot be a remainder, and hence it can be and is an execu- iory use, being found in a conveyance to uses. It is called a springing use, as it springs up and takes effect on a future day. (2). Deed "To A and his heirs, to the use of C and his heirs until B shall marry F ; and from and after such mar- riage to the use of B and his heirs." Is B's estate good by way of remainder? Manifestly not, for it mounts a fee on a fee. Then B's estate cannot be a remainder, and, there- fore, it can be and is an executory use, being found in a con- veyance to uses. It is called a shifting use, as it shifts, on B's marriage, from C to B. N". B. A use is called springing when it limits a freehold to commence in futuro; a use is called shifting when it mounts a fee on a fee. See (1) and (2) supra.^ '■ SpRiNGiNO AND SHIFTING UsES. — In 20 Am. & Eng. Ency. of Law, 909, these definitions are given: "Interests in realty created by such limitations, [i. e., "future interests in land which would he invalid if made in an assurance at common law"] are called executory interests, and may be divided into springing and shift- ing uses, and executory devises. A springing interest is an in- terest limited by way of use or devise to take effect at a future time independently of, without being supported by, and without affecting, any prior interest of the measure of freehold created by the same instrument. A shifting interest is an interest so limited as to arise in derogation or defeasance of another inter- est of the measure of freehold created by a preceding limitation. If created by way of use, these interests are called springing and shifting uses; if by will, springing and shifting devises, or more commonly executory devises indiscriminately. Conditional limita- tion is a common term for shifting uses and shifting executory devises, as well as the limitations by which they are created. A contingent use, strictly speaking, is a remainder limited by way of use, but the term is used loosely to designate all future uses, and sometimes even to distinguish springing and shifting uses from those limited by way of remainder." In Gray, Perpetuities, § 54, it is said: "When a use or devise takes effect on the determi- §§210,211] BXE3CUT0RY INTERESTS. 247 (3). Deed to A and his heirs to the use of B for twenty- one years; remainder to the use of the first unborn son of B, and the heirs of his body. Is the estate of B's unborn son good by way of remainder? Manifestly not, for it is a contingent remainder of freehold without any freehold sup- port. Therefore, the estate to B's unborn son cannot be a remainder, and hence it can be and is an executory use. Gray, Perpetuities, § 58 ; 1 Am. & Bng. Ency. Law, 981', note. (4) . Deed to A and his heirs to the use of B for life, and after B's death and one weeh, to the use of C and his heirs. Is C's estate good by way of remainder? Manifestly not, for there is a gap between it and the particular estate. Then, as it cannot be a remainder, it can be and is an ex- ecutory use. For an example of a limitation over taking effect in derogation of the particular estate, see infra, § 312. It will be remembered that in each of the above exam- ples, A is feoffee to uses, and stands seised to the use, and is called the reservoir of seisin. The uses are executed, as they arise, by the Statute of Uses, he who has the use being deemed in lawful seisin and possession, i. e., to have the legal title. § 211. Examples of Executory Devises. — These do not re- quire the aid of uses, but they must be found in a devise, and then are permitted by way of indulgence to testators. (1). Devise to B and his heirs from and after his mar- riage with F. Is B's estate good by way of remainder? Manifestly not, because it is a freehold to commence in futuro. Therefore B's estate cannot be a remainder; and hence it can be and is an excutory devise, being found in a will. Com- pare this example with a springing use. nation of preceding estates created at the same time, it Is a re- mainder limited by way of use or devise. When a use cuts short another granted estate, it is called a shifting use. When it cuts short the estate of the person creating it, it is called a springing use." 248 REAL PROPERTY. [Chap. 11 (2). Devise to C and his heirs; but on the marriage of B with P, then to B and his heirs. Is B's estate good by way of remainder? Manifestly not, because it mounts a fee on a fee. Therefore, B's estate cannot be a remainder; and hence it can be and is an executory devise, being found in a will. Compare this example with a shifting use.^ (3). Devise to B for twenty-one years; remainder to the first unborn son of B and the heirs of his body. Is the estate of the unborn son good by way of remainder? Mani- festly not, because it is a contingent remainder of freehold without a freehold support. Therefore it cannot be a re- mainder; and hence it can be and is an executory devise, being found in a will. See Fearne, 395 ; 2 Jarm. Wills, 484. (4). Devise to B for life, and after B's death, and one week, to C and his heirs. Is C's estate good by way of remainder? Manifestly not, for there is a gap between it and the particular estate. Therefore C's estate cannot be a remainder, and hence it can be and is an executory devise. ^ Executory Devise of a Fee on a Fee. — In 2 Jarman on Wills, 485, it is said; "It will be apparent from what has been stated that every devise to a person in derogation of, or substitution for, a preceding estate in fee simple, is an executory limitation. Thus in the case of a devise to A and his heirs, and if he shall die under twenty-one and without issue (t. e., without issue living at his death), or if he shall die without issue, living B, then to B; in each of these cases the devise to B is executory, in the same manner as if the fee, instead of being limited to A, had been suffered to descend to the heir at law of the testator, and the property had simply been devised to B on either of such events; the only difference being that in the one case the property shifts, on the happening of the contingency, from the prior devisee, and in the other, from the heir of the testator, to the devisee of the executory interest. No species of executory limitation is of such frequent occurrence as those which are limited in defeas- ance of a prior estate in fee." §§ 211, 212] EXECUTORY INTERESTS. 249 Fearne, 398. For example of a limitation over taking effect in derogation of the particular estate, see infra, § 312.^ § 212. Conditional Limitations. — These constitute an im- portant class of executory interests, void at common law as remainders, but allowed in wills, and in deeds by way of use. In a conditional limitation there is a limitation of an estate to A, which, however, on a certain condition subse- 'Can ExECtTTOEY INTERESTS BE VESTED. — Fearne, Remainders, Introduction, 1, in his division of estates Into vested or contingent, names as vested in interest: "Reversions, vested remainders, such executory devises, future uses, conditional limitations, and other future interests, as are not referred to or made to depend on a period or event that is uncertain." And see Fearne, p. 400, where he divides freeholds to commence in futuro into two classes. (1) "Where the deviser gives a future estate to arise upon a contingency," as a devise to the first son or the heir of J. S., when he shall have one, or a devise to the daughter of B who shall marry such a one within fifteen years"; and (2) "Where the future estate is not contingent, but limited in a certain event, as a devise to one to take effect six months after the testator's death." And Jarman says, speaking of a freehold to commence in futuro (2 Jarm. Wills, 484) : "So a devise to a person or per- sons, whether in esse or not, to take effect at a given period after the death of the testator, as to A at the death of B (a stranger), or at six months from the testator's decease, obviously belongs to the class of limitations under consideration." And in Butler's note to Fearne, p. 398, it is declared that an executory devise of a fee after a fee may be made to take effect on a certain event, and the example is given of a devise of land "To A and his heirs, with a proviso that at the end of one year after the decease of B, it should devolve to C and his heirs." But although the event upon which an executory interest may be limited to take effect may be certain, it is denied by Butler in his note to Fearne, p. 1, n. (a), that such an interest can prop- erly be called a vested estate. He says: "It seems evident that as in all these cases the whole fee simple is either in the person from whom the land moves, or in his heirs, or is included in the actual limitations, the person taking under the conditional limi- tation, or executory devise, cannot, while the suspense continues, in the proper sense of the word have any estate, though the event on which it depends is certain of happening. A conveys land by 250 REAL, PROPERTY. [Chap. 11 quent, is limited over to B. Under this head may be ranked a fee on a fee by way of an executory devise, or by way of a shifting use, as has been explained above. But there is another species of conditional limitation which now de- mands special attention, and which can be best understood by an example. Suppose by feofiment at common law land is conveyed "To A for life : provided, however, that if C re- lease and release to B and his heirs to the use of C and his heirs from the first day of the following January; or devises land to C and his heirs from the first day of January next after the testator's decease. In the first case, the fee remains in A; in the second, it descends to the heir-at-law of A, till the day arrives upon which C is to be entitled to the land for an estate in fee simple in possession. In the meantime, C has not an estate in possession, as he has not a right of present enjoyment; he has not an interest in remainder, as the limitation to him depends on the estate in fee-simple, which, in the first case, remains in A, and in the second, descends to A's heir; he has not a contingent interest, as he is a person in being and ascertained, and the event on which the limitation to him depends is certain; and he has not a vested estate, as the whole fee is vested in A or his heirs. He, therefore, has no estate; the limitation is executory, and confers on him and his heirs a certain fixed right to an estate in possession at a future period." And Gray says (Perpetuities, § 114) : "An interest to commence at a future time certain, e. g., an executory devise to go into effect ten years after the testator's death, cannot be called contingent; but neither is it vested. It is an executory limitation. . . . Springing and shifting uses and executory devises are not vested interests until they take effect in possession, or are turned into vested remainders." And in § 99 Gray says: "The distinction [between vested and con- tingent interests] is of great importance as concerns the rule against perpetuities; for a vested interest is never obnoxious to the rule, while a contingent [or non-vested] interest not only may be, but often is." And in § 317 he declares: "Shifting and spring- ing uses and executory devises are all, without question, subject to the rule against perpetuities " By some text-writers, however, executory intorests are classi- fied as vested or contingent, after the analogy of vested or con- tingent remainders. See 2 Washb. R. P. 570; Tiedeman R. P., § 483, § 531; Hopkins R. P., 299, 301. Thus, in § 531, Tiedeman, § 212] EXECUTORY INTERESTS. 251 turns from Eoiae during A's life, A's life estate shall cease, and the land shall go to B and his heirs." The estate of B is called a conditional limitation, because it is an estate limited over to B after A's prior estate on condition. Now suppose C does return from Eome, can the limitation over to B take effect ? It cannot as a remainder, for every remain- der must, ex vi termini, await the regular expiration of the particular estate, and cannot cut it short, and take effect in derogation of it. See ante, § 183; also, § 309, (5). And if the limitation to B is to depend on the doctrine of condi- tional estates, it fares no better. For an estate granted on condition does not end ipso facto when the condition is broken. The grantor must enter and divest the estate; for he may waive the breach of condition if he chooses. And by the doctrine of maintenance no one hut the feoffor or Ms heirs can make the entry; for nothing at common law that lies in action, entry or re-entry can be granted over. It fol- lows that on C's return from Eome, B cannot himself enter on the land, but must wait for the entry of the feoffor. But suppose the feoffor enters. The effect is to annul the seisin says: "The devise Is vested when, the person who is to take is in esse, and is ascertained, and when the event upon which he is to take is also certain. Such a devisee takes a vested future estate. When the estate is to vest upon an uncertain event, or in a person not definitely ascertained, the executory devise is contingent and partakes of the nature of a contingent remainder." For the different meanings of "vested," see Hawkins, Wills, 221, where it is said: "It is obvious that this division into 'vested' and 'contingent' fails when applied to future executory interests in land, not taking effect as remainders. An executory devise after a fee simple cannot be said to be 'vested' as an estate until it vests in possession; and yet it may be limited on an event absolutely certain to happen, and is, therefore, not contingent." But whether executory interests can ever properly be called vested or not, it is agreed that they are all subject to the rule against perpetuities, both those which are to take effect upon a certain event and those whose future existence depends upon a contingency. See 18 Am. Eng. Ency. Law, 341, 353; 20 Id., 918, 951. 252 REAL PROPERTY. [Chap. 11 given to A ab iniiio, and to revest the land in the feoffor as of his old estate. But on this seisin the limitation to B de- pended; and, therefore, the annulling of A's estate destroys B's also. And for these reasons conditional limitations are void at common law. But, as stated above, they are per- mitted under the statutes of uses and devises. For, as execu- tory interests, they may take effect in derogation of the pre- ceding estate; and no entry by the feoffor or his heir is nec- essary, because in a devise, or in a deed to uses, the happen- ing of the contingency, or the non-performance of the con- dition, ipso facto determines the estate of the first taker, and vests it in the other to whom it is limited. "A conditional limitation is, therefore, of a mixed nature, partaking both of a condition and of a limitation; of a condition because it de- feats the estate previously limited; and of a limitation, be- cause upon the happening of the contingency, the estate passes to the person having the expectant interest without entry or claim." Brattle Square Church v. Grant, 3 Gray (Mass.), 142 (63 Am. Dee. 725), per Bigelow, J.; Fearne 274, 382, n. (a); 2 Jarm. Wills, 485; Gamp v. Gleary, 76 Va. 140; 20 Am. & Eng. Ency. Law, 912. § 213. Kemainders in Deeds by Way of Use, and in De- vises. — We have seen that there can be remainders by way of use, and that a limitation in a deed to uses must be consid- ered a remainder, unless it violates the rules governing re- mainders. Thus, a deed "To A and his heirs, to the use of B for life, remainder to the use of B's first unborn son and the heirs of his body," violates no rule for remainders, and is simply doing, by way of uses, what might as well have been done directly, without uses. Hence, the limitation to the unborn son cannot be considered an executory use, but is simply a contingent remainder by way of use. Again, it must not be thought that, because a future lim- itation occurs in a will, it is, therefore, an executory devise; for there can be a remainder in a will, and the limitation must be considered a remainder, unless it violates the rules §§212-214] EXECUTORY INTERESTS. 253 governing remainders. Thus, "Devise to A for life, re- mainder to the first unborn son of A who shall reach the age of twenty-five years," violates no rule for remainders, and is simply an example of a contingent remainder hy will. And it will be seen that this example does not violate the rule against perpetuities for contingent remainders heretofore stated (ante, § 187), for there is no estate given to an unborn person for life, followed by a remainder to the child of such unborn person. But at common law it runs the risk of fail- ing, in case A dies before his son reaches the age of twenty- five years. And it must be observed that, in conveyances to uses, where the uses are executed by the statute of uses and turned into legal estates, contingent remainders are subject to all the rules of the common law, and will fail if they are not ready to vest at the natural termination of the particular es- tate; and may be destroyed by forfeiture and merger. See ante, § 185; Fearne, 392-95; 20 Am. and Bng. Ency. Law^ 883, 913. But, on the other hand, if there are contingent re- mainders in trust estates, that is, in England, in unexecuted uses, the common law rules as to the seisin do not apply to such remainders (the seisin remaining in the trustees), and they do not require to vest eo instanti, and are indestructible. See AUiss v. Burney, 17 Ch. D., 211; Fearne (304) ; Wms. E. P. (17th ed.), 430, 473; Gray Perpetuities, § 325, note 1; 30 Am. and Eng. Ency. Law, §. 884. §214. Rules for Executory Devises. — (1). In general when one limitation in a will is taken to be an executory devise, all subsequent limitations must likewise be so taken. Thus, if one limitation after a fee simple is an executory devise, others are a fortiori; so if one freehold in future is followed by a second, or one conditional limitation by another; and so in other cases. Fearne on Eem. (503); 3 Lom. Dig. (311) ; 20 Am. & Eng. Ency. Law, 950. (2). A limitation once good as a contingent remainder cannot afterwards be construed as an executory devise. But 254 REAL PROPERTY. [Chap. 11 if the devisee of a particular estate on which the contingent remainder depends dies in the lifetime of the testator, then the limitation may be good as an executory devise. For be- fore the will takes eilect, the particular estate lapses; hence when the will operates, there is no such estate. Fearne on Eem. 525; 2 Washb. E. P. (348); 2 Min. Ins. (4th ed.), 447; 2 Jarm. Wills, 496; Carter v. Tyler, 1 Call (Va.), 165. (3). But an executory devise in the original form of the limitation may become, by after event, a contingent remain- der. See Fearne, 526; 3 Min. Ins. 445, 448; 2 Jarm. Wills, 498 ; Evers v. CMlUs, 7 H. of L. Cas. 531. (4). "It has been held that where an executory devise is limited per verla prcesenti, that is, where the devisee is mentioned as a person in present existence, and the com- mencement of the estate devised is not expressly deferred to a future period, then the devisee must be a person capable at the death of the devisor, or the devise will be void." Fearne on Eem. (533). Under this, such distinctions as these were taken: Devise to heirs of J. S., when J. S. is living at death of testator, is- void; but to the heirs of J. S., after death of J. S., is good. So, to first son of A, A hav- ing none, is void; but to the first son of A, when A shall have one, is good, because the devisor takes notice that A has no son, and intends a future gift. Fearne denies the dis- tinction, and thinks all the eases good. Fearne, (495), (534). And see 2 Min. Ins. 449 ; Tied. B. P., § 533 ; 20 Am. & Eng. Ency. Law, 937.^ A devise to a child en ventre sa mere is un- ^ Devise Per Vebba de PEiESENTi and Pek Verba de Futuro. — In 20 Am. & Eng. Ency. Law, 927, it is said: "Formerly it seems to have been held, that when an executory devise was limited per verba de prwsenti, that is, when the devisee was mentioned as a person in esse, and the commencement of the estate devised was not expressly deferred to a future period, the devise was void unless the devisee was capable of taking possession at the death of the devisor; otherwise if the devise was per verha de futuro, and expressly deferred to a future period. This dis- tinction. If valid at all, is equally applicable to springing uses. § 214] EXECUTORY INTERESTS. 255 doubtedly good, though formerly doubted. Fearne on Eem. (536) ; 3 Lorn. Dig. (323) ; 2 Min. Ibs. 449. And a bequest to a corporation not yet created is good, if the intent be clear that the charter shall be obtained within the time pre- scribed by the rule of perpetuities, as where the testator directs his executors to apply therefor. Inglis v. Trustees, &c., 3 Pet. 115; Lit. Fund v. Dawsons, &c., 10 Leigh, 152; S. C, 1 Eob. 418 ; Kinnaird v. Miller, 25 Grat. 107 ; 2 Min. Ins. 444. ( 5 ) . An executory devise of a fee on a fee is not affected by the failure of the first estate to take effect by lapse or otherwise; but that which was to be an executory devise is accelerated, and becomes a devise in prcesenti, and takes effect at the death of the testator. Thus in a devise "To A and her heirs, but if A dies under twenty-one and un- married, then to B and his heirs," with a residuary devise to C; if A dies under twenty-one and unmarried iefore the testator dies, the executory devise to B takes effect imme- diately on the death of the testator, and does not lapse in favor of the residuary devisee, C. Fearne (510) ; 2 Wash. E. P. (355) ; 3 Lom. Dig. 314; Mathis v. Hammond, 6 Eich. but its validity is extremely questionable." And in 2 Min. Ins. (4tli ed.), 449, the law is thus stated: "At present, however, this needless distinction between limitations to non-existing persons, per veria de prwsenti and per verba de futura, is very little re- garded, and is allowed to affect those cases only where there is not the least circumstance from which to collect the testator's or grantor's intention of anything else than an immediate limita- tion to take effect in prcesenti." Jarman seems to ignore the dis- tinction. Thus in speaking of an executory devise of a freehold to commence in future, he says (2 Jarm. Wills, 483) : "The first- mentioned species of executory estate occurs as well when the devise is future in its operation from the non-existence of the ob- ject at the death of the testator, as when it is future in the ex- press terms of its limitation. Thus a devise to the children of A, who happens to have no child at the death of the testator, or to the heirs of the body of A, a person then living, is executory for the reason suggested." 256 REAL PROPERTY. [Chap. 11 Eq. (S. C.) 121; Avelyn v. Ward, 1 Ves. Sr. 420. But see Allen V. Parham, 5 Munf. (Va.) 467. § 215. Rule of Perpetuities for Executory Interests. — Any executory interest which, by possibility, may not take effect until after lives in being and twenty-one years and ten months, is ipso facto and ab initio void. In other words, the executory interest is void for remoteness if at its creation there exists a possibility that it may not take effect during any fixed number of now existing lives, nor within twenty- one years and ten months after the expiration of such lives, even though it is highly probable, or, indeed, almost certain, that it will take effect within the time prescribed. In the application of the rule, twenty-one years are allowed inde- pendently of any person's actual minority, but the ten months (period of gestation) are allowed only when there is a child en ventre sa mere. See 2 Bl. Com. (Sharswood's ed.) 174, n. 14; 2 Bl. Com. (Cooley's ed.) 175, n. 12; Tied. E. P., § 544; 1 Jarm. Wills (5 Am. ed.), 502; Wms. E. P. (318); Gray, Eule against Perpetuities, §§ 201-268; 90 Am. Dec. 101- 106, n. ; 18 Am. & Eng. Ency. Law, 335 ; McArthur v. Scott, 113 U. S. 340, 382; Hopkins r. Grimshaw, 165 U. S. 342, 355 ; Stone v. Nicholson, 27 Grat. 1 ; Woodruff v. Pleasants, 81 Va. 37, 42; Otterlach v. Bohrer, 87 Va. 548; Whelan v. Reilly, 3 W. Va. 597, 612.^ ' Rule against Perpetuities. — In Hopkins v. GrimsJiaw, 165 tJ. S. 342, 355, the rule is stated by Gray, J., as follows: "An es- tate, legal or equitable, granted or devised by one person to an- other, which, by the terms of the instrument creating it, is not to vest until the happening of a contingency, which, by possi- bility, may not occur within the period of a life or lives in being (treating a child in its mother's womb as in being), and twenty- one years afterwards, is void for remoteness." That a child en ventre sa mere may be considered a life in heing, so as to omit in the statement of the rule reference to the period of gestation, see Gray, Perpetuities, § 201, § 220; 1 Jarm. Wills, 518; 18 Am. & Eng. Ency. Law, 341. And the same authorities show that there may be two periods of gestation allowed in the same limitation; for in a devise to such of the testator's grandchildren as shall §§214-216] EXECUTORY INTERESTS. 257 § 216. Examples of Executory Interests Violating the Rule against Perpetuities. (1). Devise to the first son of A (A being alive at the testator's death) who shall attain the age of twenty-five years. For if A were to die leaving a son a few months old, the reacli the age of twenty-one, a child of the testator might be en ventre sa mere at the testator's death, and such a child might die leaving a posthumous child, who would nevertheless be en- titled on reaching the required age. See Gray, Perpetuities, § 221, § 370; 18 Am. & Bng. Ency. Law, 341. Indeed, Gray (Per- petuities, § 222) supposes a case where a third period of gesta- tion might be allowed. And in Jarman, Wills, p. 517, it is said: "To treat the period of gestation, however, as an adjunct to the lives, is not, perhaps, quite correct. It seems more proper to say that the rule of law admits of the absolute ownership being suspended for a life, or lives in being, and twenty-one years afterwards, and that, for the purposes of the rule, a child en ventre sa mere is considered as a life in being." In 2 Min. Ins. (4th ed.) 438, the rule against perpetuities is thus stated: "Every executory limitation, whether of real or personal estate, in order to be valid, must vest in interest, if at all, within a life or lives in being, and the utmost period of ges- tation (ten months in Virginia), and twenty-one years there- after." And in 18 Am. & Bng. Ency. Law, 347, it is said: "The essential requirement is that the limitation be such that it can- not possibly take effect beyond the prescribed period; but a limita- tion is not void merely because it will not certainly take effect within that period, since a valid limitation might be one which must take effect within the period, or not at all." And see Gray, Perpetuities, §§ 201, 214, 325. In Williams, Real Property (17th ed.), 465, the effect of the rule against perpetuities is thus described: "It requires every future estate limited to arise by way of shifting [or springing] use or executory devise to be such as must necessarily arise [if at all] within the compass of existing lives, and twenty-one years after, with the possible addition of the period of gestation, in the case of some person entitled being a posthumous child. But if no lives are fixed on, then the term of twenty-one years only is allowed. And every executory estate which might in any event transgress the limits so fixed, will, from its commencement, be absolutely void. . . When a gift is infected with the vice of its possibly exceeding the prescribed limit, it is at once and 17 258 REAL PROPERTY. [Chap. 11 estate of the son would take effect at a time exceeding the period of twenty-one years from the death of A, whose life is, in this case, the life in deing. Wms. Eeal Prop. (319) ; Gray, §§ 215, 369-375. (2). Devise to the first son of A (A being alive at the testator's death) who shall attain the age of twenty-one years and ten months. (3). Devise to such of the testator's grandchildren as shall attain the age of twenty-five years. Newman v. Newman, 10 Sim. 51; Leake v. Robinson, 2 Merivale, 363; Stuart v. Cockerell, 5 Ch. App. 712; Gray, §§ 370-374. (4). Devise to such of the testator's grandchildren as shall survive both their parents, viz., the testator's child, and his or her wife or husband. For the testator's child may marry some person unborn at the testator's death; and as the gift to the grandchildren is not to take effect until after the death of iotli of their parents, this, in the case sup- posed, would be after a life not in being at the testator's death which makes the gift to the grandchildren void for remoteness. Gray, § 370, note 1; also § 214. See Stone y. Nicholson, 27 Grat. 1. § 217. Examples of Executory Interests not Violating the Eule against Perpetuities. (1). Devise to the first son of A (A being alive at the testator's death) who shall reach the age of twenty-one years. 1 Jarm. Wills, 515; Wms. E. P. (17th ed.) 465-'66. (2). Devise to such of the testator's grandchildren as shall attain the age of twenty-one years. 1 Jarm. WUls, 542 ; Gray, § 370; Woodruff v. Pleasants, 81 Va. 37, 42. (3). Devise of the income of property to be accumulated during the lives of all the testator's children, grandchildren, altogether void, both at law and in equity. And even though in its actual event, it should fall greatly within such limit, yet it is still as absolutely void as if the event had occurred which would have taken it beyond the boundary." See London, dc, B. Co. V. Gomm, 20 Ch. D. 562. §§ 216-218] EXECUTORY INTERESTS. 259 and great-grandchildren, who were living at the time of his death, for the benefit of certain future descendants of the testator, to ie living at the death of the survivor of the aforesaid children, grandchildren, and great-grandchildren. Thellusson v. Woodford, 4 Vesey, 321; 11 Id. 113. This extraordinary limitation occurred in the will of Peter Thel- lusson, an English merchant of great wealth, and was sus- tained as being within the limits prescribed by the Eule against Perpetuities. Wms. E. P. (330) ; Gray, §§ 190, 316, 686; 3 Min. Ins. (4th ed.) 451-454. (4). Testator wills that part of his estate devised in trust shall not be divided "until the youngest child of all my said children shall be twenty -one years of age"; and in the same paragraph directs that "when the youngest child now, and which shall hereafter be born, of all my said children shall have reached, or, if living, would have reached the age of twenty-one years," then the trustee shall sell the property and divide the proceeds "among such of my children as may then be living, and the descendants of those who may have died (they taking a parent's part)." Held, (1) that the tes- tator refers to his youngest grandchild; and (3), that the period of division is not too remote, as the estate must vest during lives in being, and the utmost period of gestation, and twenty-one years thereafter. OtterlacJc v. Bohrer, 87 Va. 548. See Gray, § 370. § 218. Upon What State of Facts Does Remoteness De- pend. — In applying the Enle against Perpetuities, it should be borne in mind that the question of remoteness depends upon the state of facts at the time of the testator's death, though differing from that existing at the date of the will. See 1 Jarm. "Wills (5th Am. ed.), 519; Gray, Perpetuities, § 331; 18 Am. & Eng. Ency. Law, 341, 347; McArthur v. Scott, 113 TJ. S. 340, 383; Pleasants v. Woodruff, 81 Va. 37, 43. It follows that a devise which would have been void if the testator had died immediately after making his will may be valid under the circumstances existing at his death. 260 REAL PROPERTY. [Chap. 11 Thus, in the example given above, "Devise to the first son of A (A being alive at the testator's death) who shall attain the age of twenty-five years," which is void for remoteness, if A were to die before the testator, leaving a son, the gift to the son would be valid ; for though the estate of the son is not to vest untU the son reaches twenty-five, yet it must necessarily take effect, if at all, within a life in being at the testator's death, viz., the son's own life. And the devise would also be valid if a son of A had attained the age of twenty-five before the testator's death, although A survived the testator. See "Wms. Eeal Prop. (17th ed.), note (1), citing 1 Jarm. on Wills (4th ed.) 354; (5th Am. ed. 539) ; Piclcen v. Matthews, 10 Ch. D. 264. And see Gray, Eule against Perpetuities, § 379.^ "^Past the Age op Child-Bearing. — No matter how old a per- son may be at the death of the testator, the law still presumes the possibility of issue, and thus a gift may be void for remote- ness. See 18 Am. and Bng. Law, 347; In re Dawson, 39 Ch. D., 155; Carney v. Kain ("W. Va.), 23 S. B. 650, 657, citing List v. Rodney, 83 Pa. St. 483, 492. In Gray on Perpetuities, the law is thus stated: "In one class of cases, from the diflSculty and delicacy of determining the question involved, the occurrence of a contingent event beyond the required limits will be considered as possible, although it is physically impossible. If a devise be made to those of a woman's children who reach twenty-five, the gift is too remote, although the woman be of such an age [at the testator's death] that it is certain that she can have no more chil- dren, and therefore the event must occur, if at all, in the lives of persons in being, viz.: of her children alive at the testator's death. In other words, for the purpose of determining questions of remoteness, men and women are deemed capable of having issue so long as they live. This was held by Sir Lloyd Kenyon in Jee V. Audley, 1 Cox, Ch. 324, and his decision has never been questioned." Jee v. Audley is followed in the case of In re Dawson, supra; and on a question of remoteness, it was held that evidence was inadmissible to show that a woman over sixty years of age at the testator's death was past the age of child-bearing. §§218-220] EXECUTORY INTERESTS. 261 § 219. Are There Two Rules against Perpetuities, One for Contingent Remainders and Anothter for Executory Inter- ests? — Mr. Williams, in his authoritative work on Eeal Prop- erty, contends that there are two different rules. See Wms. E. P. (17th ed.) 469; ante, § 187, "Eule of Perpetuities for Contingent Eemainders." But in Gray's Rv,le against Per- petuities, it is argued, with great force and learning, that there is but one rule against perpetuities, namely, that "No interest subject to a condition precedent is good, unless the condition must be filled, if at all, within twenty-one years after some life in being at the creation of the interest," and that this rule applies alike to contingent remainders and to executory interests. See Gray, § 201 ; also §§ 284-398. And see, for further discussion of the question, 1 Jarm. Wills, 521-'28; 3 Id. App'x, 711; 18 Am. and Eng. Ency. Law, 342, note; 20 Id. 876, note; 90 Am. Dec. 103, note. But the view of Mr. Williams has recently received judicial ap- proval in England, in Whitly v. Mitchell, 42 Ch. D. 494 (also 44 Ch. D. 85), where it is held that a remainder limited in a settlement to the children of an unborn person, after a life estate to the unborn parent, was void, and could not be made good by saying, "provided that such children shall be born within a life or lives now in being, and twenty-one years afterwards"; thus showing that the rule for contingent re- mainders, which declares that an estate cannot be limited to an unborn person for life, followed by an estate to a child of such unborn person, is considered in England an independent rule, and not merely an instance of the rule by which executory interests are restrained. For further explanation of the decision in Whitly v. Mitchell, see Wms. E. P. 17th ed.) 469-472; 18 Am. and Eng. Ency. Law, 342, note. See, also, In re Frost, 43 Ch. D. 246. § 220. Are there Two Rules against Perpetuities in Vir- ginia? — Whether Professor Gray is right or not in his con- tention that there never was but one rule, namely, the rule requiring future estates to take effect during existing lives, 262 REAL PROPERTY. [Chap. 11 etc., it would seem necessary, under the Virginia statute, to apply this rule to contingent remainders, in order to prevent them from tying up lands beyond the bounds of public policy. At common law, a safeguard against the in- alienability of lands by the creation of contingent remainders was found in the rules governing the seisin, and in the re- quirement that a contingent freehold remainder must vest, if at all, during the particular estate, or at the moment of its termination. This rule was re-enforced by the rule against perpetuities for contingent remainders, namely, that no estate can be given an unborn person for his life, followed by a remainder to the child of such unborn person. (See ante, § 187.) But now, in Virginia, by statute, "A contingent re- mainder shall in no case fail for want of a particular estate to support it," and the remainder may vest at any time in the future after the particular estate has terminated. Thus, if there be a deed "To A for life, remainder to the first unborn son of A who shall reach the age of forty-five years," A might not have until ten months after A's death, and then the remainder could not vest until the son reached the age of forty-five years ; and yet the remainder would not fail, under the Virginia statute, for want of a freehold support. But this might tie up the land beyond twenty-one years after ex- isting lives (in this case the life of A), unless the rule of perpetuities for executory interests be applied to the case; and this, it is believed, would be done in Virginia. See Moon y. Stone, 19 Grat. 130; Stone v. Nicholson, 27 Id. 1. And see, in accord with this view, Hopkins, Eeal Prop. 326 ; Gray, Perpetuities, § 286; 18 Am. and Eng. Ency. Law, 342. In 20 Am. and Eng. Ency. Law, 894, it is said : "It would seem that legislation which, either directly or indirectly, has the effect of making a contingent remainder indestructible would, almost necessarily, have the further effect of subjecting it to the rule against perpetuities, since it was originally exempted §§220,221] EXECUTORY INTERESTS. 263 from its operation solely on the ground of its destructible character."^ § 221. Definite and Indefinite Failure of Issue. — A failure of issue is called definite when it is to take efEect by the terms of the limitation at some certain time; it is called indefi,nite when it may occur at any time in the future. At common law the presumptioii is in favor of an indefinite ^RuLE OF Peepetuities fok Contingent Remainders. — The Eng- lish statute of 40 and 41 Vict., ch. 33, protecting a contingent re- mainder (created by any instrument executed or will republished on or after the 2nd of August, 1877) from destruction by reason of failure to take effect during the continuance of the particular estate or eo instanti that it determines, guards against the dan- ger of thereby causing a perpetuity by requiring that the re- mainder, to be entitled to protection, shall be so limited that It would have been valid if originally created as a shifting use or executory devise. Wms. R. P. 419; 18 Am. & Eng. Ency. Law, 342. And see Wms. R. P. 468, where the statute is thus explained: "We have now seen, however, that for a limitation to be valid as a shifting use or executory devise, it must conform to the rule against perpetuities. No contingent remainder will, therefore, be preserved by this act unless it be such as must necessarily vest within the duration of existing lives and twenty-one years after. Thus, if land be granted after 1877 to A, a bachelor, for life, and after his death to his first son who shall attain the age of twenty-four years, the gift to A's son is good as a contingent remainder, and may take effect if a son of A attain twenty-four in A's lifetime. But if A die before any son of his attain twenty- four, the contingent remainder to A's son will fail altogether by the common law rule, as not having vested before or at the termina- tion of the particular estate. And it will not be saved by the Act of 1877; because, as we have seen, it would not have been valid if originally created as a shifting use or executory devise." It will be observed, however, that in the case supposed the unborn son of A has, under the English statute, a chance to obtain the land, as he may reach the age of twenty-four in A's lifetime. The Virginia statute, on the other hand — "a contingent remainder shall in no case fail for want of a particular estate to support it" — includes all contingent remainders; and, in thus rendering them indestrucWble, subjects them to the rule against perpetuities for executory interests. Applying this rule to the case supposed. 264 REAL, PROPERTY. [Chap. 11 failure, when a limitation over is to take ejffeet on death with- out issue. Thus, "Devise to A for life, and if A die without issue, then to B and his heirs," imports an indefinite failure of the issue of A; and the meaning is that B is to take, not only in case A has no issue living at the time of his death, btu also in ease A has issue living at his death, if in the there- after such issue should fail at any future time. In other words, A is said to "die without issue" whenever A is dead and A's issue is extinct, no matter when the issue fails. In this sense Adam would have "died without issue" if there had been no survivors of the flood, and might even do so now if all of his descendants should perish from off the face of the earth. Wms. E. P. 290; 3 Jarm. Wills, 296; Gray Perpe- tuities, §§ 211-213; 11 Am. & Bng. Ency. Law, 899-912.^ the remainder to the first unborn son who shall reach the age of twenty-four, is void ab initio, and this regardless of the fact that he may, or actually does, reach the required age before his father dies. See Abbiss v. Bv/rney, 17 Ch. D. 211; Gray, Perpetuities, § 325. But it does not follow that because now in Virginia contingent remainders, as indestructible interests, are subjected to the rule of perpetuities for executory interests, that therefore they are exempted from the operation of the rule (now declared to exist in England) which forbids the gift of an estate to an unborn person for life, followed by a remainder to the child of such un- born person. For if the decision in Whitby v. Mitchell, 42 Ch. D., 494, be followed in Virginia, the limitation to the child of an unborn parent, after a life estate to the parent, is not validated by expressly confining the remainder to such child of the unborn parent as shall be born within the compass of lives existing at the time of the gift, and twenty-one years afterwards (see ante, § 219); and to such a limitation the rule forbidding successive life estates to unborn persons is still applicable. And see 2 Min. Ins. (4th ed.), 414, which seems to recognize the old doc- trine forbidding a possibility on a possibility, from which the rule invalidating a limitation, by way of remainder, to the un- born child of an unborn child, after a life estate to the unborn parent, has been said to be derived. But see L. Q^ R., July, 1898, p. 234. 1 Definite and Indefinite Failure of Issue. — The meaning of §§221,222] EXECUTORY INTERESTS. 265 § 222. Effect of a Limitation Over, Dependent on if He Die Without Issue, on a Prior Estate for Life. — iTake the limitation, "To A for life, and if A die without issue, then to B and his heirs," and suppose it to occur in a will, and "definite" and "indefinite," as applied to a failure of issue, is thus clearly stated by Kent: "A definite failure of issue is when a precise time is fixed by the will for the failure of issue, as in the case of a devise to A, but if he dies without lawful issue living at the time of his death. An indefinite failure of issue is a propo- sition the very converse of the other, and means a failure of is- sue, whenever it shall happen, sooner or later, without any fixed, certain, or definite period within which it must happen. It means the period when the issue or descendants of the first taker shall become extinct, and when there is no longer any issue of the is- sue of the grantee, without reference to any particular time or any particular event." 4 Kent's Com. (11th ed.),*274. The rule is well settled that words referring to the death of a person without issue, unexplained by the context, and in the absence of a statute changing their meaning, are construed to import a general indefinite failure of issue — i. e., a failure or extinction of issue at any period. 3 Jarm. Wills, 297. This construction of the words "dying without issue," which is called the legal as distinguished from the vulgar construction, had its origin, no doubt, in the language of the statute of De Bonis, by which estates-tail were created. The statute declares that land given to one and the heirs of his body "shall remain unto the issue of them to whom it was given after their death, or shall revert unto the giver, or his heirs, if issue fail (whereas there is no issue at all), or if any issue be, and fail by death, or heir of the tody of such issue failing." Westm. 2, 13 Ed. I., c. 1, 1285; 2 Washb. Real Prop., p. 694, app'x. "It was the com- mand of the statute," says Kent, C, in Anderson v. Jackson, 16 Johns R. 382, 405, "that probably led the courts to give a uniform construction to the words, in a deed or will, dying without issue; for the statute said that the land should remain unto the issue of the grantee until such issue fail." And see Hawkins, Wills, 205. But the common law presumption of an indefinite failure of is- sue is a rule of construction, and not a rule of law; and it may be rebutted by the context if it clearly appears that a definite failure was intended. 3 Jarm. Wills, 308. Thus words may be used clearly confining the failure of issue to the death of the 266 REAL PROPERTY. [Chap. 11 that the failure of issue is indefinite. Then A takes a fee tail, and B a vested remainder in fee simple. A's life estate is raised (or enlarged) to a fee tail by implication, in order to effectuate the intent of the testator. The grounds of the implication may be thus stated. The word "issue" in a will is equivalent to "heirs of the body." Hence, a devise, "To A and his issue," gives A an estate tail; and so does a devise "To A for life, remainder to his issue," by the Eule in Shelley's Case. Now, when the failure of issue is indefinite {i. e., a. failure at any time in the hereafter) the word "issue" is not confined to descendants in the first degree (i. e., children) , but comprises all the descendants, as a class of per- sons to take indefinitely in succession {i. e., by continuous descent to children's children in infinitum). If now there is a devise "To A for life, and if A die ivitJiout issue, then to B and his heirs,'' there is a presumption of intent that if A dies with issue, they are to take. For the estate of B is not to take effect unless A dies without issue, which implies that on A's death with issue, they are to succeed him. Hence, the construction is, "To A for life, remainder to issue of A; and person who first takes, or some other person; as e. g., "If A die without Issue living at his death;" or, "If A shall die under the age of twenty-one and without issue (Withers v. Sims, 80 Va. 651); or, "If A should die without issue, living B, his brother." And, as stated by Gray (Perpetuities, § 213, n. 2), "A definite failure of a man's issue is not necessarily a failure at his death; a failure in any particular generation or generations of his de- -scendants is equally definite. Whether such gift [i. e., a gift to take effect after a definite failure of issue] would be too re- mote can easily be determined. Practically, the question always arises between a definite failure at his own death, and an in- definite failure in any generation." For full discussion of the expressions which have been held to denote a definite failure of issue, see 3 Jarm. Wills (5th Am. ed.), 308-339; Hawkins, Wills (2nd Am. ed.), 205-212; 2 Min. Ins. (4th ed.), 440-443 (where the Virginia cases are collected) ; 11 Am. & Bng. Ency. Law, 899-916. And see Burfoot v. Burfoots, 2 Leigh (119); Taylor v. Taylor (Pa.), 3 Am. Rep. 563. §§ 222, 223] EXECUTORY INTERESTS. 267 if A die without issue (i. e., in default of issue of A), remain- der to B and his heirs." And this, as we have seen, gives A a fee tail by the Eule in Shelley's case, by which rule, "To A for life, remainder to the issue of A," is equivalent to "To A and his issue." Bradley v. Cariwright, L. -E. 2 C. P. 511, 534; Roddy v. Fitzgerald, 6 H. of L. Cas. 823, 87?; Ralph V. Garrick, 11 Ch. D. 883; Tate v. Talley, 3 Call, 354; Jiggetts v. Davis, 1 Leigh, 419 ; Wine v. Marhwood, 31 Grat. 43, 51; 3 Jarm. Wills, 383; 3 Min. Ins. (4th ed.) 456.^ § 223. Effect of the Words If He Die Without Issue on a Prior Fee Simple. — Take a devise "To A and his heirs ; and if A die without issue, then to B and his heirs." Here again A takes a fee tail, and B has a vested remainder. A takes the fee tail by implication to efEectuate the testator's intent. For the estate of B is to take effect if A dies without issue at any future time, the failure of issue being indefinite j and of course the estate of A is to end when that of B takes effect. The estate, however, given to A in terms is a fee simple, and this does not end by failure of issue, ■ whereas such failure makes the regular termination of an estate tail. Hence, it is manifest that as B is to take on the failure of the issue of A, A is to keep the land only so long as he has issue, and this is a fee tail in A. So the word "heirs" is construed to mean "heirs of the body," and this gives A a fee tail, followed by a vested remainder to B. But for this construction B's ' Life Estate Bnlaeged to a EYb Tail. — The effect of the limita- tion in giving the first taker a fee tail is sometimes ascribed to the doctrine that the general overrules the particular intent. This explanation, however, has been criticised, and the doctrine of "general" and "particular" intent has been pronounced "as a gen- eral proposition incorrect and vague, and likely to lead in its application to erroneous results." Doe v. Gallini, 5 B. & Ad. 640, per Lord Denman. See also the strong observations of Lord Wensleydale in Roddy v. Fitzgerald, 6 H. of L. Cas. 823, 877. In 3 Jarm. Wills, 284, it is said that the doctrine in its proper sense is merely descriptive of the operation of the Rule in Shel- ley's Case. 268 REAL PROPERTY. [Chap. 11 estate would be void. For it cannot be a remainder after a fee simple; and as an executory devise it would be void as violating the Eule against Perpetuities, being limited after in indefinite failure of the issue of A, which might not occur for many generations. Thus we see that the legal effect of a devise "To A for life, and if he die without issue, remainder B and his heirs," is identical with that of '"To A and his heirs, and if he die without issue, remainder to B and his heirs," and that in each case A has a fee tail, followed by a vested remainder. In the one case A's life estate is enlarged, and in the other A's fee simple is reduced, to a fee tail ; or, as has been said, the life estate is "levelled up," and the fee simple "levelled down," and both meet at the fee tail. Jiggetts v. Bavis, 1 Leigh (368), (418); Barter v. Pitts- hurgh, etc., B. Co., 166 U. S. 83, 104.^ ' Pee Simple Reduced to a Feb Tail. — The reason for this con- struction is thus stated by Preston: "A gift to a man and his heirs, and if he shall die without heirs of his body, or without issue male of his body, . . . or in like form, then to others, conveys an estate tail; for the subsequent words demonstrate the Qualified sense in which the word heirs is used; and the several parts of the instrument show that no heirs are to be entitled under the terms of the gift, except those which are the issue of the body of the donee." And again: "The whole instrument taken together evinces the meaning of the author of the limita- tion to be that the property which is the subject of his gift shall revert to himself or be enjoyed by some other person, as soon as there shall be a failure of the heirs of the body of the person who takes under the gift in question; and no construction save that only which creates an estate tail can give effect to this intention. The operation of the subsequent clause is to abridge and correct the words of limitation used in the preceding sentence by ex- plaining their import; and the words In this clause are allowed to have this effect for the purpose of conforming to the will of the donor, and ascribing to him some meaning in the use of the different clauses of the deed." 2 Prest Etet. 505. See also Bells V. Gillespie, 5 Rand. 288, 306; Jiggets v. Davis, 1 Leigh 418. It will be noticed that, in the above extract, Preston is speak- ing of a deed. And it seems to be settled that the effect of the limitation now under consideration is the same in deeds and wills. §§223,224] EXECUTORY INTERESTS. 269 § 224. No Estate Tail by Implication when the Failure of Issue is Definite. — In neither of the two cases considered un- der the two preceding sections can there be an estate tail raised by implication when the failure of issue is definite. Taylor v. Taylor (Pa.), 3 Am. Eep. 565. (1). Devise to A for life, and if A die without issue liv- ing at Ms death, remainder to B and his heirs. (a). In England. A takes an estate for life, and B has a remainder in fee, contingent on A's dying without issue living at his death. PlunTcett v. Holmes, 1 Lev. H; Eaym., 28; Lethieullier v. Tracy, 3 Atk. 774, 793; Jenkins v. Hughes, 8 H. L. Cas. 571, 593; Coltsmann v. Coltsmann, L. E., 3 H. L. 133; Fearne, Cont. Eem. 341; 3 Jarm. Wills, 138. The better opinion in England is that in this case, as well as when A's estate is a fee simple, the words, "if A die without issue living at his death," are but words of contingency, and do not operate by implication to create an estate in A's issue living at his death (if any) as purchasers. Monypenny v. Bering, 7 Hare, 588 ; Coltsmann v. Coltsmann, L. E., 3 H. L. 133, per Cairns, C. ; 3 Jarm. Wills, 144. It follows, of course, that as the words, "issue living at his death" are not words of limitation, they cannot affect the estate of A, which remains an estate for life. This construction, which refuses to raise by implication an estate in favor of the issue of A, living at his death, is contrary to a dictum of Lord Hardwicke in Jiejhieullier v. Tracy, 3 Atk. 796, and is regretted by Jarman as involv- ing the "palpable absurdity of making the estate of the the reasoning being equally applicable to both. The word "issue" does not become a word of limitation (this the law does not al- low in a deed), but merely qualifies the meaning of "heirs," show- ing that heirs of the body are meant. See 1 Shepp. Touchstone, *103; 3 Bac. Abr. Estates Tail, B.; 2 Lom. Dig. 222; Fish^ v. Wiffg, 1 P. Wms. 14; Idle v. Oook, lb. 70; Morgan v. Morgan, L. R., 10 Bq. 99; Anderson v. Jackson, 16 Johns R. 382, 405. 270 REAL PROPERTY. [Chap. 11 ulterior devisee (B) depend on the contingency of there not being issue (of A), and yet in the alternative even {i. e,., when there is issue of A), giving the property neither to A himself nor to such issue, but leaving it to devolve to the heir-at-law or residuary devisee (as the case may be) of the testator." 3 Jarm. Wills, 139, 144. (&). In Virginia. A has life estate, and there are two remainders in fee upon a contingency with a double aspect, both of which are contingent until the death of A. Upon that event, if there is issue of A living, the first remainder vests in each issue, and the second is defeated; if there is no issue of A living at his death, then the second remainder, to B, vests and takes effect. Warners v. Mason, 5 Munf . 242 ; Wine V. Marhwood, 31 Grat. 43. See § 183, supra. This contsruction difiers from that which obtains in Eng- land in implying a remainder in favor of the issue of A, if any, living at his death, thus avoiding the absurdity com- plained of by Jarman. It follows that the reason why A's estate is for life only in Virginia is that though the words, "if A die without issue living at his death," are not mere words of contingency, as in England, yet they are not words of limitation, but words of purchase, comprising the issue at a particular time ; and being words of purchase, they cannot operate to enlarge, or in any wise affect, the previous estate to A. See Smith v. Chapman, 1 H. and M. 340, 393, 398 ; Cooper v. Hepburn, 15 Grat. 551 ; Moon v. Stone, 19 Id. 130, argument of Wm. Green, pages 333, 245; Daniel v. Whartenby, 17 Wall. 639. (3). Devise to A and his heirs, and if A die without issue living at his death, remainder to B and his heirs. Here A takes a fee simple, and B has a fee, good by way of execu- tory devise, not too remote because of the definite failure of issue. Burfoot v. Burfoots, 3 Leigh (119). The reason that A's fee simple is not in this case reduced to a fee tail is that "issue living at his death" cannot be regarded as words of limitation to qualify and correct the §§224,225] EXECUTORY INTERESTS. 271 meaning of the word "heirs." To be a word of limitation, issue must embrace descendants of every degree, and can- not be satisfied by being applied to descendants at a given period; it must "take in all issues to the utmost of the family, as far as heirs of the body would do." 3 Jarm. Wills, 200; Roddy v. Fitzgerald, 6 H. L. Gas. 882. Hence it is considered that the testator did not intend by the words, "if A die without issue living at his death," to provide indefi- nitely for the issue of A, but merely to limit a contingency on which the estate of A was to be defeated, and that of B to take effect. For the clause, "if A die without issue," is not absolute and indefinite whensoever he die without issue, but it is with a contingency if he die without issue living at his death. Pells v. Brown, 3 Cro. (Jac), 540; Anon., 3 Dyer, 354 a; Barnfield v. Wetton, 2 Bos. & Pul., 324 ; Coltsmann v. Coltsmann, L. E., 3 H. L., 132; Jiggetts v. Davis, 1 Leigh, 420; TJiomason v. Andersons, 4 Id., 118; Jackson y. Chew, 12 Wh., 153 ; Abbott 1. Essex Co., 18 How., 202 ; Wms. E. P. (5th ed.), 215, note, citing American cases; 3 Jarm. Wills, ch. xli. § 225. If He Die Without Issue Now in Virginia. — By statute taking effect January 1, 1820, the old common law presumption of an indefinite failure of issue was altered in Virginia, and the presumption of a definite failure was made to take its place. The language of this most important statute is as follows : "Every limitation in any deed or will contingent upon the dying of any person without heirs, or heirs of the body, or issue of the body, or offspring, or de- scendant, or other relative, shall be construed a limitation to take effect when such person shall die not having such heir, or issue, or child, or offspring, or descendant, or other rela- tive, as the case may be, living at the time of his death, or horn to him within ten months thereafter, unless the inten- tion of such limitation be otherwise plainly declared on the face of the deed or will creating it." See 1 Eev. Code (1819) ch. 99, § 26; Code (1887), § 2422. A similar statute was 272 REAL PROPERTY. [Chap. 11 passed in England, to take effect January 1, 1838. And statutes making the failure of issue definite have been passed in the United States generally.^ ^ PAiLtiRE OF Issue Made iJefinite by Statute in England. — By 1 Vict. ch. 26, § 39, it is declared (3 Jarm. Wills, App'x, 801): "In any devise or bequest of real or personal estate, the words, 'die without issue,' or 'die without leaving issue,' or 'have no issue,' or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his Issue, shall be construed to mean a want or failure of Issue in the lifetime or at the death of such person, and not an Indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise"; with a further proviso not necessary to be here stated. It will be seen that the English statute does not alter the common law presump- tion of an indefinite failure of issue, when the person, to the failure of whose issue reference is made, has already an estate tail; but the Virginia statute, set out above, makes no such ex- ception, for the reason, no doubt, that in Virginia the prior estate tail is, by the Act of 1776, immediately converted into an estate in fee simple. See Elys v. Wynne, 22 Grat. 224. As to the effect of the English statute on the implication of estates tail, it is said by Jarman (2 Jarm. Wills, 143): "No Implication of an estate tail can arise from words importing a failure of issue In a will made or republished since the year 1837, unless an intention to use the phrase as denoting an in- definite failure of issue is very distinctly marked," quoting the statute of 1 Vict. ch. 26 above cited. He then goes on to show that in a devise "To A and his heirs; and if A die without Issue, to B and his heirs," A will take, under the new rule of construc- tion, an estate in fee simple, subject to an executory devise in favor of B, in the event of A's dying without leaving issue at his death; and that, by a will since 1837, in a devise "To A for life, and if A die without issue, to B," A will take an estate for life only, with a contingent remainder to B, to take effect in the event of A's dying without issue living at his death. But that there is in England no implication of a remainder in favor of the issue of A living at his death, if such there be, see § 224, supra. And see, also, as to the effect of the English statute, Wms. R. P. (17th ed.), 291; Hawkins, Wills (2nd Am. ed.), 214. §§225,226] EXECUTORY INTERESTS. 273 § 226. Effect of Virginia Statutes on Limitations Contin- gent on Dying Without Issue. — These statutes are: (1) Act of October 7, 1776, converting a fee tail into a "full and absolute fee simple" (9 Hen. Stat. 326. See § 40, supra) ; (2) Act taking efEect January 1, 1830, making failure of issue definite (see § 335, supra) ; and (3) Act taking effect January 1, 1830, declaring in effect that any limitation that would be valid after an original fee simple shall be valid after a fee tail converted into a fee simple (abolishing the doctrine of Carter v. Tyler, 1 Call, 165). See Code Va. §§ 3431-'33. Let us now examine the following limitations at common law and under these statutes.^ 'Alteration of Law Between the Execution of a Will and THE Death of the Testator. — Upon the general question, see Bigelow on Wills (Student's Series), 278-9, where it is said: "The validity of the execution of a will is to be determined by the law in force at the testator's death. A statute changing the requirements for execution is not open to the objection that it operates retrospectively, because the execution of the will has no force until the death of the testator. Again, if a statute should alter the effect of the dispositions made in a will, and the testator should allow the will to stand unchanged, it would be presumed, in England, that it was his intention that the will should operate according to the change in the law. Hasluck v. Pedley, L. R., 19 Eg. 271. But in some of our States it is held that, in regard to questions of property, the law which was in force when the will was executed is to be applied. Both views, no doubt, stand upon the ground of supposed intention of the testator." When the law as it is at the death of the testator does not apply (as it does not by express provision of the Wills Act of 1 Vict. c. 26, § 34), It has been held that if a change of law as to the operation of a will is made between the date of the will (i. e., the time of writing it) and its actual execution, it is to be construed accord- ing to the law in force at the time it was executed. Bandfield V. Bandfield, 8 H. of L. Cas. 225; 29 Am. & Eng. Ency Law, 355, note. With reference to the Virginia statutes, referred to above, the act of October 7, 1776, abolishes estates tail without reference to the time of their creation, declaring that "every person who now hath, or hereafter may have, an estate in fee taille, general or 18 274 REAL PROPERTY. [Chap. 11 § 227. Devise to A for life, and if A Die without Issue, Eemaiuder to B and His Heirs. (1). In Virginia, before October 1th, 1776. Same as at common law. A has a fee-tail by implication, and B has a vested remainder in fee simple. See § 222, supra. (2). From October 7, 1776, to January 1, 1820. A has special, in any lands, . . . -whether such estate taille hath been or shall be created by deed, will, act of assembly, or by any other ways or means, shall from henceforth, or from the commencement of such estate taille, stand ipso facto seised . . . of such lands ... in full and absolute fee simple." 9 Hen. Stat. 226. See § 40, supra. As to the two acts going into effect January 1, 1820 (the one making the failure of issue definite, and the other abolishing the doctrine of Garter v. Tyler), the language of 1 Rev. Code of 1819, chapter 99, §§25 and 26, makes it clear that both acts are appli- cable to wills made before January 1, 1820, if the testator died on or after that date. By § 25: "Every estate in lands which shall be limited by any deed hereafter made, or iy the will of any person who shall hereafter die, so that, as the law was on the seventh day of October, in the year of our Lord one thousand seven hundred and seventy-six, such an estate would have been an estate tail, shall be deemed to be an estate in fee simple, in the same manner as if it had been limited by those technical words which, at the common-law, are appropriate to create an es- tate in fee simple; and every limitation upon such an estate shall 6e held valid if the same would 6e valid when limited upon an estate in fee-simple, created hy technical language as aforesaid^" The last clause of § 25 abolishes the doctrine of Garter v. Tyler. Then follows § 26, rendering the failure of issue definite, which begins thus: "Every contingent limitation in any such deed or will, made to depend on the dying of any person without heirs," etc. (For the statute as it now stands In the Code of 1887, § 2422, see § 225, supra.) What is meant by "any such d^ed or will?" Referring to § 25, it is plain that it means, "any deed hereafter made, or the will of any person who shall hereafter die," thus making the new law applicable if the testator died after the statute went into operation, regardless of the time of the execu- tion of the will. With regard to the Virginia Wills Act taking effect July 1, 1850, it is expressly provided by § 22 of ch. 122 of the Code of 1849, that, "The preceding sections of this chapter shall not extend to §227] EXECUTORY INTERESTS. 275 a fee simple, the act of 1776 converting the implied fee- tail into a "full and absolute" fee simple. Then B's estate cannot be a remainder, because no remainder can follow a fee simple. Neither is it allowed to be an executory devise, by the doctrine of Carter v. Tyler (as to which, see below) ; and, if it could be allowed to be an executory devise, it .would violate the rule against perpetuities, because it is to take effect after an indefinite failure of issue. So^ takes the fee simple, and B takes nothing. Tate v. Tally, 3 Call, 354. N. B. The doctrine in Virginia of Carter v. Tyler, as it is called, is the doctrine which declares that in no case can an executory devise follow a fee tail raised to a fee simple by the statute of 1776 abolishing estates tail, and convert- ing them into estates in fee simple. For this doctrine two reasons are given, namely: (1) That before the statute operated on the fee tail, there was a moment of time when the limitation over after the fee tail was a remainder; and this remainder could not turn into an executory devise by matter ex post facto, for the maxim is, "Once a remainder, always a remainder" (see § 314, supra) ; and (3) That when the statute of 1776 declared that every estate tail should become a "full and absolute fee simple," it neces- sarily avoided an executory devise after a fee tail so con- verted; for the effect of an executory devise after a fee simple is to make the fee defeasible on the happening of the event on which the executory devise depends; and this is in- consistent with a full and absolute fee simple in the first taker. Carter v. Tyler, 1 Call 165; McClintic v. Manns, 4 Munf. any will made before this act is in force; but the validity and effect of such will shall be determined by the laws in force on the day before this chapter takes effect, in like manner as if these laws, so far as they relate to the subject, were herein enacted in place of such sections. Every will re-executed or re- published or revived by any codicil shall, for the purposes of this chapter, be deemed to have been made at the time at which the same shall be so re-executed, republished, or revived." And see Code of 1887, § 2532. Also Raines v. Barker, 13 Grat. 128. 276 REAL PROPERTY. [Chap. 11 338; Ball V. Payne ^ 6 Eand. 73; Bramble v. Billups, 4 Leigh (90) ; Callis v. Kemp, 11 Grat. 78. See Moore v. Broohs, 13 Grat. 135. (3). From January 1, 1830, to the present time. A has a life estate not enlarged to a fee-tail, because failure of issue is made definite by the act of January 1, 1830. And there are two remainders in fee upon a contingency with a double aspect, both of which remain contingent until the death of A, the one to the issue of A living at his death, or born to him within ten months thereafter, and the other to B. On A's death, if there is issue of A then living, etc., the first remainder vests in such issue, and the second is defeated; but if there is no issue of A, living at his death, etc., then the second remainder, to B, takes effect. See § 334, supra. The form of the limitation under the statute is, in effect, "To A for life; and if A die without issue living at his death, or born to him within ten months thereafter, then to B and his heirs." Jiggetts v. Davis, 1 Leigh (Va.) 419; Wine V. MarJcwood, 31 Grat. 43, 51; Sutherland v. Sydnor, 84 Va. 880. See Warners v. Mason, 5 Munf. (Va.) 343. § 228. Effect of Definite Failure of Issue on Rule in Shel- ley's Case. — ^View of Professor Minor. — It will be remembered that in the above limitation, "To A for life, and if A die with- out issue, remainder to B and his heirs," A takes at common law a fee-tail by the implication of a remainder to the issue of A, following A's express life estate, and the consequent operation of the Eule in Shelley's Case. For at common law the failure of A's issue is indefinite, and the word "issue" therefore embraces the whole line of A's issue, his whole in- heritable blood, and "takes in all issues to the utmost of the family, as far as heirs of the body would do. It is therefore a word of limitation and not of purchase. 3 Jarm. Wills, 300 ; Roddy V. Fitzgerald, 6 H. of L. Gas. 883. But by the Vir- ginia statute of 1830, the failure of issue is made definite, and the remainder implied in favor of the issue of A is confined to issue living at the time of his death, or born to him within §§227,228] EXECUTORY INTERESTS. 277 ten months thereafter; and this prescription of a definite time makes such issue a particular class as of that time, and the word "issue" becomes descriptio personarum and a word of purchase, instead of nomen coUectivum and a word of limi- tation. Hence the Rule in Shelley's Case has no application, and cannot operate to enlarge the estate of A, which remains as previously limited.^ See Lethieullier v. Tracy, 3 Atk. 784, 796; Smith v. Chapman, 1 H. & M. (Va.) 240, 292, 398 j Jiggetts v. Davis, 1 Leigh (368), (418) ; Nowlin v. Winfree, 8 Grat. 346, 348; Tinsley v. Jones, 13 Id. 289, 296; Cooper V. Heplurn, 15 Id. 551 ; Moon v. Stone, 19 Id. 130, 232, 245 ; Daniel v. Whartenhy, 17 Wall. 639 ; Va. Law Journal, April, 1880, article entitled, "Dying Without Issue Under Virginia Statutes"; Va. Law Journal, October, 1883, article entitled, "The EfEect of a Definite Failure of Issue on the Operation of the Eule in Shelley's Case." See, however, 2 Min. Ins. 453-457 (3rd ed.), 458-462 (4th ed.), where it is contended that the statute of 1820, making the failure of issue definite, had no effect upon the implication of an estate tail; so that A's life estate is first raised to a fee tail, and then by the statute of 1776 is converted into a fee simple, after which the fee simple to B is good as an executory devise; and that ^ The doctrines that estates tail continue to be created "as the law was aforetime," i. e., on October 7, 1776, can have no applica- tion in this connection, because the statute of 1819 makes "die without issue," wherever it occurs, equal to "die without issiie living at Ms death," etc.; and this limitation, as the law was aforetime, did not create an estate tail. For the extent of the doctrine referred to, see Garter v. Tyler, 1 Call, 165; Hill v. Bur- row, 3 Id. 342; Tate v. Tally, lb. 354; Tidball v. Lupton, 1 Rand. 194; Goodrich v. Harding, 3 Id. 280; Bells v. Gillespie, 5 Id. 273; Ball v. Payne, 6 Id. 73; Jiggetts v. Davis, 1 Leigh (368) ; Bramhle V. Billups, 4 Id. (90); Thomason v. Andersons, lb. (115); See v. Craigen, 8 Id. 449; Tinsley v. Jones, 13 Grat. 289. For a correct statement of the results of these cases, the reader is referred to 3 Lom. Dig. (211). For a clear explanation of the effect of the act of 1785, see opinion of Moncure, P., in Tinsley v. Jones, 13 Grat. 296-'97. 278 REAL PROPERTY. [Chap. 11 this continued to be the law of Virginia until the statute of July 1, 1850, abolishing the Eule in Shelley's Case, after which A takes a life estate, followed by a contingency with a double aspect, as is explained above. But this doetrinfe of Professor Minor, as to the effect of the statute of 1830, is not sustained by authority, and is believed to be unsound in principle.^ ^ The Impoktance of the Costsequences which Flow FEOii the Opposing Views. — When the form of limitation is 'To A and his heirs, and if he die without issue, to B," It can make no differ- ence, since the legislation of 1819, aholishing the doctrine of Carter v. Tyler, and removing the objection of remoteness as to B's estate, whether A be considered to have a fee simple by orig- inal limitation, or a fee simple by first reducing the fee to a fee tail, by implication, and then restoring it to the dignity of a fee by virtue of the statute of 1776. Cwr v. Porter, 33 Grat. 278. But it is far otherwise when the form of the limitation is, "To A for life, and if he die without issue, to B." For here, if A's life es- tate is enlarged, by implication, to a fee tail, and then made a fee by the statute, then if A die without issue living at his death, etc., the fee will shift to B, subject to a right of dower in favor of the widow of A; or, if A were a female, her husband would have curtesy, other requisites being present. Jones v. Hughes, 27 Grat 560; Medley v. Medley, lb. 568; Corr v. Porter, supra. But, of course, if A's estate remains for life only, there will be neither dower nor curtesy. Again, while it is true that if there be no issue of A living at his death, etc., the land will go over to B, whether A be consid- ered to have a life estate or a fee simple; yet the consequences, when there is issue of A, are by no means the same in the two cases. For if A have the fee, subject only to go over to B on the happening of the contingency, then when the contingency does not happen, A has an absolute fee, with which he can do what he wills. But if there be issue of A, when A has a life es- tate only, such issue, living at his death, etc., are entitled to the estate as purchasers, and their interest can in no wise be af- fected by any act of A's. Wine v. Markwood, 31 Grat. 50. It may be remarked that the question which has been discussed may yet arise upon wills subject to the law as it was prior to July 1, 1850. For until the death of the tenant for life, when the contingency of dying without issue living at his death, etc., is decided, the statute of limitation does not begin to run; and as §§228,229] EXECUTORY INTERESTS. 279 § 229. Devise to A and His Heirs, and if A Dies Without Issue, Remainder to B and His Heirs. (1). In Virginia before October 7, 171'6. Same as at common law. A has a fee-tail, by implication, and B has a vested remainder. See § 233, supra. (20. From October 7, 1H76, to January 1, 1820. A has a "full and absolute" fee simple by the effect of the statute of 1776 on the estate tail created by implication. B's estate is void as a remainder, since no remainder can follow a fee simple; and as an executory devise it cannot be allowed because of the doctrine of Carter v. Tyler; and besides it would violate the Eule against Perpetuities because of the indefinite failure of issue. Hill v. Burrow. 3 Call, 343; Eldridge v. Fisher, 1 H. & M. 559; Sydnor v. Sydnors, 3 Munf. 263; Bells V. Gillespie, 5 Eand. 273; Broaddus V. Turner, 5 Id. 308; Tinsley v. Jones, 13 Grat. 389; See v. Craigen, 8 Leigh, 449. (3). From January 1, 1820, to the present time. A has a fee simple, and B has a good executory devise of a fee after a fee. A's fee simple is by the original limitation to him and his heirs, and not by the effect of the statute of 1776 on an estate tail. For as the failure of issue is now definite, no estate tail can be raised by implication; and the fee simple to A remains a fee simple. And the execu- tory devise to B does not violate the Eule against Perpe- tuities, because the failure of issue is definite, and B is to take if A has no issue living at his death, or born witliin ten months thereafter. See Corr v. Porter, 33 Grat. 278; Randolph v. Wright, 81 Va. 608; Pettyjohn v. Woodroof, 77 Va. 507; Tomlinson v. Niclell, 24 W. Va. 148. N. B. — It should be observed that if in a devise since the first taker may be an infant at the death of the testator, litigation may be thus postponed for many years. In the case of Pettyjohn v. Woodroof, 77 Va. 507, the testator died in 1822, but as the first taker lived until 1875, a suit commenced in 1877 was In time. 280 REAL PROPERTY. [Chap. 11 January 1, 1830, the form of limitation is, "To A, and if A die without issue, to B and his heirs," this is in effect, "To A and his heirs (see § 36, supra), and if A die without issue, to B and his heirs." See Tinsley v. Jones, 13 Grat. 289, 297; Jones v. Hughes, 27 Grat. 560; Medley v. Medley, lb. 568 ; Wine v. Markwood, 31 Grat. 43. And the law is the same now in England since 1837. 2 Jarm. "Wills. 144. § 230. Devise to A and the Heirs of His Body; and if A Die Without Issue, then to B and His Heirs. (1). In Virginia before October 7, 1776. A has a fee tail by express limitation; B has a vested remainder, to take effect whenever the issue of A fails, whether at A's death or at any subsequent time. Gray, Perp's, § 111. (2). From October 7, 1776, to January 1, 1820. A has a "full and absolute" fee simple by the operation of the stat- ute of 1776 upon the express fee tail. B takes nothing. The limitation over to B cannot be good as a remainder, for it follows the fee simple to A; and as an executory devise, it is void by the doctrine of Carter v. Tyler, and also because it would violate the Eule against Perpetuities, being limited to take effect after an indefinite failure of issue. Hunter v. Haynes, 1 Wash. (Va) 292; Tidball v. Lupton, 1 Eand. 194. (3). From January 1, 1820^ to the present time. A has a fee simple by the operation of the statute of 1776 upon his express fee tail; B has a good executory devise of a fee on a fee, the doctrine of Carter v. Tyler having been abolished in 1820, and the failure of issue made definite. It is, therefore, allowed to be an executory devise; and, as such, it does not violate the Eule against Perpetuities. N. B. — When a devise is "To A and the heirs of his body," or "To A and his issue," with a limitation over after a definite failure of issue ("if A die without issue living at his death," e. g.). the only effect of the definite failure of issue is to make the limitation over contingent upon such failure; and the words "if he die without issue living at his §§229-231] EXECUTORY INTERESTS. 281 death," etc., are not considered explanatory of the species of issue included in the prior devise, and, therefore, do not prevent the prior devisee from taking an estate tail under it. 3 Jarm. Wills 239;Ellys v. Wynne, 22 Grat. 224; Atkinson v. McCormick, 76 Va. 791; StoJces v. Van Wych, 83 Va. 724. But while a definite failure of issue does not affect an express estate tail previously limited, it prevents the implication of an estate tail, when the previous estate is for life or in fee simple; for the words "issue living at his death," etc., are either words of purchase or of contin- gency, and not words of limitation j and only words of limitation can enlarge or reduce the express estate previ- ously limited. See § 224, supra. § 231. Devise to A and the Heirs of His Body; and if A Die Without Issue Living at His Death, then to B and His Heirs. (1). In Virginia before Octoier 7, 1776. A has a fee tail by express limitation, and B a contingent remainder under Fearne's Pirst Class, by reason of the contingent de- termination of A's estate tail. For the testator has made the failure of A's issue definite, so that the words "if A die without issue living at his death" are words of contin- gency; and B is to take only if no issue be living at A's death, and not on the subsequent failure of A's issue. (2). From October 7, 1776, to January 1, 1820. A's ex- press fee tail is converted into a "full and absolute fee simple," as we have seen, after which no executory devise can follow, by the doctrine of Carter v. Tyler. B's estate cannot be a remainder after the fee simple; and as Garter V. Tyler does not allow it to be an executory devise, it is void. This was the form of limitation in Carter v. Tyler, 1 Call, 165. See Broaddus v. Turner, 5 Eand. 317. (3). From January 1, 1820, to the present time. A has a fee simple, and B has a good executory devise, the doc- trine of Carter v. Tyler having been abolished January 1, 1820. See § 226, supra. B's executory devise is not too 282 REAL PROPERTY. [Chap. 11 remote, as it must take effect, if ever, at the death of A having no issue then living.^ § 232. Executory Limitations Before and After January 1, 1820. — It is manifest that January 1, 1820, is an epoch in the history of executory limitations in Virginia depending on dying without issue. Before that date, either the indefinite failure of issue or the doctrine of Carter v. Tyler made the limitation over void ; but when, by the act of 1820, the failure of issue became definite, and the doctrine of Carter v. Tyler ^ Caktek v. Tylee. — As to the doctrine of Garter v. Tyler, it may be observed that it applied to every case where the first estate was an estate tail, rendering the limitation over void after such estate tail converted by the act of October 7, 1776, into a fee simple. It follows that although estates tail ceased to be raised iy implication in Virginia after the act of 1819, taking effect January 1, 1820, changing the meaning of "dying without issue" from an indefinite to a definite failure of issue, yet the doctrine of Garter v. Tyler, if it had not been abolished, would have still applied where the first taker had an estate tail, by express limita- tion, not dependent on the effect of the words "dying without issue." Garter v. Tyler was itself a case of this kind, the devise being, "To W. C. and Ms heirs lawfully iegotten," which words of themselves created an estate tall. See 3 Jarm. Wills, 91, and cases cited, and Broaddus v. Turner, 5 Rand. 317, opinion of Coalter, J. Judge Carr, however, thought these words gave a fee simple to "W. C, which was reduced to a fee tail by the limitation over after an indefinite failure of issue. See his opinion in Bells V. Gillespie, 5 Rand. 280-'82, and in Broaddus v. Turner, lb. 309. It seems, however, that Judge Carr was mistaken in supposing that the words, "To "W. C. and his heirs lawfully begotten," in the devise in Garter v. Tyler, gave W. C. the fee simple by express limitation. And as to the failure of issue in that case, while there was no decision on that point by the court, yet it was assumed by counsel on both sides to be definite, as otherwise the limita- tion over would have been clearly void for remoteness, without reference to the questions discussed by counsel and decided by the court. In Elys V. Wynne, 22 Grat. 224 (see § 232, infra), the limita- tion in the will of a testator who died in 1833 was, "To D and the heirs of her body, but if she die without such heir, then over." Here there was an estate tail created by express words, §§231,232] EXECUTORY INTERESTS. 283 was abolished, such executory limitations became valid, and have greatly flourished ever since. A good example of the effect of the acts of 1820 is furnished by the case of Elys V. Wynne, 23 Grat. 224. (See § 231, supra, note.) In 1833 the testator made his will and died. He devised land to D and the heirs of her body; but should D die without heir as above mentioned, then the land to be sold, and the money equally divided among all his heirs. Held, D took a fee sim- ple in the land defeasible on her without such heir living at her death or born to her within ten months thereafter, in which case the other heirs of the testator would take. Had the devise been subject to the law before 1820, the limitation over would have been void. For Tabular View, see infra, p. 284. converted by the statute of 1776 into a fee simple; and a limita- tion over after a definite failure of issue. But this limitation would have been rendered void by the doctrine of Carter v. Tyler, had that doctrine continued in force. It was not enough, there- fore, by the legislation of 1819, to make the failure of issue definite, as this only made good the limitation over after what would otherwise have been an estate tail iy implication; but it was also necessary to declare, as was done by the other statute of 1819, that any limitation which would be good after a fee simple originally limited should be good after any fee tail con- verted by the act of 1776 into a fee simple, thus effectually abol- ishing the doctrine of Carter v. Tyler. It may be remarked that when the first taker is a woman (see Elys V. Wynne, supra), in order that there may be issue born to her after her death, it is necessary to suppose (if indeed the Cesarean operation be not performed) that she had a son who married and died in her lifetime, leaving his wife enceinte of a child, whose birth takes place after the death of the first taker, its grandmother. Such a case is put by Judge Carr in Thomason V. Andersons, 4 Leigh (125). 284 REAL PROPERTY. [Chap. 11 I hH H O K a 2 ° 8 m & 00 £> P, o '^ O02 Sri 0) O) Ol .S 01 ■ p,-r; t'j cq 0} .a " . 60 C3 «8^ .5 .S m— . Pi's " to ce as e ■a GO e fe o IZi hH O > O OQ I? O t-H H <1 H M 1° O (M .CM 1-3 la o VH 4-> 65 -!-> Ss **-! S 3 a> ■3 02 T« Pi t3 d O '3 ^ "8 3-1 .a » .a „ I OJ to ^ ■| ;"« ca 2 •■^ Ci § = m S S (B O (MM ■= ■- -^ ," p. . s S B 0) !> o -r* (D H.A W la a ui o ^ 60 4-9 § 5 a 05 a! la ■« ^ ■a ^ 3 0) o H— ■c* ^-> '!3 P3 o m 13 C5 ca O . ^ .a ;s^ d . ^ '■§ • ad to r ' ** .1 §■3 t>» OJ CO .—1 TS ■■-- 0) «» C3 +-> oj >; M ■M ca " ca in • m .a ^ ■^™OT <^^ T3 O rH CO O d) 02 a H a> > < I 2N CB ! ,a «» OS 0) O TO :^; a ■a '3 a t3 O §233] EXECUTORY INTERESTS. 285 § 233. Executory Interests in Personalty. — In 2 Jarman, Wills (Sth Am. ed.), 501, it is said: "No remainders can be limited in real and personal chattels; every future bequest of which, therefore, whether preceded by a partial gift or not, is, in its nature, executory." The reason is, that the common law doctrine as to estates in land was held inapplicable to chattels, in which the law recognized nothing but absolute ownership; so that a gift to A of a chattel, real or personal, vested in A the entire interest ; and the result was the same if the gift was to A for life, or otherwise. In each case A, at law, was the absolute owner; there was no reversion in the donor, and a remainder over to a third person was void — just as in land there can be no remainder after a feoffment in fee simple. See Pearne, Remainders, (3), n. (c) ; also (401) ; 2 Bl. Com. (174); Wms. Eeal Prop. (6th Am. ed.), 291; Wms. Pers. Prop. (4th Am. ed.) (7), (259); Gray, Per- petuities, § 117; 2 Min. Ins. (4th ed.), 433; 20 Am. & Ehg. Ency. Law, 908, 930. In his definition of an executory devise, Pearne (p. 385) includes a future estate in personalty (though stating that it is more properly an executory bequest), and declares it to be "such a future estate in lands or chattels ... as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law." (See § 206, supra.) And on page (401) he says: The third sort of executory devises, comprising all that relate to chattels, is where a term for years, or any personal estate, is devised (more properly, bequeathed) to the one for life, or otherwise; and after the decease of the devisee or legatee for life, or some other contingency or period, is given over to some one else. Such ulterior limitation was void at conmaon law, and the whole property vested in the person to whom it was limited for life; though there was, indeed, a distinction taken between a devise (or rather, bequest) of the use of a personal thing and of the thing itself. Thus where the will was that A should use such a thing during 286 REAL, PROPERTY. [Chap. 11 his life, and afterwards that B should have it, the limita- tion over was agreed to be good; bnt if the first disposi- tion had been of the thing itself to one for life, and after to another, then the devise over would have been void. But the doctrine has gradually obtained, and is now settled, that such limitations over in a will, or by way of trust, are good." For an example of a future estate in personalty by will, see Pettyjohn v. Woodroof, 77 Va. 507. But there can be no future estate in chattels which are consumed in the using — quce ipso usu consumuntur, as wines, etc. See Wms. Pers. Prop., 263; 3 Min. Ins. 434; Dunbar v. Woodcock, 10 Leigh, 628. It will be noticed that Pearne does not say that a future interest in chattels may be created by way of use, but by way of trust. The reason is that the statute of uses has no application to personal property. 2 Bl. Com. (336) ; Gray, Perpetuities, § 73, § 79 ; 20 Am. & Eng. Eney. Law, 933; § 114, supra. Nor does Fearne state that a future interest in chattels can be created by deed otherwise than by way of trust. And this is in conformity with the law as it is still held in England. Wms. E. P. (6th Am. ed.), 292; Wms. Pers, Prop. (4th Am. ed.), 261; Gray, Perpetuities, §§ 76, 78; 20 Am. & Eng. Ency. Law, 934. But in the United States it is said that "the weight of authority sus- tains the position that future limitations of chattels, real or personal, may be created by deed as well as by will, without the intervention of trustees; and that under such limitations both the life legatee and the ulterior legatee take legal, as distinguished from equitable, interests." 20 Am. & Eng. Ency. Law, 934. And see Carney v. Kain, (W. Va.), 23 S. E. 650, 656; 2 Min. Ins. (4th ed.), 433-'34. Por full discussion, see Gray, Perpetuities, §§ 71-98, where the conclusion is reached that in the United States, with the exception of North Carolina, legal future estates in per- sonalty can be created by deed inter vivos.'- 'Future Estates as Peksonalty. — In Wms. Pers. Prop. (267), §§233,234] EXECUTORY INTERESTS. 287 § 234. Executory Interests Under Virginia Statutes — The policy in Virginia is to allow the same limitations directly it is said: "As no estates can subsist in personal property, it fol- lows that the rules on which contingent remainders in freehold lands depend for their existence have never had any application to contingent dispositions of personal property. Such dispositions partake rather of the indestructible nature of the executory de- vises and shifting uses. ... If, therefore, a gift be made of personal property to trustees, in trust for A for his life, and, after his decease, in trust for such son of A as shall first attain the age of twenty-one years; or if a term of years be bequeathed to A for his life, and after his decease, to such son of A as shall first attain the age of twenty-one years; it will be immaterial whether or not the son attain the age of twenty-one in the life- time of his father. On his attaining that age, he will become en- titled quite independently of his father's interest. His ownership will spring up, as it were, on the given event of his attaining the age. But as the indestructible nature of these future dispositions of personal estate might lead to trusts of indefinite duration, the rule of perpetuities, which confines executory interests [i. e., the arising of such interests] within a life or lives in being, and twenty-one years afterwards, with a further allowance for the time of gestation, should it exist, applies equally to personal as to real estate." And see, as to the application of the rule against perpetuities to future estates in chattels. Gray, Perpetuities, § 117; also §§ 319-321. It may be further remarked, with reference to limitations of personalty, that there are no estates-tail in chattels, whether per- sonal or real; and the words which create an estate-tail in land, whether expressly or by implication, confer the whole interest in personalty; i. e., an interest corresponding to a fee simple estate in realty. Fearne, Remainders (463); Wms. Pers. Prop. (264); 3 Jarm. Wills, 374. Hence, a gift of personalty to A and the heirs of his body, followed by a limitation over to B, on the in- definite failure of the issue of A, gives A the whole interest, and the limitation over to B, is void as violating the rule against perpetuities; whereas, in the same case, as to realty, A would have a fee tail, and B a vested remainder. But in a gift of per- sonalty, "To A and the heirs of his body, and if A die without issue living at Ms death (or other words, which make the failure of the issue definite), then to B," the limitation to B is good, as it cannot violate the rule against perpetuities. See Fearne (470), 288 REAL PROPERTY. [Chap. 11 iy deed which were formerly good only by way of executory use or executory devise. See §§ 310-'13, supra. (1). Statute taking efEect January 1, 1830: "Any estate may be made to commence in futuro by deed in like man- ner as by will." 1 Eev. Code of 1819, ch. 99, § 28; Code of 1887, § 2418. So by any deed in Virginia a freehold can commence in futuro. (2). Statute taking efEect July 1, 1850: '"Any estate which would be good as an executory devise or bequest (477); Hawkins, Wills, 208; Wilkinson v. South, 7 T. R. 555. And because of the fatal efEect of an indefinite failure of issue on a limitation over of personal property, we are told by Fearne (476), that "courts in the case of personal estate generally incline to pay attention to any circumstances or expression in the will that seems to afford a ground for construing a limitation after dying without issue, to be a dying without issue living at the death of the party, in order to support the devise over." It has resulted that the rules of construction are not in all cases the same, as to definite and indefinite failure of issue, in wills of realty and personalty; and some expressions which make a defi- nite failure of issue as to personalty are insufficient for that pur- pose as to realty. For review of Virginia cases, see 1 Tuck. Com., Book II., 158-161; 2 Min. Ins. 442-'43. It should be added, that, by analogy, the Rule in Shelley's Case has been held to operate upon gifts of personal property where the requisites are present which would render it applicable in a conveyance of realty; so that, for example, a gift of a term of years to A for life, remainder to the heirs of his body, gives A the absolute property by the Rule in Shelley's Case, and the heirs of his body take nothing. Fearne (491); Wms. Pers. Prop. (267); 3 Jarm. Wills (376); 2 Min. Ins. (4th ed.), 407; 22 Am. & Eng. Ency. Law, 512; 11 Am. St. R. 106, note; Hughes v. Nick- las (Md.), 14 Am. St. R. 377. But the rule is not so impera- tive as to personalty as it is in limitation of realty; and it will yield to evidence of intention, apparent on the face of the will, that the words "heirs," "issue," etc., are intended as words of purchase. See Gray, Perpetuities, § 647, n. 3; Ex parte Wynch, 5 De G. M. & N. 188; Smith v. Butcher, 10 Ch. D. 13. In Virginia, the Rule in Shelley's Case has been abolished as to personalty by the same statute which abolished it as to real estate. See § 199, stipra. §234] EXECUTORY INTERESTS. 289 shall be good if created by deed." Code 1849, ch. 116, § 5; Code 1881', § 2438. This statute destroys the distinction between devises and deeds as to the validity of executory interests, and sanctions the doctrines of executory devises and bequests as equally applicable to deeds; thus permitting a fee on a fee by way of a deed, and validating by deed with- out uses the other limitations which were formerly void ex- cept when found in a will, or in a deed by way of use.^ ^BxECUTOET INTEKESTS IN ViKGiNiA. — Besldes the Statutes men- tioned in the text, two other statutes may be considered as to their effect on executory interests in Virginia: 1. Act of January 1, 1787 (the Virginia Statute of Uses), giv- ing effect to the deeds of bargain and sale, lease and release and covenant to stand seised to use, and declaring that "the posses- sion [i. e., legal title] of the bargainor, releasor or covenantor, shall be deemed transferred to the bargainee releasee or person entitled to the use, as perfectly as if the bargainee, releasee or person entitled to the use had been enfeoffed with livery of seisin of the land intended to be conveyed by such deed or covenant." Code Va., § 2426. For full text and explanation of the statute, see § 116, supra. Under this statute, by bargain and sale or covenant to stand seised, it seems (1) that a freehold could be made to commence in futuro before the Act of 1820, above cited, declaring that "any estate may be made to commence in futuro by deed in like manner as by will"; and (2) that a fee could be limited on a fee before the act of July 1, 1850, above cited, de- claring that "any estate wiich would be good as an executory devise or bequest shall be good if created by deed." See Gray, Perpetuities, §§ 55-66; 2 Min. Ins. (4th ed.) 431, 808, 905; Camp V. Cleary, 76 Va. 140; OcJieltree v. McClung, 7 W. Va. 232. 2. Act of July 1, 1850, declaring that "all real estate, as re- gards the conveyance of the immediate freehold thereof, shall be deemed to lie in grant as well as in livery." Code Va., § 2417; § 117, supra. Under this statute it seems that, by deed of grant, a freehold can be made to commence in futuro without the aid of the act of 1820; and that a fee could be mounted on a fee, even if the statute of July 1, 1850, had not been enacted, declaring that "any estate which would be good as an executory devise or bequest shall be good if created by deed." See 2 Min. Ins. (4th ed.) 779, where it is said: "Under the statute of grants, by means of a grant an estate of freehold in lands may be made to com- 19 290 REAL PROPERTY. [Chap. 11 mence at a future time, and an estate in fee simple, after hav- ing hecome vested, may be made to shift, upon the occurrence of a future contingency, from one to another, as at common law could not he done at all; and before this statute could be done only by means of wills, and very imperfectly with us by means of the conveyances under the statute of uses [but see, as to a free- hold to commence in futuro, the statute of 1820] ; the statute of grants thus introducing a new class of executory or future limi- tations, namely, executory or future grants, in addition to execu- tory or future devises and executory or future uses." See, also, 2 Min. Ins. 430, 827; Gray, Perpetuities, §§ 67, 68. For the doc- trine of ut res magis valeat quam pereat, as applied to deeds of grant, see § 118, supra. CHAPTEE XII. POWERS. I. — Powers of Appointment over Property. § 235. Definition. — A power of appointment is an author- ity conferred on a person enabling Mm to dispose of an interest vested either in himself or in some third person. Bispham's Eq. (5th ed.) § 256; 18 Am. & Eng. Ency. Law (1st ed.), 878, n. 1; Burleigh y. Clough (N. H.), 13 Am. Kep. 33, 26; Hopkins Eeal Prop. 308. A power is not absolute property, nor an estate, but authority to appoint an estate J i. e., to indicate to whom it shall pass. Powers of appointment operate on the legal title in England under the Statute of Uses and the Statute of Wills; and in Vir- ginia under the Statute of "Wills nad the Statutes of Grants. 2 Min. Ins. 820; Wms. E. P. (294). § 236. Example of a Power Under the Statute of Uses. — Suppose X conveys land to A and his heirs, to such uses as B shall by any deed or by his will appoint; and in default of and until such appointment by B, to the use of C and his heirs. Now let B exercise the power by deed or by will in favor of D. Then the use appointed to D is executed by the Statute of Uses, and D has the legal title, which shifts to him from C, who was entitled until appoint- ment by B. In the above example the parties are named as follows: X is the donor of the power, i. e., its giver and creator; A is the feoffee to uses (reservoir of seisin); B is the donee of the power, who, by its exercise, becomes the appointor; C is the person entitled until and in default of appointment by B; and D is the appointee, i. e., the person who takes by and under B's appointment. Wms. E. P. (294). 291 292 REAL, PROPERTY. [Chap. 12 § 237. Example of a Power Under the Statute of Wills. — X devises his land to his widow for her life, and authorizes her to appoint by her will the said land to his children in such shares as she shall see fit; and in default of such appointment, he directs that the land be divided equally among his children. Here X is the donor of the power; his widow is the donee, and becomes the appointor in case she appoints; X's children are the objects of the power, i. e., the class among whom the appointment may be made; and when it is made to them, they become the appointees; and those who are entitled in default of appointment are all the children equally. See Rhett v. Mason, 18 Grat. 541 ; Morriss Y. Morriss, 33 Grat. 51; McCamant v. Nuckolls, 85 Va. 331. Por an example of a life estate iy deed, with power of ap- pointment, see Norris v. Woods, 89 Va. 873. '^ ^ Intention to Execute a Poweb. — In Lee v. Simpson, 134 U. S. 572, 589, the court says: "The question of the execution of a power is fully discussed by Mr. Justice Story in Blagge v. Miles, 1 Story, 426. The rule laid down in that case is, that if the donee of the power intends to execute it, and the mode is in other re- spects unexceptionable, that intention, however manifested, whether directly or indirectly, positively or by just Implication, will make the execution valid and operative; that the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation, but if it be doubtful under all the circumstances, then that doubt will prevent it from being deemed an execution of the power; and that it is not necessary, however, that the intention to exe- cute the power should appear by "express terms, or recitals in the instrument, but it is suflacient that it appears by words, acts, or deeds, demonstrating the intention. "Judge Story states, as the result of the English authorities, that three classes of cases have been held to be sufficient demon- strations of an intended execution of a power: (1) Where there has been some reference in the will or other instrument to the power; (2) Or a reference to the property which is the subject on which it is to be executed; (3) Or where the provision in the will, or other instrument, executed by the donee of the power. §§ 237, 238] POWERS. 293 §238. The Several Kinds of Powers.— (1) The donee may have a general power to appoint to any person what- soever, or it may be special, as to appoint to or among a particular class, e. g., children only, or children and grand- children, etc. But though the power is special as to the class, the donee may have discretion as to tJie shares; or he may be authorized to appoint, if he chooses, all to any would otherwise be ineffectual, or a mere nullity; in other words, it would have no operation except as an execution of the power. The rule thus stated was referred to with approval by this court in Blake v. Hawkins, 98 U. S. 315, 326, and in Warner v. Connecti- cut Mutual Life Ins. Co., 109 U. S. 357, 366; by the Court of Ap- peals of New York in White v. Hicks, 33 N. Y. 383, 392; and by the Supreme Court of Illinois in Funk v. Eggleston, 92 111. 515, 538, 539, 547 [34 Am. Rep. 136]. See, also, Meeker v. Breintnall, 38 N. J. Eq. 345." And see Walke v. Moore, 95 Va. 729. As to the third class of cases, supra, viz. : where the instrument would have no operation except as an execution of a power, Jarman (2 Jarm., Wills, 5th Am. ed. 273), thus lays down the rule in England prior to the Wills Act of 1 Victoria, taking effect January 1, 1838: "Thus if a testator, by a will made before, and not republished on or since the first of January, 1838, devises all his hereditaments, or real estate, and it appears that he had no real estate at the time of its execution, but that he had a testa- mentary power over real estate, the devise will operate as an ap- pointment under such power. On the other hand, if the testator had real estate on which the will could operate, it will be pre- sumed that the devise was made with reference to such property, and not as an exercise of the power." And see 18 Am. & Eng. Ency. Law, 930, and notes. But this is now changed by statute in England and Virginia, and a general devise of real or personal property operates as the exercise of a power of appointment, un- less a contrary intention shall appear by the will. For the Eng- lish statute (1 Vict, c. 26, § 27), see 2 Jarm., Wills, 279. The Virginia statute is based on the English, and is as follows (C. V., § 2526) : "A devise or bequest shall extend to any real or per- sonal estate (as the case may be) which, the testator has power to appoint as he may think proper, and to which it would apply if the estate were his own property; and shall operate as an exe- cution of such power, unless a contrary intention shall appear by the will." The words, "as he may think proper," refer to 294 REAL PROPERTY. [Chap. 12 one of the class. See McCamant v. NucTcolls, 85 Va. 331; Thrasher v. Ballard, 35 W. Va. 534; Bisph. Eq. § 356.^ the extent of the power as regards the objects, and not to the mode in which it is to be exercised, as, e. g., by will only, and not by deed. 2 Jarm., Wills, 281; Machir v. Funk, 90 Va. 284. It is also held in Machir v. Funk to be an established common law rule that when a power is authorized to be executed on a contin- gent event, it may, unless contrary to the intention of the party creating it, be executed before (though it cannot take effect until) the contingency happens. 1 Sugden, Powers, 332. See Thorndike V. Reynolds, 22 Grat. 21. 'iLLtrsoRT Appointments. — In Williams, Personal Property (4th Am. ed.), 271, it is said, speaking of a power of appointment to children: "Formerly [i. e., in England] if such a power was so worded as not to authorize an exclusive appointment to some or one of the children, it was held by the Court of Chancery, as a rule of equity, that each child ought to have a substantial share; and an appointment to any child of a very small share was called an illusory appointment, and was held void. But this doctrine having given rise to difficulties and family disputes from the uncertainty of the question, what was too small or what was a sufficient share, the meddlesome doctrine of equity on this point was, a few years ago, abolished by act of Parliament (1 Wm. IV., c. 46) ; and now the appointment of any share, however small, cannot be set aside on the ground of its being illusory. The act extends, as did the doctrine, to real estate as well as personal; but landed property, from its nature, is seldom cut up into lit- tle portions." But the "meddlesome doctrine of equity," above described, has not been abolished in the United States; and when the power is to appoint among a certain class, or in any manner which does not indicate the power of selection of certain objects to the ex- clusion of others, all must have something, and the gift to one or more of the class of next to nothing will be held illusory and invalid. And when an exclusive appointment is not authorized, an appointment by which an object of the power is entirely ex- cluded will be, a fortiori, void. And this is still true in England since the statute abolishing the doctrine of illusory appoint- ments. See Wms. Pers. Prop. (271), and Am. notes; Aleyn v. Belchier, 1 Lead. Cas. Eq. 400; 2 Min. Ins. (4th ed.), 820; 18 Am. & Eng. Bncy. Law, 974; Knight v. Yarirough, Gilmer (Va.) 21; Rhett v. Mason, 18 Grat. 541, 567. i§ 238, 239] POWERS. 295 (2). The power may be a power in trust, which the donee must exercise in favor of the objects. Here he is a donee- trustee; and not to exercise the power will be a breach of the trust. Such donee-trustee may have discretion as to the shares to be appointed; but if he falls altogether to appoint, a court of chancery will divide the property among the objects equally, since "equality is equity." See Bisph. Eq., § 77; 3 Pom. Eq. § 1002; 1 Perry on Trusts, § 348; Mitchells v. Johnsons, 6 Leigh, 461 ; Atwood v. Shenandoah, etc., B. Co., 85 Va. 966, 993. (3). The power may be a naked power, i. e., a power not coupled (or clothed) with a trust. Such a power is also called a mere power, because it is a power merely, without the element of trust. Such a mere power not in trust is, as to its exercise, discretionary with the donee; and if he makes no appointment at all, a court of chancery will not interfere in favor of those who might have been the ap- pointees. See 3 Pom. Eq., § 920. § 239. Fraud on a Power. — If a power is not exercised in good faith, and for the purpose for which it was created, such an exercise will be deemed a fraud on the power, and will be set aside in equity on a bill iiled by a party in interest, i. e., by a party entitled in default of appoiutment. Aleyn v. Belchier, 1 Lead. Cas. in Eq. (377) note; 6 Am. St. E. 885, note. If the power be a power in trust, its im- proper exercise is, of course, relieved against in equity in favor of the beneficiaries, as in any other case of breach of trust. But though a power be a mere power, and not in trust, and though the donee has a discretion whether he shall appoint or not, yet if he does appoint, he may do so in such a manner as to commit a fraud upon the power. This is where he is restricted by the terms of the instru- ment conferring the power as to the persons to or among whom he may appoint, or in respect to other material mat- ters. Here, if he appoints in disregard of the restrictions, the appointment will be set aside. And this will also be 296 REAL PROPERTY. [Chap. 12 done when he makes a corrupt appointment to an object of the power, in order to acquire a benefit for himself, either directly or indirectly. See Bisph. Eq., § 256; Wms. Pers. Prop. (4th ed.) 475. But if the power is not in trtist, and the donee has absolute discretion as to the persons to whom he may appoint, and as to the shares, he cannot commit a fraud on such power, because it could not be said that he had violated the intention of the donor. In- deed, in such case, he would have a right to appoint himself. Wms. E. P. (294) ; 2 Pom. Eq., § 920. For an example of an appointment void, because not to an object of the power, see Hood v. Haden, 82 Va. 588, where, under a power to appoint to children, the appointment was made to the issue of a child. See Morris v. Owen, 2 Call, 530; Hudsons v. Hudsons, 6 Munf. 362. § 240. Aider in Equity of the Defective Execution of a Power. (1). What powers aided? (a). If the power be in trust, and the donee either fails altogether to exercise it, or exercises it defectively, equity will relieve by way of enforcing the trust. See Bisph. Eq. § 195. (6). If the power is not in trust (a mere power), then, as the donee is under no obligation to exercise it, if he omits altogether to do so, equity will not interfere. This is what is meant by saying that the noM-execution of a power will not be aided in equity. (c). But though the power is a mere power, and its exer- cise discretionary with the donee, yet if he has attempted to exercise it, and thereby shown his intention to appoint, equity will not sufEer the appointment to fail because the formalities prescribed by the donor of the power as to the mode of its exercise have not been fully complied with. It is otherwise at law, where a power not duly exercised is considered as not exercised at all. And even in equity the §§ 239, 240] POWERS. 297 doctrine of aider of the defective execution of a power is carefully circumscribed. (3). What defects aided in equity? Only those of form, not those of substance. Freeman v. Eacho, 79 Va. 43. And it is considered a formal defect if the instrument of exer- cise has a less number of witnesses than the donor pre- scribed, but not if, when required to be attested, there are no witnesses at all. See Justis v. English, 30 Grat. 565. If a power is required to be exercised by deed, its exercise by will is considered a formal defect, and is aided in equity; for what one may do up to death by deed, may well be done at death by will. But if the exercise is required to be by will, then its exercise by deed is a substantial defect, and equity will not aid; for in this case it is contemplated that the donee shall have the power of revocation and change until he dies (a will being ambulatory), and this is prevented by a deed. Bisph. Eq., p. 249, note (a). And the power to appoint to females in trust, and to their sepa- rate use, is not aided, and fails even in equity, if the ap- pointment to them is of legal estates not to their separate use. See Morriss v. Morriss, 33 Grat. 51.^ ^WiLL FOR Deed in the Exeecisb of a Powee. — In Hood v. Saden, 82 Va. 588, 592, it is said: "Upon this point the law is very exact, and the cases uniformly hold that all the forms and conditions annexed to the exercise of a power must be strictly complied with. Thus, if a deed be required, the power cannot be executed by a will; and if a will be required, that mode alone will suffice." And see this language reproduced in Oaskins v. Finks, 90 Va. 384, 385. In each of the above cases (as also in that of Doe v. Thorley, 10 East, 438, cited by the court), the power was authorized to be exercised iy will, and the attempt to exercise it by deed was properly held invalid, for the reasons stated in the text. But the converse proposition laid down, that a power authorized to be exercised by deed cannot be exercised by will, is a dictum merely; and if it is meant that such execution is a defect of substance, and cannot &e aided in equity, it is contrary to all the authori- ties. See 1 L.ead. Cas. in Eq. 365 (note to Tollett v. Toliett); 1 298 REAL PROPERTY. [Chap. 12 (3). In whose favor aided? ThB appointee must be a purchaser from the donee; or a creditor whose debt is to be paid or secured {Freeman r. Eacho, 79 Va. 43, 47) ; or there must be a meritorious consideration, as in the case of an appointment to a wife, child, or charity. Morriss v. Morriss, supra; 2 Pom. Eq., § 589; Wms. E. P. (299). (4). Agaiast whom aided. Equity will not aid if the person entitled in default of appointment has as high a claim as the attempted appointee. Thus equity will aid a iona fide purchaser against the heir at law or remainder- man, but not a grandchild against a child, nor, it is pre- sumed, one charity against another. For at Jaw the in- formal appointment is void, and hence the legal title is in him who is entitled in default of appointment; and equity will not aid the attempted appointee unless he has a higher claim, because it is a maxim in equity that "when the equities are equal, the law will prevail." See Tollett v. Tollett, 1 Lead. Cas. Eq. 369; 1 Story Eq. Jur., § 177; Bisph. Eq., § 195 ; Morriss v. Morriss, 33 Grat. 51. ISr. B. The equitable doctrine of aider of the defective exe- cution of powers is confined to authorities conferred by the voluntary act of the donor in wills, deeds, and settlements ; it does not extend to powers created and regulated by statute. The defective execution of statutory powers, in the failure to comply with the prescribed requisites, cannot be aided Story Eg. Jur., § 173; 2 Pom. Eq., § 173; 2 Min. Ins. (4tli ed.) 822; Hopkins, Real Prop. 318; Bruce v. Bruce, 11 L. R. Eq. 371. See 18 Am. & Eng. Ency. Law, 926, 982, 983. As to the execution of a will in the exercise of a power, it is enacted hy C. V., § 2515: "No appointment made by will in the exercise of any power shall he valid unless the same be so exe- cuted that it would he valid for the disposition of the property to which the power applies if it belonged to the testator; and every will so executed, except the will of a married woman, shall be a valid execution of a power of appointment by will, notwithstand- ing the instrument creating the power expressly require that a will made in execution of such power shall be executed with some additional or other form of execution or solemnity." §§ 240-241] POWERS. 299 in equity. 2 Pom. Eq., §§ 590, 834. Thus, in Williams v. Cudd, 26 S. C. 313 (4 Am. gt. Eep. 714), it is held that equity will not aid the defective execution of a statutory power given a married woman to relinquish her inheritance in lands. And the same has been held of the power of a tenant in tail to make leases under the statute of 32 Hen. VIII., ch. 28. 1 Story Eq., § 177; Wms. E. P. (56) ; Bisph. Eq., § 195.1 II. Estates in land with a power of disposition annexed. § 241. Power of Appointment Sistinguished from an In- terest in Land. — A power of appointment is not itself an es- tate; but it is an authority given by the owner of property 1 Defective Execution of a Power by a Married Woman. — la Free-nan v. Eacho, 79 Va. 43, it is held that the defective exercise of a power conferred on a married woman by a deed of settlement will be aided in equity in the same manner, and upon the same conditions, as if she were sui juris. The court says: "It would seem strangely inconsistent to hold that, to the extent she is em- powered to act, she is sui juris, and to deny to her acts within her competency [that is, the attempted, but defective exercise of a power] the effect of which, under like circumstances, would be given to those of a person not laboring under disability. The case is, therefore, unlike an application to reforin a married woman's conveyance under a statute relating to alienations by married women. And the distinction is obvious. At common law a feme covert had no power to convey her land except by fine and recovery. This disability, however, is, to a certain extent, removed by statute in this, and doubtless in most, if not all, the States of the Union, whereby she is enabled, by uniting with her husband, and by privy examination, to make a conveyance of her property. But these statutes, being in derogation of the common law, are strictly construed, and must be closely followed to give validity to the conveyance. The courts, therefore, very properly refuse to reform such a conveyance against the wife; for to do so would be, in effect, to make a conveyance not author- ized by statute. And the same rule applies to a defective ac- knowledgment by a married woman, which is an essential part of the execution of the deed." As to the privy examination of a married woman (no longer required), see now, in Virginia, C. V. § 2502, taking effect May 1, 1888; infra, § . 300 REAL PROPERTY. [Chap. 12 to the donee of the power to designate what person or persons shall receive the property. The donee of the power may have a limited estate of his own in the property, as, e. g., a life estate in land, with power to appoint the rever- sion in fee. But snch power to appoint does not necessarily enlarge the estate on which it is engrafted; the power may be distinct and come in by way of addition, and require to be exercised in order to dispose of the inheritance. The rule is that when an estate is given expressly for life, though a general power of appointment is annexed, it does not con- vert the life estate into a fee, but the donee takes only a life estate, unless there is some manifest general intent to the contrary in the instrument. Shermer v. STiermer, 1 Wash. (Va.) 266 (1 Am. Dec. 460) ; Burwell v. Anderson, 3 Leigh (348); May v. Joynes, 20 Grat. 692; Milhollen v. Bice, 13 W. Va. 510, 524; 49 Am. Dec. 117. And when a testator gives a life estate with a general power of ap- pointment of the inheritance, and in case of failure to ap- point, gives the estate to certain persons, the latter take a vested remainder, subject to be defeated by the exercise of the power, and not an executory devise. Pearne, Ee- mainders (227) ; 20 Am. & Eng. Ency. Law, 857; Richard- son V. Harrison, 16 Q. B. Div. 85 ; Bhett v. Mason, 18 Grat. 541, 569. If the donee does not appoint, and there is no remainder over, the property reverts to the donor, or to his heirs or representatives. Frazier v. Frazier, 2 Leigh, 642; 2 Min. Ins. (4th ed.) 821. See Johnson v. Cushing, 15 N. H. 298 (41 Am. Dec. 694, and n. 704-'6. § 242. Effect of a Power of Disposition Over Property on the Estate of the Devisee — ^Validity of Limitation Over.— See for full discussion, Ruhey v. Barnett, 12 Mo. 3 ; 49 Am. Dec. 112, and note; also 1 Va. Law Eeg. 219, note by Judge Burks to Farish v. Wayman, 91 Va. 430. The cases are difficult to reconcile on any other principle than that of giving free play to the testator's intention; but the sub- ject may be thus summarized. §§ 241-243] POWERS. 301 § 243. (1) . When an Express Estate for Life is Given, and a Power of Disposition Over the Reversion is Annexed. — In this case the general rule is that the devisee for life will not take an estate in fee, notwithstanding the power to dis- pose of the inheritance. 30 Am. & Eng. Ency. Law, 955, and notes. The express estate for life negatives the inten- tion to give the fee simple, and converts those words into words of mere power, which, standing alone, would have been construed to carry an interest. Thus in Rubey v. Bar- nett, supra, the testator said: "First my will is that my be- loved wife, Polly Horn, shall have all my estate, both real and personal, so long as she may live; secondly, my will is that my wife dispose of all said estate as she may think most advisable at her death." Held, that Polly took but a life estate with a distinct and naked gift of a power of dis- position of the reversion; and that if she made no disposi- tion, the reversion descended to the heirs of the testator. And see to the same effect, Burleigh v. Clough, 52 E". H. 267 (13 Am. Eep. 23) ; Funk v. Eggleston, 92 111. 515 (34 Am. Eep. 136). And again, it is often held that where a power of disposal accompanies a bequest or devise of a life estate the power is considered to be over the life estate only, and is limited to such disposition as a life tenant can make, imless there are other words clearly indicating that a larger power was intended. Thus in Johns v. Johns, 86 Va. 333, the testator gave all of his money ($900) to his wife during her natural life for the benefit of herself and children, "to he used as she may thinh proper." Held, that the use was of the life interest only, and the wife did not take the absolute property, as was contended on her behalf. And in Brant y. Virginia Coal and Iron Co., 93 TJ. S. 326, the wiU read: "'1 give and bequeath to my be- loved wife, Nancy Sinclair, all my estate, both real and personal, .... to have and to hold during her life, and to do with as she thinks proper before her death." Held, that the wife took a life estate in the property, with only such 302 REAL, PROPERTY. [Chap. 12 power as a life tenant can have; and that her conveyance of the real estate passed no greater interest. § 244. (2) . When a Life Estate is Given Devisee, with Power of Disposition over the Eeversion — ^Exception to Gen- eral Rule. — The devisee may be held to take a fee simple, if otherwise the manifest intention of the will would he de- feated. This is by way of exception to the general rule laid down under (1) supra; and, resting on intention, must depend on the construction of the particular will. Thus, where the limitation is of a life estate, but there is given expressly or impliedly, full power of disposition over the fee, without limitation or restriction, the devisee is held to take, not the mere life estate, but the fee itself by implication; and a limitation over to another is void. This is known in Virginia as the doctrine of May v. Joynes (20 Grat. 693), where the testator said: "I give to my beloved and excel- lent wife, subject to the provisions hereafter declared, my whole estate, real and personal, and especially all real estate which I may hereafter acquire, to her during her life, hut with full power to make sale of any part of the said estate, and to convey absolute titles to the purchasers; and use the purchase money for investment, or any purpose that she pleases; with only this restriction, that whatever remains at her death, shall, after paying any debts she may owe, or any legacies that she may leave, be divided as follows," viz. : among his children and grandchildren. Held, that the wife took a fee simple in the real estate, and an absolute property in the personal estate, and that the limitation over of what- ever remained at her death was inconsistent with, and repug- nant to, such fee simple and absolute property, and failed for uncertainty. See 1 Leading Cases E. P. 54, 65, 67; 2 Id. 478; 4 Id. 25, where May v. Joynes is said to be opposed to the weight of authority. But it has been followed in a number of cases in Virginia, and is supported by cases §§ 243-245] POWERS. 303 elsewhere^ and may be defended, perhaps, on the ground of manifest intent.'- § 245. Cases Following May v. Joynes. — These cases fol- low May V. Joynes: (a). Cole V. Cole, 79 Va. 251 : "I give to my wife, Martha A. E. Cole, all of my personal and real estate during her 1 DocTKiNE OP Mat v. Joynes Inapplicable. — la Gresap v. Oresap, 34 W. Va. 310, the court says (p. 316) : "In the will we are con- sidering, the testator commences the disposition of his property in the following words: 'I give and bequeath to my beloved wife, Agnes C. Cresap, in trust, and for her support and maintenance during her life, all my estate, both real and personal, with full power and privilege to sell and convey any, all, or so much of my real estate, in such manner as she may see fit, in as full and com- plete manner as I myself can do; to sell and dispose of my per- sonal estate, or so much as she may see fit, for her own support, according to her condition in life, and for the benefit of my estate so far as she may see proper.' Now, if the testator had omitted from this clause the words 'in trust and for her support and maintenance during her life,' and also the words 'to sell and dis- pose of my personal estate, or so much as she may see fit, for her support, according to her condition in life, and for the benefit of my estate, so far as she may see proper,' I would have no hesitation in saying that said testator intended by this portion of his will to give his wife a fee simple in the realty and abso- lute property in the personalty; but those limiting words are used by the testator immediately in connection with the language which confers the estate upon her. When we ask the question: How does he give it to his wife? the answer is prominent, and apparent on the face of the will, as plain as words can make it, 'in trust for her support and maintenance during life,' and this language applies both to real and personal estate." And on p. 323: "The case of Mav v. Joynes, 20 Grat. 692, is also cited to sustain the position that the wife took an absolute fee simple in said estate under this will; but by reference to the case it will be found very different from the one at bar; for in that case, although the property was given to her for life, she not only had full power to sell the same, convey absolute title to purchasers, and use the money for investment or any purpose that she pleased, with only this restriction, that whatsoever remains at her death shall, after paying any debts she may owe, or any 304 REAL PROPERTY. [Chap. 12 lifetime, and, at her death, half of the real estate and half of the personal property that may be on hand, to do with as she may see proper; and the other half of my real estate and personal property to go to the heirs of my brother, Sampson Cole." See also Carr v. Effinger, 78 Va. 197. (6). Hall V. Palmer, 87 Va. 354: "I will and direct that the whole of Susan J. Hall's and Frances Maria Armes' interest in my estate shall be held by my executor, his ex- ecutor, his heirs, etc., for the sole use and benefit of them during their natural life, and at their death, the balance, if any, to their children. (c). Bowen v. Bowen, 87 Va. 438 : "After the payment of all my just debts, I give, devise and bequeath to my wife, Adelaide Bowen, all my estate, real, personal, and mixed, for and during her life; and it is my wish and desire that my said wife may sell and convey my real estate, and receive the purchase money therefor; sell and use all of my personal legacies that she may leave, he divided as follows, etc. This gave her the full power to dispose of the property as she pleased, by will or otherwise, and is not an analogous case." In Cresap v. Gresap, there was a limitation over as follows : "At the death of my dear wife, Agnes C. Cresap, I desire the residue of my estate, both real and personal, to be distributed as follows," etc. The court sustained the limitation over, saying: "This will, and its provisions, can easily be relieved of any uncertainty as to quantity by ascertaining the amount the wife was entitled to, for support according to her condition in life, by referring the latter to a commissioner." And this passage from Schouler on Wills, § 592, is quoted with approval: "The gift of what re- mains undisposed of may, indeed, be often repugnant to the first gift, or too nearly so to vest a certain right; nevertheless, a gift is good of what shall remain at the decease of the first taker, if the latter has only a life estate given him, or if such gift is preceded by a power of disposition so restrained in its exercise that the gift of what is left refers evidently to what shall remain unappropriated and unappointed under the power." See 1 Jarm. Wills, 363-365. And the above extract from Schouler is also quoted in Miller v. PotterfleU, 86 Va. 876, 881, a case strikingly like Cresap v. Cresap. §§245,246] POWERS. 305 property, and buy and sell with the proceeds of such property for her own comfort and convenience as she may choose, without accountability to any person whatever. In fact, during the life of my said wife, I wish her to possess and enjoy the said property as if she enjoyed a fee simple and absolute estate therein. If, however, at the death of my said wife, any of the said property shall remain, I wish the same to be divided equally among all my nephews and nieces who may be living," etc. May V. Joynes is also followed in Parish v. Way man, 91 Va. 430 (criticized by Judge Burks, 1 Va. Law Eeg. 330), and in Robertson v. Hardy, 33 S. E. Eep. 766, where the doctrine is thus laid down by Eiely, J., speaking of a will by the first clause of which the testator had given per- sonal property to his wife for her life: "'AH the personal property remaining at my wife's death, of whatever kind or nature,' says the testator in the second clause, 'shall be sold and equally divided' among certain of his children. The words 'remaining at my wife's death' imply power in the wife to use, consume, and dispose of the personal pro- perty; and such power implies absolute dominion. Abso- lute dominion imports absolute ownership. When it is the intention of the testator that the first taker shall have an unlimited power of disposition over the property devised or bequeathed, whether such intention be expressed or neces- sarily implied, a limitation over to another is void, because it is inconsistent with, and repugnant to, the estate given to the first taker, although the will shows that it was the testator's intention, in respect of the subject of the gift, that what may remain of it at the death of the first taker should go to another." See 3 Min. Ins. (4th ed.) 917, 1053, 1073; Milhollen v. Rice, 13 W. Va. 510; Davis v. Heppert, 96 Va. 775; In re Burbank, 69 la. 378; Shaw v. Shaw, (la.) 88 K W. 337. § 246. Cases Distinguishing May v. Joynes. — The follow- 20 306 REAL PROPERTY. [Chap. 12 ing Virginia cases distinguish May v. Joynes, and sustain the limitation over: {a). Randolph v. Wright, 81 Va. 608: The devise was in effect, "To my son, Edward and his heirs forever I give two-thirds of my real estate; . . . but if Edward die with- out a will or lavrful issue, then to my son, Philip and his heirs." Testatrix died in 1849. See Johnson v. Citizens' BanTc, 83 Ya. 63. (6). Johns Y. Johns, 86 Va. 333. See § 243 (1). (c). Smythe T. Smythe, 90 Va. 638 : "I give and bequeath unto my two sisters, Kate A., and Mattie E. Smythe, all my estate of every kind, both real and personal, of which I may die seised, to be by them used and enjoyed during their natural lives. . . . The use and enjoyment of the said property shall be unrestricted by my said two sisters during their natural lives should they remain sole, carrying with such use and enjoyment the right to sell and convey said real estate should they find it desirable to do so; but I desire that they shall reinvest or loan the pro- ceeds of such sale in some safe manner, and as far as pos- sible avoid the consumption of the principal; and at the death of my two sisters, or the marriage of both, I desire whatever of my estate may remain shall vest in and become the property of the little boy, Claude Allison, whom I have adopted." Lewis, P., and Eichardson, J., dissented. § 247. (3). When an Estate is Given to a Person Gener- ally, or Indefinitely (as, "to A"), with a Power of Disposi- tion. — Here the general rule is that the devisee takes the fee simple in land, or the absolute interest in personalty. Tiede- man E. P., p. 316, n. 3; § 564, n. 1. See Bolerts v. Lewis, 163 U. S. 367 (s. c. 144 U. S. 653), overruling Giles v. Little, 104 TJ. S. 291. And in such a case, if there is a limitation over, it is void as a remainder, being after a fee simple, and void as an executory devise, because indefinite and uncertain, being in effect a limitation of so much only as the first taker may not happen to dispose of. Wilmoth §§ 246-248] POWERS. 307 V. Wilmoth, 34 W. Va. 426. But even in this case, if a life estate only is plainly intended by the will, a fee simple in land, or an absolute interest in personal property, will not be construed to pass to the first taker, and a limitation over will be good. The great case establishing this exception is Smith V. Bell, 6 Peters 68, before the Supreme Court of the United States. In Smith v. Bell, the will read: "Also I give to my wife, Elizabeth Goodwin, all my personal estate, whatsoever and wheresoever, and of what nature, -kind, and quality soever, after payment of my debts, legacies, and funeral expenses, which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and benefit and disposal absolutely, the remainder of the said estate, after her decease to be for the use of the said Jesse Goodwin [the testator's son]." It was held that the wife took only a life estate in the property (consisting mainly of slaves), and that the son, Jesse, had a vested remainder. The ground of the decision was the manifest purpose to provide for doth wife and son, which could only be accom- plished by such a construction. It was therefore held by Marshall, C. J., that the wife took a life estate only; that her power of disposition over the slaves was such (and no more) as a life tenant may make; and that "the strong words of bequest" employed by the testator probably re- ferred to that part of the personal estate which was trifling and perishable, and would be consumed in the use, as to which the exercise of absolute ownership was necessary to a full enjoyment. § 248. Status of the Doctrine of Smith v. Bell— Smith v. Bell is approved in Miller v. Potterfield, 86 Va. 876, where the will was as follows : "I give and bequeath to my beloved wife, Elizabeth Miller, all my property, both real and per- sonal, to have and to hold the same for her own use and benefit, and also to make such disposition of the same that {sic) she, in her judgment, may deem best, should it become necessary that a part or all should become necessary {sic) 308 EBAL PROPERTY. [Chap. 12 for the support of herself and "William Garrett, who I desire should remaia with her during her lifetime, and have such care and attention given him as he may need. After the death of the said Elizabeth Miller, I will and devise that any and all property remaining unused shall be given to the said William Garrett, to have and to use for his own benefit, or to make such disposition of as may be deemed best for his interest." Held, the wife took a life estate, with a conditional power of sale, and that the limitation over to William Garrett was good. The case was distinguished from Cole V. Cole, 79 Va. 251, on the ground that in that case the power of disposal given to the first taker was absolute, which necessarily rendered the limitation over repugnant, and void.^ And in Bowen v. Bowen, 87 Va. 438, supra, it was said that the case at bar was distinguishable from Johns V. Johns, supra, and Miller v. Potterfield, by the fact that the power of disposal in the two latter eases was not. for the sole benefit of the first taker, but in Johns v. Johns for the benefit of the widow and her children, and in Miller v. Pot- terfield, not only for the benefit of the widow, but of William Garrett. But in Johns Y. Johns, it also appeared that the disposal conferred on the widow was over the life estate only, as has been stated above. See § 243 (1). Smith V. Bell has been questioned, however (see 49 Am. Dec. 118), and is perhaps against the weight of authority; and it can only be upheld by magnifying the intent. But 1 Miller v. Pottekpield. — Of the language of the will In this case, the court says (quoting the part beginning with the words "and also to make such disposition," etc.): "This language re- strains and qualifies that which precedes it, and confines, as it was obviously intended to confine, the power of disposal to the single case mentioned — that is to say, it was intended the widow should have the use of the property for life, but the power to dispose of it she was not to have unless a sale, in her judgment, should become necessary for the support of herself and Garrett. In that event, and in that event only, was she authorized to dis- pose of the corpus of the estate." And see Cresap v. Gresap, 34 W. Va. 310; ante, § 244, note. § 248] POWERS. 309 it has never been overruled (or even doubted) by the Su- preme Court of the United States, though in a number of cases it has been distinguished on the facts. See, especially, Potter V. Couch, 141 TJ. S. 396, 316 ; Boherts v. Lewis, 153 TJ. S. 367, 378. May v. Jmjnes in Virginia and Smith v. Bell in the Supreme Court of the United States, stand at the opposite extremes, and each is an exception to the general rule. The tendency now in the United States is to sustain the limitation over, if possible, in a case where property is given to the first taker with a power of disposal super- added.^ ^ Smith v. Bell Explained. — In Potter v. Couch, supra, 316, it is said ty Gray, J.; "In Smith v. Bell the general doctrine was not denied; and the decision turned upon the construction of the words of a will by which a Virginia testator bequeathed all of his personal estate (consisting mostly of slaves) to his wife, to have for her own use and benefit absolutely; the remainder of the said estate, after her decease, to be for the use of his son. This was held to give the son a vested remainder, upon grounds summed up in two passages of the opinion by Chief Justice Mar- shall as follows: 'The limitation in remainder shows that in the opinion of the testator, the previous words had given only an estate for life. This was the sense in which he used them.' 6 Pet. 76. 'The limitation to the son on the death of the wife re- strains and limits the preceding words so as to confine the power of absolute disposition, which they purport to confer, of the slaves, to such a disposition of them as may be made by a per- son having only a life estate in them.' 6 Pet. 84." And in Rot- erts V. Levns, supra, it is said by the same judge, speaking of Smith V. Bell: "The wife had made no conveyance of the prop- erty; the words of the gift over were the technical ones, 'the re- mainder of my estate,' appropriately designating the whole es- state after the wife's death; and the court distinctly intimates that if the will were construed as giving the wife the power 'to sell or consume the whole personal estate during her life,' a gift over of "what remains at her death' would be 'totally in- compatible' and 'void for uncertainty.' . 6 Pet. 78." CHAPTBE XIII. ESTATES ON CONDITION'. § 249. Nature and Classification of Conditions — Precedent and Subsequent. — The words precedent and subsequentj as applied to conditions annexed to estates in land, have refer- ence to the time when the estate vests. When the condi- tion is precedent, the estate cannot vest uatil the condition is performed; when the condition is subsequent, the estate vests at once, but it is liable to be divested if the condition is not performed. In the one case the performance of the con- dition must precede the vesting of the estate, and the con- dition is therefore called precedent; in the other the non- performance of the condition follows the vesting of the estate, and the condition is therefore called subsequent. It will be seen that a condition precedent is in its nature creative J since at the time of the grant no estate vests in the intended beneficiary. The conveyance is as yet inchoate, but on the happeniag of a certain event, or the performance of a certain act, the estate arises and takes effect in the grantee. On the other hand, the condition subsequent is in its nature destructive. Under such a condition, the estate is already vested in the grantee, but on the happening of a certain event (perhaps some default on his part) the estate may, at the wiU of the grantor, be divested and destroyed.^ ^Examples of Conditions Precedent. — In 2 Bl. Com. (154), it is said of conditions: "Precedent are such as must happen or be performed before the estate can vest or be enlarged. Thus, if an estate for life be limited to A upon his marriage with B, the marriage is a precedent condition; and till that hap- pens, no estate is vested in A. Or if a man grants his lessee for years that upon the payment of a hundred marks within the 310 §249] ESTATES ON CONDITION. 311 The distinction between conditions precedent and subse- quent is thus stated by Magruder, C. J., in Star Brewery Co. V. Primas, 163 111. 653 (45 N. E. 145) : "A precedent con- dition is one which must take place before the estate can vest or be enlarged; and if land is conveyed upon a precedent condition, the title will not pass until the condition is per- formed. A subsequent condition is one which operates upon an estate already created and vested, and renders it liable to be defeated. A deed upon condition subsequent conveys the fee when it is executed, but the fee passes subject to the con- tingency of being defeated as provided in the condition, the grantor having the power of reentry upon condition broken; and if there is a breach of the condition, the estate continues in the grantee until defeated by actual entry. Whether a condition is precedent or subsequent depends on the inten- tion of the parties." See 2 Tho. Coke, 1, n. A. ; 2 Bl. Com. (154) ; 1 Shepp. Touchstone (117) ; 1 Prest. Estates (41) ; term he shall have the fee, this also is a condition precedent, and the fee-simple passeth not until the hundred marks he paid." In Reuft V. Coleman, 30 W. Va. 171 (3 S. E. 597), it was held that a legacy given as follows was contingent on two conditions precedent: "If the girl, Mary Cruver, remain with my family until she attain the age of 21 years, and continue to conduct her- self as she has heretofore done, then my will is that my executor pay to her upon her so coming of age the sum of $300. In Markham v. Hufford, 123 Mich. 505 (81 Am. St. Rep. 22; 48 Li. R. A. 580), the following bequest was held to be on a con- dition precedent: "To Almon L. Markham, the son of my daugh- ter, Julia J. Markham, deceased, I give and bequeath the sum of $500, to be paid to him at the expiration of two years from the date of my demise; provided that he shall be deemed a re- formed man, in the judgment of the executors of this will." And see Hawke v. Euyart, 30 Neb. 149 (27 Am. St. Rep. 391). For miscellaneous examples of conditions precedent, see Rans- dell V. Ransdell, 172 111. 439 (43 L. R. A. 526); Keffer v. Chrayson, 76 Va. 517; Phillips v. Ferguson, 85 Va. 509; Yaugiian v. Yaughan, 97 Va. 322; Jones v. Chesapeake, &c., R. Co., 14 W. Va. 514; and especially Markham v. Hufford, supra, where numerous cases are collected. 312 REAL PROPERTY. [Chap. 13 2 Tuck. Com. (88) ; 1 Lomax Dig. (262) ; 2 Min. Ins. (4th ed.), 265-6; 6 Am. & Eng. Ency. Law (2d ed.), 500; Cross V. Carson (Ind.) 44 Am. Dec. 742, and note; Baley v. Uma- tilla County, 15 Or. 172 (3 Am. St. Eep. 142) ; Ecroyd v. Coggeshall (E. I.), 79 Am. St. Eep. 741, and note; Lewis v. Henry, 28 Gratt. 193, 200.^ § 250. Conditions Precedent and Subsequent; How Distin- guished. — In Finlay v. King, 3 Pet. 346, it is said by Mar- shall, C. J. (at p. 374) : "It was admitted in argument, and is certainly well settled, that there are no technical and ap- propriate words which always determine whether a devise be on a condition precedent or subsequent. The same words have been determined difierently; and the question is always a question of intention. If the language of the particular clause, or of the whole will, shows that the act on which the estate depends must be performed before the estate can vest, the condition is of course precedent; and unless it is performed, the devisee can take nothing. If, on the con- trary, the act does not necessarily precede the vesting of the 'Legacies Dependent on a Condition Pkecedent. — In deciding whether a legacy is vested or contingent, the rule is that when a legacy is given to a person to 6e paid at a future time, it vests immediately on the testator's death; but when it is not given until a future time, or when the time is annexed not to the pay- ment only, but to the gift itself, the legacy does not vest until that time. Hence, "if the legacies are given at 21, or if, when, in case, or provided the legatee attains 21, or any other future definite period, these expressions annex the time to the sub- stance of the legacy, and make the legatee's right to it depend on his being alive at the time fixed for payment. Consequently, if the legatee happens to die before that period arrives, his per- sonal representative will not be entitled to the legacy." Major V. Major, 32 Gratt. 819, 823; Sellers v. Reed, 88 Va. 377; Jones v. Habersham, 107 U. S. 174; Goehel v. Wolf, 113 N. Y. 405 (10 Am. St. Rep. 404, and note); Ducker v. Burnham, 146 111. 9 (37 Am. St. Rep. 135, and note); Patton v. Ludington, 103 Wis. 629 (74 Am. St. Rep. 910); Eldred v. Meek, 183 111. 26 (75 Am. St. Rep. 86). §§249,250] ESTATES ON CONDITION. 313 estate, but may accompany or follow it, if this may be col- lected from the whole will, the condition is subsequent." The law as thus laid down has met with general approval, and is applicable to a deed as well as to a devise. Nicoll v. New Yorh, &c., R. Co. 12 K Y. 121 ; Bell County v. Alex- ander, 32 Texas 350 (73 Am. Dec. 268); In re Stiekney's Will, 85 Md. 79 (60 Am. St. Eep. 308) ; MarJcham v. Huf- ford (Mich.) 82 K W. 222 (48 L. E. A. 580) ; Alexander V. Alexander (Mo.) 57 S. W. 110; Letvis v. Henry, 38 G-ratt. 202; Burdis v. Burdis, 96 Va. 81 (70 Am. St. Rep. 824); Jones V. Chesapeake, &c., R. Co. 14 W. Va. 533; Reuff v. Coleman, 30 W. Va. 171. Two examples will illustrate the reasoning by which a con- dition may be found subsequent in order to effectuate intent. In Nicoll V. New Yorh, &c., R. Co., 13 F. Y. 131, it is said (after adopting the test in Finlay v. Zing, supra) : "In this case it was evidently the design of the parties that the estate should vest at once, so that the grantee might proceed im- mediately with the construction of the road ; otherwise a con- dition that it should be completed within a given time, or ever completed, would be impossible. From the character of the condition it could not be a condition precedent. Posses- sion and control of the land must necessarily accompany the construction and precede the completion of the road. The grant is not made to take effect on the happening of a certain event, but in prcesenti, and liable to be divested by the grantee's failure to perform the condition." In Morse v. Hayden, 82 Me. 227 (19 Atl. 442) it is said: "Conditions have no idiom. Whether precedent or subse- quent is a question purely of intention to be gathered from the whole language adopted. Such conditions of support and maintenance in wills ["on condition that my wife (the de- devisee) shall provide and maintain our son until he shall attain his majority"], without any language charging the property with the performance of the conditions, or in deeds conveying farms, would seem to be conditions subsequent be- 314 REAL PROPERTY. [Chap. 13 cause of the implication that the devisees or grantees are to have possession and control of the premises for the purpose of fulfilling the conditions." And see Lewis v. Lewis (Conn.), 51 Atl. 854. It may be added that a condition precedent enters into the very limitation of an estate, which it renders contingent, whereas, a condition subsequent is superimposed upon a pre- vious limitation, which it renders defeasible. Thus whether a remainder is vested or contingent may depend on whether a condition is precedent or subsequent, and this will depend upon whether the condition is "incorporated into the gift to or description of the remainderman, or is added as a separate clause after words which have already given a vested inter- est." 30 Am. & Eng. Ency. Law 850; Blanchard v. Blanch- ard, 1 Allen (Mass.) 333; DucTcer v. Burnham, 146 111. 9 (3? Am. St. Eep.) 135, 143. And see New Orleans v. Texas, &c., B. Co. 171 IT. S. 312, 334, where it is said that the suspensive condition under the Louisiana Code is the equivalent of the condition precedent of common law.'^ ^Remaindebs Dependent on Condition Precedent or Subse- quent. — In deciding on the character of a remainder, it may be necessary to consider not only the time of Its vesting, hut also whether, though vesting at a certain time, it does so subject to be divested by a condition subsequent. Thus, In a devise "To my wife for life, and at her death, to my surviving children," it has been seen (§ 203, supra) that the word "surviving" refers to the death of the testator, unless the will manifests a contrary intent; and hence the children living at the death of the testator take vested estates. But, if there are words of contingency, such as, "if they shall be living at her death," or, "to such of them as shall be living at her death," these are conditions precedent, and limit the remainder to such of the children as shall survive their mother. Blanchard v. Blanchard, 1 Allen (Mass.) 223; Cheatham v. Gower, 94 Vs. 383; Vashon v. Vashon, 98 Va. 170. As is said in Ducker v. Burnham, 146 111. 9 (37 Am. St. Rep. 135, 145): "When the devise is to the testator's wife for life, and at her death to such of his children as shall then be living, the benefit does not purport to be conferred on the children as chil- dren, or individuals named, but as survivors, which indicates that §§250,251] ESTATES ON CONDITION. 315 §251. Condition Precedent or Subsequent; Which Fa- vored in Law. — Here it is necessary to make a discrimination. 1. In deciding whether the condition is precedent or sub- sequent. It is a maxim that the law favors the vesting of estates, in order that the land may not be "in a state of contin- gency." Hence when the question is whether certain words in a grant or devise create a condition precedent or subse- quent, the law leans to the latter construction ; and the estate is deemed, if possible, to be vested in the grantee or devisee immediately, subject to be divested by the breach of the con- dition. A similar doctrine is applicable to remainders, and in doubtful cases they are construed as vested rather than contingent. And the law is the same as to legacies. See on the whole subject, Pennington v. Pennington, 70 Md. 418; In re Stickley's Will, 85 Md. 79 (60 Am. St. Eep. 308) ; Sellers v. Sellers, 88 Va. 380; Patton v. Ludington, 103 Wis. 629 (74 Am. St. Eep. 910) ; Blanchard v. Blanchard, 1 Allen (Mass.) 233; Chapman v. Chapman, 90 Va. 409; Crews V. Hatcher, 91 Va. 378; Vashon v. Vashon, 98 Va. 170; Major v. Major, 33 Gratt. 823; Jones v. Habersham, an immediate vesting is not intended." See Thomas v. Thomas, 149 Mo. 426 (73 Am. St. Rep. 405, and note). But, though "an immediate vesting" is intended, it may never- theless be upon condition subsequent. Thus in Ducker v. Biirn- ham, ubi supra, the court goes on to say: "But when the devise is to the wife for life, with remainder to certain named children, and with a subsequent provision that if any of such named chil- dren die before the wife, then the property is to be equally di- vided between the survivors, the devise of the remainder is to certain definitely specified and named individuals, who, as re- maindermen already answer the description by which they are to take, and there is no obstacle to supposing an Immediate vesting to have been intended." And see p. 194, supra, note, for cases in which remainders have been held, not contingent upon a con- dition precedent, but vested estates upon condition subsequent, liable to be divested by the happening of the contingency. See also Waring v. Warinff, 96 Va. 641. 316 REAL PROPERTY. [Chap. 13 107 U. S. 174; Dueler V. Burnham, 146 111. 9 (37 Am. St. Eep. 135) ; EUred v. Meeh, 183 111. 26 (75 Am. St. Eep. 86).^ ^ Examples of Conditions Consteued as Subsequent. — In 2 Bl. Com. (154) it is said: "But if a man grants an estate in fee- simple, reserving to himself and his heirs a certain rent, and that if such rent is not paid at the times limited, it shall be lawful for him and his heirs to reenter, and avoid the estate; in this case the grantee and his heirs have [rather the grantee Tios] an estate upon condition subsequent, which is defeasible if the condition be not strictly performed." For a modern instance of this kind of grant, see Willis v. Com., 97 Va. 667. See also Drummond v. Richards, 2 Munf. (Va.) 337. In Finlay v. King, 3 Peters 346, the words of the will were: "In case of having no children, I then leave and bequeath all my real estate at the death of my wife to William King, son of brother James King, on condition of his marrying a daughter of William Trigg and my niece, Rachel," etc. Marshall, C. J., applied the test laid down above in § 250, and held the condition to be sub- sequent. He said (p. 375): "In the case under consideration, the testator does not In terms give his real estate to William King on his marrying the daugh- ter of William and Rachel Tigg [as to this see § 250, note], but at the death of his, the testator's wife, on condition of his mar- rying a daughter of William and Rachel Trigg." And, after an elaborate argument based on the presumed intent of the testator, he adds (p. 376): "It is a general rule that a devise in words of the present time, as I give to A my lands in B, imports, if no contrary intent appears, an immediate interest which vests in the devisee on the death of the testator. It is also a general rule that if an estate be given on a condition, for the perform- ance of which no time is limited, the devisee has his life for performance. The result of these two principles seems to be that a devise to A on condition that he shall marry B, if uncontrolled by other words, takes effect immediately; and the devisee per- forms the condition if he marry B at any time during his life. The condition is subsequent." In Burdis v. Burdis, 96 Va. 81 (70 Am. St. Rep. 825), the words of the will were: "I leave and bequeath to my wife, Martha A. Burdis, the homestead and five acres around the house during her natural life, with the understanding that my son, Albert, will support and take care of her, and at her death said home- §251] ESTATES ON CONDITION. 317 3. In dealing with the condition, after its character as pre- cedent or subsequent has been ascertained. In dealing with a condition precedent, when ascertained to exist, the law may be said to favor the condition, inasmuch as it must be punc- tually and precisely performed, or the contingent estate can never vest. And even if the condition be unlawful or im- possible, yet, if precedent, the estate can never vest, as the contingency cannot arise, or the condition be lawfully per- formed. Nor will equity interpose, and grant relief for the non-performance of a condition precedent. Davis v. Gray, 16 Wall 203, 229; Burdis V. Burdis, 96 Va. 81 (70 Am. St. Eep. 825). stead and land shall return to my son, Albert, as compensation therefor." The court (Riely, J., delivering the opinion) adopted the test laid down in Finlay v. King (see § 250, supra), and held the condition to be subsequent, and disposed of the case as fol- lows: "But if the language referred to be in legal effect a condition of the devise to the son, there is nothing in the will that makes the support and care of the wife of the testator by their son Al- bert necessarily precede the vesting in him of the estate in re- mainder, but much to indicate the contrary. The obligation re- lied on as a condition precedent was not a single act, to be done or omitted at once, but a continuing condition, which might run through a long series of years, and require the performance of many acts. . . . There is nothing in the will to indicate that the testator intended the devise of the son to remain in 'a state of contingency during the many years that he might have the support and care of his mother, and it would be unreasonable to believe, without an express direction or plain implication in the will to that effect, that he so intended. . . . Taking the whole will together, as should be done, we are of the opinion that the condition upon which the testator's son, Albert, was to take the estate was a condition subsequent, and not a condition precedent; and its performance having been rendered impossible by the act of God, by the death of the wife in the lifetime of the testator, Albert holds the estate by an absolute title, as if the testator had attached no condition to the devise." The court cited Nimnery v. Carter, 5 Jones, Eq. (S. C), 370 (78 Am. Dec. 231). See in accord, Parker v. Parker, 123 Mass. 584; Morse v. Eayden, 82 Me. 227 (19 Atl. 443). 318 REAL, PROPERTY. [Chap. 13 But when the condition is found to he subsequent, the law then declares that the estate, already vested, shall, if possible, remain vested, i. e., shall not be forfeited; and hence the doctrine that conditions subsequent, "as they go in destruc- tion and defeasance of estates are odious in law, and shall be taken strictly." That is to say, the terms of a condition sub- sequent shall be construed strictly, against the grantor or de- visor imposing it, in deciding what is required to be done or forborne by the grantee or devisee ; and as to what is required, a substantial performance will suffice to save the estate, and only a substantial failure to perform will work a forfeiture. Maddox v. Adair (Texas), 66 S. W. 811. And the disfavor in which conditions subsequent (as destroyers of estates) are held may be seen in the doctrine as to the persons to whom they may be reserved, and by whom they may be enforced; in the doctrine of equitable relief against forfeiture when compensation may be made; and in the fact that an impos- sible or illegal condition is void, and the grantee or devisee takes the estate free from the condition, the estate thus be- coming absolute and indefeasible. Jackson v. Schutz, 18 Johns. 17-± (9 Am. Dec. 195, and note at p. 203) ; Coppage V. Alexander, 2 B. Monroe, 313 (38 Am. Dee. 153, and note at p. 160) ; Cross v. Carson, 8 Black. (Ind.) 138 (44 Am. Dec. 743, and note at p. 744) ; Taylor v. Sutton, 15 Ga. 103 (60 Am. Dec. 682) ; Thompson v. Thompson, 9 Ind. 323 (68 Am. Dec. 638, 645) ; Emerson v. Simpson, 43 N. H. 475 (80 Am. Dee. 184, s. c. 82 Am. Dee. 168) ; Rawson v. School District, 7 Allen (Mass.) 125 (83 Am. Dec. 670); Kilpatrick v. Mayor of Baltimore, 81 Md. 179 (48 Km., St. Eep. 509) ; Faith V. Bowles, 86 Md. 13 (63 Am. St. Eep. 489) ; Lewis v. Henry, 28 Gratt. 192, 203; Burdis v. Burdis, 96 Va. 81 (70 Am. St. Eep. 825, and note). § 252. Words Proper for a Condition Subsequent. — ^We have seen that there are no technical words to distinguish between conditions precedent and conditions subsequent; and that the same words may indifferently make either, according §§251,252] ESTATES ON CONDITION. 319 to the intent of the person who creates the condition. But though words of contingency do not create a condition prece- dent, it does not follow that they create a condition subse- quent. As is said by Morton, J., in Clapp v. Wilder, 176 Mass. 343 : "In numerous cases, for one reason or another, words apt to create a condition at common law in a deed have been interpreted as meaning something else — ^limitations, cov- enants, restrictions, easements, servitudes, trusts — because it was thought that such a construction would best conform to and carry out the intention of the parties." While this is the case, and manifest intention may negative condition altogether, it is important to inquire what words are "apt to create a condition at common law," and have prima facie, at least that effect. It is to be noticed that in the discussion of these words the books invariably contem- plate conditions subsequent, though the same words might in a proper case create a condition precedent. It is laid down by Littleton (2 Tho. Co. 4, 5) that the fol- lowing words, "by virtue of themselves, without any more saying," make an estate upon condition {i. e., upon condition subsequent], viz., "on condition" {sub conditione), "pro- vided" (proviso), and "so that" (ita quod). But Littleton points out a diversity between the words aforesaid and other words of condition, such as "if it happen," etc. {si contingat, etc.) : "For these words, si contingat, etc., are nought worth to such a condition unless it [sicl hath these words following, 'That it shall be lawful for the feoffor and his heirs to enter,' etc. But in the cases aforesaid it is not necessary by the law to put such clause, viz., that the feoffor and his heirs may enter, etc., because they may do this by force of the words aforesaid, for that they contain in themselves a condition, viz., that the feoffor and his heirs may enter, etc."^ 1 Words Held Sufficient to Create a Condition Subsequent. — The following words have been held suiEclent to create a tech- nical common law condition subsequent, rendering the estate liable to be divested for its breach: "Provided, however, that 320 REAL PROPERTY. [Chap. 13 The same doctrine is laid down in Sheppard's Touchstone (p. 181) as follows: "Know, therefore, that for the most part conditions have conditional words in their frontispiece, and do hegin therewith; and that amongst these words there are three words that are most proper, which in and of their own nature and efiScacy, without any addition of other words of reentry in the conclusion of the condition, do make the estate this conveyance is on the condition," etc. (Gray v. Blanchard, 8 Pick. (Mass.) 283); "And this conveyance is upon the express condition," etc. {Clapp v. Wilder, 176 Mass. 332); "The said land being conveyed on the express understanding and condition," etc. (Mead, v. Ballard, 7 Wall. 290. And see Hale v. Finch, 104 U. S. 261) ; "And if said second party shall fail to build said railroad, etc., then the property hereby sold as aforesaid is to revert to the said first party, and reinvest In them the same as they now hold the same." (Schlesinger v. Kansas City, do., R. Co., 152 U. S. 444. And see Preston v. Bosmorth, 158 Ind. 458; 74 Am. St. Rep. 313. Shun v. Claghorn, 69 Vt. 45; 37 Atl. 236. Houston, do., R. Co. v. Compress Co. (Texas), 56 S. W. 367); "In case such pass [an annual pass over the company's railway during the grantor's life] is not given, or if it shall be re- voked, then said deed to be void" (RuddicTc v. St. Louis, &c. R. Co., 116 Mo. 25; 38 Am, St. Rep. 570); "In case of breach of this covenant [not to erect buildings which would obstruct the grant- or's view] the said premises to be forfeited" (Gihert v. Peteler, 38 N. Y. 165; 97 Am. Dec. "iSS) ; "If the company shall refuse and neglect [to erect certain buildings, etc.] it shall be lawful for the parties of the first part, their heirs, executors, administrators, or assigns to reenter, repossess, and enjoy the said lands and premises as in their former estate" (Bouvier v. Baltimore, dc, R. Co. (N. J.), 47 Atl. 772. The above examples show that it is sufficient in order to create a condition (1) to use the technical words "on condition," "pro- vided," "so that," which of themselves, in the absence of a con- trary intent, confer, on breach, the right of reentry and enforce- ment of forfeiture; or (2) to use words Indicative of the con- sequences which flow from a breach of condition, from which the intent to create a condition is implied, such as that, on the de- fault of the grantee, the estate granted shall be void, or shall be forfeited, or shall revert to the grantor, or that the grantor may reenter, etc. §§252-253] ESTATES ON CONDITION. 321 conditional, as proviso, ita quod, and sub conditione. . . . But there are other words, as 8i, si contingat, and the like, that will make an estate conditional also ; but then they must have other words joined with them, and added to them in the close of the condition; as that then the grantor shall reenter, or that then the estate shall be void, or the like." In accord with the law as thus laid down by Littleton and in the Touchstone, see 2 Min. Ins. (4th ed.) 492; 6 Am. & Eng. Ency. Law (3d ed.) 501, note; Bawson v. School Dis- trict, 7 Allen (Mass.) 125 (83 Am. Dec. 670) ; Brown v. Caldwell, 23 W. Va. 187; Baley v. Umatilla County, 15 Or. 142 (3 Am. St. Eep. 142) ; Clapp v. Wilder, 176 Mass. 332; Papst V. Hamilton (Cal.) 66 Pac. 10. § 253. Condition Subsequent Distinguished from a limi- tation. — A condition subsequent must be distinguished from a limitation, which is not a condition at all, although it is called by Littleton a "condition in law." 2 Tho. Co. (120). The only resemblance between a condition subsequent and a limitation is that each may so operate as to put an end to an estate ; but the mode of operation is entirely different. "A limitation will necessarily determine the estate; a condition may defeat an estate." 1 Shepp. Touch. (117) by Preston. As this subject has been rendered obscure by Littleton's un- fortunate nomenclature, it may be well to go into it at some length.^ ^ Limitation oe Condition Subsequent. — The words proper for a limitation are stated by Coke to be Dum, donee, durante, tam- diu, etc., signifying "until," "during," "whilst," "so long as," etc. 2 Tho. Co. (121). Blackstone's Illustrations are: "As when land is granted to a man so long as he is parson of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made £500, and the like," 2 Bl. Com. (155). In Atlanta, &c., R. Co. v. Jackson, 108 Ga. 634 (34 S. E. 184), the court approves this language taken from 2 Washburn on Real Property (5th ed.), p. 27: "The only general rule, perhaps, in determining whether words are words of condition or limitation is that where they circumscribe the continuance of the estate, and mark the period which is to determine it, they are words of 21 322 REAL PROPERTY. [Chap. 13 Upon every grant of an estate there is a limitation, express or implied, in order to mark out and define the measure of the estate, i. e., the length of time it is to continue. Accord- ingly, certain words used for this purpose are called words of limitation, e. g., 'Tieirs," "heirs of the body," etc. (See §§ 35, 192, supra.) Now if an estate is granted to A for 21 years, or to A for life, or to A and the heirs of his body, and nothing more is said, it is clear that there is a limitation, and a limitation only; and it could hardly be imagined that the fact that the estate is to end when the years elapse, or the grantee dies, or dies without issue, constitutes these events conditions, as if the grantor should say, "I give you the land for life, on condition you do not die !" There is no condition. limitation; when they render the estate liable to he defeated, in case the event expressed should arise before the determination of the estate, they are words of condition. . . . The distinc- tion between condition and limitation is that the latter determines the estate of itself; the former to have that effect requires some act of election on the part of him or his heirs in whose favor the condition is created." In Smith v. Smith, 23 Wis. 176 (99 Am. Dec. 153), the follow- ing extract is made from the editor's note to Greenleaf's edition of Cruise's Digest on Real Property: "A condition is something inserted for the benefit of the grantor, giving him the power, on default of performance, to destroy the estate if he will, and revest the estate in himself or his heirs. As the law does not presume forfeiture, it requires some express act of the grantor as evidence of his intention to reclaim the estate, viz., an entry. "A limitation is conclusive of the time of continuance, and of the extent of the estate granted, and beyond which it is declared at its creation not to be intended to continue. Conditions render the estate voidable by entry; limitations render it void without entry. ... A limitation is imperative, and is determined by rules of law. A condition not only depends on the option of the grantor, but is also controlled by equity if the grantor at- tempts to make an inequitable use of it. The performance of a condition [subsequent] is excused by the act of God, or of the law, or of the party for whose benefit it was made; a limitation determines the estate absolutely whatever be its nature." §§253-254] ESTATES ON CONDITION. 323 The estate for life is given until the grantee's death; and when that event happens, it expires by limitation. To constitute a condition subsequent, there must be some- thing added to the limitation, "a distinct clause," whose office is "to defeat the estate [already limited] on some event which may happen, or on some act to be done, before the estate has filled the utmost measure or time appointed for its con- tinuance." 1 Shepp. Touch. (117). Here the estate granted has not filled out the measure of its limitation when the con- dition is broken; and for such breach the grantor may enter and divest the estate, which does not end by limitation, but is destroyed by the enforcement of a forfeiture. The grantor may waive the forfeiture, and then the estate will continue as limited. But when the period of limitation has passed, the estate ends of itself and without entry. Indeed, it cannot continue longer, even if the grantor wishes it, for there is nothing to continue. 1 Preston, Estates (45) ; 2 Tho Co. (87) n. (L. 2) ; 2 Bl. Com. (155) ; Millan v. Eephart, 18 Graft. 1, t; Smith v. Smith, 23 Wise. 176 (99 Am. Dec. 153) Atlanta, &c., R. Co. v. JacTcson, 108 Ga. 634 (34 S. E. 184). § 254. Marriage as a Limitation or Condition Subsequent. — It will conduce to clearness to illustrate the difference be- tween a limitation and a condition by the not uncommon case of a gift to a widow dependent on her not marrying again. Let us suppose first that land is given a widow while she remains unmarried {durante viduitate) : is this a limita- tion or a condition? And if she marries, does she forfeit the estate, or does it expire by limitation? It is not dif- ficult to see that it is a limitation merely, without the sem- blance of a condition. How long is the land given the widow? While she remains unmarried, or what is the same thing, until she marries. Nothing is said about her life; it is not limited until her death, but until her marriage. When, therefore, she marries, she has enjoyed all the estate that was given her, and cannot complain that she has lost anything by 324 REAL PROPERTY. [Chap. 13 forfeiture ; the land was given her until her marriage, and on that event, the estate ends by limitation. And while the estate might have continued until the widow's death, if she had remained unmarried, yet it is not true that on her mar- riage a larger estate limited is thereby cut short and defeated. The estate is until her marriage, and when that takes place, whether sooner or later, the entire estate given has been en- joyed, and is at an end without entry by the grantor. But suppose land is given to a widow for life, with a con- dition superadded that she shall not marry; and with a pro- viso that if she does marry, the grantor may enter upon the land immediately, and resume possession. Here the limita- tion is for life, which is equal to until death. But this is not all. There is superadded or imposed on the limitation a con- dition, viz., that the widow shall not marry. Suppose, how- ever, she does marry, what is the result? Will her estate, in case the grantor enforces the condition and takes the land from her, end by limitation ? Clearly not, for the estate lim- ited was for her life, and would not end by limitation until her death; whereas her estate is divested and ends on her marriage — ^perhaps many years before her death. Hence the estate has died a violent death; the estate limited to the widow was larger than that which she has enjoyed; the entry of the grantor cuts it short before the time limited. The widow forfeits for breach of condition. It may be objected that in the two cases just put the prac- tical efiect is the same, whether we regard the language as importing a limitation or a condition; that in either case, if the widow does not marry, her estate continues until her death; while if she does marry, her estate is at an end. But there is an important difiEerence. If the land is given to the widow until she marries, the effect of her marriage is to terminate her estate ipso facto, and immediately. ISTo entry by the grantor is required in order to terminate her estate. If the widow remains ia possession, it is as tenant by suffer- ance, or by virtue of some new estate given her by the grantor. §§254,255] ESTATES ON CONDITION. 325 When, however, the land is given to the widow for life on condition that she does not marry, the efiect of her marriage is not to end her estate ipso facto; for a life estate was given her, and that does not expire by limitation on marriage. The grantor must reenter and take the land, or the widow will remain in possession by virtue of her old estate. In other words, she is liable to forfeit the life estate on her marriage, but if the grantor waives the forfeiture (as he may) the life estate continues to its natural termination. Coppage v. Alexander, 2 B. Monroe, 313 (38 Am. Dec. 153) ; Little v. Birdwell, 31 Tex. 597 (73 Am. Dec. 343) ; BosticJc v. Blades, 59 Md. 231 (43 Am. Eep. 548) ; Mann v. Jaclson, 84 Me. 400 (34 Atl. 886) ; Gillespie v. Allison, 117 N. C. 513 (30 S. B. 627) ; Dubois v. Van Valen (N. J.) 48 Atl. 241; Shaw V. Shaw, (la.) 68 IST. W. 327; ChenauU v. Scott (Ky.) 66 S. W. 759. § 265. Collateral Limitation. — ^We have seen the nature of a simple limitation, and how it differs from a limitation with a condition subsequent imposed on it. Let us now consider a collateral limitation. In 1 Preston on Estates (42) it is said: "A direct limitation marks the duration of an estate by the life of a person, or by the continuance of heirs, or by a space of precise and measured time; making the death, of the person in the first example, the continuance of heirs in the second example, and the length of the given space in the third example, the boundary of the estate or the period of duration. A collateral limitation, at the same time that it gives an interest which may have continuance for one of the times in a direct limitation, may on some event which it describes put an end to the right of enjoyment during the continuance of that time." In Millan v. Kephart, 18 Gratt. 1, it is said by Joynes, J. : "A collateral limitation marks an event which may happen within the time described in the direct limitation; and on the happening of that event puts an end to the estate. Thus 326 REAL PROPERTY. [Chap. 13 a lease 'To A for 20 years or until B shall return from Eome' may cease and determine either by the expiration of twenty years, the time marked for its duration by the direct limita- tion, or by the happening within that time of the event de- scribed in the collateral limitation, to-wit, the return from Eome. In either case the estate of the tenant wiU have reached the utmost bounds marked for its continuance by the limitation by which its duration is governed; and so, in either case, the right of the tenant will be absolutely at an end without entry or other act on the part of the landlord."^ "^Remaindee attee a Collateeal Limitation Distinguished FROM A Conditional Limitation. — For the definition and explana- tion of a conditional limitation, see supra, § 212. It is there stated that a limitation over after a particular estate defeasible by condition subsequent cannot be a remainder, and is void at common law. Outland v. Bowen, 115 Ind. 150 (7 Am. St. Rep. 420); Carney v. Eain, 40 W. Va. 758 (23 S. E. 650, 659); Lock- ridge V. McCommon, 90 Tex. 234 (38 S. W. 33). But, of course, a remainder can follow a particular estate to end by limitation, and this whether the limitation of the particular estate be single or double, direct or collateral. Thus a devise to A during her widowhood, with remainder to B and his heirs, gives B a vested remainder. In construction of law, A has an estate of freehold, because it is of uncertain dura- tion and may by possibility last for her life. See § 9, supra; 1 Preston, Estates (127). A's estate will end by limitation either on her marriage or death; but in either case, B, a certain per- son, is ready to take. Hence the remainder is vested. Little v. Birdwell, 21 Texas, 597 (73 Am. Dec. 242); Gillespie v. Allison, 117 N. C. 512 (20 S. E. 627); Dutois v. Tan Yalen (N. J.), 48 Atl. 241. And it is even held that a devise to the testator's wife, "so long as she should remain his widow, and on her second marriage to B and his heirs," gives B a vested remainder, the construction being that B is to take in whichever way the widow's estate ends, whether by her death of by her marriage. Fearne on Rem. (5), note (d); Vnderhill v. Bodes, 2 Ch. D. 494 (17 Moak, 589); 20 Am. and Eng. Ency. Law (1st ed.), 864 and note. In the above examples, the express limitation was single or direct; but as the estate is determinable on more than one event, the limitation is considered collateral, by intendment of law. §255] ESTATES ON CONDITION. 327 Again, suppose land is granted to a widow "until her death or marriage." Here the grantor has chosen two events as alternative limitations, on the happening of either of which the estate given immediately determines. The limita- tion until death is the longer or direct limitation; that until marriage is the shorter or collateral limitation, since by it the widow's estate may end during her life. But her mar- riage cannot be regarded as a cause of forfeiture. That event is embodied in the limitation itself, as part of it, and does not follow the limitation for life "as a distinct clause," to defeat the larger estate granted. Hence it results that no more on the marriage than the death of the widow is entry by the grantor necessary to terminate her estate; for on either event it ends of itself, by limitation. Thus in Coppage v. Alexander, 2 B. Mon. (Ky.) 313 (38 Am. Dec. 153), the devise was : "I give unto my beloved wife, An express collateral limitation would be, as we have seen above, "To A for life, or until her marriage." Sometimes the express and implied collateral limitations are treated without discrimina- tion, and as if all were express. See 1 Preston on Estates (42), where these examples are given of collateral limitations: "To a man and his heirs, tenants of the manor of Dale; or to a woman during widowhood; or to C until the return of himself or B from Rome; or to D for 21 years if A should so long live." Returning to limitations over after determinable particular es- tates, a remainder, even at common law, may be limited to com- mence on the event which is to determine the particular estate, as when a grant is made, "To A until his return from Rome; and from and after A's return, remainder to B and his heirs (see § 178, supra). For, in the language of Preston (Estates (54), "the event is part of the measure of the estate [of A] or [its] duration of ownership, and not a condition. The event is to de- termine the estate by limitation, and not to defeat it by condi- tions. The particular estate must have filled the measure of [its] duration before the remainder can confer a right to the posses- sion." And see for fuller explanation Fearne (10), Butler's note. And the same explanation is applicable to a remainder after an estate "to A for 99 years, if he shall so long live." The contingent clause is not a condition subsequent, but a part of the original limitation of A's estate. See § 179, supra. 328 REAL. PROPERTY. [Chap. 13 Mary Alexander, the half of my land I now own during her widowhood or life;" and it was held that this should be con- strued "as a limitation expressive of the duration of the estate, and not as a condition subsequent." The court said: "The happening of either event was intended to terminate the estate. It was intended as a benefit durante viduitate and no longer. The estate was not vested for life, to be forfeited if she married; but is vested during her widowhood only, in the event of her marriage, and must cease with the termination of her widowhood, as one of the pediods to which it was limited, and upon the accrual of which it was made to ex- pire." And see Pearse v. Owens, 3 N. C. 415 (3 Hayw. 334). § 256. Collateral Limitation by Way of a Base Fee. — For an explanation of a base or determinable fee, see § 37, supra. In 3 Bl. Com. (154), base fees are classed with estates on condition subsequent, but this a mistake. A base fee is a fee determinable on a contingent event. The estate is lim- ited in fee or until the event; and on the happening of the event it ends instanter, and no entry of the grantor is neces- sary in order to terminate it. The event is therefore in the nature of a limitation of the estate, and not a condition sub- sequent. See 1 Prest. Est. (126), (443) ; Union Canal Co. V. Young, 1 Whart. (Pa.) 410 (30 Am. Dec. 212) ; Leonard V. Burr, 18 N. Y. 96; Smith v. Sinith, 33 Wise. 176 (99 Am. Dec. 153); Henderson v. Hunter, 59 Pa. St. 335; United States Pipe Line Co. v. Delaware, &c., R. Co., 63 N. J. Law, 354 (41 Atl. 759; 43 L. E. A., 572) ; Atlanta, &c., B. Co. V. Jackson, 108 Ga. 634 (34 S. E. 184). And see Boiling v. Petersburg, 8 Leigh (Va.) 334, 334. The grantor of a base fee while the event remains contin- gent has no reversion in the land granted, but only a possi- bility of reverter, i. e., a chance to get back the estate if the event does happen at any future time. And in Gray's Bule against Perpetuities, §§ 31-43, it is contended that since the statute of Quia Emptores, abolishing tenure between §§255-256] ESTATES ON CONDITION. 329 feoffor and feoffee on a grant of the fee-simple (see § 54, supra), possibilities of reverter are not valid interests in land, and that by virtue of that statute base fees have ceased to exist. But in the United States base fees are not considered as dependent on the existence of tenure, and are still recog- nized as valid estates, as Prof. Gray concedes and laments. In First Universalist Society v. Boland, 155 Mass. 171, it is said: "A question or doubt, however, has arisen, though not urged by counsel in this case, whether after all there is now any such estate as a qualified or determinable fee, or whether this form of estate was done away with by the stat- tite of Quia Emptores. See Gray, Rule against Perpetuities, §§ 31-40, where the question is discussed and authorities are cited. We have considered this question; and whatever may be the true solution of it in England, where the doctrine of tenure still has some significance, we think the existence of such an estate as a qualified or determinable fee must be rec- ognized in this country, and such is the general consensus of opinion of courts and text-writers." Many authorities are cited by the court (p. 175). Prof Gray also argues (Rule against Perpetuities, § 313) that such possibilities of reverter, if allowed, would violate the rule against perpetuities, as the reverter might not take place within lives in being and 21 years thereafter. But this objection has not been allowed in the United States. See First Universalist Society v. Boland, supra, where it is said (at p. 175) : "Clark's possibility of reverter [after a base fee] is not invalid for remoteness. It has been expressly held by this court that such possibility of reverter upon a breach of a condition subsequent is not within the rule against perpetuities. Tohey v. Moore, 130 Mass. 448 ; French V. Old South Society, 106 Mass. 479. If there is any distinc- tion in this respect between such possibility of reverter and that which arises on the determination of a qualified fee, it would seem to be in favor of the latter. But they should be governed by the same rule. If one is held void for remote- 330 REAL PROPERTY. [Chap. 13 ness the other should be. The very many cases cited in Gray, Rule against Perpetuities, §§ 305-312, show conclusively that the general understanding of courts and the profession in America has been that the rule as to remoteness does not apply; though the learned author thinks this view erroneous on principle." See note to Barnum v. Barnum (Md.) 90 Am. Dee. 103-4. For a recent case in which an estate was held to be a base fee, see Pettitt v. Stuttgart, &c.. Institute (Ark.) 55 S. W. 485. For other cases in which reference is made to base fees, see Stuart v. Boston, 170 U. S. 394; Noyes v. St. Louis, &c., B. Co. (111.) 21 N. E. 487; Hunter y. Murfee (Ala.) 28 So. 9. § 257. Condition Subsequent Distinguished from a Cove- nant; Covenant Favored. — In many cases words relied upon as creating a condition subsequent, and technically sufficient for that purpose, have, upon their true construction, been held to be contractual in their nature, imposing the obliga- tion of a covenant, and not conditional, with liability to forfeiture. "A condition differs from a covenant. The legal responsibility of non-fulfilment of a covenant is that the party violating it must respond in damages. The conse- quence of the non-fulfilment of a condition is forfeiture of the estate. The grantor may reenter and possess himself of his former estate. This court [of equity], in a proper case, can enforce the specific performance of a covenant; but it cannot enforce the specific performance of that in a deed, the non-performance of which works a forfeiture of the estate." Woodruff v. Woodruff, 44 N. J. Bq. 349 (1 L. E. A. 380, and note). See also Post v. Weil, 115 N. Y. 361 (12 Am. St. Eep. 809, 818) ; Chicago, &c., R. Co. v. Titterington, 84 Texas, 218 (31 Am. St. Eep. 39, 42) ; Brown v. Chicago, &c., R. Co. (Iowa), 82 IST. W. 1003. It is weU settled that no particular words are necessary to create a covenant. In Sheppard's Touchstone (162) it is •said: "And there needs not, in this case, formal and orderly §§256,257] ESTATES ON CONDITION. 331 ■words, as covenant, promise, and the like, to make a covenant on which to ground an action of covenant ; for covenant may be had by any other words; and upon any part of an agree- ment in writing [under seal], in what words soever it be set down for anything to be or not to be done, the party to or with whom the promise or agreement is made, may have this action [of covenant] upon the breach of the agreement." See Hole v. Finch, 104 U. S. 361, where this language is quoted with approval; Graves v. Deterling, 130 N. Y. 448, 457.^ ^ Covenant ob Condition Subsequent. — In Post v. Weil, 115 N. Y. 361 (12 Am. St. Rep. 809) the deed contained these words: "Provided always, and these presents are upon this express condi- tion, that the aforesaid premises shall not, nor shall any part thereof, or any building or buildings thereon erected, be at any time hereafter used or occupied as a tavern or public house of any kind." Held, that these words were intended as a restriction, created for the benefit of the adjoining property, expressed in the strongest terms, and which was enforceable as a covenant running with the land, and was not a condition subsequent, imposed for the personal benefit of the grantors and their heirs. And see Clarlc v. Martin, 49 Pa. St. 289; Watrous v. Allen, 57 Mich. 362 (24 N. W. 104). On the other hand, in Olapp v. Wilder, 176 Mass. 333, these words: "And this conveyance is made upon the express condition that said Wilder and Hills, their heirs and assigns, shall never erect any building nearer the street line of the said land than the store building now thereon," created a technical, common law condition, the only remedy for which was the enforcement of a forfeiture. The court said: "No doubt there is a disposition among courts to look for some- thing in the deed which shall modify the severity of the lan- guage [i. e., as creating a condition] ; and sometimes considerable astuteness has been exercised in this direction (Post v. Weil, 115 N. Y. 361 ) ; and no doubt the language fof condition] is some- times used when from the whole deed it sufficiently appears that it could not have been intended in its full technical sense, and in such cases a restriction and not a technical condition is the result." Morton, J., wrote a strong dissenting opinion, approv- ing Post V. Weil, in which Knowlton and Lathrop, JJ., concurred. For other cases of words construed as covenants, see Super- 332 REAL PROPERTY. [Chap. 13 It is also well settled that as conditions subsequent tend to destroy estates, they are not favored in law. Peden v. Chicago, &c., R. Co. 73 Iowa 378 (5 Am. St. Eep. 680) ; EilpatricTc v. Mayor of Baltimore, 81 Md. 179 (48 Am. St. Eep. 509). In Scovill v. McMahon, 63 Conn. 378 (36 Am. St. Eep. 350), it is said: "The law is well established that such conditions are not favored, and are created only by ex- press terms or clear implication; that courts will always construe clauses in deeds as covenants rather than conditions, if they can reasonably do so; that if it is doubtful whether a clause in a deed imports a condition or a covenant, the latter construction will be adopted; and that though apt words for the creation of a condition are employed, yet, in the absence of an express provision for reentry or forfeiture, the court, from the nature of the acts to be performed or prohibited by the language of the deed, from the relation and situation of the parties, and from the entire instrument, will determine the real intention of the parties." See in accord Curtis V. Board of Education, 43 Kansas, 138 (23 Pac. 98) ; Greene v. O'Connor, 18 E. I. 56 (19 L. E. A. 362, and note) ; Elyton Land Co. v. South &c., E. Co. 100 Ala. 396 (14 So. 207) ; Faith v. Bowles, 86 Md. 13 (63 Am. St. Eep. 489) ; King v. Norfolk, &c., B. Co., 99 Va. 625 ; Lowman v. Craw- ford, 99 Va. 689. But although no technical words are required to create a covenant, and although even technical words of condition may be construed as a covenant, if such be the intention, yet as is said in Palmer v. Planhroad Co. 11 N. Y. 376, 389 : "It is clear from the authorities that there may be a condi- tion without a covenant; and that where the language imports visors v. Bedford High School, 92 Va. 292; Thornton v. Trammell, 39 Ga. 202; Hartung v. Witte, 59 Wise. 285 (18 N. W. 175) ; Curtis v. Board of Education, 43 Kansas, 138 (23 Pac. 98); Star Brewery v. Primas, 163 111. 652 (45 N. E. 145); Carroll County Academy V. Trustees, do. (Ky.) 47 S. W. 617. And see Stuart v. Boston, 170 U. S. 383. §§257,258] ESTATES ON CONDITION. 333 a condition merely, and there are no words importing an agreement, it cannot be enforced as a covenant, but the only remedy is through a forfeiture of the estate. . . . It by no means follows that because a grantor consents to take an estate subject to a certain condition that he also consents to obligate himself personally for the performance of the con- dition. Many cases might be imagined where one would be willing to risk the forfeiture of the estate, while he would be altogether unwilling to incur the hazard of a personal re- sponsibility." See Hale v. Finch, 104 U. S. 361, 369; Blanchard T. Detroit, &c., R. Co., 31 Mich. 43, 53; Close v. Burlington, &c., B. Co., 64 la. 150 (19 K. "W". 186). And see Brown v. Chicago, &c., R. Co. 83 K. W. 1003, where it is said : "Surely unless the terms of the deed were such that its acceptance imposed some obligation on the grantee to do or not to do, the clause cannot be said to be a covenant." § 258. Condition Subsequent Distinguished from a Trust. — For the same reason that the law favors a covenant rather than a condition subsequent — its dislike of forfeitures — it prefers to construe words qualifying the ownership of lands as trusts rather than conditions. In Stanley v. Colt, 5 Wall. 119, 165, a condition is thus distinguished from a trust : "A condition, if broken, forfeits the estate, and forever thereafter deprives the society [the devisee] of the gift; and not only this, but the heirs become seised of the first estate, and avoid, of course, all interme- diate charges and encumbrances, and take also free and clear all the expenditures and improvements that may have been laid out on the property. On the other hand, if these limita- tions are to be regarded as regulations to guide the trustees, and explanatory of the terms upon which the devise has been made, they create a trust which those who take the estate are bound to perform; and, in case of a breach, a court of equity will interpose and enforce performance." See also Stuart v. Boston, 170 U. S. 383, 402. So strongly does the law favor a trust rather than a con- 334 REAL PROPERTY. [Chap. 13 dition that even the technical words of condition may be denied their ordinary meaning, and, if such appears to be the intention, construed as trusts. Thus in Stanley v. Colt, supra, it is said: "It is true the word 'proviso' is an appro- priate one to constitute a common law condition in a deed or will, but this is not the fixed and invariable meaning at- tached to it by the law in these instruments. On the con- trary, it gives way to the intent of the parties as gathered from an esamination of the whole instrument, and has fre- quently been thus explained and applied as expressing simply a covenant or limitation in trust." In this case, a devise to an ecclesiastical society, "provided that said real estate be not ever hereafter sold or disposed of," etc., was held, in connection with the other provisions of the will, to be a gift in trust, and not on condition. And the same result was reached where the words were "upon this express condition" {Wright v. WilTcin, 2 Best & Smith (110 E. C. L. E.) 232, 259) ; "in trust nevertheless and on con- dition always" (Sohier v. Trinity Church, 109 Mass. 1) ; ''with this express limitation and condition" (Mills v. Davi- son, 54 N. J. Eq. 659; 35 L. K. A. 113). In Neely v. HosJcins, 84 Me. 386 (24 Atl. 882), land was conveyed "upon the condition that it shall be forever for the use of the Protestant Episcopal Church at Old Town," and this was held to be, not a condition for the benefit of the grantor, but a trust which equity would enforce at the instance and for the benefit of the parish. The court said: "It is not expressed in the deed that the estate shall be revertible for any cause, but it is contended that the idea is implied. The term 'condition' does not necessarily import it. 'Condition' may mean 'trust,' and 'trust' mean 'condition,' oftentimes. The construction must depend on the context and any ad- missible evidence outside of the deed." And see Jones v. Edbersham, 107 U. S. 174. § 259. Not Condition Subsequent When a Conveyance of Land is for a Particular Purpose. — It is almost universally §§258,259] ESTATES ON CONDITION. 335 held that the expression in a conveyance of the use to be made of the land does not amount to a condition subsequent, though it may create a covenant or trust. The leading case on this subject is Rawson v. School District, 7 Allen (Mass.) 135 (83 Am. Dec. 670), where land was granted to a town "to their only proper use, benefit, and behoof, for a burying place forever." In an elaborate opinion by Bigelow, C. J., it was held that these words did not create a condition sub- sequent. And it was said : "We believe there is no authoritative sanction for the doc- trine that a deed is to be construed as a grant on a condition subsequent solely for the reason that it contains a clause de- claring the purpose for which it is intended the granted premises shall be used, where such purpose will not inure specially to the benefit of the grantor and his assigns, but is in its nature general and public, and where there are no other words indicating an intent that the grant is to be void if the declared purpose is not fulfilled."'- ^ CoNVETANCEs OF LiAJSTD FOR A Paktioxjlar Pxjbpose. — In a f ew cases, the expression of the purpose of a conveyance of land has been deemed to render a grant conditional. In Hunt v. Beeson. 18 Ind. 380, where land was donated "for a tan-yard," the court held that it was given on a condition subseQuent. But see Farnham v. Thompson, 34 Minn. 331 (57 Am. Rep. 59), where it is said of Hunt v. Beeson: "That decision seems to have been made on the authority of Hayden v. Stoughton, 5 Pick. 258; and in the latter case there were technical words of condition." In Indianapolis, &c., R. Go. v. Hood, 66 Ind. 580, a deed was made of lots to the company "for a site for the depot of said rail- road at Peru, ... to have and to hold the premises . . . for the purpose aforesaid;" and the court said: "The condition subsequent was, we think, clearly expressed in the deed under consideration, although the word 'condition' was not used therein, and it is very evident that this condition subsequent was the only consideration or inducement for the execution of the said deed." But see what is said of this case in Sumner v. Darnall, 128 Ind. 38 (13 L. R. A. 173). In Flaten v. City of Moorhead, 51 Minn. 518 (53 N. W. 807), a deed, upon nominal consideration, was made to the village, and 336 REAL PROPERTY. [Chap. 13 The law as thus laid down is followed in many cases, among which may be cited the following, in which it was held that there was no condition subsequent: Noyes v. St. Louis, &c., B. Co. (111.), 31 N. E. 487 ("for the erection and maintenance thereon of the freight houses of the said com- panies") ; Sumner v. Barnall, 128 Ind. 38; 13 L. E. A. 173 ("in consideration of the seat of justice having been perma- nently established at the town of Centreville, . . . for the use of the said county [of Wayne] forever") ; Kilpatrich v. Mayor of Baltimore, 81 Md. 179; 48 Am. St. Eep. 509 ("unto the Mayor, etc., of Baltimore, etc., forever, as and for a street to be kept as a public highway^') ; Long v. Moore, 19 Tex. Civ. Ap. 363; 48 S. W. 43 ("for the purpose of a female academ^y") ; Fuquay v. Trustees (Ky.), 58 S. W. 814 ("in consideration that the land has been selected as a proper place for erecting and building said academy, and as a permanent site for the same") ; Hunter v. Murfee (Ala.), 38 So. 7 ("to have and to hold the aforegranted premises to after the description of the premises were these words: "Said tract of land hereby conveyed to be forever held and used as a public park." The court held that the village did not take an absolute title (all that was necessary to decide for the disposition of the case), but did not determine "the precise nature of the estate conveyed, whether a mere easement was acquired by the village, or an estate on condition, or in trust." See this case criticised, and declared opposed to principle and authority, by Tyson, J., in Hunter v. Murfee, 126 Ala. 123 (28 So. 7). Other cases which seem out of the line of the authorities are cited in Hunter v. Murfee, supra, and in note to Farnham v. Thompson (Minn.) 57 Am. Rep. 63. For an explanation of the cases of Kirk v. Kirlc, 3 Pa. St. 436, and Scheetz v. FitzvMter, 5 Pa. St. 126, see Stuart v. Easton, 170 V. S. 383, 398; Hunter v. Murfee (Ala.) 28 So. 7, 9. It has been stated above that words of exclusion ("for no other purpose," etc.) do not suflace to render a deed conditional. See what is said on this point in Brown v. Caldwell, 23 W. Va. 187, 191; Stuart v. Easton, 170 U. S. 383, 402; and in Long v. Moore, 19 Tex. Civ. App. 363 (48 S. W. 43, 45). But see Hunter v. Mur- fee (Ala.) 28 So. 7, 10. §§259-260] ESTATES ON CONDITION. 337 the said trustees of Howard Collge, and their successors in ofBce, to the use of Howard College"). IsTor will the use of express words of exclusion of any other than the designated use create a condition subsequent. This was held in the following cases: Brown v. Caldwell, 23 W. Va. 187 ("to use the aforesaid acre of land as a common burying ground, and for no other purpose, unless it be for erecting thereon a house for public Christian worship") ; Barker v. Barrows, 138 Mass. 578 ("said lot of land to be used, etc., as a school house lot, and for no other purpose") ; Farnham v. Thompson, 34 Minn. 331 ; 57 Am. Eep. 59 ("for the purpose of erecting a church thereon only") ; Baley V. Umatilla County, 15 Or. 173 ; 3 Am. St. Eep. 143 ("for the special use and none other of educational purposes") ; Faith V. Bowles, 86 Md. 13; 63 Am. St. Eep. 488 ("for a public school-house, as the property of the schools of said county, and for no other purpose") ; Ecroyd v. Coggeshall, 31 E. I. 1; 79 Am. St. Eep. 741 ("but no buildings for any other mu- nicipal purpose than that of a city hall shall ever be erected on the granted premises"). In Ecroyd v. Coggeshall; supra, the reasons for the decision are thus stated: "The clause in question contains no apt or proper words to create a condition. It simply declares that the land shall not be used for any other municipal purpose than that of a city hall. . . . There are no words relating to reentry or forfeiture, but simply a declaration that the land conveyed shall not be used for any other purpose than that specified; and we know of no authority by which such a grant can be held to be on condition." § 260. Trust When a Conveyance is for a Particular Pur- pose. — In many of the cases cited in the previous section, the action was in ejectment (or some other action in rem) by the grantor or his heirs to recover the land, on the theory of forfeiture for breach of condition subsequent; and it was sufficient to dispose of the case to decide that there was no such condition, without passing on the question of trust. 22 338 REAL PROPERTY. [Chap. 13 TMs was the case in Rawson y. School District (supra), where the court said (p. 674) : "If it be asked whether the law will give any force to words in a deed which declare that the grant is made for a specific purpose, or to accomplish a particular object, the answer is that they may, if properly expressed, create a con- fidence or trust, or amount to a covenant or agreement on the part of the grantee. . . . But whether this is so or not, the absence of any right or remedy in favor of the grantor, under such a grant, to enforce the appropriation of the land to the specific purpose for which it was conveyed, will not of itself make that a condition which is not so framed as to war- rant in law that iaterpretation. An estate cannot be made defeasible on condition subsequent by construction founded on an argument ah inconvenienti only, or on considerations of supposed hardship or want of equity."^ ^ Teusts in Devises and Voluntaet Gra-Nts. — In Rawson v. School District (Mass.), 83 Am. Dec. 670, it is said: "In devises a conditional estate may be created by the use of words wlilch de- clare that it is given or devised for a particular purpose, or with a particular intention, or on payment of a certain sum." But in Stanley v. Colt, 5 Wall. 119, 165, it is said: "Mr. Sugden, speak- ing of conditions, observes that what by the old law was deemed a devise on condition, would now, perhaps in almost every case, be construed a devise in fee upon trust; and by this construc- tion instead of the heir taking advantage of the condition broken, the cestui que trust can compel an observance of the trust by suit in equity." As to voluntary grants, it is said in Olcott v. Gahert, 86 Tex. 123 (23 S. W. 985) : "It may be that the consideration expressed should be deemed nominal, and the conveyance should be treated as voluntary, and it is true that a condition will be more readily Implied in a deed of that character than in one which rests upon a valuable consideration. Yet the rule is well recognized that the mere declaration of the uses to which the granted premises are to be applied do not ordinarily import a condition. "Where the declared purpose for which the property shall be used is a matter that will enure to the special benefit of the grantor, the courts are more inclined to treat the conveyance as conditional than when, as in this case, the use is for the benefit §260] ESTATES ON CONDITION. 339 In Raivson v. School District, the language of the court (at p. 675) seems to imply that there was no enforceable trust, but only a duty of imperfect obligation, to carry out the wishes of the grantor. And the same may be said of most of the cases cited in the previous section. On the other hand, in Sohier v. Trinity Church, supra, the court said: "Taking into consideration the title of the grantors, the purposes of the grant, and the fact that the expression is 'in trust never- theless and on condition always,' the fair construction of the instrument is that the parties intended the title to be in trust." And see to the same effect. Mills v. Davison, 54 N. J. Bq. 659 (35 L. E. A. 113). In Brown v. Caldwell, supra, the court say : "Taking into consideration the whole instrument, and the purposes of the grant, and the absence of any clause of reentry or forfeiture, it seems to me that the grantor intended the title to be in trust, and not upon condition." In Raley v. Umatilla County, of a special class of persons, or of the public at large. In this case it does not appear that the maintenance of a church upon the lot was a matter especially advantageous to the railroad com- pany which made the grant." And see Long v. Moore, 19 Tex. Civ. App. 363 (48 S. W. 43); Neeley v. Hoskins, 84 Me. 386, § 258, supra; Brown v. Caldwell, 23 W. Va. 187. In Faith v. Bowles, 86 Md. 13 (63 Am. St. Rep. 488) it is said: "The grant in the case now under consideration was not a gratuity, nor merely voluntary, hut made for a full consideration of the estate conveyed. This heing the case, and there heing no qualifying terms indicating that the grantors intended to retain any benefit to themselves, or to impress upon the estate conveyed any restriction as to its alienation, we find nothing to justify the appellee's contention" [viz., that there was a condition sub- sequent]. And it would seem that there was no enforceable trust. But while the presence of a consideration may be potent against the intention to create either a condition or trust, it is not believed that its absence has very great weight in favor of such an intention. See KUpatrick v. Mayor of Baltimore, 81 Md. 179 (48 Am. St. Rep.) 509, where the court say: "We are dis- posed to place but little importance upon the fact that the con- sideration in the deed is merely nominal." But see Ecroyd v. Coggeshall, 21 R. I. 1 (79 Am. St. Rep. 741). 340 REAL PROPERTY. [Chap. 13 supra, it is said, on rehearing: "If it were being so used [i. e., the land for other than "educational purposes"] it is probable that the heirs of the grantor have such an interest [presuinably by way of covenant or trust] that they might restrain the unauthorized use of the thing granted." In Ecroyd v. Goggeshall, supra, it is said (citing Greene y. O'Connor, 18 E. I. 60) : "This language, at the most, only has the effect to create a confidence or trust in connection with the land conveyed, or to raise an implied agreement on the part of the grantee to use the land only for the purpose specified." § 261. Construction of Conveyances Providing for Sup- port of the Grantor or a Third Person by the Grantee. — Such provisions depend for their construction upon the words used, and may assume the form of a true condition subsequent, a personal covenant, a covenant coupled with a charge or lien on the land, or both a condition and a covenant at the same time.^ ^ CONSTEUCTION OF SuppoBT DEEDS. — lu Lohman V. GroMford, 99 Va. 688, the language of a deed by aunt to nephew expressed the consideration as follows: "For and in consideration of the love and affection the said [grantor] has for the said [grantee], his remaining with her the said [grantor], the taking care of her so long as she may live, in sickness as well as in health, the pay- ment of all her just debts that may be unpaid at her decease; and the further consideration of one dollar cash in hand paid, the receipt of which is hereby acknowledged." The court said: "There are no words in the deed under consideration creating a condition subsequent, and nothing to suggest that such a con- dition was contemplated by the parties; nor is there a clause providing for a re-entry by the grantor. The provision in the deed that [the grantee] should remain with his aunt, and take care of her in sickness and in health so long as she lived was nothing more than a covenant on his part that he would render those services in consideration for the conveyance of the land to him." But the court held that as the remedy at law on such a cove- nant was wholly inadequate, a court of equity would take juris- diction, and would annul the deed, and put the parties in the same position they were in before it was made, citing Wampler §§260,261] ESTATES ON CONDITION. 341 Thus in Thomas v. Record, 4? Me. 500 (74 Am. Dec. 500), the deed ran as follows : "I give the said [grantee] this deed on the following conditions, to-wit: the said [grantee] shall maintain and support myself [the grantor] and [the wife of V. Wampler, 30 Gratt. 454. As to the jurisdiction of a court of equity to rescind an executed covenant under such circumstances, see 7 Va. Law Reg. 557, note to Lohman v. Crawford, by Prof. Lile, where it is said: "The ruling of the court may doubtless be justified on the ground of the peculiar character of the ar- rangement between the parties, and the impossibility of doing complete justice in cases of this sort except by rescission." On the other hand, in Gloeke v. Glocke (Wis.) 89 N. W. 118, where there was a conveyance of land by father to son in con- sideration of support, etc., the court gave the same relief as in Lohman v. Crawford, but not on the ground of right of rescission of a covenant, but by reason of the forfeiture incurred by the son by breach of a condition subsequent. This "condition subse- quent," as is frankly confessed, was obtained "by rules of judicial construction peculiar to courts of equity;" and it is said: "If any of the situations where equity, by construction so- called, may arbitrarily, if necessary, turn a transaction into some- thing entirely different from what the parties thereto expressed in their writings in order to do justice, can be supported on prin- ciple, the one under consideration can." . . . "Such contracts have come to be looked upon as almost, if not quite, presump- tively improvident in their inception, and in that view courts of equity have gone to great lengths to remedy the mischief by reading out of them a condition, when a covenant only is ex- pressed, upon which may be founded on principle a right of rescission, where justice requires it for the protection of the weak, the exercise of which will undo the mischief o6 initio, and restore the parties, substantially, to their original situation." And it is added: "In such a case, the court does not lend its jurisdiction to effect a forfeiture. The forfeiture, or rescission, as it is sometimes called, is effected by the act of the grantor, by his reentry, or its equivalent, for condition broken. Equity lends its aid to quiet the title. It lends its aid to set aside the conveyance. ... It establishes the title to the property in accordance with the facts, and clears away all apparently interfering writings and records, giving such other relief as may be necessary to fully accomplish that end." 342 REAL PROPERTY. [Chap. 13 the grantor] during the time of their natural lives/' etc. ; and in construing it the court adopted the language employed in Gray v. Blanchard, 8 Pick. 284 : "The words are apt to create a condition; there is no ambiguity, no room for construction; and they cannot be distorted so as to convey a different sense from that which was probably the intent of the parties." And it was added that the absence of a clause of reentry in the deed did not affect the right of the grantor or his heirs to en- ter and take advantage of a breach of the condition. And see Cross V. Carson, 8 Blackf. (Ind.) 138 (M Am. Dee. 743). On the other hand, in Weir v. Simmons, 55 Wis. 639 (13 N. W. 873), the construction of a condition subsequent was rejected, although the deed contained express words of con- dition. The court said: "Whether a provision in a deed or vtill which, as a part of the consideration, requires the pay- ment of money to third persons [or, of course, to the grantor] by the grantee or devisee therein, within a fixed time after the title and right of possession vest in him, will be construed to be a charge upon the land, or whether it will be construed to be a condition subsequent, depends on the intent of the par- ties to the conveyance, or of the testator in case of a devise; and it wiU always be construed to make a charge upon the premises, unless a different intent is clearly apparent, or in the case of a deed the language is so clear as to leave no room for construction or doubt." So in the following cases the construction of support-deeds was held to be a charge on the land, and not a condition subse- quent : PowtmI v. Taylor, 10 Leigh, 173 ; 34 Am. Dec. 735 (ap- proved in Campau v. Chene, 1 Mich. 400. And see Bates v. Swiger, 40 W. Va. 430; 31 S. E. 874) ; Meyer v. Swift, 73 Tex. 367 (11 S. W. 378) ; Richards v. Reeves, 149 Ind. 437 (47 N. E. 333) ; McClure v. Cook, 39 W. Va. 579 (30 S. B. 613). And see Studdard v. Wells, 130 Mo. 35 (35 S. W. 301), where the language was: "The said [grantee] is to pay the taxes on the said land, and has to support the said [grantors] during their natural life-time." The court said: "No apt or appropriate words to create a condition are used ; nor is there §§261,262] ESTATES ON CONDITION. 343 any clause of forfeiture, or reentry, or reverter. We are un- able to find anything in this deed, whether we treat it as a gift or made for a money consideration, which will justify us in saying it is a deed upon condition subsequent." As the action was ejectment, it was unnecessary to decide whether the obligation of support, called by the court a "stipulation," constituted a charge on the land. For an example of a support-deed construed to contain a merely personal covenant, not operating as a specific lien on the property, see Taylor v. Lanier, 3 Murphy (N. C.) 98 (9 Am. Dec. 599). For an example of such deed containing both a covenant and condition subsequent, thereby giving the grantee the double remedy of action on the covenant or entry for breach of condition, see Jachson v. Topping, 1 Wendell (N. Y.) 388 (19 Am. Dec. 515). § 262. Construction of Deeds Containing Building Restric- tions. — Such restrictions are lawful (see § 366, note), and may be imposed by way of condition subsequent, covenant, or reservation. And the effect of these may be to give a right merely personal to the grantor, or to create a right in the na- ture of an easement, appiirtenant to land retained by the grantor, and enforceable by any owner of such land against the grantee, or against his assignees with notice actual or con- structive. For full discussion of building restrictions, see 5 Am. & Eng. Ency. Law (2d ed.), p. 3; and note to Ladd v. City of Boston, 21 Am. St. Eep. 484-508. It is proposed here to give a few illustrations of the form such restrictions may assume, and their eifect inter partes, and as to third persons.^ 1 Building Resteictioks. By and Against Whom Bnfokceablb. — (1) Bt Whom. As stated in the text, this depends, not on the form of the restriction, but on the intent of the grantor. If this be to make a restriction for his personal benefit, then it does not enure to the benefit of others; If for the benefit of land retained by him, then It may be enforced by those who succeed to him in the ownership of such land. And even though he disposes of all his land at one time, yet if it be divided into parcels, and con- 344 REAL PROPERTY. [Chap. 13 In Gray v. Blanchard, 8 Pick. (Mass.) 283, a deed convey- ing land in fee-simple contained this restriction: "Provided, however, that this conveyance is upon the condition that no windows shall be placed in the north wall of the house afore- said, or of any house to be erected on the premises, within thirty years from the date hereof." The court said : veyed to different purchasers by restrictive deeds, in pursuance of a general plan, the intent may be to give mutual rights, in the nature of easements, to all such purchasers, and they will be enforceable in equity by and against one another accordingly. As is said by Blgelow, C. J., in Parker v. NigMingale, 6 Allen (Mass.) 341 (83 Am. Dec. 632) : "The effect of such restrictions, inscribed in contemporaneous conveyances of the several parcels, under the circumstances al- leged in the bill, was to confer on each owner a right or interest in the nature of a servitude, in all the lots situated on the same street, which were conveyed subject to the restriction. Thus it entered into the consideration which each purchaser paid for his land, either by enhancing its price in view of the benefit secured to him in the restraint imposed on adjoining owners, or in lessen- ing its value in consequence of the limitation affixed to its use." For cases in which the restriction was held personal to the grantor, see Badger v. Boardman, 16 Gray (Mass.) 559; Jewell V. Lee, 14 Allen (Mass.) 145 (92 Am. Dec. 744); Sharp v. Ropes, 110 Mass. 381; Skinner v. Shepard, 130 Mass. ISO; Mulligan v. Jordan, 50 N. J. Eq. 363 (24 Atl. 543); Summers v. Beeler, 90 Md. 474 (78 Am. St. Rep. 446); Safe Deposit, dc, Co. v. Flaherty, 91 Md. 489 (46 Atl. 1009). For cases in which the restriction was held not personal to the grantor, see Barrow v. Richard, 8 Paige Ch. 351 (35 Am. Dec. 713); Whitney v. Union R. Co. 11 Gray (Mass.) 359 (71 Am. Dec. 715); Gibert v. Peteler, 38 N. Y. 165 (97 Am. Dec. 785); Halle v. Newbold, 69 Md. 270 (14 Atl. 662); Graves v. Deterling, 120 N. Y. 447; Ladd v. City of Boston, 151 Mass. 585 (21 Am. St. Rep. 481); Graham v. Hite, 93 Ky. 481 (20 S. W. 506); Roberts v. Porter, 100 Ky. 130 (37 S. W. 485). 2. Against "Whom. Of course, if a restrictive covenant runs with the land, it is binding on all who succeed to the title, whether they have notice of it or not. As to when such covenants do or do not run with the land, see 5 Am. & Eng. Ency. Law (2d ed.) 3; note to Morse v. Garner, 47 Am. Dec. 574. But it is not necessary in order to render a restrictive covenant enforceable 1 262] ESTATES ON CONDITION. 345 " 'This conveyance is upon the condition' can mean nothing more nor less than their natural import; and we cannot help the folly of parties who consent to take estates upon onerous conditions, by converting conditions into covenants." And for a breach of the condition, by placing two windows in the north wall, it was held that the grantor was entitled to enter and enforce a forfeiture, and this against a successor in title to the grantee. The court said : "It is a harsh proceeding on his part, but it is according to his contract, which must be en- forced if he insists on it." So in Clapp v. Wilder, 176 Mass. 333, where the grantor owned two adjoining lots — lot A, on which was a store build- ing, and lot B, on which was his dwelling — the deed of lot against a purchaser with notice that it should run with the land. In the language of Bigelow, C. J., in Whitney v. Union R, Co. 11 Gray, 359 (71 Am. Dec. 715): "By taking an estate from a grantor with notice of a valid agreement made by him with the former owner of the property concerning the mode of occupation and use of the estate granted, the purchaser is hound in equity to fulfil such agreement with the original owner, because it would be unconscientious and in- equitable for him to set aside and disregard the legal and valid acts and agreements of his vendor in regard to the estate, of which he had notice when he became its purchaser. In this view the precise form or nature of the covenant or agreement is quite immaterial. It is not essential that it should run with the land. A personal covenant or agreement will be held valid and binding in equity on a purchaser taking the estate with notice. It is not binding on him merely because he stands as assignee of the party who made the agreement, but because he has taken the estate with notice of a valid agreement concerning it, which he cannot equitably refuse to perform." And see ParTcer v. Nightingale, supra; Hodge v. Sloan, 107 N. Y. 244; note to Ladd v. City of Boston, 21 Am. St. Rep. 486-7; Tardy v. Greasy, 81 Va. 553, dissenting opinion of Lewis, P. That notice to the purchaser may be actual or constructive, see 5 Am. & Eng. Ency. Law, 9; Appeal of Townsend, 68 Conn. 358 (36 Atl. 815); Quatman v. MoCray, 128 Cal. 285 (60 Pac. 855). On the whole subject of notice, see note to Lodge v. Simonton, 23 Am. Dec. 47-53; note to Parker v. Conner, 45 Am. Rep. 184-190. 346 REAL PROPERTY. [Chap. 13 A read as follows: "And this conveyance is made upon the express conditions that the said Wilder and Hills [the gran- tees], their heirs and assigns, shall never erect any building nearer the street line of said land [lot A] than the store building now thereon." Afterwards the grantor sold lot B, and its owner asked for an injunction to restrain the owner of lot A from erecting a building twenty feet nearer the line, in breach of the restriction; but it was held (three judges dissenting) that the restriction was a condition, and not a covenant, and moreover that the condition was made solely for the personal benefit of the grantor, and not for the benefit of the adjoining lot (B) retained by him. It was declared that the only remedy for this breach was an entry by the grantor or his heirs or devisees, and the injunction was re- fused. On the other hand, the cases are numerous in which the restriction, even though couched in the form of a condition, has, from the terms of the grant, or from the situation and the surrounding circumstances, been construed as in efEect a covenant, and as intended for the benefit of the other land of the grantor retained by him, and so available, as an equi- table easement, for and against the purchasers of such land. Thus in Ayling v. Kramer, 133 Mass. 12, it is said by Mor- ton, J.: "We are of opinion that the so-called conditions in the deed of Carter were not intended or understood by the parties to be technical conditions, a breach of which would work a forfeiture of the estate. They were intended to regulate the mode in which the grantee might use and enjoy the land, and are to be construed as restrictions . . . im- posed as a part of a general scheme of improvement ,which might be enforced in equity by the owners of the adjoining estates, and created equitable easements, which constituted a breach of the covenants against encumbrances." And see Beals V. Case, 138 Mass. 138; Eophins v. Smith, 163 Mass. 444; Cassidy v. Mason, 171 Mass. 507; Posi v. Weil, 115 ISr. Y. 361 (12 Am. St. Eep. 809) ; Clark v. Martin, 49 Pa. St. 289; Watrous v. Allen, 57 Mich. 363 (34 N. W. 104). §§262,263] ESTATES ON CONDITION. 347 For an example of a restriction by reservation, see Pech V. Conway, 119 Mass. 546, where the words were: "With this express reservation, that no building is to be erected by the said Joseph B [grantee], his heirs or assigns, upon the land herein conveyed." It was held that this restriction was for the benefit of the land retained by the grantor and en- forceable by a subsequent purchaser of such land. The court said : "A prohibition against building on the land sold would be obviously useful and beneficial to this lot [that retained], giving it the benefit of better light and air and prospect; this is its apparent purpose, while it would be of no appre- ciable advantage for any other purpose. The fair inference is that the parties intended to create this easement or servi- tude for the benefit of the adjoining estate. We are there- fore of opinion that it was not a mere personal right in Ensign [the grantor], but an easement appurtenant to the estate which he conveyed to the plaintifE." § 263. Construction of Deeds Prohibiting the Sale, etc., of Intoxicating Liquors on the Premises. — Such prohibitions are lawful (see § 266, note), and may be in the form of a con- dition subsequent (the usual case) or of a covenant. In Watrous v. Allen, 57 Mich. 363 (58 Am. Eep. 363) the pro- hibition was in this form, an unmistakable condition : "Provided always, and this contract [conveyance] and the estate in said premises hereby created is subject to the express condition that if the parties of the second part, their heirs and assigns, shall at any time sell or keep for sale upon said above granted premises, or knowingly permit any person under them so to sell or keep for sale, any spirituous or in- toxicating liquors, whether distilled or fermented, the entire title and estate in and to said premises hereby sold and created shall cease; and the title to the said premises shall thereupon at once revert to and vest in the parties of the first part, their heirs and assigns forever ; and [it] shall be lawful for the said parties of the first part, their heirs and assigns, to reenter upon the said premises, and said parties of the 348 REAL PROPERTY. [Chap. 13 second part, their heirs and assigns, and every person claim- ing under him or them, wholly to remove, expel or put out." Por iron-clad conditions almost identical with the above, see Smith \. Barrie, 56 Mich. 314 (58 Am. Eep. 391) ; Jenks V. Palomhi 98 Mich. 110 (39 Am. St. Eep. 522). For other cases of conditions subsequent in varying forms, see Plumh V. Tuhis, 41 K Y. 442; Cowell v. Springs Co. 100 U. S. 55; Chippewa Lumber Co. v. Tremper, 75 Mich. 36 (4. L. E. A. 373) ; Sioux City, &c., B. Co. v. Singer, 49 Minn. 301 (32 Am. St. Eep. 554; 15 L. E. A. 751) ; Odessa, (&c., Co. V. Dawson, 5 Tex. Civ. App. 487 (24 S. W. 576). On the other hand, in Sutton v. Head, 86 Ky. 156 (9 Am. St. Eep. 274), the deed contained this clause, which was held to be a covenant running with the land: "No intoxicating liquors are to be sold on said premises in less quantities than five gallons." And in Post v. Weil, 115 IST. Y. 361 (12 Am. St. Eep. 809; 5 L. E. A. 422), though the deed contained apt words of condition, viz. : "Provided always and these presents are upon this express condition, that the aforesaid premises shall not, nor shall any part thereof, or any buildings thereon erected or to be erected, be at any time hereafter used or occupied as a tavern or public house of any kind," it was held that this was a covenant running with the land, and not a "condition subsequent." And see Atlantic Bock Co. v. Leavitt, 54 N. Y. 35 (13 Am. Eep. 556) ; Hall v. Solomon, 61 Conn. 476 (29 Am. St. Eep. 218). § 264. Void Conditions ; Precedent or Subsequent. — A con- dition may be void by reason of (1) impossibility, (2) il- legality, (3) repugnancy, or (4) uncertainty. As to the effect of a void condition, the law makes a sharp discrimination according as the condition is precedent or sub- sequent. If the void condition be precedent, the estate con- tingent thereon is also void, and the grantee shall take no- thing by the grant; for an estate can neither commence nor increase on a void condition. On the other hand, if the void condition be subsequent, the condition only is void, and the §§263-265] ESTATES ON CONDITION. 349 estate already vested in the grantee is absolute and inde- feasible. The general principle is thus stated by Eiely, J., in Burdis v. Burdis, 96 Va. 81 : "The law is clear that where a condition precedent is annexed to a devise of real estate, and its performance is or becomes impossible, the devise fails, although there is no default or laches on the part of the devisee himself; but if the condition is subsequent, and its performance becomes im- possible, the rule is different. In that case, the estate will not be defeated or forfeited, but the devisee will hold the property by an absolute title, as if no condition had been annexed to the devise." The law is the same as to a deed, and this whether the con- dition be void for impossibility, or for any other reason. See on the whole subject, 2 Tho. Co. 18-31; Shepp. Touch. 133-3; 1 Prest. Est. 476; 3 Bl. Com. 156-7; 3 Min. Ins. (4th ed.) 379; 6 Am. & Eng. Ency. Law, 506; Vanhorne v. Dorrance, 3 Dall. (Pa.) 304, 317; Myers v. Daviess, 10 B. Mon. (Ky.) 394; Davis v. Gray, 16 Wall. 303, 339; note to Burdis v. Burdis (Va.) 70 Am. St. Eep. 839-837; miicott V. Ellicott, 90 Md. 331 (45 Atl. 183; 48 L. E. A. 58). § 265. Conditions Void Because Impossible, — In this case the difference in effect between a condition precedent and subsequent is thus stated by Preston {Estates, p. 476) : "It is necessary that the event should happen to give a title under this contingent or conditional limitation [i. e., grant on a condition precedent]. Though the event on which the estate is to vest should become impossible by the act of God, yet the gift would fail; while if a condition be annexed to an estate already vested [grant on condition subsequent], and the condition became impossible, the estate would be dis- charged from the condition, and become absolute." Under the above doctrine, it matters not whether the im- possibility exists at the time of the grant, or arises after- wards ; or whether it exists in the nature of things, as a nat- ural impossibility, or is caused by the act of God, by the law, 350 REAL PROPERTY. [Chap. 13 or by the conduct of a third person. As to the parties to the grant, the grantee may be excused from the performance of a condition subsequent by the conduct of the grantor; but if the grantee should cause the impossibility of a condition subsequent imposed on him, he could not thus excuse its non- performance (6 Am. & Eng. Ency. Law, 506). And it has been held that if the grantor who has imposed a condition precedent renders its performance unnecessary or impossible, this excuses it, and the estate in the land shall vest in the grantee without performance. Jones v. Chesapeake, &c., R. Co., 14 W. Va. 514, 523. See, contra, 2 Min. Ins. 265, 279.^ ^ Performance of Condition Precedent Made Impossible by the Grantor. — In Jones v. Chesapeake, dc, B. Co., supra, it is said: "But whether the condition be precedent or subsequent, if the act of the party who imposed the condition makes its performance unnecessary or impossible, the condition is no longer binding, and the estate conveyed by the deed in which it is contained is discharged therefrom." This case is the only one found by the writer in which it has been held that an estate in land granted on a condition precedent can vest and take effect without performance of the condition. The action was ejectment, and the defence was that, though the condition precedent on which the land was granted for right of way to the railway company had not been performed, its per- formance had been rendered unnecessary by the act of the gi-ant- or himself. The condition was that the grantee should first pro- cure the assent to the grant of a third person, to whom the grant- or had already contracted to convey the land. But the grantor himself obtained an abandonment of the contract by the third person; and it was held that this rendered the condition of no force, that its performance was unnecessary for the security of the grantor, and that the estate vested in the grantee free from condition. It will be observed that in this case the condition did not, strictly speaking, become impossible; for the third person's con- sent might still have been obtained, however unnecessary after he had ceased to have an interest in the land. And a distinction might be suggested between a condition precedent, still perhaps of vital importance, rendered impossible by the grantor, and a case in which the act of the grantor rendered the condition use- less, and its performance an Idle ceremony. In such case the §265] ESTATES ON CONDITION. 351 For an example of a condition precedent whose perform- ance was made impossible by the act of God, see Den v. Mes- senger, 33 ISr. J. Law. 499. Here the devise was as follows: "After the death or upon the marriage of my said wife, I do give, devise, and bequeath all the estate real and personal hereinbefore given to my said wife to Henry Clew, . . . condition might be said to have ceased to exist, as being itself conditioned on the continuance of the situation which caused it to be imposed. But if a condition precedent has not ceased to exist, it is said by Preston {Estates, 476) that even a release by the grantor will not cause the estate to vest. "As the condition or contingency must happen before the grantee can have any right, a release, or any other act of the grantor or his heirs, except a new con- veyance, will not complete the title." And see 2 Tho. Co. (18). In Jones v. Chesapeake, &c., R. Co., however, no distinction is taken according as the grantor's act renders performance impos- sible or unnecessary. And in note to Burdis v. Burdis, 70 Am. St. Rep. 831, this case is cited with approval. And see 2 Tuck. Com. (97), where it is said: "When a condition, whether prece- dent or subsequent, becomes impossible by the act of the party creating it, the estate becomes absolute." In Jones v. R. Co., supra, only two cases are relied on by the court, viz., Jones v. Brarnblet, 1 Scam. (111.) 276, a case of con- dition subsequent, and Young v. Hunter, 6 N. Y. 203, a case of con- dition precedent annexed to a contract. As to contracts, there is no doubt that the law is that he who prevents the performance of a condition precedent excuses it, and is liable as if perform- ance had been made. Jones v. Wallcer, 13 B. Mon. (Ky.) 163; Baltimore, DESTEXJCTION op a PCSSIBILITT OF RbVEETEB BY ATTEMPTBa) AS- SIGNMENT. — ^Where it is held that a mere possibility of reverter is non-assignable by the grantor (as to which see § 275, supra), the doctrine is that if the grantor attempts to alien it he thereby destroys it. As is said in Bice v. Boston, &c., K. Co., 12 Allen (Mass.) 141, 143: "The original maker of the condition cannot enforce it after he has parted with his right of reverter; nor can his alienee take advantage of a breach, because the right was not assignable." And in this case it was held that the doctrine was §§283,284] ESTATES ON CONDITION. 431 Under the first head — condition extinguished by intention — comes the performance of a condition, as when an affirma- tive condition is duly satisfied by the pajrment of money or the doing of some collateral act. So a negative condition may cease to be operative by the grantee's refraining from doing the forbidden act during the period prescribed. The effect of not affected by the fact that the attempted alienation was to the son of the grantor, who upon his death became his heir, and then brought an action to enforce a forfeiture for a breach oc- curring after his father's death. It was held that the son could not recover: "not as heir because he did not inherit that which his father had conveyed in his lifetime; nor as a purchaser be- cause his deed was void." This harsh doctrine by which a deed which is void, and con- veys nothing to the assignee, operates, nevertheless, to extin- guish the right of the grantor — an attempted assignment enur- ing to the benefit of the grantee on condition, whose estate thus becomes absolute — is well sustained by authority. See 1 Shepp. Touch. 158; 2 Washb. Real Prop. 19; note to Cross v. Carson (Ind.) 44 Am. Dec. 747; Underhill v. Saratoga, &c., B. Co., 20 Barb. (N. Y.) 455; Hooper v. Cummings, 45 Me. 359; Stearns v. Harris, 8 Allen (Mass.) 597; Merritt v. Harris, 102 Mass. 326. Like the rule In Dumpor's Case (i 284, above), the doctrine was doubtless due to the law's abhorrence of forfeitures, and conse- quent readiness to seize on any pretext to prevent them. In Rice V. Boston, &e., R. Co., supra, the doctrine is defended on the grounds of estoppel and public policy. In Upington v. Corrigan, 151 N. Y. 143, where an attempted devise was made of a possibility of reverter to a third person (as to which see § 276, supra), it was nevertheless held, that the heir-at-law could enforce a forfeiture for breach of the condi- tion. The objection that the attempted devise of the possibility of reverter had destroyed it was not raised; and the case is no doubt distinguishable from Rice v. Boston, &c., R. Co., supra, on the ground that there the deed of the father, though Inoperative to convey the possibility of reverter, had extinguished It In the father's lifetime, leaving nothing to descend to his heir; whereas In Upington v. Corrigan the attempted alienation by devise, hav- ing no effect whatever in the grantor's lifetime, did not operate to cut off the devolution of the possibility of reverter to the heir, which took place at least eo instanti with the abortive attempt to devise. It Is possible also that the considerations of public 432 REAL PROPERTY. [Chap. 13 such perfonnance is thus stated by Blackstone (2 Com. 110) : "A^Tien any condition is performed, it is thenceforth entirely gone; and the thing to which it was before annexed becomes absolute and wholly unconditional." See 3 Tho. Co. (60), n. (0. 1) ; note to Cross v. Carson (Ind.), 41 Am. Dec. 748. TJndeT this head also comes release of a condition. Of this it is said in 1 Sheppard's Touchstone (158) : "If the feoffor or lessor release to the feoffee or lessee all conditions, or all de- mands in the land, or confirm the estate of the feoffee without condition, etc., by either of these means the condition is de- stroyed and gone forever." See as to release of a condition. Brattle Square Church v. Grant, 3 Gray (Mass.), 14:2, 148; Jewell V. Lee, 14 Allen (Mass.) 145 (93 Am. Dec. 744) ; note to Cross \. Carson (Ind.), 44 Am. Dec. 746; and p. 370, supra, note. As to who is entitled to release a condition, see Tanner v. Bibber, 2 Duvall (Ky.), 550; Hophins t. Smith, 162 Mass. 444; Safe Deposit, &c., Co. v. Flaherty, 91 Md. 489 (46 Atl. 1009). Under the second head — condition discharged by the con- duct of the grantor, irrespective of his intention — comes the doctrine of Dumpor's Case, 4 Co. 119, decided in the King's Bench in 1603. It was there resolved that if the lessor of land, on condition subsequent that he may re-enter if the lessee or his assigns shall assign the term without the license of the lessor, once gives such license to the lessee, who assigns accordingly, the condition is thereby discharged; and the assignee takes the term absolute and unconditioned, so that such assignee, or any subsequent assignee, may assign it with- out license. Just as if no condition to the contrary had ever been imposed. In Du mpor's Case the license to the lessee was to assign to anybody he pleased ("to any person or persons policy and of estoppel, which are dwelt on in Rice v. Boston, y v. Tan Treece, 26 Ark. 368; Hall V. Hall, 70 N. H. 47 (47 Atl. 79); Cfreene v. Huntington, 73 Conn. 106 (46 Atl. 883). For recent cases as to dower in equitable estates, see Everitt v. Everitt, 71 la. 221 (32 N. W. 273) ; TinTc v. Walker, 148 111. 234 (35 N. B. 765); Stephens v. Leonard, 122 Mich. 125 (80 N. W. 1002); Askew v. Askew, 103 N. C. 285 (9 S. E. 646) ; In re Ames, 22 R. I. 54 (46 Atl. 47). ' DowBE When Husband Rescinds His Contract of Pukghase. — Under the general rule which denies dower to the widow of a purchaser of Jand under an executory contract unless his equity at his death be complete, it would seem to follow necessarily that, until the full payment of the purchase money no dower right could attach, and a rescission of the contract would effectually and finally defeat dower. This seems to have been the ground of the decision on this point in Wheatley v. Calhoun, 12 Leigh (Va.) 264, 277, where it is said: "The appellee [widow of Cal- houn] is not entitled to dower in the 221 acres of land her hus- band contracted to purchase of Wheatley by the articles of Oc- tober, 1822, the contract therefor never having been carried into effect, and the same having been rescinded and abandoned while it was yet wholly executory, and before the payment of the pur- chase money was completed, or the legal or equitable posses- sion of the seisin of the land acquired by the purchaser." And it was held that 1 Rev. Code, ch. 99, § 31 (now § 2429 of Code §293] DOWER AND CURTESY. 469 Por discussion of the doctrine in many of the States that there is no dower in an equitable estate unless it is "perfect" 1887, set out in full in § 294, infra) did not give the purchaser's Tvidow dower under these circumstances. The general rule, also, which denies dower in an equitable es- tate unless the husband dies entitled thereto would seem also to enable him, though the equity had become complete, to defeat the widow's dower therein by a rescission in his lifetime. Thus In 1 Scribner, Dower, p. 444, it is said: "The rule which permits the husband to alienate his equity free from incumbrance of dower also permits him to agree to a rescission of the contract." For this WUeatley v. Calhoun, supra, Is cited (though the ground of the decision seems to have been the Incompleteness of the equity), and Owen v. Bohhins, 19 111. 549, where it Is said: "The contract until it is executed Is only Inchoate, and may be can- celled by the parties; or like any chose in action may be assigned so as to pass the equitable interest in the agreement to the as- signee. We have been unable to find any case which holds that the widow is dowable of lands where the husband has assigned a contract of purchase." Wheatley v. Calhoun, supra, was decided In 1841, when the law of Virginia had not been settled, either as to the doctrine of "complete equity," or as to the effect of the husband's assign- ment of his contract of purchase. But as Is stated in § 293, and as is more fully shown in § 294 infra, It is now held in James v. Upton, 96 Va. 296 (decided In 1898) that the purchaser's equity need not be complete to entitle his widow to dower, nor will an assignment of his contract of purchase defeat her dower. And this is held upon the construction of the very statute (now § 2429 of the Code), which was held In Wheatley v. Calhoun, supra, not to prevent rescission of the contract while the equity re- mained Incomplete. The question arises, under the Virginia law as now construed: does the rescission of a contract of purchase defeat the dower of the purchaser's widow? Since in this State the husband can- not defeat his wife's dower in such equity, though he assigns It while incomplete to a purchaser for value, unless she unites in the deed, and as both the grounds on which rescission has been held to prevent the attachment of dower thus fail in Virginia, it may be contended that the widow can claim her dower in spite of her husband's rescission It Is believed, however, that Wheat- ley V. Calhoun (which Is not referred to In James v. Upton) Is still law in Virginia; and that It was not Intended by § 2429 470 REAL PROPERTY. [Chap. 14 or "complete" during the coverture, see 1 Scribner, Dower, pp. 436^42; 10 Am. & Bng. Bney. Law (2d ed.) 104. And see Walters v. Walters, 132 111. 467 (23 N. E. 1120) ; Tinh V. Walker, 148 111. 234 (35 N. E. 765) ; Howell v. Jump, 140 Mo. 441 (415 S. W. 976). For contrary doctrine in Virginia see § 294, infra, and note. § 294. Dower in Equitable Estates in Virginia. — In Vir- giaia, dower was given in equitable cases by the Act of 1785, c. 62 (12 Hen. Stat. 157; 1 Eev. Code Va. 370), taking effect January 1, 1787. This is the first statute giving dower in equitable estates adopted in the United States (1 Scribner, Dower, 403) ; and, as it appears in Code of Va. (1887) § 2429, it reads as follows : "Where a person to whose use, or in trust for whose benefit, another is seised of real estate, has such inheritance in the use or trust as, if it were a legal right, would entitle such persons' husband or wife to curtesy or dower thereof, such husband or wife shall have curtesy or dower of the said estate." See Claiborne v. Henderson, 3 H. & M. 322. On December 6, 1792, dower in equitable estates was also conferred by § 1 of "An act to reduce into one all acts and of the Code, nor by § 2269 (as to which see § 294, infra), to prevent the exercise by a husband of the right of rescission of an executory agreement to purchase land. While her dower right is contingent, this is a risk which it must run. Nor does it fol- low that because the husband cannot, as held in James v. Vpton, supra, defeat his widow's dower by assignment of his contract of purchase, that therefore he cannot destroy her contingent dower by rescission. After an assignment, the contract remains in existence, and is only transferred to another; and the widow (who has not united in the transfer) claims dower in the equity created thereby, as she would in any other equitable estate of which her husband was possessed during the coverture; but after rescission, the contract is at an end, and the equity it created ceases to exist. To allow a wife to prevent rescission by con- ferring on her an indefeasible right of dower by virtue of the executory contract of her husband would seem against public policy, and injurious to the best interests of all concerned in the transaction. §§293,294] DOWER AND CURTESY. 471 parts of acts relating to dower," which, as re-enacted in the Code of 1887, § 3267, reads as follows: "A widow shall be endowed of one-third of all the real estate whereof her husband, or any other to his use, was, at any time during the coverture, seised of an estate of inheritance, unless her right to such dower shall have been lawfully barred or relin- quished." The above statutes have been held in Virginia to entitle a widow to dower in her husband's equitable estate of which he was possessed during the coverture, whether by way of express or merely constructive trust; and in the latter case (as when the husband contracts to buy land), whether or not the trust is complete at his death by full payment of the purchase-money. Dower also under these statutes attaches to equitable estates to which the husband was entitled during the coverture, although alienated by him in his lifetime, so that he does not die possessed thereof.^ The statutes are ^ DowEE IN Equitable Estates in Virginia. — As is stated above, it is settled under the Virginia statutes, contrary to tlie general rule in the United States (see § 293, supra), that it is not neces- sary, in order to entitle the widow to dower in her husband's equitable estate of inheritance, either (1) that his equity should be "complete" or "perfect"; or (2) that he should die entitled thereto, if he was possessed thereof during the coverture, and disposed of it in his lifetime without the wife's concurrence. Thus in James v. Upton, supra, it is said: "We are of opinion, therefore, that a husband who enters into an agreement for the purchase of land, takes possession of it and pays part of the pur- chase price, is beneficially seised of the land to the extent that he has paid the purchase price, although he has not acquired the legal title; and that his widow is entitled to dower in the land, subject to the lien on it for the unpaid purchase price, whether he die possessed of the land, or has aliened it during the cover- ture without her concurrence in the mode prescribed by law." This decision is placed entirely on § 2429 of the Code of Va., quoted above in § 294. But as to the right of a widow to dower in an equitable estate of the husband, as against an alienee of the husband claiming under a deed in which she did not join, this would seem to be clear under Code of Va. § 2267 (also 472 REAL, PROPERTY. [Chap. 14 also held to confer a right of dower on the widow of a mort- gagor in the equity of redemption when the mortgage is paramount to the dower in the land. Heth v. Cocke, 1 Eand. quoted in § 264 above) which declares in terms that, "a widow shall be endowed of one-third of all the real estate whereof her husband, or any other to Ms use, was, at any time during the coverture, seised of an estate of inheritance, unless her right to such dower shall have been lawfully barred or relinquished." For the doctrine of constructive trust in favor of the purchaser of land, who has not received a conveyance, see 2 Story, Bq. Jur. § 1212; Bisph. Eq. § 95; 1 Bishop, Mar. Worn. § 281. As to the husband's entry into possession of land purchased (which was a fact in James v. Upton, supra), it would seem that this is immaterial except where, in the absence of a written con- tract, it becomes necessary, in order to render the contract bind- ing, to rely upon the doctrine of part performance of the verbal contract — a doctrine which in the case of sales of land is still recognized in Virginia as between the parties; though by Code Va. 1887, § 2463, taking effect May 1, 1888, such a verbal contract, if made "for the conveyance or sale of real estate, or a term therein of more than five years," is declared "void, both at law and in equity, as to purchasers for valuable consideration with- out notice, and creditors." See 1 Va. Law Reg. 682, note. It is the general doctrine that equity will enforce by specific performance a verbal gift of land, when by virtue of such gift the donee is induced to enter on the land and make improvements. See Neale v. Neales, 9 Wall 1; BurkJiolder v. Ludlam, 30 Gratt. (Va.) 255; Halsey v. Peters, 79 Va. 60; Dozier v. Matson, 94 Mo. 328 (7 S. W. 268). And in Young v. Young, 45 N. J. Eq. 27 (16 Atl. 921), it is held that, under such circumstances, the widow of the donee is entitled to dower. But now in Virginia, by Code of 1887, § 2413 (taking effect May 1, 1888), the doctrine of equity as laid down above as to verbal gifts of land is abrogated, the statute declaring: "Nor shall any right to a conveyance of such estate or term In land [i. e., "estate of inheritance or freehold, or for a term of more than five years"] accrue to the donee of the land, or those claiming under him, under a gift or promise of gift of the same hereafter made and not in writing, although such gift or promise be followed by possession thereunder, and improvement of the land by the donee or those claiming under him." See Report Va. State Bar Ass'n, 1891, Address of Judge Burks, pp. 116, 117. §§294,295] DOWER AND CURTESY. 473 (Va.) 344; Wilson v. Davisson, 2 Eob. (Va.) 384; James V. Upton, 96 Va. 296 (31 S. E. 255). § 295. What Ownership of the Husband Entitles the Wife to Dower. (1) The ownership of the husband must be beneficial, and not merely of a naked legal title in trust for another. Hence if the husband is a mere trustee or a mortgagee his widow is not dowable. 1 Bishop, Mar. Worn. § 278; 1 Scribner, Dower, 409, 477; McKneely v. Terry, 61 Ark. 527 (33 S. W. 963) ; King v. Bushnell, 121 111. 656 (13 K. E. 245) ; McDaniel v. Large, 55 la. 312 (7 IST. W. 632) ; Miller v. Miller, 148 Mo. 113 (49 S. W. 852) ; Pruitt v. Pruitt, 57 S. C. 155 (35 S. B. 485). 1 ^ Widow of Tstjstbe not Entitled to Doweb. — In 1 Scribner, Dower, 591, it is said: "Upon this principle, if a man make a contract for the sale of his land, and afterwards, and before con- veyance made, marry, he is regarded in equity as a trustee for the purchaser; and if the conveyance be made during the cover- ture in execution of the contract, the purchaser takes the estate discharged of dower. The rule is the same if the husband die without having conveyed the land, and a specific performance of the contract is enforced against his heirs." See 1 Bishop, Mar. Wom. 279; 10 Am. & Eng. Ency. Law 132. Thus in Chapman v. Chapman, 92 Va. 537, it is held that the widow of the vendor of real estate is not entitled to dower in the lands of the husband of which he was seised during the cover- ture when it appears that the husband sold the land before mar- riage, put the vendee in possession and received part of the pur- chase money, and after the marriage, on the receipt of the resi- due of the purchase money (as the court presumed), conveyed the land to the vendee by his sole deed. And in Burdine v. Burcline, 98 Va. 515, 523, the court says: "The title of a widow to dower in her husband's land, being derived through the hus- band. Is liable to be defeated by every subsisting claim or in- cumbrance existing before the inception of her right, and which would have defeated the husband's seisin. It is well settled that if a man before marriage enters into a contract for the sale of land upon certain terms and conditions, and the terms and con- ditions are performed, his widow is not entitled to dower in the land, although the husband dies without making a conveyance. 474 REAL PROPERTY. [Chap. 14 (2) The husband must have had at some time during the coverture the immediate estate of freehold. The husband's This is on the principle that the husband is regarded in equity as a trustee for the purchaser." In Chapman v. Chapman, supra, it was inferred from the cir- cumstances that the whole purchase money was paid to the hus- band during the coverture; and in Bur dine v. BurAine, supra, the woman who claimed under the husband's contract had in his lifetime performed all the terms and conditions. In Chapman v. Chapman, therefore, as the husband had made a conveyance to the purchaser, there did not remain in the husband at the time of his death any interest in the land, legal or equitable, in which the widow could claim dower. And in Burdine v. Burdine, though the legal title remained in the husband at the time of his death, he (and his heir after him) was a mere trustee, without benefi- cial interest. But how as to the vendor's widow's dower, when, though the contract is made before marriage, the purchaser con- tinues in default during the coverture (a part of the purchase money remaining unpaid), and no conveyance of the land has been made to him in the lifetime of the husband? This question arose in Pulling v. Pulling, 97 Mich. 375 (56 N. W. 765), where the facts were as above supposed; and It was held that, under these circumstances, the widow of the vendor Is dowable of the unpaid purchase money, but not of the land itself. The court said: "It is insisted on behalf of the estate that, at the time of the marriage, Henry P. Pulling [the husband] held the legal title only in trust for the purchasers. The cases cited, however, in which this has been asserted, and the right to the dower denied, are, without an exception, cases where the vendee has paid the entire consideration. ... In the present case it is not sought to subject the purchaser's interest, nor the interest held by the husband at the time of the marriage, to dower. The only claim made is that the interest held at the time of his death shall be regarded as realty. It is purely a question of the quality of that interest. The husband died seised not of the legal title alone, but of the legal title with a beneficial interest aggregating $45,000 [i. e., the amount of the unpaid purchase money]. ... In the present case the wife's dower has been defeated only so far as the amount due upon the contracts has been reduced by pay- ment. Even though a trust be Implied, it is one coupled with a beneficial interest, and it is well settled that the wife of a trus- tee is entitled to dower commensurate with the husband's in- §295] DOWER AND CURTESY. 475 estate in possession may be for his life only; but in that case it is necessary that the husband should also have the inheritance in remainder, without any vested estate of free- hold in another intervening between the husband's life estate and his inheritance. The intervention, however, of a vested remainder not of freehold, or of a freehold contmgent re- mainder, will not prevent the husband's estate from being such as to entitle his widow to dower therein. Thus, if there is a deed "To B for life, remainder to C for life, remainder to B and his heirs"; here the widow of B has no dower unless C dies before B, for C has a vested freehold estate. But if the deed is "To B for life, remainder to C for ten yjears, remainder to B and his heirs," or "To B for life, remainder to the unborn son of C for life, remainder to B and his heirs," in both cases B's widow has dower. For in neither case is the estate intervening between B's life estate and his inheritance a vested freehold remainder. But in the last example, if C have a son in the lifetime of B, then the remainder will vest, and this defeats dower. And now in Virginia the remainder to the unborn son of C can vest after B's death (for by the Virginia statute a contingent remainder shall in no case fail for want of a particular es- tate to support it, § 205, supra) ; and in this case also it is presumed that dower would be defeated. See 1 Scribner, Dower, 231, 246; 1 Bish. Mar. Wom. §§ 274, 314; 10 Am. & Bng. Eney. Law, 134; 1 Washb. Eeal Prop. 206, note; House v. Jackson, 50 K. Y. 1'61, 165; Trumbull v. terest. . . . We discover no difficulty as respects the ad- measurement. Dower cannot be assigned on the lands in ques- tion, but a sum in lieu of dower can be awarded." See Waller V. Waller, 33 Gratt. 83. For the general doctrine that a widow's dower is subject to all equities arising out of contracts of the husband before the mar- riage, see Beckwith v. BecTcwitn, 61 Mich. 315 (28 N. W. 116). That dower is paramount to a contract and conveyance made by the husband alone after marriage, see MeCreary v. Lewis, 114 Mo. 582 (21 S. W. 855). 476 REAL PROPERTY. [Chap. 14 Trumbull 149 Mass. 200 (21 N". E. 366) ; Null v. Howell 111 Me. 274 (20 S. W. 24) ; Rhode Island, &c.. Trust Co. V. Harris, 20 E. I. 408 (39 Atl. 750). ^ § 296. Dower in Reversions and Remainders. — As has been seen (§ 295) it is essential to tlie wife's right of dower that the hnsband should be seised, at some time during the cover- ture, of the immediate estate of freehold in the land. It fol- lows from this, as a corollary, that there is no dower in a ^ Effect on Dower of a Contingent Freehold Remainder Inter- ^-ENiNG Between the Husband's Freehold and His Inheeitancb. — This has been considered a question of some diflSculty, and Mr. Washburn has expressed the view that the interposition of the contingent remainder in the above case, "prevented the in- heritance of the husband from being an entire one, which is nec- essary in order to give dower." 1 Washb. R. P. 206. The better opinion, however, is believed to be that of Scribner, who lays down the law as follows (1 Scribner, Dower, 239): "It is, as we have already seen, a fundamental principle in the law of dower that the husband must have the immediate freehold and inheri- tance simul et semel [at once and together]. If, therefore, the immediate contingent interest operates to prevent the life estate of the husband from merging in the inheritance, and thus keeps the two estates disjoined, it is difficult to understand how, upon principle, the right of dower can attach so long as there is a continuing possibility that the contingent estate may vest. It would seem, however, to be the result of the adjudged cases, and the concurring opinion of many of the writers on the law of real property, that where a contingent estate of freehold is inter- posed between a limitation to the husband for life and a subse- quent remainder to his heirs [supposing that the Rule in Shelley's Case has not been abolished], the remainder is executed in pos- session in the tenant for life sui mode; or in other words, that the estates are consolidated or united until the happening of the contingency; but with the qualification annexed to such consolida- tion that, if the contingency happen, they shall again divide, and resume the character of several or distinct estates, so as to let in the estate limited on that contingency. And it appears to be the prevailing opinion that upon this union of the freehold and inheritance sub modo, a right of dower attaches, subject to a liability to be divested upon the happening of the con- tingency, and the consequent vesting of the contingent estate." §§295,296] DOWER AND CURTESY. 477 reversion or remainder expectant on a life estate, unless the life-tenant dies in the lifetime of the husband; for in such case the life-tenant has the seisin, and not the husband. 1 Scribner, Dower, 229, 321; 1 Bishop, Mar. Wom. § 273; 10 Am. & Eng. Ency. Law, 134; Durando v. Durando, 23 K Y. 331; Northcutt v. WMpp, 12 B. Monroe, 65; Malone V. McLaurin, 40 Miss. 141 (90 Am. Dec. 320) ; Kenyan v. Kenyan, 17 E. I. 539 (24 Atl. 787); Watson v. Watson, 150 Mass. 84 (22 N. E. 438) ; Hill v. Pihe, 174 Mass. 582 (55 IST. E. 324); Sammis v. Sammis (E. I.) 51 Atl. 105; Young v. Morehead, 94 Ky. 608 (23 S. W. 511) ; Killett v. Shepard (111.), 34 K. E. 254; Payne v. Payne, 118 Mo. 174 (24 S. W. 781) ; Garrison v. Young, 135 Mo. 203 (36 S. W. 662) ; Von Ari v. Thomas, 163 Mo. 33 (63 S. W. 94). And, mutatis mutandis, the same doctrine applies to curtesy. Webster v. Ellsworth, 147 Mass. 602 (18 N. E. 569) ; Todd v. Oviatt, 58 Conn. 174 (20 Atl. 440) ; Martin V. Traill, 142 Mo. 85 (43 S. W. 655) ; Cox v. Bayer, 152" Mo. 576 (54 S. W. 467) ; Ferguson v. Tweedy, 43 N. Y. 543. On the other hand, the rule is that there is a dower in a reversion or remainder expectant on a term of years created by the husband before the marriage; for, notwithstanding the term, the husband is seised. While the term lasts, how- ever, it is unaffected by the right of dower; though if a rent be reserved to the husband, the widow is entitled to one-third of it as incident to her estate. But if the term was created by the husband before marriage without reserving rent, or if the husband's inheritance is expectant on a term given by his grantor to the tenant, in either case the wife, though entitled to dower in the land, will nevertheless take it subject to the term, with a cessat executio during the term, and she can neither enter nor receive any profits until it has termi- nated. This, if the term be of long duration, virtually de- prives her of her dower. 1 Scribner on Dower, 230; 1 Bishop, Mar. Wom. § 273; 10 Am. & Eng. Ency. Law, 134; '478 REAL PROPERTY. [Chap. 14 3 Bac. Abr. 201; Weir v. Humphries, 4 Ired. Eq. (N. C.) 264; 1 Washb. Eeal Prop. 204.^ § 297. Dower When Husband has Reversion on Which Rent is Reserved. — These three cases should be considered : (1) Lease by B before marriage for a term of years, re- serving rent during the term. B marries F, and dies during the term. F shall be endowed of a third part of the rever- sion by metes and bounds, and receives the third part of the rent, and execution shall not cease during the years. Of course, however, she does not oust the tenant. Co. Litt. 32 a; Herbert v. Wren, 7 Cranch 370; 1 Scribner on Dower, ^ DowEE IN Revebsions AND REMAINDERS. — In the above discus- sion, it is assumed that the husband becomes a reversioner after a life estate by his conveyance, before his marriage, of the land to a third person for life. For If the conveyance was made by the husband after his marriage, the title to dower would have already attached before the conveyance, and in the language of Kent (4 Com. 13th ed. 39), "the wife is dowable of the land, and defeats the lease [for life] by title paramount." When the hus- band is a remainderman — as, for example, when X conveys to A for life, remainder to B (husband) and his heirs — it is imma- terial whether this conveyance is made by X before or after B's marriage; for in neither case would B have the immediate free- hold, unless A died before B. It follows also, when a husband is the owner of a reversion or remainder expectant on a life estate, that he can always defeat his wife's dower therein by alienating his reversion or remainder during the continuance of the life estate. 1 Scribner, Dower, 605; 10 Am. & Eng. Ency. Law, 134, note 3. As to a lease for years made by the husband of his land during the coverture, the general rule is, as stated by Scribner (1 Scrib- ner, Dower, 604), that "all charges or derivative interests, cre- ated by the husband subsequent to the attachment of the wife's right [of dower] are voidable as to that part of the land which is recovered in dower." And he quotes Park on Dower, 237, 238, as follows: "If tenant in fee-simple take a wife, and then make a lease for years and dieth, the wife is endowed; in this case she shall avoid the lease, but after her decease the lease shall be in force again." See, also, 1 Scribner, 377; 2 Id. 775-'6. §§296-298] DOWER AND CURTESY. 479 230, 377; 1 Bish. Mar. Worn. § 273; 3 Min. Ins. (4th ed.) 151. (3) Lease by B before marriage to C for life, reserviag rent during tbe term. B marries F, and dies during the life of C. F has dower neither in the land nor in the rent. Xot in the land because B was not seised during the cover- ture; nor in the rent reserved, because B had not in it an estate of inheritance. Blaw \. Maijnard, 2 Leigh, 30; Cache T. Phillips, 12 Id. 248. The rent in such cases passes exclu- sively to the heir as incident to the reversion. 1 Scribner on Dower, 373. (3) Gift by B before marriage to C in tail, reserving rent. B marries F and dies. Here F has dower in the rent, be- cause it is a rent of inheritance. Co. Litt. 32 a. But there is no dower in the land, for B had not the immediate estate of freehold. And on the death of C without issue, the rent reserved becomes extinct, and of course dower therein ceases. But if a rent charge in tail be granted, issuing out of land, and the tenant iu tail of the rent dies without issue, his widow shall nevertheless have dower. 1 Scribner on Dower, 373; ihid, 374; § 55 supra; § infra. § 298. No Dower Out of Dower. — In connection with the subject of dower in reversions expectant on a life estate, the maxim should be considered which forbids dower to be as- signed out of dower — dos de dote peti nan debet. The mean- ing, of course, is that when, under the circumstances stated below, land has been assigned to one widow, no dower in such land can be had by another. And no reason and au- thority, mutatis mutandis, the same doctrine applies to cur- tesy. Let there be grandfather (G F), father (F), and son (S). Also the wife of the grandfather (G M). and the wife of the father (M). Suppose G F and F dead, and both the widows, G M and M living. Land has descended from G F to F, and from F to S, who is living, and must assign dower to both the widows. Xow the maxim above teaches that if 480 REAL PROPERTY. [Chap. 14 one-third of the land is assigned to G M as her dower, then M can never have dower in that third, not even after the death of G M, because that would be to give her dower out of dower, which the law forbids. But in order that the maxim may apply two things must concur: 1. The land must descend from G P to P; 3. G M must have her dower actually assigned her, before M receives dower. 1 Scribner on Dower, 324, 333; 1 Bishop, Mar. Worn. 275; 8 Am. & Eng. Ency. Law (2d ed.) 511; 10 Id. 135; 3 Min. Ins. 128; 1 Tho. Co. 574; Blow v. Maynard, 2 Leigh (Va.) 29; Durando v. Durando, 23 IST. Y. 331; Safford v. Safford, 7 Paige Ch. 359 (33 Am. Dee. 633); Matter of Cregier, 1 Barb. Ch. 598 (45 Am. Dec. 416) ; Baker v. Baker, 167 Mass. 575 (46 N. E. 391); Carter v. McDaniel, 94 Ky. 564 (23 S. W. 507); Null v. Howell, 111 Mo. 273 (30 S. W. 34). The reason, then, that M can have no dower out of G M's dower, is, that as to the one-third assigned G M for life, the husband of M was never seised at any time during the coverture. As to that one-third, his estate was a reversion expectant on a freehold, in which we have seen there can be no dower. The explanation of this is to be found in the doctrine, already alluded to (§ 288, supra), by which a widow, when dower is assigned her, is deemed in, by and under her husband, as if she had been enfeoffed by him. at the moment of his death. The effect is to break the descent of the dower lands to the heir, to whom only a reversion in them, after the widow's life estate, descends. And though the heir of G P should enter on all the lands, and (as F does in the case before us) die without having assigned dower to his mother (G M), yet when his son (S) assigns her dower, the doctrine applies, and the grandmother is in as if enfeoffed by her husband, and her seisin relates back and takes effect from the time of his death. Reynolds v. Rey- nolds, 5 Paige 161; 1 Cruise Dig. 200; Prest. Est. 550-5; 2 Scribner, Dower, 82. The doctrine of no dower out of dower only applies after §§298,299] DOWER AND CURTESY. 481 assignment of dower to the elder widow (G M). If she has dower first assigned her, then the younger widow can never be endowed of the elder's dower. But if the younger widow is first endowed of the whole land, though she will yield to the elder's superior right when subsequently endowed, and be confined during the elder's life to dower in two-thirds of the land, yet on the death of the elder widow, the younger shall be restored to her dower in the whole. The ground for this diversity, though explained by Lord Coke, is not very satisfactory. Co. Litt. 31 b; 1 Scribner on Dower, 326; 1 Bish. Mar. Worn. § 277. The reason of the maxim dos de dote requires that the land should come to the father by descent from the grand- father, through a devise, which operates only at the death of the grandfather, is considered, in this connection, equivalent to descent. Robinson v. Miller, 2 B Monroe, 284; 1 Scrib- ned. Dower, 330. For if the grandfather had actually en- feoffed the father, then the latter would have had seisin in the former's lifetime, which could not have been annulled by the relation back of the grandmother's seisin to the death of her husband. 1 Scribner on Dower, 331 ; 1 Bish. Mar. Wom. § 276; 4 Co. 122 a. When a husband sells land without the concurrence of his wife, and both grantor and grantee die leaving widows, the widow of the grantor, having the elder title in dower, is endowed of one-third of the whole land, and the widow of the grantee of one-third of the remaining two-thirds. But on the death of the grantor's widow, the widow of the grantee is let in to her full right of dower in the whole land. 4 Kent's Com. (64); 1 Scribner on Dower, 330; Eeeve's Dom. Eel. 58; Dunliam. v. Osborn, 1 Paige 634; 10 Am. & Eng. Ency. Law, 136. § 299. Dower in Encumbered Land. — If the encumbrance existed before the marriage, or if the land comes to the husband already encumbered by a vendor's lien or other- wise, or if the encumbrance is created after marriage with 31 482 REAL PROPERTY. [Chap. 14 the ivife's concurrence, it is paramount to dower; but dower is at common law superior to any encumbrance created after marriage by the sole act of the husband, if the land has once vested in the husband subject to dower. Thus, if the encum- brance is by mortgage, and is not paramount to dower, the widow has her full dower in the land itself; but if the mortgage is paramount to dower, the widow is dowable of the equity of redemption only.^ Heth v. Coche, 1 Eand. (Va.) 344; laege v. Bossieux, 15 Graft. (Va.) 83, 105 (dower against mechanic's lien) ; Culbertson v. Stevens, 82 Va. 406; Alexander v. Byrd, 85 Va. 690;; Fichlin \. Bixey, 89 Va. 832; Offield v. Davis (Va.) 40 S. B. 910; Martin ^ Encumbrances Pabamount to Doweb. — In James v. Upton, 96 Va. 296 (31 S. E. 252), it is said: "In this State one of the common methods of securing payment of the purchase price of land, when credit is given for all or a portion of the price, is for the vendor to convey the land to the vendee, and expressly retain a lien thereon in the conveyance [see C. V. § 2474; p. 473, infra, note], to secure the payment of the unpaid purchase price. Another mode is for the vendor to enter into an executory contract with the ven- dee for the sale of the land, and to retain the title to secure the payment of the unpaid purchase price. If the first method he fol- lowed [where the vendor conveys the land], and before the ven- ,dee has paid the entire purchase price, he die, or alien the land without his wife's uniting with him in the manner prescribed by law, there can be no question that his widow would be entitled to dower in the land, subject to the lien upon it for unpaid purchase money. If the last method be adopted [where the vender retains title], and the husband [vendee] die, or alien the land under like conditions, his widow must necessarily have the same right of dower in tM land as in the other case mentioned, unless we disre- gard the lilain meaning of § 2429 [see § 288, supra]. His bene- ficial interest in the land in each case is precisely the same. He is the owner of the land, subject to the incumbrance upon it for the unpaid purchase price. The only difference is that in one case he has the legal title, and in the other the vendor holds the legal title in trust for him, subject to the lien." See Building, etc., Co. V. Fray, 96 Va. 559 (32 S. E. 58). §§299,300] DOWER AND CURTESY. 483 V. Smith 25 W. Va. 579; Roiish v. Miller, 39 W. Va. 638 (20 S. E. 663; BMr v. Mounts, 41 W. Va. 706 (24 S. B. 620) ; Porter v. Lazear, 109 TJ. S. 84 (dower against as- signee in bankruptcy) ; Sarver v. Clarhson, 156 Ind. 316 (59 N. E. 933); McClure v. Fairfield, 153 Pa. St. 411 (26 Atl. 446) ; Seibert v. Todd, 31 S. C. 206 (9 S. B. 822; 4 L. E. A. 606, and note) ; Miller v. Farmers Bank, 49 S. C. 247 (61 Am. St. Eep. 821). ^ § 300. Purchase-Money Mortgage. — When A sells land on credit to B, and conveys it to B by deed, and B, as a part of the samB transaction, mortgages the land to A to secure the purchase-money, such mortgage is called a purchase-money mortgage. 24 Am. & Eng. Bney. Law, 466. Its peculiarity is that, though the wife of B does not unite with him in the mortgage, she is nevertheless not dowable of the land itself, but only of the equity of redemption after the payment of the mortgage. The reason is that as the deed to B and the mortgage by B are, by supposition, parts of one transac- tion, the seisin of B is transitory only; i. e., he does not take the land beneficially even for an instant, but only as a trustee to execute the mortgage; and the effect is the ^ Encumbrance Created after Marriage, by Sole Act op Hus- band, Made by Statute Paramount to Doweb. — As to the lien for quotas of the Mutual Assurance Society of Virginia, which, though the policy of insurance he taken out by the husband after mar- riage, is by statute made paramount to the widow's dower, see Shirley v. Mutual Assurance Society, 2 Rob. (Va.) 705. And in Mutual Assurance Society v. Stone, 3 Leigh (Va.) 218, it was held that this lien attaches to and follows the property into the hands of a purchaser for value without notice. But see now Acts Va. 1899-1900, c. 421, p. 446, requiring recordation of this lien in order to be valid against purchasers for valuable consideration without notice. 484 REAL, PROPERTY. [Chap. 14 same as if the land had come to him with a vendor's lien or other encumbrance paramount to dower already on it.^ ^Teansitoey Seisin. — In 2 Bl. Com. 132, it is said: "The seisin of the husband for a transitory instant only, when the same act which gives him the estate conveys it also out of him again (as when by a fine land is granted to a man, and he immediately ren- ders it hack by the same fine), such a seisin will not entitle the wife to dower; for the land was merely in transitu, and never rested in the husband, the grant and render being one continued act. But if the land abides in him for the interval of but a single moment, It seems that the wife shall be endowed thereof." It will be seen that Blackstone contrasts seisin for a "transitory instant" with seisin for a "single moment" — the latter being suf- ficient for dower, while the former is not — and this, no doubt, has led some writers to distinguish, in regard to time, transitory (or instantaneous) seisin on the one hand, and a momentary seisin on the other. But it is manifest from Blackstone's own statement that the real distinction intended is not as to the duration of the husband's seisin, but as to Its character. When "transitory," it "never rested in the husband"; when momentary "it abides in him"; i. e., in the one case he receives it as a conduit merely to transfer it to another, in the other he receives it beneficially, though it may remain with him but for a moment. It could be wished that the use of the term "instantaneous" (which is some- times used in one sense and sometimes in another, though usually as the equivalent of "transitory") could be avoided, leaving "transitory" to express (as the word implies) seisin received for an ulterior purpose, and "momentary" to express any seisin, how- ever brief, if only it be beneficial. The purchase-money mortgage as explained above is a good ex- ample of a transitory seisin. This prevents dower in the land. But now when there is dower in an equity of redemption, the widow has dower in the surplus after payment of the mortgage, for to this extent the husband does take beneficially. When, how- ever, B receives the title to land for the sole purpose of passing it over to C, B's widow would be precluded from dower altogether, as he would be in effect a mere trustee for C. McCauley v. Orimes, 2 Gill & J. (Md.) 318, 324; 1 Scribner, Dower, 273, 278; 2 Min. Ins. 146. An excellent example of a momentary seisin is found in the case of Broughton v. Randall, Noy, 64, which is thus stated and ex- plained in 1 Roper H. & W. 373 : "A father was tenant for life, re- §300] DOWEB AND CURTESY. 485 In order that the deed and mortgage may constitute one transaction there must be either (1) an agreement when the deed is made that the vendee shall execute the mortgage or (2) the execution of the mortgage must be on the same day with the deed. In the former case, when an express agree- ment is proved, the postponement of the actual execution of the mortgage will not destroy the unity of the transaction. Wheatley v. Calhoun, 12 Leigh (Va.) 364. But in the latter, in absence of an express agreement, the delivery of the deed and mortgage, to constitute one transaction, must be, as it is said, simultaneous; but as the law in this case disregards fractions of a day it is held sufficient if the mortgage is mainder to his son in tail, remainder to the right heirs of the fa- ther. Both of them were attainted of felony, and executed together. The son had no issue, and the father left a widow. Evidence was given of the father's having moved or struggled after the son, and the father's widow claimed dower of the estate, and it was ad- judged to her. The principle appears to be this: that the instant the father survived the son, the estate for the life of the father united with the remainder in fee limited to him upon the determi- nation of the vested estate tail in the son, so that the less estate having merged in the greater, the father became seised of the freehold and inheritance for a moment [i. e., beneficially, though momentarily] to which dower attached itself." See as to the effect of a vested remainder interposed between the husband's freehold and inheritance, § 295, supra. With reference to beneficial seisin as the test for dower, it is said in 1 Scribner, Dower, 278: "If the husband mortgage lands of which he is seised to a third person to secure a debt which does not originate from, and has no connection with the purchase of the lands, the general rule is that the wife is not affected by the mort- gage; and the fact that the mortgage is executed immediately after the seisin has attached will not, it is apprehended, make any material difference in the case. . . A husband at the same time that he received a deed for lands conveyed them by deed to a third person; and it was determined that inasmuch as he had been seised beneficially, although for an instant only, the wife should have her dower [citing Stanwood v. Dunning, 2 Shep. (Me.) 290], and this holding would seem to be in accordance with correct prin- ciple, and the general tenor of the authorities." 486 REAL. PROPERTY. [Chap. 14 executed on a later hour of the day on which the conveyance to the purchaser is made. When, however, there is no ex- press agreement that the purchaser shall give the mortgage, and it is executed on a day subsequent to the conveyance, the wife (unless she unites in the mortgage) is entitled to her full dower in the land.*^ It need hardly be added that the above doctrines as to a purchase-money mortgage are equally applicable where the purchaser, instead of a mortgagee, gives a deed of trust to a third person to secure to the vendor the payment of the pur- chase-money — the usual course ia Virginia and other States. ' MOBTGAGE OB DEED OP TRUST TO SECURE PUBCHASE-MoiTET UNDER THE West Virginia Statute. — In several of the States the general rule above laid down is declared by statute. See 10 Am. & Eng. Ency. of Law, 139, note. The West Virginia statute, however, is peculiar in this, that it seems to make a mortgage for purchase- money paramount to dower (when the land is sold to satisfy the same in the lifetime of the husband) though the wife does not unite therein, and though the mortgage by, and the deed of con- veyance to, the husband are not parts of one transaction. The stat- ute declares (Ckide W. Va. 1899, oh. 65, § 3) ; "Where land is hona fide sold in the lifetime of the husband to satisfy a lien or encum- brance thereon created by deed in which the wife has united, or for the purchase money thereof whether she has united therein or not, . . . she shall have no right to be endowed of such land"; but (the statute goes on to provide) shall be dowable of the sur- plus only after satisfjring the said lien, or encumbrance, or pur- chase money. It will be perceived that nothing is said as to the time when the husband shall give the deed creating the encumbrance, or as to its being given in pursuance of an agreement with the vendor before his deed of conveyance. If the view suggested above as to the effect of the statute be correct, its policy would seem to be to ex- tend the general rule which deniesi homestead in all cases as against the seller's claim to unpaid purchase-money (see Code W. Va. ch. 41, § 32) to the widow's claim of dower, making it subor- dinate to the seller's claim for unpaid purchase-money whenever the buyer has at any time given a mortgage or deed of trust to secure it (though his wife does not unite therein), provided the land is 'bona fide sold in the husband's lifetime to satisfy such encumbrance. See Constitution of Virginia, 1902, § 190. §§300,301] DOWER AND CURTESY. 487 And it is also held by the great weight of authority that the doctrine of treating the deed of conveyance and the mort- gage as constituting one transaction applies equally in favor of a third person who advances the purchase-money to the buyer, and takes from him a mortgage or deed of trust by way of security. See 1 Scribner, Dower, 374; 10 Am. & Eng. Ency. Law (2d ed.) 137; 4 L. E. A. 606, note; Boush V. Miller, 39 W. Va. 638 (20 S. E. 663). ^ § 301. Dower in the Equity of Redemption of Mortgaged Land.= — In 1 Scribner, Dower, 463, it is said: "Until the ^ PuBCHASE-MoNBT MoETGAGE. — The cases on this subject are numerous. See Gilliam v. Moore, 4 Leigh (Va.) 30; Blair v. Thompson, 11 Gratt. (Va.) 441; Summers v. Dame, 31 Gratt. 791; Cowardin v. Anderson, 78 Va. 88; Coffman v. Coffman, 79 Va. 504; Hurst V. Dulaney, 87 Va. 444; Building, etc., Co. v. Fray, 96 Va. 559; George v. Cooper, 15 W. Va. 666; Martin v. Smith, 25 W. Va. 580; Hallett v. Parker, 69 N. H. 134 (39 Atl. 583); Boorum v. Tucker, 51 N. J. Bq. 135 (26 Atl. 456) ; Butcher v. Thornhurg, 131 Ind. 237 (30 N. E. 1073) ; Elliott v. Flatter, 43 Ohio St. 198 (1 N. E. 222); Jefferies v. Fort, 43 S. C. 48 (20 S. B. 755); Groce v. Ponder, (S. C.) 41 S. B. 83. For the doctrine under the Georgia statute (contrary to the gen- eral rule), see Slaughter v. Culpepper, 44 Ga. 319. The Kentucky doctrine is also said to be exceptional. See 1 Scribner, Dower, 276, and 2 Min. Ins. 146, both citing McGlure v. Harris, 12 B. Men. 261. But see Gully v. Ray, 18 B. Mon. 107, 114. '' DowEE IN AN BQUiry OF Redemption. — In this connection. It is assumed, of course, that the right of the mortgagee is paramount to dower (see § 299, supra). For If this were not the case, the widow would be dowable of the land Itself, and the mortgagee's security would be, to that extent, diminished, as Is the case when the wife does not join in the husband's mortgage made during the coverture. But when the mortgage on the husband's land to se- sure his debt Is paramount to dower, and the debt Is due and paya- ble, the widow of the mortgagor can be endowed, so far as the right of the mortgagee is concerned, of the equity of redemption only, i. e., of the residue of interest remaining in the husband, or his heirs, after the payment of the mortgage debt. This assumes that the mortgaged land Is sold under a foreclosure, and that a 488 REAL PROPERTY. [Chap. 14 passage of the late Dower Act (see § 392, supra) it was held in England that equities of redemption of mortgages in fee were not subject to dower. This was considered the necessary result of the rule excluding dower from equitable estates, the right of redemption being regarded as a mere surplus remains after satisfaction of the mortgage. Here it is plain that, strictly speaking, she is endowed not of the equity of redemption (which has ceased to exist), but of its equivalent in money. The widow, however, has a right to redeem the land by virtue of her interest in the equity of redemption; and in that case she is endowed of the land itself, just as if no mortgage had ever encumbered it. And by the consent of the creditor, if neither the widow nor the heir cares to redeem, the mortgage debt may re- main outstanding, in which case, also, the widow must be endowed of the land itself. But as the widow has the possession and profits of one-third of the land, she must keep down the interest on one- third of the mortgage debt. See, as to the right of the widow to redeem, 1 Scribner, Dower, 481, 497; 1 Bishop, Mar. Wom. § 292; 10 Am. & Eng. Ency. Law (2d ed.) 166; 11 Id. 223. As to dower when the mortgage debt remains outstanding, see 1 Scribner, 546, 595; 2 Id. 648, 696, 775; 2 Min. Ins. (4th ed.) 142, 387. It is well settled that not only is the widow entitled to redeem by virtue of her dower consummate after her husband's death, but even a wife, who has joined in the husband's mortgage, may re- deem in his lifetime, by virtue of her inchoate right of dower. 10 Am. & Eng. Ency. Law, 166; 11 Id. 223, and note. Thus in Gate- wood V. Gatewood, 75 Va. 407, 412, it is said: "It is well settled that a junior creditor, a junior mortgagee, a tenant by the curtesy, and indeed all persons having an interest in the estate, may insist on the redemption of the mortgage in order to the due enforce- ment of their claims. The question arises, Is the wife, the hus- band still living, entitled to exercise this privilege? . . . This court has repeatedly held that the wife's contingent right of dower may be the subject of contract and sale. In Harrison v. Carroll, 11 Leigh (Va.) Judge Stanard said: "The dower interest of the wife constitutes a valuable consideration for a settlement which will be upheld against the claims of creditors'; and this doctrine has been reaffirmed and followed in a number of cases. William and Mary College v. Powell, 12 Gratt. 372. That the dower inter- est of the wife in the husband's estate [during coverture] is such as entitles her to redeem seems, therefore, too clear for contro- versy." See 2 Jones, Mortgages, § 1067. §301] DOWER AND CURTESY. 489 equitable title." But the Dower Act of 1833 (referred to above) was construed to give dower in an equity of redemp- tion. 18 Eng. Euling Cases, 376, note. The same result was reached in Virginia by the construc- tion placed on the Act of 1785, taking effect January 1, 1787. See § 294, supra. In James v. Upton, 96 Va. 296, the court quotes with approval this language from the opinion of Judge Baldwin in Wilson v. Davisson, 2 Eob. (Va.) 406: "Our Act of 1785 [now § 2429 of the Code] gives dower in equitable in like manner as in legal estates; and in this, as in other respects, the rules and incidents of legal estates are now applied to trust and mortgaged property. The equity of redemption of a mortgage in fee descends to the heirs of the mortgagor; and though the widow is not entitled to dower as against the mortgagee, where the mortgage was executed before the coverture, or during the coverture with her concurrence in the mode prescribed by law, yet in either case she is entitled to dower in the equity of redemption; for of that, or what is the same thing, of the estate subject to the mortgage, the husband is to be considered as having died seised. Heth v. Cocke, 1 Eand. (Va.) 344; Swaine v. Ferine, 5 Johns. Ch. 492; Hall v. James, 6 Johns. Ch. 258." In the United States generally a widow has dower in the equity of redemption of a mortgage in fee. In many States, this right is given by statute; but in others, the common law doctrine that the equity of redemption of the husband in land mortgaged by him in fee is an equitable estate only is rejected, except as against the mortgagee (see Hewitt v. Cox, 55 Ark. 225 (15 S. W. 1026) ; and it is held that as to all other persons he may still be deemed, notwithstanding the mortgage in fee, to have the legal seisin. And in a few of the States the common law doctrine is abrogated altogether, and it is held that the mortgagor has the legal seisin not only as to all other persons, but even as to the mortgagee, until the mortgage is foreclosed. And in those States which either modify or reject the common law — whether holding that the mortgagor has still the legal title suh modo, or absolutely, 490 REAL PROPERTY. [Chap. 14 until foreclosure — the widow is allowed dower, without the aid of statute. 1 Scribner, Dower, 467-476; 1 Bishop, Mar. Worn. § 291; Bisph. Eq. § 151, note; 11 Am. & Eng. Eney. Law, 210, n. 8 ; 5 L. E. A. 519, note. For an elaborate discussion of the nature of the husband's interest after a mortgage in fee, see Montgomery v. Bruere, 4 K. J. Law, 300; s. c. 5 Id. 1019. For an emphatic affirmation of the common law doctriae that dower does not attach to an equity of redemption, because the wife is "not dowable of an equitable seisin," see Mayburry v. Brien, 15 Pet. (U. S.) 21, 38. § 302. Dower in Equity of Eedemption when Mortgage is Foreclosed in the Husband's Lifetime. — If the equity of re- demption is not foreclosed in the husband's lifetime, and so at his death still exists as an estate ia the land, it has been seen (§ 301, supra) that the widow is now dowable therein in England and the United States. It has also been stated (p. 469, note) that the wife may, in the lifetime of the husband, redeem a mortgage by virtue of her inchoate right of dower. But suppose she does not so redeem, and the mort- gage is foreclosed, and the land sold in the lifetime of the husband: is the wife dowable of the surplus, if any, of the proceeds of the land after the payment of the mortgage debt? On this question there is some conflict, though the weight of authority and the better reason are in favor of allowing the widow dower in such surplus. See 1 Scribner, Dower, 501-505, where the subject is discussed, citing in favor of the right Denton v. Nanny, 8 Barb. (F. Y.) 618; Vartie v. Underwood, 18 Barb. 562 ; Vreeland v. Jacobus, 19 N. J. Eq. 231; linger v. Leiter, 32 Ohio St. 210. And see'4 L. E. A. 118, note; Mandel v. McClave, 46 Ohio St. 407 (15 Am. St. Eep. 627). For American statutes, see Stimson, Am. Statute Law, § 3216. The best considered case in favor of the wife's dower in the surplus is Denton v. Nanny, 8 Barb. N". Y. 618. The court says: "Land has been sold in which the wife had §§301,302] DOWER AND CURTESY. 491 a legal interest which was not required to pay the mortgage debt. And upon the principle of equitable conversion the proceeds so far as afEects her must still be regarded as real estate. . . . She does not ask to have this money put into her immediate possession. She would have no right to that. But she insists that the residuum of the subject mortgaged, not required to satisfy the mortgage debt, whether it consists of lands unsold, or in the proceeds of lands sold under the power of the court, shall be so appropriated as to secure her dower should she survive her husband. This I think she is entitled to have done." On the other hand, in one of the earliest cases on the sub- ject, Wilson V. Davisson, 2 Eob. (Va.), 384, decided in 1843, it was held that the widow of the mortgagor, when the land is sold in his lifetime, is not dowable of the surplus. The ground of the decision is thus stated by Baldwin, J. : "The property sold was his \i. e., the husband's], and its conver- sion from realty into personalty was not his act, but by the operation of the paramount incumbrance. In its new form, it was still his after satisfying the incumbrance; but its character being changed, it was no longer subject to a future dower title as realty, but only to that provision which the law makes for a widow out of the personal estate of her husband subsisting at his death, after payment of his just debts. If the husband had been dead, and she surviving, at the time of the sale, then her dower right, subject to the incumbrance, would have ripened into a perfect title, and her interest in the surplus could not have been divested by the discretion which the court had exercised of selling the whole land, instead of such part only as might have been sufficient to discharge the incumbrance."^ ' The Docteine of Wilson v. Davisson. — In this case the para- mount encumhrance was not a mortgage, but an implied vendor's lien, for unpaid purchase-money, after the conveyance of the legal title to the husband. On this ground, viz., that the husband had legal seisin during the coverture — one of the three judges, who de- cided the case (Allen, J.) dissented; but the other two judges 492 REAL. PROPERTY. [Chap. 14 The doctrine of Wilson v. Davisson was abrogated by statute taking effect July 1, 1850 (Code 1849, ch. 110, § 3; Code 1887, § 2369), as follows: "Where land is bona fide sold in the lifetime of the hus- band to satisfy a lien or encumbrance thereon created by deed in which the wife has united, or created before the mar- riage, or otherwise paramount to the wife, she shall have no right to be endowed in the said land. But if a surplus of (Baldwin and Stanard, JJ.) refused to make any distinction be- tween a vendor's lien and a mortgage, and held (upon the reason- ing given in the text) that in both cases a sale to satisfy the para- mount encumbrance in the husband's lifetime destroyed the wife's inchoate dower right in the surplus. The doctrine of Wilson v. Davisson was applied to the para- mount encumbrance of a mortgage, in the recent case of Grube v. Lilienthall, 51 S. C. 442 (29 S. E. 230), and the wife was denied dower in the surplus, when the sale was made during coverture, for the following reasons: "As the wife, by her act of renuncia- tion [i. e., by uniting in the mortgage], assisted in bringing about a change of seisin by which her right of dower was destroyed, and by which the surplus proceeds of the sale became the property of the husband, the court had no more authority for impressing a trust upon the surplus proceeds of sale than it had to impress a trust on any other personal property of the husband. The right of dower was completely extinguished and destroyed when the seisin, during coverture, was broken by aid of the wife; and the court had no power to transfer the right to the surplus proceeds of the sale." And see the query as to the effect of the New York Statute in Brachett v. Baum, 50 N. Y. 8, 11. On the subject of "Dower as against the vendor's lien for unpaid purchase-money," see 1 Scribner, Dower, pp. 554-561; 4 L. R. A. 606, note. The implied vendor's lien was abolished in Virginia by statute taking effect July 1, 1850. It enacts as follows (Code Va. § 2474) : "If any person hereafter convey any real estate, and the purchase-money, or any part thereof, remain unpaid at the time of conveyance, he shall not thereby have a lien for such unpaid pur- chase-money, unless such lien be expressly reserved on the face of the conveyance." But this statute has no application to a vendor who does not convey, but retains the title to the land as security for the unpaid purchase-money. 2 Min. Ins. (4th ed.) 355. See p. 464, supra, note. §§302,303] DOWER AND CURTESY. 493 the proceeds of sale remain after satisfying the said lien or encumbrance, she shall be entitled to dower in the said surplus; and a court of equity having jurisdiction of the ease may make such order as may seem to it proper to secure her right." See Bohinson v. ShacUett, 39 Gratt. 99 ; Cowar- din V. Anderson, 78 Va. 88 ; C of man v. Cojfman, 79 Va. 504 ; Hurst V. Dulaney, 87 Va. 444; Building Co. v. Fray, 96 Va. 559 ; Holden v. Boggess, 20 W. Va. 62. For the Kentucky statute, see Tisdale v. Rish, 7 Bush. 130; Ratdiff t. Mason, 92 Ky. 190 (17 S. W. 438); Schweitzer v. Wagner (Ky.), 22 S. W. 883. § 303. Dower in Equity of Redemption — ^Extent of in the United States. — As to the extent of the dower right in the surplus of the proceeds of land sold in order to satisfy an encumbrance paramount to dower, there can be no doubt that it would be confined to one-third of such surplus in every case except one, and that is when the vrife has united with her husband in a mortgage or deed of trust of his land to secure his debt. In this last case, it has been claimed that the wife stands as a surety merely for the husband's debt; and that while as between her and the mortgagee she has relinquished her dower to the extent that may be necessary for the payraent of the secured debt, yet as be- tween her and the husband's heirs or devisees, or his other creditors, she is entitled to her full right of dower in the proceeds of the mortgaged land, payable of course out of the surplus; and this though thereby the whole of the sur- plus may be appropriated to the satisfaction of ker dower. The doctrine of exoneration of a surety out of the principal's (husband's) estate is invoked in the wife's favor. Thus if the mortgage debt is $12,000, and the proceeds of the mort- gaged land are $18,000, the surplus of $6,000 would be ab- sorbed by the dower of the widow, being her full dower right in the whole proceeds of the land. The doctrine explained above — that the widow has the right of a surety — has been applied in the later cases in 494 REAL PROPERTY. [Chap. 14 Ohio. Thus in Mandel v. McClave, 46 Ohio St. 407 (15 Am. St. Eep. 627; 5 L. E. A. 519), it is held that where a wife joins with her husband in a mortgage of his land to secure his debt, such release of her right of dower enures only to the benefit of the mortgagee and his privies, but does not enure to the benefit of subsequent creditors of her husband; and if a judicial sale be made under judgments in their favor, she will be entitled to have the value of her contingent right of dower in the entire proceeds ascer- tained, and to have the same paid to her, out of the balance left after payment of the mortgage debt, before any part of such balance can be applied to the payment of their judg- ments.^ 1 DoerEiNE OF Wife's Stjkettship in Ohio — Same Doctbine in North Cabouna and Indiana. — In Mandel v. McGlave, supra, the court thus explains the decision: "We are aware that this ques- tion has been decided differently in many of the States, but by courts holding views of the nature of contingent dower, and of the effect of the wife's release thereof, widely different from those adopted in this State in relation thereto; and the decisions are therefore of little or no weight here. ... If the plaintiff in error [the wife] had been seised of a separate estate, and it had been pledged, together with the husband's property, for the payment of his debt, there can be no doubt that his property would be pri- marily liable for its payment. As between each other, he would be the principal, and she his surety. We think the same principle should be applied to her contingent right of dower. It is prop- erty; its value can be ascertained. . . . It is a provision for her support; and when she pledges it for her husband's debt, by join- ing in a mortgage with him, the most obvious principles of nat- ural justice require that this benevolent provision of the law should not be touched until the husband's interest has been first exhausted." In North Carolina also the doctrine that the wife who joins in the husband's mortgage becomes his surety for the debt is adopted in recent cases. For the widow's dower right in that State, see Askew V. Askew, 103 N. C. 285 (9 S. E. 646) ; Gore v. Toicnsend, 105 N. C. 228 (11 S. E. 160); Overton v. Hinton, 123 N. C. 1 (31 S. E. 285). And in Indiana, under the peculiar statute as to dower (see infra, § ) the wife of a mortgagor who unites in the deed §303] DOWER AND CURTESY. 495 In the United States generally (with the exception of North Carolina and Indiana. See note p. 476, supra) the Ohio doctrine that the wife who unites in her husband's mortgage becomes a surety for the debt is rejected, with the result that she is entitled to dower in the surplus only of the proceeds of the sale. See 10 Am. & Eng. Bncy. Law, 169, where the law is thus stated : "The general rule is that when the husband has mortgaged his land before coverture, or the wife during coverture has united with him in mort- gaging land belonging to him, and such land is sold under the mortgage, the widow, if the sale takes place after the death of the husband, and the wife, if the sale takes place [before his death in jurisdictions where the inchoate right of dower is regarded as such an interest as must be protected, is entitled to have her dower assigned or reserved from the Is considered a surety for her husband. See Tirgin v. Tirgin, 189 111. 144 (59 N. E. 586), where the Indiana law is explained as ex- ceptional, citing Shoie v. Brinson, 148 Ind. 285 (47 N. B. 625.) In 19 Am. & Bug. Bncy. of Law, 1321, the widow's right to dower is thus laid down: "To protect the right of dower, the rule of ex- oneration, either as an equitable principle or as a statutory pro- vision, may be invoked by the widow. Thus, where the wife joined with her husband in a mortgage of his land, she is entitled after his death to require the personal representative to use in discharg- ing the mortgage all other assets of the estate, real as well as per- sonal, not necessary for the payment of debts preferred by statute, so that her dower interest may be taken last under the encum- brance. Under this rule, the personal estate, the remaining two- thirds of the realty, and the reversion in the third subject to her dower, are all to be applied to the payment of a mortgage, or of purchase-money due in respect of land purchased by her husband, before her share shall be taken." For this statement of the law, only Indiana and North Carolina cases are cited. As is shown above, the doctrine of these States is peculiar; and the general doctrine in the United States, both as to other lands of the hus- band, and as to the interest of the heir in the mortgaged land, is far less liberal to the widow. See § 303, above, for the general rule as to the extent of her dower in an equity of redemption. And see § 306, infra, as to her right of exoneration out of other lands of her husband. 496 REAL. PROPERTY. [Chap. 14 surplus only, after paying the whole amount of the mortgage indebtedness. The dower interest should be confined to one- third of the value of the excess of the land, after deducting the entire amount owing upon the mortgage." And see 1 Scrib., Dower, 516. The reason for the general rule which confines the widow to one-third of the surplus is thus stated by Chancellor Wal- worth in Eawley y. Bradford, 9 Paige, 200 (37 Am. Dec. 390) : "It is settled law that where the wife pledges her separate estate, or the reversionary interest in her real prop- erty, for the debt of her husband, she is entitled to the ordinary rights and privileges of a surety. ... I am not aware of any decision, however, in which the principle of suretyship has been applied to a case like the present. . . . Strictly speaking, the wife has no estate or interest in the lands of her husband during his life which is capable of being mortgaged or pledged for the payment of his debt. Her Joining in the mortgage, therefore, merely operates by waiy of release or extinguishment of her future claim to dower as against the mortgagee, if she survives her husband, without impairing her contingent right of dower in the equity of redemption. The master, therefore, was right in supposing that Mrs. Bradford was not entitled to be endowed of the whole proceeds of the mortgaged premises, but only of the surplus which remained after paying the mortgage debt and the costs of foreclosure." And see to the same effect Bank of Commerce v. Owens, 31 Md. 320 (1 Am. Eep. 60); Burnett v. Burnett, 46 K. J. Eq. 144, 18 Atl. 374 (examining and rejecting the Ohio doctrine) ; Virgin v. Vir- gin, 189 111. 144, 59 IS^. E. 586 (quoting and approving the general rule as laid down in 10 Am. & Eng. Ency. Law on p. 477, supra). § 304. Extent in Virginia of Dower in Equity of Redemp- tion, — ^Whether the widow is entitled to dower in the whole proceeds, payable out of the surplus, or is dowable of the surplus only, is unsettled in Virginia, both when the land is §§303,304] DOWER AND CURTESY. 497 sold in the life of the husband, and when the sale takes place after the husband's death. See Land v. 8Mpp, 98 Va. 284, 293.1 When the land is sold in the lifetime of the husband, the Code (§ 2269) places the case where the wife unites with the husband in the deed creating the lien or encumbrance along with that of a lien or encumbrance "created before the ^Extent op Widow's Dowek Right in Virginia — Decision in Wilson v. Branch. — ^The only case in Virginia which favors the right of the widow, when she has joined her husband in a mort- gage or deed of trust on his land to secure his debt, to her full right of dower as against the heir, and that in the land itself, is Wilson V. Branch, 77 Va. 65. But it is respectfully submitted that this case is contraiT to authority and unsound on prineiple. In Wilson v. Branch, supra, there were two estates in land in- volved, halves of an undivided tract called Cedar Lawn, one-half belonging to the husband, and (under the decision of the Court of Appeals) the other half belonging to the wife, when the deed of trust of 1876 was made, by husband and wife jointly, to secure the husband's debt. As to the wife's half, she was, of course, a surety for the husband; and, as was said by the Court of Appeals (p. 74) : "The Circuit Court erred in decreeing the sale of the Cedar Lawn tract without first dividing the same, so as to save the wife her undivided moiety, which was her maiden property." But the lower court is also said to have erred, "in selling the residue [i. e., the husband's half] without laying off and assigning to the widow her dower in kind by metes and bounds, or first ascertain- ing that it was impracticable to so assign the dower." See p. 74. And on p. 69, it is said (without, however, at this point distin- guishing between the two halves, and apparently conceding for the moment that the Circuit Court was right in its view that in 1876 when the trust deed was made all the land belonged to the hus- band) : "It does not appear that dower could not be assigned, and the residue sold to secure the creditor secured by the trust deed, with the right reserved to proceed further against the dower if the trust deed debt was still unsatisfied." There seems no doubt, from the above extracts, that the court supposed the widow was entitled to full dower, and in the land itself, and that it was not to be sold under the deed of trust unless it became necessary to trench upon it to pay the secured creditor. But there is not one word of discussion as to the extent of the 32 498 REAL PROPERTY. [Chap. 14 marriage, or otherwise paramount to the wife," and declares as to all alike that "if a surplus of the proceeds of sale widow's dower right The mind of the court is entirely on the point of dower in kind. This it declares practicable, having re- gard to the relative amounts of the value of the land and of the deht secured. And three Virginia cases are relied on, viz.: Blair V. Thompson, 11 Gratt. 441; White v. White, 16 Graft. 264; and Simmons v. Lyle, 27 Gratt. 922, which do declare that the widow must have dower in kind unless it he impracticable from "the na- ture of the husband's interest, or from the nature and quality of the property itself," but not a word is said in them as to relative amounts. And in all of these three cases, the widow's dower was paramount to the encumbrance, and of course she was entitled to dower in kind, if practicable, having regard to the nature of the husband's interest and of the property. This part of the decision in Wilson v. Branch, then, finds no support in any of the Virginia cases cited, and is opposed to an al- most unbroken current of authority elsewhere. The cases in Ohio to the contrary, Mandel v. McClave (where the sale was in the hus- band's lifetime), and Kling v. Ballentine (cited therein, where the sale was after the husband's death) are avowedly placed on the theory of the wife's suretyship for her husband, and it is conceded that where that doctrine is repudiated (as it is in Virginia) the result must be to confine the widow to one-third of the surplus. And the peculiar doctrine in Indiana and North Carolina is also placed on the ground of suretyship. See p. 476, supra, note. In Heth v. Cocke, 1 Rand. (Va.) 344, it is held that the only claim of the widow in her husband's real estate which has been mortgaged by him before the marriage is in the equity of redemp- tion; and it is declared that the same principle applies as well to a mortgage after marriage where the wife unites with her hus- band. And on p. 347, it is said: "If neither the heir nor the widow redeem, and the land sells for more than the debt, the ex- cess is the value of the equity of redemption, and she can only be endowed as to one-third of that excess." And on p. 348 it is said: "Suppose she had been defendant in this suit, could she have claimed to have her dower laid off and the residue sold? I appre- hend the mortgagee could not have been compelled to sell in par- cels. . . But if he could have been paid in this way, could the heir be thus deprived of his interest in the equity of redemption? The two-thirds may only sell for enough to pay the debt, and sell too at a great sacrifice in consequence of a severance of the prop- erty." §304] DOWER AND CURTESY. 499 remain after satisfying the said lien or encumbrance, she shall be entitled to dower in said surplus" — ^which clearly confines her dower interest to one-third of the surplus. See § 303, supra. And that the law is the same in Virginia (in accord with the general rule laid down above), when the sale is made after the death of her husband, would seem to be indicated (so far as the opposite view rests upon the doctrine of suretyship) by the case of Gatewood v. Gatewood, 75 Va. 407, 415, when it is said by Staples, J., that a mar- ried woman who joins in a mortgage by the husband on his lands is not a surety for the debt; and also 'by the following language of the same learned judge in Corr v. Porter, 33 Graft. 278, 285 : "During the life of the husband, the wife has no estate or interest in his lands. She has a mere con- tingent right of dower which may be the subject of a con- veyance or relinquishment under the statute. It may also constitute a valuable consideration for a post-nuptial settle- ment, because it is in the nature of a contingent lien or encumbrance upon the realty. Beyond this, however, it is not even a right in action. When the wife unites with the husband in conveying the property to a purchaser, the effect is not to vest in the latter the dower interest, or any estate separate and distinct from that of the husband, but simply to relinquish a contingent right in the nature of an encum- brance upon the property conveyed, which, if not so relin- quished, will attach and be consummate on the death of the husband. This right being relinquished is gone forever, the charge upon the estate ceases, and the title of the purchaser becomes complete. The title so acquired is not to two estates or interests, that of the husband and wife, but to one estate, that of the husband, discharged from the wife's contingent claim of dower." And see p. 438, supra, note. But where a wife unites with her husband in conveying her maiden lands in trust to secure the individual debts of her husband, then the wife becomes the surety of her hus- band, and, in the absence of any agreement to the contrary, is entitled to all the rights of a surety. Filler v. Tyler, 91 500 REAL PROPERTY. [Chap. 14 Va. 458. And see the same doctrine laid down by Chan- cellor Walworth in Hawley v. Bradford, 9 Paige, 199, quoted at p. 478, supra. § 305. Exoneration of Dower in Mortgaged Land out of th Husband's Personalty. — In Hewitt v. Cox, 55 Ark. 335 (15 S. W. 1036, 17 S. W. 873) it is said of the decisions of the American courts on this subject: "They differ as to her right to require the executor or administrator to redeem the land set apart to her as dower from incum- brances thereon which are created by mortgages executed by her and her husband to secure his debts, she having relin- quished her right to dower in the land in legal form. One class holds that the personal estate of the husband is pri- marily liable for his debts, and that the widow can require his personal representative to apply that estate to relieving the dower land from the incumbrance. Campbdl v. Camp- hell, 30 K J. Eq. 415; Henagan v. Earllee, 10 Eich. Eq. (S. C.) 285; Klinch v. EecMey, 3 Hill Eq. (S. C.) 350; Mantz V. Buchanan, 1 Md. Ch. 303; Harrow v. Johnson, 3 Mete. (Ky.) 578; Matthewson v. Smith, 1 Aug. (E. I.) 23 Pechham v. Hadwen, 8 E. I., 160; Campbell v. Mur- phy, 3 Jones, Eq. (F. C.) 357; Creecy v. Pearce, 69 IST. C. 67; Mandel v. McClave, 46 Ohio St. 407 (32 K E. 390); Boynton v. Sawyer, 35 Ala. 497. Another class, eliminating the interest of the mortgagee in the land, and treating the residue as the entire interest of the husband, holds that the widow is only entitled to dower in that interest — ^that is to say in the equity of redemption; and treats her dower interest, to the extent of the debt secured, as extinguished by her joining her husband in the execution of the mortgage, and releasing or relinquishing her right of dower; and holds that she takes the land subject to the mortgage {i. e., when she receives her dower in the land], and is not entitled to have any part in the residue of her husband's estate appro- priated to the satisfaction of the mortgage in exoneration of her dower. Hawley v. Bradford, 9 Paige (K. Y.) 200; §§304,305] DOWER AND CURTESY. 501 Tabele v. Talele, 1 Johns. Ch. (N. Y.) 45; Titus v. Neilson, 5 Id. 451; Evertson v. Tappen, Ibid, 497; Whitehead v. Cummins, 2 Cart. (Ind.) 58; DawteZ v. ieiic^, 13 Gratt. (Va.) 195; Trowbndge v. Sypher, 55 la. 353 (7 K. W. 567) ; Bmh v. Hinton, 21 Ohio 509; Scott v. Homcock, 13 Mass. 162; Gi&son v. Crehore, 3 Pick (Mass.) 475; s. e. 5 Id. 146; Rossiter v. Cossitt, 15 ]Sr. H. 38; Hastings V. -Sievems, 9 Post. (N. H.) 564; Appeal of Piatt, 56 Conn. 572 (16 Atl. 669) 4 Kent. Com. (12th ed.) pp. 46, 47; 1 Scrib., Dower (2d ed.) 511-516; 1 Jones, Mortg. (4th ed.) §§ 666, 686; 2 Jones, Mortg. § 1693." The court rejected the claim that the wife was a surety for the husband, saying: "But it is contended that Mrs. Hewitt never released her dower to her husband, or to his administrator, or devisees, but only to the mortgagee as security for the payment of a single debt of the husband, for which she did not bind herself personally; and that therefore the personal assets of the estate of the husband, the principal, should be exhausted before that of the surety should be taken. The fallacy of this contention consists in assuming that the wife has an estate or interest in the lands of the husband during his life which she can mortgage as her own separate estate. In speaking of the interest of the wife in the husband's lands in Smith v. Howell, 53 Ark. 279 (13 S. W. 929), calling it an 'inchoate right of dower,' this court said : 'The inchoate right of dower during the lifetime of the husband is not an estate in land ; it is not even a vested right, but a mere intangible, inchoate contingent expectancy. The law regards it as in the nature of an incumbrance on the husband's title, and the statute cited provides a means whereby he may convey his title free from the incumbrance. She joins not to alienate any estate, but to relinquish a future contingent right.' " And see, in accord with this view, of the nature of inchoate dower, p. 438, supra, note. In the above extract it is assumed that, as the wife who unites in her husband's mortgage cannot be considered a surety for his debt, she is therefore not entitled to claim 502 REAL PROPERTY. [Chap. 14 exoneration of her dower out of his personalty. This, how- ever, does not necessarily follow. The true view would seem to be that as to the equity of redemption the widow and the husband's heir or devisee are, so far as their respective inter- ests are concerned, in consimili casu; and whatever right of exoneration the heir or devisee may have must redoimd to the benefit of the vridow. N'ow it is certain (where the rule has not been changed by statute) that in the administration of the assets of a solvent estate the heir or devisee of mort- gaged land, provided the debt secured is the personal debt of the testator or intestate, is entitled to have the mortgage debt paid out of the personalty; or, if the mortgagee (as of right he may) has subjected the mortgaged land to the pay- ment of his debt, then the heir or devisee is entitled to exoneration out of the personalty. It would seem, on prin- ciple, impossible to deny to the widow the same right of exoneration; and this not because she is a surety for her husband, but because she has a dower right in land entitled to exoneration out of his personalty. But if the husband dies insolvent, all his estate is liable for his debts, save only the widow's dower in the surplus of the proceeds of the mortgaged land; and of course no further right of dower can accrue to her by reason of her relation to the heir or devisee.^ ^ BxONEEATIOISr OF DOWEB OUT OF PeBSONALTT AS AGAINST A PbCU- NiABT Legatee. — In Todd v. McFall, 96 Va. 754 (32 S. B. 472) it was held that "a legatee has no right to call upon the devisees to contribute to the legacy, unless the real estate be charged with its payment, not even where the personal property has been applied in exoneration of the land from a mortgage debt or vendor's lien, it the debt was contracted, and the mortgage or lien on the land was created, by the testator himself." The facts of the case show that the court means (and it was so held) that where there is no general charge for the payment of debts, and the legacy is not charged on the land, a pecuniary legacy is payable primarily out of the personalty only; and though the personalty is exhausted in payment of a mortgage or vendor's lien on land specifically de- vised, this does not entitle the legatee to exoneration out of such §305] DOWER AND CURTESY. 503 From the authorities cited above in the quotation from Hewitt V. Cox, it will be seen that a number of States which land to the extent of the encumbrance satisfied out of the per- sonalty. If this be the law, it is manifest that it has an important bear- ing on the dower right of the widow of such devisee of encum- bered land. For if the devisee has exoneration out of the per- sonalty, without liability over to the pecuniary legatee, the widow of the devisee would share the benefit of such exoneration, and thus be let in to her full dower in the land. On the other hand, if the legatee has, to the extent that the personalty is exhausted in paying off the encumbrance, a right to exoneration out of the en- cumbered land devised, it is manifest that neither the devisee nor widow will ultimately reap any benefit from the application of the personalty to the satisfaction of the lien — unless, indeed, the per- sonalty so applied be more in value than is needed to pay the legacy. It is believed, however, that the doctrine of Todd v. McFall is contrary to the weight of authority, and that a pecuniary legatee is entitled to exoneration out of land devised subject to a mort- gage or vendor's lien, to the extent that the personalty has been applied to the satisfaction of the encumbrance. Of course, it is well settled that a pecuniary legatee is not en- titled to exoneration out of land devised, neither encumbered, nor under a general charge for the payment of debts; but, in the case now under consideration, the question is as to exoneration in favor of such legatee out of land devised indeed, but on which there is the specific encumbrance of a mortgage or vendor's lien for the personal debt of the testator. In this case it is now settled law in England and in the United States (outside of Massachusetts and Virginia) that the legatee is entitled to exoneration out of such land as against the devisee. See 19 Am. & Bng. Ency. Law (2d ed.) 1311; 1322; 1325; 1326. And the law is the same as to both mortgage and vendor's lien. Hid, 1376. As to the Massachusetts rule, see Brown v. Baron, 162 Mass. 56 (44 Am. St. Rep. 331), where the case is decided on "the well settled rule in this common- wealth that the devisee of specific real estate is entitled, in the ab- sence of a contrary intention on the part of the testator, to have it exonerated from a mortgage placed upon it by the testator, even though the personal estate is insufficient to pay general legacies" [citing only Massachusetts cases]. Of the cases cited in Todd v. McFall on the question under dis- &04 REAL PROPERTY. [Chap. 14 deny to the widow dowei save in the surplus of the mortgaged land nevertheless accord to her a right of exoneration of her dower out of the personalty. And some of the cases cited as denying the widow exoneration out of the personalty are cases in which the estate of the husband was insolvent; or in which the debt was not personal to the husband, as where cussion, Wythe v. Henniker, 2 Myl. & K. is in point, and as to the encumbrance of a vendor's lien sustains the decision of the court. But as to a mortgage (which in Todd v. McFall is treated as under the same rule as a vendor's lien), the decision is express that the legatee is entitled to exoneration. The court declares it to be "a settled rule of courts of equity that a pecuniary legatee Is entitled to stand upon the devised estate in the place of the mortgagee, to the extent that the mortgage has been satisfied out of the personal estate." And as to the contrary ruling in that case as to a ven- dor's lien it is said by Lord Romilly in Lilford v. Powys Keck, 1 L. R. Eq. Cas. 347: "I was of the opinion in Birds v. Askey that in respect of the legatee's right of marshalling the distinction be- tween a lien and a mortgage is untenable, and I am still of that opinion. The legatees are entitled to stand In the place of the vendor in respect of his lien against the estate which the testator agreed to purchase." And see 2 Jarman on Wills (Bigelow's ed.) 580, where it is said: "It is clear that the devisee of a mortgaged estate cannot claim exoneration as against pecuniary legatees." Also Itid, 629, where the law is laid down as now the same as to the devisee of land subject to a vendor's lien. To sum up the matter : It is believed that in the order in which a testator's assets are to be applied to the payment of his debts (see Elliott v. Garter, 9 Gratt. (Va.) 548; Frasier v. Littleton, 40 S. E. (Va.) 108) lands devised on which there is a mortgage or vendor's lien are liable before general pecuniary legacies. See Adams Eq. 8th ed. (275), where it is said: "An entire or partial exhaustion of the personal estate [i. e-, in the payment of debts] will warrant marshalling in favor of legatees; but such marshall- ing can only be directed against real assets descended, lands de- vised for, or charged with, the payment of debts, and land devised subject to a mortgage [in a note it is added, "or subject to the ven- dor's lien for purchase-money which the personalty is taken to pay"]. It cannot be directed against land devised or against specific legatees." And see in accord 1 Lead. Cas. Eq. (4th Am. ed.) 473, note to Mackreth v. Symmons; 2 Id. 245, 340. §§305,306] DOWER AND CURTESY. 505 the land comes to him already encumbered. This was the case in Daniel v. Leitch, 13 Gratt. (Va.) 195, 207, where the clear implication from the language of the court is that if the debt had been personal, and the estate solvent, the widow would have been entitled to exoneration out of the personalty. As to when a debt is "personal," see Pleasants V. Flood, 89 Va. 96. It may be added that by statute in England (called Locke's King's Act, passed in 1854, with sub- sequent amendments), both mortgaged lands and lands sub- ject to a vendor's lien are made in all cases the primary fund for the payment of the encumbrance, and exoneration is denied the heir or devisee. See Wms. E. P. (17th ed.) 610; 2 Jarman, "Wills (Bigelow's ed. 590). Of course, under this statute, the widow's dower is not entitled to ex- oneration, since her right can rise no higher than that of the heir or devisee. § 306. Exoneration of Dower in Mortgaged Land out of the Husband's Other Land. — In 1 Scribner, Dower, 511, the following language, based on the English decisions, is quoted from Parh on Dower, 351) : "A dowress, like an heir or dev- isee, has of course a right to have the personal estate of her husband, as far as it will go, applied in discharge of mort- gages, and other debts contracted by the husband which are charges upon the land which she holds in dower. And even where the personal estate is insufficient to discharge the debt, it would seem that in some cases, if not in all, she has the privilege of having the lands which remain in the heir charged therewith, in exoneration of the land assigned to her in dower." Scribner adds this comment, before reviewing the American decisions: "In the United States the cases on this subject are somewhat conflicting, but the weight of authority seems to be rather against the English doctrine." As to exoneration out of personalty in the United States, see § 305, supra. As to exoneration out of realty, the law is thus laid down in 2 Min. Ins. 142 : "But if the debt were one contracted ly the husband himself, and the creditor's lien is 506 REAL. PROPERTY. [Chap. 14 paramount to the dower, the dowress is entitled to have the incumbrance, created by the husband, cleared off out of the husband's personalty, in the hands of his personal representa- tive ; and, if that be insufficient, out of the lands in the hands of the husband's heir or devisee. In the latter case, therefore, the wife [widow] is not called upon to contribute anything to pay the annual interest [i. e., when dower in the encum- bered land has been assigned to her] until the personalty and the other lands of the husband are exhausted. 1 Tho. Co. Lit. 568, n. (B.); 1 Bright, H. & Wife, 344, 387-'8; Heth v. Goche, 1 Eand. 344." It will be perceived that Prof. Minor's statement of the law goes beyond that of Park in giving to the widow exonera- tion not only out of the personalty and lands descended to the heir, but even out of other lands in the hands of the hus- band's devisee. The only one of Prof. Minor's references which refers to exoneration is 1 Bright H. & Wife, 388, where it is said: "But it is presumed that as against her husband's general estate she would be entitled to have her dower exon- erated from such encumbrances; for since her husband's heir or devisee of the dowable estate would be entitled to that equity, so, as it is conceived, would the widow also be." But it is manifest that by "general estate" is here meant "the general personal estate, not expressly or by implication ex- empted" (see Bisph. Eq. § 346) ; for it is only out of this estate (leaving out of consideration "any estate particularly devised simply for the payxaent of debts") (see § 108 supra) that "her husband's lieir or devisee" (meaning both heir and devisee) are entitled to exoneration." On principle, it would seem to be impossible to allow thfe widow (whether the mortgaged land has descended to the heir or has been devised) exoneration out of other lands of- the husband in the hands of the devisee. For the widow's right of exoneration (assuming that the true doctrine is that she is not a surety) cannot exceed that of the heir or devisee of the mortgaged land ; and it is well settled that such heir or devisee is not entitled (unless the testator has by his will §306] DOWER AND CURTESY. 507 charged all his lands with the payment of his debts) to ex- oneTation of the mortgaged debt out of other real estate spe- cifically devised. See § 108, supra, for order in which assets are liable for the payment of debts, in which table land de- scended subject to a mortgage for the personal debt of the decedent should be placed after land devised for the payment of debts, and land devised on which there is a mortgage comes immediately after land descended to the heir; so that in nei- ther case, whether descended or devised, could such mort- gaged land be entitled to exoneration out of other lands de- vised. See Adams Eq. (8th ed.) 253; 19 Am. & Eng. Ency. Law, 1332; Frasier v. Littleton (Va.) 40 S. B. 108. The widow is, of course, dowable of other lands of her husband in the hands of a devisee, in addition to her dower in the equity of redemption of the land mortgaged; and she might consent to waive her dower in such other lands on condition that the devisee should discharge the mortgage, and thereby enable her to receive her full dower in the encumbered land. But this would be a matter of agreement between the widow and the devisee, and a very different thing from her having a right of exoneration as against him. See Scott v. Hancock, 13 Mass. 162, 168; Appeal of Piatt, 56 Conn. 572 (16 Atl. 668). But both Park and Prof. Minor declare that a widow is entitled to exoneration of a mortgage out of other land de- scended to the heir. But, assuming again that the widow is not a surety, this would seem to depend on whether the mort- gaged land is in the hands of the heir or a devisee. For if in the hands of the heir, there could be no exoneration as to him out of other lands descended, and so no such right would be permitted the widow^ but she would, of course, be entitled to her dower in such other lands. But if the mortgaged land is in the hands of a devisee, then such devisee is entitled to exoneration of the mortgage out of other lands descended to the heir, and this would entitle the widow to claim the benefit of such exoneration in order to admit her to her full dower in the mortgaged land. But she is also entitled to dower as against the heir in the lands descended. Is she then entitled 508 REAL PROPERTY. [Chap. 14 to throw the whole burden of exoneration on the heir's in- terest in the land descended, so as to have her full dower both as against the heir and the devisee? On principle, there seems no escape from this conclusion. The widow's right of dower is paramount to the heir; and she can have in lands descended her one-third assigned to her by metes and bounds. Her right to dower in these lands is also paramount to the devisee's right of exoneration, which must be confined to the interest of the heir. But she is entitled to the benefit of this exoneration, if the heir's interest is sufficient to pay off the mortgage; and in this way, partly in her own right and partly in the right of the devisee, she becomes entitled to full dower in all the land as against both heir and devisee. §307. Present Value of the Widow's Vested Right of Dower. — ^A widow may, with the assent of all the parties in- terested, agree to accept a sum of money paid down as the present value of her vested dower right, instead of receiving her dower in kind, or interest during her life on one-third of the value of her husband's lands. 2 Scribner, Dower, 606, 613 ; Blair v. Thompson, 11 Grat. 441 ; Pierce v. Graham, 85 Va. 227 (7 S. E. 189) ; Scott v. Ashlin, 86 Va. 581 (10 S. E. 751) ; Johnson v. Gordon, 102 Ga. 350 (30 S. E. 507) ; Jar- rell V. French, 43 W. Va. 456 (27 S. E. 263) ; Bohinson v. Govers, 138 N. Y. 425 (34 K E. 209, 514). In ascertain- ing such present value, the first question is the probable duration of the widow's life. This is ascertained by refer- ence to Tables of Mortality. 3 Scribner, Dower, 622, et seq.; Wilson V. Davisson, 2 Eob. (Va.) 384; Norfolk, &c. B. Co. v. Phillips, 100 Va. 363 (41 S. E. 736) ; Damm v. Damm, 107 Mich. 619 (63 Am. St. Eep. 601) ; 20' Am. & Eng. Ency., Law (3d ed.) 883; Gordon v. Tweedy, 74 Ala. 333 (49 Am. Eep. 813). If now the widow's expectation of life, thus ascertained, is twenty years, and her husband's real estate of inheritance is worth $3,000, the widow is entitled, as her dower right, to $1,000 for twenty years. At six per cent., the interest on §§306,307] DOWER AND CURTB3SY. 509 $1,000 is $60 a year. The problem, then, is to ascertain the present (or cash) value of an annuity of $60 a year, to con- tinue twenty years, discounted at compound interest. Wilson V. Davisson, 2 Eob. (Va.) 384:; Gaw v. Huffman^ 13 Grat. 628. This is the calculation : First year— 106 : 100 : : 60 : 56.604. Second year— 106 : 100 : : 56.604 : 53.40. Third year— 106 : 100 : : 53.40 : 50.377. And so on for the 20 years. Then the sum of all the present values gives the total sum in cash to which the widow is now entitled. In Virginia an annuity table has been adopted by statute by which the present value can be readily ascertained. Code Va. §§ 2281-3.^ ^Tables of Mobtalitt. — In Wilson v. Davisson, 2 Rob. (Va.) 384, tlie lower court adopted Wigglesworth's Table of Longevity, to which no objection was made on appeal; and it is inferred by the Reporter that "in estimating the probable duration of life in Virginia this table, in the absence of any other better adapted to our State, may be generally used as a guide, liable, of course, to be departed from when the particular circumstances of any case may make it proper to do so. But it may be remarked that the annuity table adopted in Code Va., §§ 2281-3 (see § 307, above) is based, not on the Wigglesworth table, but on the Carlisle table, by which the expectation of life is greater than by the Wiggles- worth table. 2 Scribner, Dower (2d ed.), 811, 814. And see Norfolk, dc, B. Go. v. Phillips, 100 Va. 362, 371, where it is said of mortality tables: "These tables were made for the pur- pose of life insurance and annuities, where the very shortest time is fixed as affecting pecuniary risks. They are regarded as falling short, in most instances, of the actual duration of human life." Citing Mulcairns v. City of Janesville, 67 Wis. 37 (29 N. W. 565). De Moivre's Rule. In 2 Minor's Institutes (4th ed.), 144, note, it is said: "As tables of the probabilities of life may not be al- ways accessible, the following rule, stated by De Moivre, may easily be remembered: Regarding 86 as practically the extreme limit of human life, he proposes to deduct the actual age from that number, and to divide the remainder (which he styles the complement of life) by two, which gives, approximately, the 510 REAL PROPERTY. [Chap. 14 § 308. Present Value of Wife's Contingent Right of Dower. — In this case the husband is living, and may survive the wife, and hence the dower right may never arise. But as the wife may survive, her inchoate right of dower is regarded as a real and valuable interest, which the husband alone cannot con- vey, nor his creditors take on execution. Hence the relin- quishment by the wife of her inchoate dower is a valuable consideration for a settlement on her by her husband, and is good against his creditors. FicMin Y. Bixey, 89 Va. 832 (17 S. E. 325) ; Flynn v. Jackson, 93 Va. 341 (25 S. E. 1) ; Allen v. Patrick, 97 Va. 521 (34 S. E. 451) ; Bunkle v. Run- lele, 98 Va. 663 (37 S. E. 279) ; Glascock v. Brandon, 35 W. Va. 84 (12 S. E. 1102) ; Gore Y. Townsend, 105 Is'. C. 228 (11 S. E. 160) ; 8 L. E. A. 443, note. As the wife may consent to relinquish her inchoate right of dower in consideration of a settlement of property on her, or money paid her, it becomes necessary to ascertain the present value of such right of dower. Here we become in- volved in the calculus of probabilities. It is not correct to ascertain separately the probable duration of the life of the husband and of the wife, and then subtract the husband's expectation of life from the wife's; but from the probability of the life of the wife must be subtracted, not the probability of the life of the husband, but the probability of the joint life of both. Then the proper rule for computing the present value of the wife's contingent right of dower is to "ascertain the present value of an annuity for her life, equal to the interest in the third of the proceeds of the estate to which her contingent right of dower attaches, and then to deduct from the present value of the annuity for her life, the value of a similar annuity depending on the Joint lives of herself and her husband; and the difference between these two sums probable duration of the life in question. Thus, supposing one to be of the age of fifty, his probable expectation of life is ex- pressed by 8 6-5 — SJi — ]^g_ De Moivre on Chances and An- nuities, 265, 283." §§308,309] DOWER AND CURTESY. 511 will be the present value of her contingent right of dower." Per Chancellor Walworth in Jackson v. Edwards, 7 Paige (ISr. Y.) 386. See in accord, Gordon v. Tweedy, 74 Ala. 332 (49 Am. Eep. 813) ; Strayer v. Long, 86 Va. 557 (10 S. E. 574) ; Barton v. Brent, 87 Va. 385 (13 S. B. 29) ; 8 L. E. A., 443, note. See, also, 3 Va. Law Eeg. 69-80 (full dis- cussion and tables) ; Lancaster v. Lancaster, 78 Ky. 198; Daa-r- ling V. Eanhs, (Ky.), 42 S. W. 1130; 2 Scribner, Dower (2d ed.), 820-824.1 § 309. For What Proportion of the Principal of a Mort- gage Debt is the Widow liable as Between Herself and the Heirs. — This question supposes that the mortgage is para- mount to dower; that the land is liable to pay the mortgage (the debt not being contracted by the husband, but the land bought subject to the lien ; or, if contracted by him, there be- ing no personalty out of which to discharge it) ; that the mortgage is foreclosed, or if not, that the widow consents to pay her part of the principal, instead of paying, as long as she lives, one-third of the interest on the debt. See Alexander V. Byrd, 85 Va. 690 (8 S. B. 577) ; Scott v. Ashlin, 86 Va. 581 (10 S. B. 751) ; Pleasants v. Flood, 89 Va. 96 (15 S. E. 504) ; Eilbreth v. Roots, 33 W. Va. 600 (11 S. E. 21) ; Blair V. Mounts, 41 W. Va. 706 (24 S. E. 620) ; SJiohe v. Brinson, 148 Ind. 285 (47 N. E. 625) ; Burnet v. Burnet, 46 N. J. Eq. 144 (18 Atl. 374) ; Hodges v. Phinney, 106 Mich. 537 (64 ISr. W. 477). Upon the above suppositions, the widow's liability is thus clearly stated in Harper v. VaugJin, 87 Va. 426, 430 (12 S. B. 785) : "If the annual interest is to be paid, then the ^ Insane Wife. Extinguishment of Contingent Dower. — See Acts Va. 1895-6, p. 260, ch. 226, amending C. V., § 2625, providing for the release to a purchaser of the contingent right of dower of an Insane wife, when the husband wishes to sell his land, and for compensation to the wife for such right. For the procedure under the statute, see Hess v. Gayle, 93 Va. 467 (25 S. E. 533), deciding that the wife must be made a party, and have notice. And see as to the New Jersey statute. In re Alexander, 53 N. J. Eq. 96 (30 Atl. 817). 512 REAL PROPERTY. [Chap. 14 widow is to pay one-third of the annual interest, as she has one-third of the land. If the principal is to be paid, as in this case, the widow is not required to pay one-third of the principal, because she does not hold one-third of the land in fee, but only for life, and the amount which she is to pay is based on her life interest; and the heirs are to pay the resi- due, because they receive not only the two-thirds in fee, but the remainder of the one-thir^ at the death of the wife; that is, they receive the whole after the one-third for the life of the widow has been taken out. The amount which the widow is to pay, as her contribution to the principal, is such a sum as would equal the aggregate of her payments of annual interest (if she were to pay it during her life), reduced to cash, calculated at compound interest. The calculation is made by taking from the tables of mortality her probable duration of life, and, having thus ascertained approximately for how many years she would continue to pay the annual interest, the present cash value at compound interest, of each pajrment [is] to be estimated, and the aggregate is the amount the widow must contribute." For mode of ascertain- ing present value see section 307, ante. See, also, Allen v. De Groodt, 98 Mo. 159 (14 Am. St. Eep. 626, and note, p. 634) Damm v. Damm, 109 Mich. 619 (63 Am. St. Eep. 601, and note, p. 604) . § 310. Dower When the Husband's Estate of Inheritance Terminates in His Lifetime, or at His Death. — Dower in some cases continues beyond the estate of the husband; while in others it is defeated by the ending of the husband's estate, in accordance with the maxim cessante statu primitivo, cessat atque derivatus. The general principle is, that if the husband's estate ends at the expiration of the period originally marked out for its duration — ^by a natural death according to its limitation — • then dower attaches by way of prolongation of the husband's estate, on the presumption that this was impliedly included in the original grant; but if the estate of the husband does §§309,310] DOWER AND CURTESY. 513 not ezpire by limitation, but is divested or forfeited — dies a violent death — then thexe can be no presumption of prolonga- tion, and the widow's dower falls with her husband's inheri- tance. In the former case, the mistletoe may survive the death of the oak, but not in the latter. The application of the above principle is plain except in two cases — ^viz., (1) base or qualified fees, beyond whose ter- mination dower does not continue; and (2), shifting fees, which pass from the husband, at his death, to another, by way of executory interest, on a certain condition or event, but which are subject to the widow's dower/ '■ DowEE IN Shifting Fees. Does Widow's Right Enure to PuECHASEE?— It is Settled, both in Virginia and West Virginia, when there is a devise: "To B and Ms heirs; but if B dies without issue living at his death, then to C and his heirs"; that if B dies without such Issue, the widow of B is dowable against C, the executory devisee. But suppose B has sold and conveyed his fee simple to D, B's wife uniting in the deed, which is duly recorded, and that B dies without issue living at his death; does the dower right which B's widow would have had against C if the land had not been sold, or if she had not united in the deed to D, enure to D, so that he can hold one-third of the land against C while the widow lives? This question is answered in the affirmative in Nickell v. Tomlinson, 27 W. Va. 697, in an elab- orate opinion by Green, J., disapproving of the decision in Corr V. Porter, 33 Gratt. 278, where Staples, J., reached the conclusion that the relinquishment by B's widow of her inchoate dower right, by uniting with her husband in his deed to D, could in no wise, on her husband's death without issue, enure to the benefit of D as against C. The view of Judge Staples is based on the nature of the in- choate dower right, and the effect on it of the wife's uniting in her husband's deed, as is set forth in note 1, p. 438, ante, and on p. 481, ante. In the opinion of Green, J., it is said: "This dower estate of a wife in a defeasible estate of her husband determinable upon his death without children. Is, whether he died without children or not, but a continuation of her husband's estate, a part and parcel of it, and not an estate separate and distinct from the husband's; and therefore upon the principles which we have laid down, as well as those laid down by Judge Staples, In his views 33 514 REAL. PROPERTY. [Chap. 14 For further eojument on these cases, see §§ 311, 318, and notes. For elaborate discussion of the whole subject, see 1 Scribner, Dower, 286-320; 1 Bishop, Married Women, §§ 313, 313; 1 Washburn, Eeal Prop. (5th ed.), 271-276. For "Base or Qualified Fees," see § 37, ante; for "Shifting Fees," see §§ 210-218, ante. § 311. Cases in Which the Widow Has Dower, Although the Husband's Estate of Inheritance Has Come to an End. — These are three in number: 1. When the husband is seised of an estate in fee simple which escheats at his death for want of heirs. In this case the widow is dowable at common law. The estate expires by its regular and natural limitation, and the estate of the widow is regarded as the mere prolongation of the estate of the husband. 1 Scribner, Dower (2d ed.), 286. But now, in Virginia, the statute of descents, in default of all other heirs, allows husband or wife to be heir to each other (§71, ante). So, in the above case, the widow in Virginia becomes the husband's heir, and takes, not dower, but the fee simple by descent. 2. When the husband is seised of an estate-tail, which ends at his death for want of heirs of his body. At common above quoted, there is no reason why this dower estate, or this right of dower, should not he vested in the grantee by the wife uniting with her husband in conveying such an estate to a pur- chaser. It is still true that by uniting with her husband she simply relinquishes a contingent right in the nature of an in- cumbrance upon the land conveyed." And he adds that the West Virginia statute [same in Virginia] should be so construed as to enable the husband to sell and convey his defeasible estate to the greatest advantage, if in so doing the dower estate or inter- est of the wife in the land be not separated from the husband's estate in the land. And this is done by construing the deed of husband and wife conveying a defeasible estate to a purchaser as vesting in him whatever estate or right, either vested or con- tingent, either of them had in such land. §§310,311] DOWER AND CURTESY. 515 law the widow is dowable upon the same principle as under (1) above. Paine's Case, 8 Coke, 34 b; 1 Scribner, Dower, 287. See 1 Washburn, Eeal Prop., 271, where it is said of this case: "It having been an estate of inheritance in the tenant [in tail], his widow, if he dies [without issue], will be entitled to dower, it being by implication of law annexed to such an estate as an incidental part of it — a portion of the quantity of enjoyment designated by the terms of the limi- tation itself." It may be added, that the widow was dowable of a "fee conditional at common law," though it ended on the death of her husband without issue. See 1 Scribner, Dower, 305-7; § 38, ante. This estate still exists in South Carolina. Selman v. Robertson, 46 S. C. 262 (24 S. E. 187) ; Bethea V. Bethea, 48 S. C. 440; 26 S. E. 716). ^ 3. When the husband is seised of an estate in fee simple which is so limited, by way of executory use or executory devise, as to shift, at his death, to another. In this case the widow, by the great weight of authority, is entitled to dower. Thus, if there is a devise by A "to B (the husband) and his heirs; but if B shall die without issue living at his death, ^Fees Conditional in South Carolina. — In the cases above cited, there was no question of dower or curtesy, but the court held that a devise "to A and the heirs of his body," or "to A and the lawful issue of his body," gives to A a fee conditional, which, after birth of issue, A can alienate by deed in his life time. Also that, in such cases, a limitation, "if A die without Issue living at his death, then to B and his heirs," is good as an executory devise. But the question as to curtesy in a fee conditional was raised In Wright v. Herron, 5 Rich. Eq. 441 (S. C. 6 Rich. Eq. 406), and the members of the Court of Errors were equally divided as to whether in South Carolina there was curtesy at all in a con- ditional fee, and "remanded the case to the Chancellors for their own disposition," who gave the husband curtesy. No later case in South Carolina has been found; but to the writer there occurs no reason why the surviving husband should not have curtesy in a conditional fee of the wife, both when she leaves issue, and when it terminates at her death for want of Issue, the issue born alive to the wife dying in her life time. 516 REAL PROPERTY. [Chap. 14 then to C and his heirs" : here on the death of B without such issue the fee simple shifts from B to C, but subject never- theless to a dower right in favor of the widow of B. The same question, mutatis mutandis, arises as to the surviving husband's curtesy (supposing there was issue born alive), and has been decided in favor of the husband's right. The doc- trine has, however, been questioned by text-writers of emi- nence, as contrary to principle. See, in favor of the right to dower, or curtesy, in Shifting Pees, the following cases: Buckmorth v. Thirkell, 3 Bos. & Pul. 652, note (leading case decided by Lord Mansfield) ; Moody v. King, 2 Bing. 447 (9 E. C. L. E. 475) ; Taliaferro v. Burivell, 4 Call (Va.) 321; Jones v. Hughes, 27 Grat. 560; Medley v. Medley, lb. 568; Corr v. Porter, 33 Grat. 278; Snyder v. Grandstaff, 96 Va.; 473 (31 S. E. 647) ; Tomlinson v. Nichell, 24 W. Va. 148; Nichell v. Tomlinson, 27 Id. 697; Evans v. Evans, 9 Pa. St. 190; Thornton v. Erepps, 37 Pa. St. 391 (distin- guished in McMasters v. Negley, 152 Pa. St. 303 (25 Atl. 640) ; Hatfield v. Sneden, 54 N". Y. 80; Northcutt v. Whipp 12 B. Monroe 65; Wehb v. Trustees, 11 Ky. Law 26 (13 S. W. 362) ; Pollard v. Slaughter, 92 N". C. 72 (53 Am. Eep. 402). Contra: Milledge v. Lamar, 4 Dess. (S. C.) 617 Kennedy v. Kennedy, 5 Butcher (N. J.) 185; Edwards v. Bihb, 54 Ala. 475.^ ^ DowEB AND CuBTEsr IN SHIFTING FEES. — Whether, on prin- ciple dower or curtesy should be allowed in a fee simple estate, defeasible on an event which, ipso facto, transfers the estate to another, is one of the difficult problems of the law, and has pro- voked much discussion. At present the right to dower or curtesy in this case is settled by an almost unbroken line of decisions, but it may not be amiss to consider briefly upon what grounds the right has been upheld. Referring to the test laid down in § 310, ante, can it be said, in case of an executory devise of a fee on a fee — the second fee to supplant the first on some event or condition — that the first fee (in which dower or curtesy is claimed) — "ends at the expira- tion of the period originally marked out for its duration, by a natural death, according to its limitations"? Professor Minor §§311,312] DOWER AND CURTESY, B17 § 312. Cases in Which There is no Dower on the Ending of the Husband's Inheritance. — These are three in number : 1. When the husband is seised of land, of which he is evicted during coverture by the title paramount of a third per- son. In this case, as the husband was never rightfully seised, the recovery of the land by the true owner, which destroys aib initio the husband's apparent title, must preclude dower also. seems to be of this opinion, declaring tliat, in the case under consideration, "the husband is entitled to curtesy, notwithstand- ing the determination of his wife's estate, because it is terminated by the regular efflux of one of the periods marked for its dura- tion, and in a manner which does not affect her previous seisin." And it seems that this was Lord Mansfield's ratio decidendi in BueTcwortJi v. Ttiirkell, supra. On the other hand, this view of "regular efflux" is derided by Park (on Dower, 178), who says: "It is certainly inconsistent with all ideas entertained in mod- ern practice to consider an estate originally limited in fee, and abridged by a subsequent limitation over on the happening of a particular event, in any such light as that implied by the ob- servation that it was spent upon the happening of that event." If we accept Park's view as the better (as to the writer seems necessary), then the case under discussion cannot come under the general principle above laid down, and must be regarded as exceptional, and resting on its own peculiar ground. The usual explanation, by judges and text-writers, is thus stated by Mar- shall, J., in Northcut v. WMpp, 12 B. Monroe (Ky.) 65, 74, de- cided in 1851: "Here W. L. Northcut [the husband] had in the land devised to him an estate in fee, defeasible, indeed, on the contingency of his death without leaving lawful issue, but which was an estate of Inheritance in him up to the last moment of his life, and which, unless aliened by him, not only might, but must, have descended on his death to any issue of the marriage then living. . . . Here, as in the case of an estate-tail, the husband may rightfully enjoy the estate during his life, and at his death it is continued in his heirs, if there be any of the des- ignated character. And as the possibility that the wife might have had issue that might have inherited is sufficient, though there be no such issue in fact, to sustain the right of dower, it would seem clear, upon analogy, that, under the rule stated by Littleton, the possibility of such issue should sustain the right in this case of a defeasible fee in the husband." This reasoning 518 REAL. PROPERTY. [Chap. 14 1 Scribner, Dower, 290; 1 "Washbum, Eeal Prop. 267; 2 Min. Ins. (4th ed.) 133. Thus in Glos v. Gerrity, 190 111. 545 (60 ISr. E. 833), it was held that on the cancellation of a tax deed, as a clond on the plaintiff's title, it was proper to decree that the defendant's wife was without interest in the premises, since the inchoate dower right of the wife ended with the termination of the defendant's seisin. 2. When the husband is seised of land of which he is evicted during the coverture by the entry of the grantor to enforce a forfeiture by reason of breach of a condition sub- sequent. In this case, as the seisin of the husband is annulled ah initio, the effect must be to preclude dower. See p. 383, ante^ note; 1 Scribner on Dower, 290; Beardslee v. Beards- lee, 5 Barb. (N. Y.) 335; BlacJc r. Blhhorn, &c. Co., 163 U. S. 445, 453. 3. When the husband is seised of a base, qualified, or de- terminable fee, which ends on the happening of the contin- gency. For examples of such fees, see § 37, ante. In this case, it seems that there is neither dower nor curtesy after the happening of the contingent event, which ends the estate ; though the fact that the estate is base or determinable does not prevent it from being subject to dower or curtesy while it continues to exist. 1 Scribner, Dower, 390, 397; 1 Wash- burn, Eeal Prop., 368 ; Seymour's Case, 10 Coke 96. The above doctrine, as stated by Washburn, that "where the husband is seised of a base or determinable fee, and the same is determined by the happening of the event upon which it is limited, the right of dower on the part of the is objected to by Park (on Dower, 181) on grounds which seem cogent, but the discussion is too long to be reproduced here. Another ground for the doctrine under consideration is thus stated by Preston (3 Prest. Abst. 373), and is adopted as the only satisfactory ground by Gibson, C. J., in Evans v. Evans, 9 Pa. St. 190: "The cases of dower of estates determined by executory devise and springing use owe their existence to the circumstance that these limitations are not governed by common law prin- ciples; and when the limitation over was allowed to be valid § 312] DOWER AND CURTESY. 519 wife or widow thereupon ceases," rests upon slight authority, though it has been received without question by the text- writers generally. Professor Minor, however, declares the doctrine unsound on principle, and that Seymour's Case, ante, on which it is supposed to rest, does not really sustain it. 2 Min. Ins. (4th ed.) 130. Undoubtedly, the ending of a against the former donee, it was on the terms that the limitation over should not impeach the title of dower of the wife of that donee." Of this statement Park remarks dryly (on Dower, 183) : "The writer has not hitherto been so fortunate as to meet with the passages in the books from which this proposition is col- lected." On the whole, the doctrine under consideration seems to have been introduced either through misapprehension, or by forced analogy, or simply as a stretch of judicial favor. It is approved, however, by Washburn, Bishop, and Scribner. (See § 310, ante, for citations.) The latter thus concludes an extended discus- sion (1 Scribner, Dower, 319, 320) : "There seems to be a marked distinction between a case where, by the terms of the limitation, the husband takes a fee simple estate, which, if he have issue liv- ing at his death, will descend to such issue, and which is lim- ited over only in the event of his death without issue, and other cases of conditional limitation. Such a case is closely assim- ilated in principle to the natural determination of the estate for want of heirs generally, and there seems no good reason why the husband's estate should not be so prolonged as to give the right of dower in the one case as well as the other, particularly as it is allowed to estates-tail under similar circumstances, and also to conditional fees at common law." And he adds: "In all the reported cases in which dower or curtesy has been allowed upon estates of this character, the estate was such that the issue of the wife, had there been any, would have been entitled to take by descent. In the cases in which it was denied, the issue could not have taken by descent." Citing Sumner v. Partridge and Barker v. Barker, for which see, ante, § 286, note 2. It must be remembered that it is only when the estate in fee shifts from the consort at death that there is dower or curtesy. There is neither if it is defeasible on an event that may happen during the coverture. 1 Scribner, Dower, 319, 320. See 1 Bishop, Mar. Worn., § 313, where it is said: "If the estate of the husband determines during his life, there is no pretence that under any attending circumstances the widow can have dower." 520 REAL PROPERTY. [Chap. 14 base or determinable fee (as is pointed out in § 37, ante), is by way of limitation, and not condition; it expires at the end of the period originally marked out for its duration; and it would seem, under the general rule laid down in sec- tion 310, ante, that there should be dower or curtesy by way of prolongation of the husband's estate. It is possible that the anomaly (made more marked by the fact that dower or curtesy does attach to what would be a base fee, if, instead of reverting to the grantor or his heirs, it shifted at the consort's death to another by way of executory Limitation) is due to the fact that the event on which a base fee terminates may (and usually does) happen during the coverture; in which case, as we have seen, dower or curtesy is denied, even in a fee which shifts by way of conditional limitation; and a doctrine, proper when applied to these cases, was laid down as applicable to base fees generally. See page 499, ante note. § 313. Widow's Quarantine — Definition and Extent. — By the common law right of dower, the widow, before dower has been assigned her, has no right of entry on the lands of her deceased husband. In order to provide for her a temporary home, it was declared by Magna Charta (A. D. 1215) that the widow "may remain in her husband's capital mansion-house forty days after his death, within which time hex dower shall be assigned." This privilege of the widow, from the number of the days, was called her quarantine. Co. Litt. 34 6; 2 Bl. Com. 135; 2 Min. Ins. (4th ed.) 158; 10 Am. & Eng. Ency. Law 148. And by the sub- sequent charter of Henry III., the support of the widow, during the forty days, from her husband's estate, was in- eluded in her right of quarantine. 2 Scribner, Dower, 55; Simmons v. Lyles, 32 Grat. 752. In the United States, the widow's quarantine has been enlarged by statute, both as to the time of its continuance and as to the property embraced thereunder, the statutes varying in the several States, and from time to time in the same State. Thus the Virginia statute, prior to July 1, 1850 §§312,313] DOWER AND CURTESY. 521 (1 Eev. Code, ch. 107, § 2), was as follows: "And till such dower shall be assigned, it shall be lawful for her [the widow] to remain and continue in' the mansion-house, and the messuage or plantation thereto belonging, without being chargeable to pay the heir any rent for the same." This car- ried quarantine to the farthest limit, both as to time and as to subject-matter. But by the Virginia Code of 1849, taking effect July 1, 1850, quarantine was restricted as to subject- matter, the statute, as reproduced, in the Virginia Code of 1887 (§ 3274), reading as follows: "Until her dower is assigned, the widow may hold, occupy, and enjoy the mansion- house and curtilage without charge^ ; and, in the meantime, she shall be entitled to demand of the heirs or devisees one'- third part of the issues and profits of the other real estate which descended, or was devised to them'; of which she is dowable." This has been further changed by Virginia Acts, 1902-'3-'4, e. 425 (taking effect December 13, 1903), and * QuAEANTiNB IN THE UNITED STATES.' — It Will be Seen that since July 1, 1850, the right of possession by the widow of her hus- band's realty, by virtue of quarantine, is restricted In Virginia to the "mansion-house and curtilage," instead of the "mansion- house and the messuage or plantation thereto belonging," as un- der the former law. Many of the statutes of other States still extend quarantine to the plantation "connected with" or "be- longing to" the mansion-house. Others confine It to the man- sion-house and curtilage, as under the present Virginia law. See 10 Am. & Eng. Ency. Law, 149; 2 Scrlbner, Dower, 56, 57. As to what is embraced under plantation "belonging to," or "connected with," the mansion-house, see McKaig v. McEaig, 50 N. J. Eq. 325 (25 Atl. 181); McAllister v. McAllister, 37 Ala. 484; Gentry v. Gentry, 122 Mo. 202 (26 S. W. 1090). As to the mean- ing of the word "Curtilage," see 8 Am. & Eng. Ency. Law (2d ed.) 527; 2 Minor's Ins. 5. In Dimgan v. Bryant, 14 Ky. Law, 675 (20 S. W. 1100), the Kentucky statute is quoted as providing that the widow shall hold by way of quarantine, in addition to the mansion-house, "the yard, garden, the stable and the lot on which it stands, and an orchard, if there is one, adjoining any of the premises aforesaid" — which seems to be an attempt to define "curtilage." As to "messuage," see Grimes v. Wilson (Ind.), 4 Blackf. 331; OrricTc v. RoiUns, 34 Mo. 226. 522 REAL, PROPERTY. [Chap. 14 the statute as to quarantine now reads as follows : "Until her dower is assigned, the widow may hold, occupy, and enjoy the mansion-house and curtilage without charge for rent, repairs, taxes, or insurance; and in the meantime she shall be entitled to demand of the heirs, devisees, or alienees, or any of them, one-third part of the issues or profits of the other real estate which descended, or was devised, or passed, to them, of which she is dowable, after deducting the cost of necessary repairs, taxes, and insurance." The policy of the Virginia statute is to provide a reason- able support for the widow during quarantine, but to shorten its continuance by making it to the interest of the heir to assign dower promptly. For until dower is assigned, the widow has all of the mansion-house and curtilage, and one- third of the profits of the other lands, which is more than she would receive by way of dower. The statute thus "puts a coal of fire on the terrapin's back." § 314. Widow's Quarantine — Nature and Incidents. — When the vpidow's quarantine continues until her dower is assigned her, as it does in many of the States, it might seem to be an estate of freehold, as being "of indefinite duration, with a possibility of lasting for her life." See § 9 ante. And this view was once taken in ISTew Jersey. Ackerman v. Shelp, 8 ISr. J. Law, 125; Craige v. Morris, 25 N. J. Eq. 467. But the law is now settled that the widow's quarantine interest does not rise to the dignity of a freehold estate, but is in the nature of an estate at will. This is held in Simmons v.iLyles, 32 Grat. 752, where it is said by Staples, J. : "Whilst under the statute she has the privilege of occupying the mansion-house, it is at the pleasure of the owner of the fee. He may enter at any time, assign dower, and put an end to her possession and interest. A possession thus held at the will of another is of too precarious a nature to be termed a freehold estate in land. * * * The effect of the statute is merely to extend the quarantine. The object, manifestly, was to coerce the heir to assign dower; and, until this was §§313,314] DOWER AND CURTESY. 523 done, to protect hex in the enjoyment of the homestead and the rents and profits accruing therefrom." And see Gains v. Crenshaw, 6 Ala. 873; Inge v. Murphy, 14 Ala. 389; Boach V. Davidson, 3 Brev. (S. C.) 80; Spinning v. Spinning, 41 N. J. Eq. 427 (affirmed 43 N. J. Eq. 315) ; Wallis v. Smith, 10 Miss. 230; Aiken v. Aiken, 12 Or. 203 (6 Pac. 682); Grubbs v. Leyendecker, 153 Ind. 348 (53 IST. B. 940). The widow's quarantine being merely a privilege of posses- sion, analogous to an estate at will, the question has arisen whether, like an estate at will, it is non-assignable by the widow. On this point the authorities are in conflict. See 2 Scribner, Dower, 64; 10 Am. & Eng. Ency. Law, 148. The general doctrine is that quarantine is a personal privilege of the widow, and incapable of alienation by her, as it is incapable of involuntary alienation by levy and sale for her debts. Wallis v. Smith, 10 Miss. 230; CooJo v. Wehh, 18 Ala. 810; Norton v. Norton, 94 Ala. 481 (10 South 446); GruUs V. Leyendecker, 153 Ind. 348 (53 N. E. 940). But the contrary view prevails in Missouri and New Jersey. Stokes V. McAllister, 2 Mo. 163; Carey v. West, 139 Mo. 146 (40 S. W. 661); Craige v. Morris, 25 IST. J. Eq. 467. And even in those States where the doctrine of non-assign- ability prevails, there is a disposition to relax its severity in favor of the widow, so as to allow her to receive the rents from a sub-lessee, or from one to whom she gives a permis- sive possession. Doe v. Bernard, 7 Sm. & M. (Miss.) 319; Inge v. Murphy, 14 Ala. 289; Davenport Y. Deveneaux, 45 Ark. 341; Hyser v. Stoker, 3 B. Mon. 117. For discussion of the subject, see 2 Scribner, Dower, 64; Craige v. Morris, 25 ISr. J. Eq. 465, 468. In Virginia, in McBeynolds v. Counts, 9 Grat. 243, it is said of the widow's quarantine: "She might occupy the land herself, or allow another to do it for her. It was therefore error to direct an account of rents and profits whilst it was so held, either by her or by Isaac McEeynolds, with her permission." It will be seen that this falls short of deciding that the widow had full power of alienation. 524 REAL PROPERTY. [Chap. 14 It is well settled that the possession of the widow Tinder her right of quarantine is in privity with, and not adverse toj the heirs or devisees of the husband. Porter v. Williams, 3 A. K. Marsh (Ky.) 1113; Carey v. West, 139 Mo. 146 (40 S. W. 660) ; Eannon v. Eounihan, 85 Va. 439 (13 S. E. 157); Hulvey v. Hulvey, 93 Va. 183 (23 S. E. 333). See, as to the general principle, page 156, note 1, ante. But see Carpenter v. Garrett, 75 Va. 139, 135, where the widow's possession under her quarantine is spoken of as "in a certain sense adverse," so as to prevent the actual seiesin of the heir- ess, necessary to give her husband curtesy. It remains to inquire how the widovsr's quarantine may ter- minate. Of course, when its duration is fixed by statute, it expires by efBux of time. And when it is to contiaue until dower is assigned her, it terminates upon such assignment. The right may also, doubtless, be waived or abandoned by the widow; and an absolute assignment, where she has no power to assign, has been held to work a forfeiture of her quarantine in favor of the heir. Wallace v. Hall, 19 Ala. 367. Whether a widow's marriage works a forfeiture of quarantine under the American statutes, as it did in England, is doubtful. Professor Minor (3 Min. Ins. 158) is of opinion that the quarantine would be forfeited in Virginia because the word "widow," used in the statute, "imports a continuance of the state of widowhood, so that if she marries she forfeits the special provision, and can only fall back on her dower." And see 1 Lorn. Dig. (91). 8ed queer e. In Alabama and Ken- tucky, it has been held that the widow's re-marriage does not affect her privilege of quarantine. Shelton v. Carrol, 1 Ala. 148; White v. Clarice, 7 T. B. Mon. (Ky.) 641. And see 3 Scribner, Dower, 65, where McBeynolds v. Counts, 9 Grat. 343, is cited for the proposition that in Virginia a widovr's marriage does not cause forfeiture of her quarantine, but the case is not in point, unless by rather remote inference. §§314,315] DOWER AND CURTESY. 525 § 315. Widow's Cluarantine — Privileges and Obligations. — Under this head must be considered (1) Eents and Profits (crops, etc.) ; (3) Taxes; and (3) Interest on Bneumbranees. 1. Rents and Profits. — As we have seen, the Virginia Statute now declares (p. 504, ante), that "until her dower is assigned, the widow may hold, occupy and enjoy the mansion- house and curtilage without charge for rent, repairs, taxes, or insurance." This is the universal rule as to rent, both when the quarantine is confined to the mansion-house and curtilage, and when it extends also to the plantation "con- nected with" or "belonging to" the "mansion-house." And holding the premises "without charge for rent," the widow is entitled to all the profits derivable therefrom by cultivation (crops, etc.) ; and if another occupies for her, or as her lessee, paying rent, she is entitled to such rent. If, however, at the husband's death, the premises are in possession of his lessee, the widow's quarantine will not attach until the lease expires. McReynolds v. Counts, 9 Grat. (Va.) 243 Merchant v. Comback, 41 N. J. Bq. 349 (7 Atl. 633) Becker v. Carey (N. J. Bq.), 36 Atl. 770; Gentry v. Gentry, 132 Mo. 302 (26 S. W. 1090) ; Smith v. Stephens, 164 Mo 415 (64 S. W. 360) ; Callahan v. Nelson, 138 Ala. 671 (39 South 555) ; Stull v. Graham, 60 Ark. 461 (46 S. W. 46) Davis V. Lowden, 56 IsT. J. Bq. 126 (38 Atl. 648). But in Salinger v. Black, 68 Ark. 449 (60 S. W. 329), it was held that where the widow was also administratrix, and charged herself, in her annual settlements, with the rents of the land to which she was entitled by right of quarantine, she thereby waived her right to such rents, and was not entitled to a credit therefor. We have seen that the widow is entitled to cultivate the land, and take the crops, during her quarantine. But how as to the crops sown by the husband, and reaped or gathered after his death? On this point, there is but little authority. The question might have arisen in Grayson v. Moncure, 1 Leigh (Va.) 449, but the case was disposed of on other grounds. In Blair v. Murphree, 81 Ala. 454 (3 South. 18), 526 REAL PROPERTY. [Chap. 14 the right to crops sown by the husband, which the administra- tor might have exercised, was under a statute declaring that "the executor or administrator may complete and gather a crop commenced by the decedent." On principle, it would seem that the widow's quarantine should entitle her to such crops, just as "where lands which have been sown with corn and grain are assigned to the widow for dower by the heir, she will be entitled to the crops." 2 Scribner, Dower, 89, 778. And, see Engle v. Bngle, 3 W. Va. 246. 2. Taxes. — It is well settled that when dower is assigned to a widow, she is lable for the taxes thereon, as in any other life tenant (32 L. E. A. 744, note). But this principle does not extend to the widow's quarantine, which, as we have seen, is not a freehold estate (§ 314, ante) ; and as between the widow and the heir, the burden of taxes during quarantine, falls on the heir. As is said in Simmons v. Lyles, 32 Grat. 752, 758 : "In all this the heir has no just cause of complaint. If he is unwilling to pay the taxes while the widow is in occupation of the mansion-house, all he has to do is to assign her dower, and thus relieve himself of the taxes on one-third of the estate." See, in accord. Spinning v. Spinning, 41 E". J. Eq. 427 (5 Atl. 278), affirmed in 43 A^. J. Eq. 215 (10 Atl. 270) ; Smith v. Stephens, 164 Mo. 415 (64 S. W. 260) ; 10 Am. & Eng. Ency. Law, 150; 2 Scribner, Dower, 63. But the land is liable for taxes by virtue of the State's lien, even when held by right of quarantine.^ But if, through the default of the heir, the widow, to save her estate, is com- pelled to pay what the law requires him to pay, she may compel him to refund the amount so paid by her for his benefit. Simmons v. Lyles, ante. 3. Interest on Encumbrances. — It has been seen that when ^LiEN FOE Taxes.— The Virginia statute (Acts 1902-3-4, p. 660, set out, in part on p. 504, ante), which exempts the widow during quarantine from the payment of the taxes, expressly declares (at the end) : "That nothing in this act shall be construed to impair the lien, or delay the enforcement thereof, of the State, city or county for the taxes assessed upon the said property." §§315,316] DOWER AND CURTESY. 527 dower has been assigned a widow, she mnst pay the interest on one-third of a mortgage or other encumbrance paramount to dower (§ 309, ante). But in the exercise of her right of quarantine, the widow is not bound to pay interest on such encumbrances ; and this duty rests on the heir alone. But he can, at any time, devolve upon the widow her proportion of the burden by assigning her dower. Cronley v. Gronley, 40 N. J. Eq. 40; Becher v. Carey, (IST. J. Eq.) 36 Atl. 770; Gentry v. Gentry, 122 Mo. 202 (26 S. W. 1090) ; 10 Am. & Eng. Ency. Law, 150. As to the widoVs remedies in the matter of her quarantine, there is great diversity in the several States. The old rem- edy was a writ de quarantina habenda. See Aiken v. Aiken, 13 Ir. 203 (6 Pac. 682). The remedy in the United States now is usually unlawful entry or detainer, or ejectment. In Virginia, by the statutes in force since July 1, 1850 (retained in Virginia Acts 1902-3-4, p. 660, amending quarantine) : "If she [the widow] be deprived of such mansion-house and curtilage, she may, on complaint of unlawful entry or de- tainer, recover the possession thereof, with damages for the time she was so deprived." § 316. Widow's Tlnassigned Dower — Nature and Incidents. — The nature of the wife's inchoate right of dower, during the coverture, has already been discussed (p. 438, ante, note; also Z 304). We have now to consider the nature of the widow's right to dower, when consummate, indeed, by the death of her husband, but as yet not assigned to her. This is well stated in Gruhbs v. Leyendecker, 153 Ind. 348 (53 IST. E. 940) : "The right to have dower assigned, and dower assigned and set apart, are very different matters. The latter does constitute an estate for the life of the dowress. But the right to dower, while it remains unassigned, is not an estate, but a chose in action — a consummate right merely, not subject to execution, nor to the payment of taxes, nor to lease. By the common law, the widow cannot enter for her dower until it is assigned to her, nor can she alien it so as to 528 REAL, PROPERTY. [Chap. 14 enable the grantee to sue for it in his own name. She has no estate in the land until assignment; and after the expira- tion of her quarantine [when not until dower assigned^, the heir may put her out of possession, and drive her to her suit for dower. It is not until her dower has been duly assigned that the widow acquires a vested estate for life, which will enable her to sustain ejectment. She is not in consequence of her right of dower a tenant in common with the heirs or devisees." For these propositions, many cases are cited. See, in accord, 2 Scribner, Dower, 25-51; 10 Am. & Bng. Ency. Law, 146, 148. 1. No Right of Entry on Unassigned Dower. — At common law, on the death of the husband, the seisin is cast upon the heir. Until her dower is assigned her, the widow has neither seisin in law, nor a right of entry. Simmons v. Lyles, 32 Grat. 752; Maslcell v. Sutton, 53 W. Va. 206 (44 S. E. 533). This denial of the right of entry to the widow is called by Scribner "an anomaly in the rules of the common law," and is thus explained by him : "The reason of the law in denying any right of entry in the wife [widow], although her title is consummate, is to be found in the injustice which would arise from permitting her to be her own judge of the par- ticular lands which she should have for her dower — "to carve for herself," as Gilbert, C. B., expresses it; while, on the other hand, the law in favor of the widow, would not subject her to the inconvenience of holding an undivided part in common for her dower, where the nature of the property admitted of an endowment in severalty." 2 Scribner, Dower, 27, 28. And as the widow before assignment of dower has MO estate in the land, she cannot file a bill for partition, and for sale of the land and dower in the proceeds, if dower in kind be impracticable. She is not a tenant in common with the heir or devisee. Grubbs v. LeyendecJcer, supra; White v. White, 16 Grat. 264 (80 Am. Dec. 706) ; Eurste v. Hotaling, 20 Neb. 178 (29 IST. W. 299) ; Walher v. Doane, 131 111. 27 (22 ISr. E. 1006) ; Hull v. Eull, 26 W. Ya. 1; HobacTc v. §316] DOWER AND CURTESY. 529 Miller, 44 W. Va. 635 (29 S. E. 1014) ; Hashell v. Sutton, 53 W. Va. 206 (44 S. E. 533). ^ ^ Assignment of Dowee in a Paetition Suit. — For the Virginia statute and decisions as to partition, see § § 162-164, ante, and notes. It is settled tliat the widow is not a "tenant in common, joint-tenant, or coparcener," with the heir or devisee, within the usual language of the partition statutes; and she cannot, there- fore, by virtue of her right to have dower assigned her file a bill for partition in order to obtain therein either the assignment of her dower in kind, or a sale and dower in the proceeds. Her rem- edy is in a proceeding brought directly for her dower. See, in ad- dition to authorities cited in § 316, 2 Soribner, Dower, 32, 176, note; 21 Am. & Eng. Ency. Law, 1155; Goles v. Goies, 15 Johns (N. Y.) 319; LiederTcrans Society v. Beck, 8 Bush. (Ky.) 597; Rey- nolds V. McCurry, 100 111. 356; 1 Lomax Dig. 92. It has also been held, under the general statutes of partition, that a widow's right to dower does not make her a proper party defendant to a suit for partition brought by one of the heirs as a coparcener; that her right to dower is paramount, and will attach, on partition, to the shares assigned the heirs in severalty, but that it is no bar to the partition. 21 Am. & Eng. Ency. Law, 1155; 15 Ency. PI. & Prac. 797; Bradshaw v. Callaghan, 5 Johns (N. Y.) 78; S. C. 8 Johns 435; Ward v. Gardner, 112 Mass. 42; Leonard v. Motley, 75 Me. 418. But this inconvenient rule, which compels the widow to seek her dower in separate suits against the several heirs or devisees, instead of obtaining it, once for all, in the par- tition proceeding, has been changed by statute in a number of the States. Thus, in Ohio, by statute, in proceedings for partition, a widow entitled to dower must be made a party; and the commis- sioners who make the partition are required to set off to her the share to which she is entitled. And the same is the law in Illi- nois and other States. See 2 Scribner, Dower, 187, 188; Barclay V. Kerr, 110 Pa. St. 130; Green v. Putnam, 1 Barb. (N. Y.) 500. And in Virginia it is held, without the aid of statute, that upon a bill filed by an heir for partition, when the widow is alive and en- titled to dower, she should be a party to the suit, and her dower should be assigned her, and partition made of the residue; and that it is error to proceed in her absence, and make partition of the land subject to her right of dower. Custis v. Snead, 12 Grat. 260. And see Hurste v. Botaling, 20 Neb. 178 (29 N. "W. 299). And in White v. White, 16 Grat. (Va.) 264 (80 Am. Dec. 706), it is held, under the general powers of a court of equity that where 34 530 REAL PROPERTY. [Chap. 14 2. Unassigned Dower Inalienable by Widow. — It is well settled that at law, in the absence of statute, a widow^s unas- signed dower, being no estate, but a right in the nature of a chose in action', cannot be conveyed by hex, except by way of release to the terre tenant (i. e., heir, devisee, or alienee) . 2 Scribner, Dower, 43; 10 Am. & Eng. Bncy. Law 147. But equity will enforce such an assignment, and the right to assign is sometimes conferred by statute, and has been recog- nized in some of the Code States. Brandon v. Wilkinson, (Ala.) 9 South. 187; Weaver v. Bush, 62 Ark. 51 (34 S. W. 256) ; Hoolc v. Garfield Goal Go., 113 la. 310 (83 IST. W. 963) ; Union Brewing Go. v. Meier, 163 111. 434 (45 N". E. 364) ; Sells v. McAnaw, 1'38 Mo. 367 (39 S. W. 779) ; Par- ton V. Allison, 111 N. C. 439 (16 S. E. 415) ; Morgan v. Blatchley, 33 W. Va. 155 (10 S. E. 383). Most of the above cases, while denying the alienability of unassigned dower at law, recognize that equity will enforce such assignment. That the widow may release at law to the terre tenant, see Saunders v. Blythe, 113 Mo. 1 (30 S. W. 319) ; Lewis v. King, 180 111. 359 (54 N. E. 330) ; Tucher X. Tucher, (Tenn.) 45 S. W. 344. In Missouri, the vridow's a widow is made a party defendant to a bill for partition filed by an heir, the court may assign her dower in such suit in kind; or if this be impracticahle, may decree a sale of the whole property, and assign her dower in the proceeds. (See as to sale, § 319, infra, and note.) But as the widow is not within the purview of the statute of partition, no power of sale of the whole property is de- rived therefrom; and if dower in kind be not impracticable, the court cannot order a sale of the whole property under the statute of partition. Code of 1849, eh. 124, § 2, declaring that this may be done "if the interest of the parties will be promoted by a sale of the entire subject." But unless the widow consents to such sale, and a monied compensation out of the proceeds, she must have her dower in kind; and the sale, for division among the heirs, must be of the residue of the property subject to her dower thus assigned; i. e., two-thirds of the estate in fee simple, and the reversion in fee after the life estate of the widow in the other third. §316] DOWER AND CURTESY. 531 assignee may now^ by statute, bring ejectment, in his own name, to have dower assigned. Cassidy v. Pound, 167 Mo. 605 (67 S. W. 283). In Minnesota, the widow's assignee may, under the Code, sue in his own name. Doiberstein v. Murphy, 64 Minn. 127 (66 N. W. 204). See, also, Strong V. Clem, 12 Ind. 37 (74 Am. Dec. 200); Payne v. Becker, 87 N. Y. 153; Serry sr. Curry, 26 Neb. 353 (4 N. W. 97). But in Galhraith v. Fleming, 60 Mich. 403 (27 K W. 583), it is held that the statute empowering any assignee of any chose in action to sue and recover in his own name does not authorize the assignee of a widow's unassigned dower to bring ejectment against the heir to compel its assignment. 3. Unassigned Dower is not Liable at Law for the Widow's Debts. — It is settled that unassigned dower, for the same reasons that it is not alienable at law by the widow, is not liable to involuntary alienation at law, by levy and sale on execution, for the widow's debts. 2 Scribner, Dower, 39; 23 L. E. A. 647, note. But in Missouri it is provided by statute that a creditor of a widow may have her dower assigned, and thus render it liable to execution at law for her debts. Waller V. Mardus, 29 Mo. 25. Whether in equity a widow's unassigned right of dower can be, by creditors' bill or otherwise, subjected to the pay- ment of her debts, in the absence of a statute authorizing it, is a much-mooted question. In recent decisions, the answer has been thought to depend on whether equity, in the absence of statute, can subject choses in action to the payment of debts — itself a disputed point. The trend of authority is at present against the right of equity, in the absence of statute, to subject her unassigned dower to the payment of a widow's debts. See, on the whole subject, 2 Scribner, Dower, 47; 2 Pom. Eq. (2d ed.), § 1383; Ager v. Murray, 105 U. S. 126, 129; Greene v. Keene, 14 E. I. 388 (51 Am. Eep. 400); Maxon v. Cray, 14 E. I. 641 ; Maxon v. Bishop, 15 E. I. 475 (8 Atl. 696) ; Boltz v Stoltz, 41 Ohio, 540; Payne v. BecTcer, 87 N. Y. 153; McMahon v. Gray, 150 Mass. 289 (22 N. E. 923, 15 Am. St. Eep. 202, 5 L. E. A. 748) ; Harper v. Clay- 532 REAL, PROPERTY. [Chap. 14 ton, 84 Md. 346 (35 Atl. 1083, 57 Am. St. Eep. 407, 35 L. E. A. 311) ; Baer v. Ballingall, 37 Or. 416 (61 Pac. 852). §317. Assignment of . Dower — ^Procednre. — By Virginia Acts 1895-'96, c. 270, p. 309, amending § 2275 of the Code of 1887: "Dower may be assigned as at common law; or, upon the motion of the heirs, devisees, or alienees, or any of them, the court in which the will of the husband is ad- mitted to record, or administration of his estate is granted, or the conveyance of the alienee is recorded, may appoint com- missioners by whom the dower may be assigned, and the assignment, when confirmed by the court, shall have the same effect as if made by the heir at common law; but nothing herein contained shall be construed to take away or affect the jurisdiction which courts of chancery now exercise on the sub- ject of dower." At common law an action of ejectment would not lie to recover dower because, before assignment, the widow had no right of entry (§ 316, ante). But this is changed in Vir- ginia by Code 1849, c. 110, § 10 (Code 1887, § 2276), de- claring : "A widow having a right of dower in any real estate may recover the said dower, and damages for its being with- held, by such remedy at law as would lie on behalf of a tenant for life having a right of entry." And by Code 1887, § 2750 : "If the action [ejectment] be brought to recover dower, which has not been assigned before the commencement of such action, the court in which the judgment is rendered may have dower assigned by commissioners appointed for that pur- pose." 2 Min. Ins. 162; Hulvey v. Hulvey, 92 Va. 182. For recovery of dower by ejectment under the statutes of other States, see 10 Am. & Eng. Ency. Law, 173; 7 Ency. PL & Prac. 284; 18 L. E. A. 790, note. The old actions to recover dower — viz., the writ of right of dower, and the writ of dower unde nihil habet, are abolished or obsolete in the United States generally (7 Ency. PL and Prac. 284; 2 Min. Ins. (4th ed.) 161); and the modes of assignment of dower, besides ejectment above referred to, §§316,317] DOWER AND CURTESY. 533 are (as recognized by the Virginia statute above) three in number: (1) by the tenant of the freehold, as at common law; (2) by summary proceeding in court on motion; and (3) by a bill in equity. Of these in their order: 1. Dower Assigned in Pais by the Tenant of the Free- hold. — It is well settled at common law that immediately on the husband's death the duty devolves upon the heir or other tenant of the freehold to assign the widow her dower; and that this may be done in pais, without resort to Judicial pro- ceedings. Moreover, the assignment may be by parol. Coke Litt. 35a; Pearce v. Pearce, 184 111. 389 (56 IST. E. 311) ; and though the widow thereby becomes seised of a freehold estate, no livery of seisin is necessary. For, as stated by Park (on Dower, 269) : "Although no estate is vested in the dow- ress until the certainty of the land is ascertained by assign- ment, yet as the estate, although suspended in the meantime, does not -pass by the assignment, but the dowress is in, in in- tendment of law, by her husband, neither livery nor writing is essential to the validity of the assignment." (See § 288, ante). But only the tenant of the freehold could thus voluntarily assign dower, as indeed only such tenant was legally com- pellable to assign it. This doctrine grew out of the nature of the real actions for the recovery of dower, and was intended for the protection of the inheritance. It is, however, still law, unless changed by statute; and, therefore, a tenant for years cannot assign dower. Brost v. Hall, 52 N. J. Eq. 68 (28 Atl. 81). But dower may be assigned by the heir, de- visee, alienee of the husband, alienee of the heir, and even by a disseisor. See, on the whole subject, Coke Litt. 35a; 2 Scribner, Dower, pp. 71-89; 10 Am. & Eng. Ency. Law, 171-2; Austin v. Austin, 50 Me. 74 (79 Am. Dec. 597, and note, p. 600) ; 39 Am. St. Eep. 32, note; Miller v. Beverly, 1 H. & M. (Va.) 367; Moore v. Waller, 2 Eand. (Va.) 418; Lenfers v. Eenlce, 73 111. 405 (24 Am. Eep. 263) ; Robinson V. Miller, 1 B. Mon. (Ky.) 88.i ' DowBE Assigned in Pais by the Tenant op the Fbebhold — 534 REAL. PROPERTY. [Chap. 14 2. Dower Assigned iy Summary Proceeding in Court on Motion. — The Virginia statute is set out above, § 317. Simi- lar statutes are found in the United States generally, pro- vidiag a summary note for obtainiag the assignment of dowser by application to courts having jurisdiction of probate Must Widow Assent Theeeto? — There is no douht that the assign- ment of dower against common right (see § 318, post) is not bind- ing on the widow without her acceptance (Park, Dower, 266; Roper, Husband and Wife, 392; 2 Scribner, Dower, 82); but whether her acceptance is necessary when the heir, or other ten- ant of the freehold, assigns her dower according to common right (e. fir., in kind, by metes and bounds, in the land itself of which she is dowable ) appears uncertain. That the assignment when made according to common right is good without the widow's as- sent is inferable from the above authorities declaring that when against common right it must be made with the widow's assent, but prescribing no such condition in the former case. On the other hand. Lord Coke (Coke Litt. 32 6; 2 Tho. Co. 589) says of dower at common law : "There must be assignment, either by the sheriff, by the King's writ, or else by the heir or other tenant of the land, by consent and agreement between them"; i. e., consent and agree- ment between the widow and heir. And that the widow's consent is necessary, see, also, Austin v. Austin, 50 Me. 74 (79 Am. Dec. 597); ClarJc v. Muzzey, 43 N. H. 59; 10 Am. & Bug. Ency. Law, 172. The true doctrine (in the absence of statute requiring the wid- ow's consent, (as to which see 2 Scribner, Dower, 72) is be- lieved to be that the heir's (or other terre tenant's) assignment of dower to the widow, according to common right, does not require her assent to be prima facie valid and binding; but nevertheless, if she has not assented to it, she may set it aside if it be inade- quate or unfair. This much could hardly be denied the widow, as the dower is assigned her by one whose interest is adverse to hers. Thus Blackstone says (2 Com. 136) : "If the heir or his guardian do not assign her dower within the term of quarantine, or do assign it unfairly, she has her remedy at law, and the sher- iff is appointed to assign.'' And in 2 Scribner, Dower, 71, it is said : "The person on whom the right or duty is devolved of mak- ing the assignment may at once proceed to set apart to the widow her proportion of the estate; and, if this he fairly done, it is as effectual and binding as if performed under a judgment or decree of the court." This certainly implies that if not fairly done, the widow is not bound, unless indeed she is estopped by her accept- §317] DOWER AND CURTESY. 535 matters. See 3 Scribner, Dower, 175-204; 7 Ency. PI. & Prac. 186. The Virginia statute is part of the revision of 1849, and gives legislative sanction to a proceeding already in vogue, and which had been approved by the Court of Appeals as tantamount to the heir's assignment at common law. See Moore v. Waller, 2 Band. 418, 422, where it is said : "It is no objection that the assignment in this case was made by commissioners, under an order of the county court. That order was made at the instance of the heir, and the assignment by them was his assignment." And, see Eeport of Revisors, 1849, p. 566, note. But it is held in Virginia that the motion, following the language of the statute, must be made by the "heirs, devisees, or alienees, or any of them," and cannot be made by the widow. Raper v. Sanders, 21 Grat. 74; Helm v. Helm, 30 Grat. 404, 414. And, see Jones Y. Pox, 20 W. Va. 3770. But the objection that the motion was not made by an heir, devisee, or alienee, cannot be made for the first time in an appellate court. Parrish v. Parrish, 88 Va. 529, 532. 3. Dower Assigned by Bill in Equity. — It is now settled that equity has, in all cases, concun-ent jurisdiction with courts of law to assign dower in legal estates, and esclusive jurisdiction over dower in equitable estates. 2 Scribner, Dower, 145-173. And, see 2 Pom. Eq., § 1382, where it is said : "Although it was at one time supposed that the juris- diction of equity was ancillary, and could not attach in the absence of impediments at law, it is now well settled that courts of equity have concurrent jurisdiction in cases of legal dower, or dower in legal estates. The advantages of equitable procedure are obvious. An outstanding term could be re- moved and satisfied; a partition in the case of undivided interests could be decreed, and an account could be taken; ance. And in Moore v. Waller, 2 Rand. (Va.) 418, it Is said: "The widow is bound to accept an assignment made by him [the heir], provided it be a full and just assignment." For discussion of the subject, see note to Sanders v. MoMillian (Ala.) 39 Am. St. Rep. 32. 536 REAL. PROPERTY. [Chap. 14 fraudulent conveyances could be cancelled; and antagonistic claims to the subject matter could be determined without multiplicity of suits." And see Campbell v. Murphy, 55 N". C, 357. In Virginia, the Act of 1895-'96, c. 270, providing for pro- ceeding to assign dower on motion (§ 317, ante) expressly preserves the jurisdiction of courts of chancery. And, C. V., § 2376 (p. 516 ante), providing that a widow may bring eject- ment for the assignment of her dower also expressly declares, as an alternative, that she "may recover the said dower and damages for its being withheld by a bill in equity, where the case is such that a bill would now lie for dower" — which Pro- fessor Minor believes (no doubt correctly) to be "in all cases." See 2 Min. Ins. (4th ed.) 162. Also, Campbell Y. Murphy, 55 N. C. 357. § 318. Dower According to Common Right. — This signi- fies the widow's right of dower by the common law, to which she is entitled of common right, unless by agreement with the heir, or other terre tenant, she has waived her com- mon-law right, and consented to be otherwise endowed. When this is the case, she is said to be endowed against common right. 2 Tho. Co. 459-462 ; Park on Dower, 250 ; 1 Eoper, H. & W. 236 ; 2 Scribner, Dower, 80. The widow's common-law right of dower is thus stated by Littleton (§ 36) : "The wife, after the decease of her hus- band, shall be endowed of the third part of such lands and tenements as were her husband's at any time during the cover- ture, to have and to hold to the same wife in severalty by metes and bounds for term of her life." This is dower in hind (i. e., parcel of the lands themselves) ; and this is still recognized as the dower right of the wife, unless it be imprac- ticable to accord her possession in severalty, by metes and bounds, of that of which she is dowable.^ When dower in ^ DowEB IN Kind. — In the quotation from Littleton above, it is said that "the wife shall he endowed of the third part of such lands and tenements," etc. But this does not mean the third part §§317,318] DOWER AND CURTESY. 537 kind is impracticable, the common law provides a different mode of endowment ; but this different mode is still "accord- ing to common right," because the widow has no right to be otherwise endowed. When, however, dower in kind is prac- ticable, then any other mode of endowment is "against com- mon right." Thus Lord Coke, after quoting Littleton as above, says (3 Tho. Co. 581) : "Albeit, of many inheritances that be entire, whereof no division can be made by metes and bounds, of the lands by measurement merely (as 100 acres out of 300), nor the third part of the fee simple value; for, in the first place, the land assigned the widow might he barren and well-nigh worthless, and, in the second place, though its fee simple value might be great (as unimproved property in a city), yet little or no income might be derivable therefrom. And the law looks to the annual produce or income as a provision for the widow's support. The rule as to assignment is thus laid down in Leonard v. Leon- ard, 4 Mass. 533 : "In the assignment of dower, commissioners are to regard the rents and profits only of the several parcels of the estate out of which dower is to be assigned. When they have as- certained the annual income of the whole estate, they ought to set off to the widow such a part as will yield her one-third part of such income, in parcels best calculated for the convenience of her- self and of the heirs. This rule is adapted equally to protect widows from having an unproductive part of the estate assigned to them, and to guard heirs from being left, during the life of the widow, without means of support." See, in accord, 1 Bishop, Mar. Worn. § 334; 2 Scribner, Dower, 599; 10 Am. & Eng. Ency. Law, 185; 39 Am. St. Rep. p. 35 note; Bmith v. Smith, 5 Dana (Ky.) 179; Devaughn v. Devaughn, 19 Grat. 556, 557. In Fuller v. Conrad, 94 Va. 233 (26 S. E. 575) the court, after quoting with approval the rule laid down in Leonard v. Leonard, supra, proceeds as follows: "These principles have not been ob- served in this case. The court In its decree, and the commission- ers in their report, seem to have regarded the fee simple value alone in determining the widow's rights. The estate in which the appellant is entitled to dower is valued at $69,750, and consists al- most entirely of highly improved city property. Of this $23,250 in fee simple value is assigned the widow, in which assignment is included the only property without power to produce income be- longing to the estate, valued at $6,250, thus imposing upon the 538 REAL PROPERTY. [Chap. 14 yet a woman shall be endowed thereof in a special and cer- tain manner. As of a mill, the widow shall not be endowed by metes and bounds, nor in common with the heir, but either she shall be endowed of the third toll dish, or of the entire mill for cTery third month."^ This is evidently considered by Coke to be dower according to common right, and it is so treated by both Park (on Dower, 115) and Roper (on Hus- band and wife, 339). Here dower in kind is impracticable, widow a burden in taxes, without the benefit of any income, from more than one-fourth of the property assigned her, while all of the $46,500 worth of property reserved to the heirs has income produc- ing capacity. The record clearly shows that under the division made the appellant falls short of getting her just proportion of the estate in rental value." As a detail of assignment it may be added that it is well settled that, in the absence of statute, the widow cannot demand as a mat- ter of right that the mansion-house be included in her dower, though this is usually and properly done if the widow desires it. Quarantine gives a right to the possession of the mansion-house (§ 313, ante), but not dower. Park on Dower, 254; 2 Scribner, Dower, 81, 600; 39 Am. St. Rep. 34, note; Taylor v. Lusk, 7 J. J. Marsh (Ky.), 636; Dungan v. Bryant, 20 S. W. 1100; Devaughn v. Devaughn, 19 Grat. 556. ^Special Endowmext. — Coke adds to the quotation above: "A woman shall be endowed or the third part of the profits of stall- age [i. e., liberty of having stalls in a fair or market]; of the third part of the profits of a fair; of the third part of the profits of the office of marshal-sea; of the third part of the profits of the keeping of a park; of the third part of the profits of a dove- house; and likewise of the third part of a piscary — viz., the third fish or the third cast of the net; of the third presentation to an advowson." And, see Macaulay v. Dismal Swamp Land Co., 2 Rob. (Va.) 507, 524, where it is said of the widow's dower: "Her essential right is to the profits of one-third of her husband's real estate of inheritance, whereof he was seised at any time during the coverture; and she is entitled for that purpose to the several possession of one-third of the subject, if susceptible of a division by metes and bounds. If the subject be not so partible, still she Is admitted to her due participation of the profits; and the mode of enjoyment is adapted to the nature of the case. The nature of the property [i. e., whether corporeal or incorporeal, see §§ 5, 6, §318] DOWER AND CURTESY. 539 from the nature of the property. But it may also be im- practicable from the nature of the husband's estate in the property, as when he dies seised of land held in common or in coparcenary. Here the wife cannot have her dower as- signed by metes and bounds in severalty; but an undivided third part of the share of her husband is assigned her to hold in common with the husband's heir, and the other co-tenant or co-tenants. Park, on Dower, 115; 3 Scribner, Dower, 80; Parrish y. Parrisli, 85 Va. 529 (14 S. E. 529). And yet this is dower "according to common right," because dower in kind is impracticable.^ a»*e] Is wholly immaterial as regards the right to dower, provided it be, or savor of, the realty; and this is equally true in regard to the nature of its products. Thus a widow is dowable of lands, whether arable, meadow, or woodland; of manors, houses, mills, and factories; of rents, whether rent-charge, rent-seek, or rent- service; of dove-cotes and warrens; of fairs, markets, ferries, and fisheries; of common, certain, gross, or appendant; of advowsons, gross, or appendant; of tithes, of shares in road or navigation companies," etc. As to the dower in "shares of road and navigation companies," this is, of course, when by statute such shares are real estate, as shares in the navigation of the river Avon. Breck- eridge v. Ingram, 2 Ves. Jr. 652. See p. 15, ante, note. 'Advantages of Dowek According to Common Right. — These are two in number, and both are conferred on the widow by rea- son of the fact that dower according to common right is the law's provision, which, if fairly made, she is bound to accept, and therefore the law will not suffer it to be impaired or destroyed. 1. Dower assigned the widow according to common right is paramount to encumbrances created after the coverture, unless with the wife's concurrence. See § 299, ante. For, as stated by Roper (on H. & W. Vol. I., 411) : "When dower is assigned as the common law requires, the widow's title shall have such relation to the husband's first and original seisin of the estate, and the period of the marriage, as to defeat not only all charges and en- cumbrances which he alone made during the coverture, after ac- quiring the estate, but also all debts which he contracted during the marriage in respect of which such property might be affected, without regard to the circumstances, whether the debts might be owing to a private person or to the crown." But he adds (p. 540 REAL, PROPERTY. [Chap. 14 On the other hand, the following instances of assigmnent of dower "against common right" are given by Park (on Dower, 263), not being in kind, or not in severalty, when assignment in kind and in severalty is not impracticable: "Thus the heir may, on the acceptance of the widow, assign one manor in lieu of a third part of each of three manors ; or he may assign an undivided third part in common [when the husband died sole seised] in lieu of a third part in sev- eralty." And it is added that, with the consent of the widow, the heir may (1) assign her as her dower more or less than one-third of the land of which she is dowable; or (3) may assign her land of the husband in Wales in exclusion of her 412): "But when a different form and rule are adopted by the consent of the widow [i. e., dower against common right], she claims in the nature of a purchaser; so that her estate com- mences from the assignment, without relation to any antecedent period; for which reason she takes it with all the encumbrances affecting it in the possession of her husband; and it was her own folly to accept of such an assignment." And, see Coke Litt. 326, where it is said: "Nota, the endowment by metes and bounds according to the common right is more beneficial to the wife than to be endowed against common right, for there [i. e., when against common right] she shall hold the land charged in respect to a charge made after her title of dower." In accord, see Park on Dower, 242, 267; 1 Bright H. & W. 387, 388; 2 Scribner, Dower, 704; Jones v. Brewer, 1 Pick. (Mass.) 314. 2. Dower assigned to the widow according to common right implies a warranty. This is thus explained by Park (on Dower, 275) : "Every assignment of dower by the heir, or by the sheriff on recovery against the heir, implies a warranty; but this war- ranty is special, namely, that the tenant in dower being im- pleaded by one who has title paramount shall vouch and recover in value not according to that which she has lost, but a third part of the two remaining parts of the land of which she is dow- able." And, see Co. Litt. 3846; 1 Bright H. & W. 384; 2 Scribner, Dower, 761; Scott v. Hancock, (13 Mass.) 162. But it is said, for the reasons given under (1) above as to encumbrances, that this benefit of warranty does not extend to a case where the widow has consented to be endowed against common right. 2 Scribner, Dower, 764; 10 Am. & Eng. Ency. Law, 200; Jones v. Brewer, 1 Pick. (Mass.) 314. §§318,319] DOWER AND CURTESY. 541 dower in the husband's land in England; or (3) may assign in lieu of dower a rent issuing out of the land of which she is dowable. See, further, as to dower "against common right," 10 Am. & Eng. Ency. Law 174; 39 Am. St. Eep. 34; Chase V. Alley, 82 Me. 234 (19 Atl. 396) ; Skolfield v. Sholfield, 88 Me. 258 (34 Atl. 27). § 319. Dower in Kind Impracticable. — It has been seen (§ 318) that dower in kind may be impracticable in two classes of cases, viz.: (1) By reason of the nature of the hus- band's property, (e. g., a mill or factory), and (2) by reason of the husband's estate in the property (e. g., in co-tenancy). Also the right and mode of endowment in incorporeal heredit- aments has been stated (p. 522, ante, note). It is now pro- posed to briefly consider a few special cases in which, for one or the other of the above reasons, dower in kind is, or may be, impracticable. 1. Dower in a Dwelling-House. — In this case, though there is no other property subject to dower, it may, nevertheless, in some cases, be practicable to endow the widow substantially in kind, by assigning her particular rooms, with the right to use doors, stairways, and passages, as a means of access ; thus making her occupancy and enjoyment equal in value to one- third of the whole house. It has been questioned, however, whether this mode of assignment is according to common right so as to dispense with the widow's consent; but the better opinion is that the widow is bound to accept such as- signment, if practicable and fairly made.'^ ' Dower in Dwelling-House — Widow's Consent to Assignment or Roojis. — In Perkins' Profitable Book, § 406, it is said of tlie heir's assignment to the widow of a chamber in the capital mes- suage, where there is no other land of which she is dowable: "But it seemeth that she is not compellable to take the same, be- cause the messuage is, as it were, an entire thing; and it shall be but trouble and vexation unto a woman to have a chamber within the house of another man; and if she will not agree unto the same, then the heir may assign unto her a rent out of the same messuage in the name of dower." Commenting on this, in 542 REAL PROPERTY. [Chap. 14 Thus in Simmons v. Lyles, 27 Grat. (Va.) 922, 931, such an assignment is approved, and it is said by Staples, J. : "There is nothing to show that an assignment of dower in kind is impracticable. We have no information on the sub- ject, except that the property consists of a dwelling-house and lot in the town of Danville. There may be outhouses for aught we know in which the dower may be assigned. The lot itself may be susceptible of division, or, as is not unfre- quently done when there is a single edifice, dower may be as- signed of so many rooms." But in a given case there may be no lot attached to the dwelling-house, and no outhouses fit for dower ; and the dwell- ing-house may consist of one or two rooms only, incapable of division between the widow and the heirs. ^ In this case, as impliedly conceded by Judge Staples above, dower ia kind is impracticable, and the widow must be otherwise en- dowed. And he adds (ubi supra) (after remanding the case to the lower court for further inquiry as to the property) : "If an assignment in kind is found to be impracticable, the court may decree a sale of the whole property, and a moneyed compensation to the appellant in lieu of dower; or it may adopt such other mode of adjustment as will produce the greatest equality with the least inconvenience." And that the court may sell the whole property, see, also, ]7Jiite v. White, 16 Grat. 264 (80 Am. Dec. 706) ; Wilson v. Branch, 77 Va. 65 (46 Am. Eep. 709). But when it is thus necessary to sell the property, and to satisfy the claim of dower out of the proceeds, the court cannot, without the consent of all persons concerned, pay the widow a gross sum estimated as the value of her dower, but must securely invest one-third of the pro- WUte V. Story, 2 Hill (N. Y.) 543, 548, Bronson, J., says: "In a case like this, where there are no other lands in which the dower may be assigned, I think the widow could not refuse to take a part of the house. But, however that may be, this woman does not complain of having 'a chamber within the house of another man,' and I find nothing in the books to relieve a man from the 'trouble and vexation' which may follow. * * * It is quite §319] DOWER AND CURTESY. 543 ceeds of the property, and direct the interest on such invest- ment to be paid to the widow during hex life. Blair v. Thomp- son, 11 Grat. 441; Harrison v. Payne, 32 Grat. 387; Herlert V. Wren, 7 Cr. 370. See, also, § 307, ante? probable that the division of a dwelling-house may be prejudicial to the Interests of both parties; but that cannot be helped with- out the aid of the legislature." And, see 2 Scribner, Dower, 80, 81. ^ DowEB IN DwELLiNG-HotrsE IMPRACTICABLE. — In AMngdon's Case, cited in Howard v. Cardish, Palmer, 264, the sheriff re- turned that he had endowed a widow of a dwelling-house by as- signing to her in severalty the third part of each chamber, and that he had chalked out for her the part in each. This was held "an ill assignment"; and because (it is presumed) it was con- sidered idle and malicious, the sheriff was committed to prison. See 2 Scribner, Dower, 582; White v. 8tory, 2 Hill (N. Y.) 543, 549. ^ Sale op Pbopeett by a Coxjbi of Chanceet, When Dowee in Kind is Impracticable.— Such power of sale, as is stated in § 319, is affirmed in Virginia in a number of cases; and this, independ- ently of statute, in the exercise of the general powers of a court of equity. But the court cannot decree a sale of the property, without the consent of the widow, merely because dower in kind may prove to be injurious to the interests of the heirs or cred- itors. The division itself must be impracticable. Simmons v. Lyles, 27 Grat. 922, 930. It is remarkable that this power of sale by a court of equity held in Virginia to exist when dower in kind is impracticable is nowhere alluded to in the old books on dower; nor does Scribner recognize it in his standard treatise. In 3 Pomeroy's Eq. §§ 1383- 84, the advantages of the equitable jurisdiction over dower are set forth at length; but a sale because dower in kind is impracti- cable is not among them. The Virginia cases asserting the power have been doubted in West Virginia. EoiacJc v. Miller, 44 W. Va. 635 (29 S. E. 1014). It is true that in 39 Am. St. Rep., p. 35, note, a power of sale in the absence of statute, is said to exist, without the consent of the widow, when assignment by metes and bounds is found to be impossible; but the cases cited do not sustain the proposition. It is believed that, outside of Virginia, such power of sale, under the general equity jurisdiction, is not recognized; and that, in the absence of statute, or consent, the widow must be endowed of the third part of the issues and profits, or of the third part of the rental value, or in some other special manner 544 REAL PROPERTY. [Chap. 14 2. Dower in Mines. — As to the right of dower, the test is whether the mines had been opened in the lifetime of the husband; and as to the mode of assignment, this is by metes and bounds if practicable; and if not, by giving the heir and not involving an absolute sale of the property. See the mode of assigning dower In mills, mines, dwelling-houses, etc. (§§ 318, 319), in which, out of Virginia, there is no suggestion of a sale. See, also, 2 Scribner, Dower, 639; 10 Am. & Eng. Ency. Law, 176, 179. It is assumed, of course, in what has been said, that the sale is decreed for no other reason than that dower in kind is impracti- cable. It has no application to a sale to satisfy encumbrances paramount to dower, when the widow Is dowable of the surplus only (§ 299, supra). But if the encumbrance is subordinate to dower, it is error to decree a sale without first assigning dower in kind, unless, of course, the widow consents to receive a com- mutation in money. 2 Scribner, Dower, 653; Williams' Case, 3 Bland Ch. 186, 284; Simmons v. Lyles, 27 Graft. 922; Fisher v. Clements, 82 Va. 813 (1 S. E. 182) ; Laidley v. Kline, 8 W. Va. 218; Kilbretn v. Roots, 33 W. Va. 600 (11 S. E. 21); Jarrell v. French, 43 W. Va. 456, 27 S. B. 263). In two cases in West Virginia, an effort has been made by the widow to obtain a decree for the sale of the whole property, and the assignment of her dower out of the proceeds, which, as we have seen, she cannot do by bringing suit for partition. In the first case, Hull v. Hull, 26 W. Va. 1 (S. C. 35 W. Va. 155, 29 Am. St. Rep. 800), the widow filed a bill, in the nature of a creditors' bill, for this purpose; but it was held that a widow has no right to bring a suit in chancery to have all the lands of her husband sold, and out of the proceeds of such sale to have the value of her dower paid, and the residue paid to the creditors of her hus- band (their claims being subordinate to dower), and if any sur- plus remains to have it divided among her husband's heirs. She had no right, the court said, to file a creditors' bill; and if she had, such sale would not be valid without the consent of the heirs, all being adult, and, perhaps, not even then. In the second case, HobacJc v. Miller, 44 W. Va. 635 (29 S. E. 1014), the widow filed her bill solely under her right to dower, making the infant heir defendant; and, alleging that the land was not susceptible of allotment of dower in kind without detri- ment to the property, she prayed that it be sold, and she be given a gross sum in lieu of dower in kind. The court below decreed §319] DOWER AND CURTESY. 545 ■widow alternate occupancy of the whole mine, for short periods proportioned to their interests, or by giving the widow one-third of the profits. And the same rule has been held applicable to quarries. Stoughton v. Leigh, 1 Taunt. 402; Crouch v. Puryear, 1 Band. (Va.) 258; Goaies v. Chee- ver, 1 Cowen (IsT. Y.) 460; Billings v. Taylor, 10 Pick. (Mass.) 460 (20 Am. Dec. 533); Hendrix v. McBeth, 61 Ind. 473 (38 Am. Eep. 680); 2 Scribner, Dower, 591; 10 Am. & Eng. Ency. Law, 158.^ the sale; but on appeal this was reversed, and the decree was pronounced not merely erroneous, hut void. The court doubted the Virginia doctrine (§ 319), that in a suit by the heir the land may be sold, without the consent of the widow, if dower In kind be impracticable; and decided emphatically, that a widow "has no sort of right to sue and sell forever from the heir the fee- simple that she may get satisfaction for her small estate out of the proceeds," and that this was, a fortiori, true when the heir is an infant. The court said: "A widow entitled to dower is en- titled by the common law to a part of the realty itself, to be set out by metes and bounds, or a particular room in a house; or, if insusceptible of such assignment, then the third toll-dish in a mill, or occupancy for a third of the time, or a third of the rent. 2 Min. Inst. 159; 2 Scrib. Dower, p. 80, § 16." ^ DowEE IN Mines. — It Is held in Lenfers v. Herike, 73 111. 405 (24 Am. Rep. 263), by way of extension of the rule laid down in the text above, that, although it was not known In the lifetime of the husband that any mines exi'sted in the land, and they were opened for the first time by the heir, but before assigning the widow dower, that she was dowable therein; and that it would not be waste for her to continue the mining which the heir had begun. And, see this approved in Priddy v. Griffith, 150 111. 560 (37 N. B. 999; 41 Am. St. Rep. 397). A similar decision was made in Seager v. McCabe, 92 Mich. 186 (52 N. W. 299; 16 L. R. A. 247), under a statute which gave to the widow "the use during her natural life of one-third of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage," the court attaching some importance to the language of the statute. But, from the reasoning of the court, it is prob- able that the decision would have been the same without the stat- ute; and that In Michigan a widow would be held dowable of 546 REAL. PROPERTY. [Chap. 14 3. Bower in Partnership Real Estate. — It is the general doctrine in the United States that real estate bought with partnership funds and for partnership purposes, is impressed in equity with the character of personalty; but this is sub modo only, and not out and out for all purposes. That is to say, such partnership realty is in equity considered personalty so far as it may be needed to pay the partnership debts, and to adjust the accounts of the partners inter se; but the surplus remaining after this is done is considered realty, and de- volves on the heir, and is subject to the widow's dower. See 1 Scribner, Dower, 163; 2 Id. 575; 10 Am. & Eng. Ency. Law, 159; 3 Pom. Eq. § 1166, note; 27 L. E. A. 340, note; Martin v. Smith, 25 W. Va. 579. When by the above doetriue the widow is entitled to dower iQ the surplus, it is manifest that her claim must be suspended until the payment of partnership debts, and the adjustment would usually involve the sale of the partnership realty, she would not be entitled to receive her dower in kind, but one- third of the surplus would be invested, and the iaterest there- on paid the widow during her life. 2 Scribner, Dower, 163, 648, 695. The rule ia England, contrary to that ia the United States mines which at the time of assignment had never been opened at all. In Macaulay v. Dismal Stmimp Land Co., 2 Rob. (Va.) 507, a husband died seised of land incapable of cultivation, and not otherwise productive or valuable than by cutting the timber, and making sale thereof when converted into shingles. This had been done before the husband's death. The court followed the doctrine of Stoughton v. Leigh, 1 Taunton, 202, as applicable by analogy, and gave the widow dower, and said: "It is in truth a mine upon the surface, not of minerals incapable of renewal, but of vege- table matter, in a constant course of spontaneous reproduction." But suppose the husband had not "worked the timber" in his life- time, but the widow was enterprising enough to desire to support herself in this way. Why should she not be allowed to do so, es- pecially in view of the modified doctrine in the United States as to waste. See 16 L. R. A. 247, note. §§319,320] DOWER AND CURTESY. 547 generally, is that partnership realty is converted into per- sonalty, not sub modo only, but out-and-out, and for all pur- poses. As under this rule the surplus is personalty, and goes to the personal representatives, the widow is not entitled to dower therein. The English rule has been followed in Vir- ginia, and dower denied in the surplus. See Pierce v. Trigg, 10 Leigh, 406; Wheatley y. Calhoun, 13 Leigh, 264 (37 Am. Dec. 654) ; Parrish v. Parrish, 88 Va. 539 (14 S. E. 325) ; Deering v. Eerfoot, 89 Va. 491 (16 S. E. 671). But see language of Moncure, J., in Davis v. Christian, 15 Grat. 11, 35, commented on in 4 Va. Law Eeg. 310; and Rancoch v. Talley (Va. Special Court of Appeals, 1881) ; reported in 7 Va. Law Eeg. 24, with note. § 320. Dower When the Husband Dies Seised of Several Tracts of Land, Which Descend to the Heir. — In this case the question arises (supposing that all of three tracts are of equal value), whether the heir can compel the widow to accept as her dower, or the widow demand that the heir assign her, the whole of one of the tracts, instead of one-third of each of the tracts. On this point, the weight of authority at common law is that the assignment of one whole tract is against common right, and is not good unless both heir and widow agree thereto ; and that, by common right, the widow is entitled to have set off to her, per metas et iundas, the third part of each tract in severalty. Park on Dower, 255, 257; 2 Scribner, Dower, 587; 2 Am. & Eng. Ency. Law, 183; Scott v. Scott, 1 Bay (S. S. 504 (1 Am. Dee. 625) ; Jones v. Brewer, 1 Pick. (Mass. 314) ; Schnebly v. Schnebly, 26 111. 116; Wood v. Lee, 5 T. B. Mon. (Ky.) 50; Sholfield v. STcolfield, 88 Me. 258 (34 Atl. 27) ; Compton v. Pruitts, 88 Ind. 171. The above rule, however, though correct on a strict con- struction of the word "practicable," as the test of dower ac- cording to common right, may cause serious inconvenience in some cases; and it has not met with the approval of all 548 REAL, PROPERTY. [Chap. 14 the text-writers, as is shown in the note below. ^ It has also been denied in some of the cases, so far as applied to lands which descend to the heir. See Milton v. Milton, 14 Pla. ^ DowEE IN Whole op One Tract Instead of in Pabt of Sev- eral. — It has heen seen in § 318, ante, that this case is put by Park as against common right, and requiring the widow's accept- ance. But in Roper, Husband and Wife, 394, it appears from the text that there has been some difference of opinion on this point; and the editor, Mr. Jacob, expresses the opinion that "perhaps the authorities in favor of this mode of assigning dower [i. e., in one tract for all] would now prevail, if the manor assigned were equal in value to one-third of the whole. It does not seem necessary in all cases that the widow should have a third of each of the husband's estates." In 1 Bright, Husband and Wife, 384, this case is put to exem- plify the implied warranty in favor of a widow who has been evicted of her dower by title paramount: "If a husband be law- fully seised of two acres, and of a third by his disseisin before his marriage, and dies, and the widow be endowed of the acre which he held by disseisin, and then the disseisee recovers from her that acre, she will be entitled to be endowed de novo of the third part of the two remaining acres," etc. And, yet it is well settled (see p. 523, note) that such warranty only applies when the endowment was according to common right, which would in- dicate that Bright so regards the endowment in this case. As to the mode of assignment in the case under consideration, it is said in 2 Tuck. Com. 65: "Thus if there be three houses, it would not be right to divide each, and give the widow one-third in each, for that would be to embarrass the use of all three to all entitled; but some recompence is to be made [i. e., when one house is assigned the widow], either by a sum of money or rent, for owelty of partition, so as to equalize the value [i. e., when the houses are of unequal value]. With us [in Virginia] the same course is usually pursued as to several tracts of land; and indeed the whole business of assigning dower and making partition Is governed by the great principle of so adjusting the several claims as to produce the greatest equality with the least inconvenience." And Professor Minor (2 Min. Ins. 103), after laying down the law of England, that "the sheriff must assign not only one-third of each tract, but a third of each species of land, arable, meadow, pasture, wood, etc. [sed quwre as to "each species" by the modern law. 2 Scribner, Dower, 587], declares that in Virginia "one- §320] DOWEE AND CURTESY. B49 369; Anderson v. Henderson, 5 W. Va. 182; Gazier V. Hinchey, 143 Mo. 203 (44 S. W. 1052). And in a number of the States it has been changed by statute. See 2 Scribner, Dower, 589; 10 Am. & Bug. Ency. Law, 184; Montgomery V. Horn, 46 la. 285; Rowand V. Carroll, 81 111. 224; Rich- mond V. Harris, 19 Ky. Law, 1443 (43 S. W. 703). But as to alienees of different tracts of land, sold by the husband without the wife's concurrence, it is universally held that dower in kind must be assigned the widow out of each separate tract, and the burden cannot be thrown on one alienee to the exoneration of the other or others. And the same rule has been retained as applicable to devisees of the husband, even where as to the heirs the strict rule of the common law has been changed by statute or Judicial decisions. Thus the Kentucky statute, changing the law as formerly held in that State as to heirs, enacts : "Where the lands are not held hy several devisees or purchasers, it shall not be necessary to assign dower out of each separate portion, but an equitable third in value is to be assigned, in such manner as shall best subserve the mutual convenience of the parties." But no deci- sion on this point has been found in Virginia. The inconvenience of giving the widow one-third of each tract (which might well cause such endowment to be deemed impracti- cable, at least by a court of equity) is well put by Day, C. J., in Montgomery v. Horn, 46 Iowa, 285, 286: "It is conceded that the deceased owned fifteen separate tracts of land. Suppose these separate parcels, to consist of forty-acre tracts, of equal value. Then, instead of being permitted to take five of these forties, the widow must take thirteen and one-third acres out of each of the fifteen. It is apparent that this would very much depre- ciate the value of the whole property, and that the division could ordinarily be effected only by selling the whole." It may be added that the simple case of "three tracts of equal value" would seldom occur in practice; and that resort should be had to a court of equity, so as to equalize the value "either by a sum of money or rent, for owelty of partition," as Judge Tucker suggests in the quotation above. See as to "owelty," p. 182, ante, note; Clarendon v. Hornby, 1 P. Wms. 446; Hyhart v. Jones, 130 N. C. 227 (41 S. E. 292) ; 21 Am. & Eng. Ency. Law, 1179. 550 REAL PROPERTY. [Chap. 14 allotment may be made in one or more parcels in lieu of the whole. See Richmond v. Harris, 19 Ky. Law, 1443 (43 S. W. 703). Also, 2 Scribner, Dower, 589; 10 Am. & Eng. Eney. Law, 184, and note; Coalter v. Holland^ 2 Harring. (Del.) 330; Droste v. Hall (N. J. Eq.) 39 Atl. 437). Another question as to dower according to common right arises when the husband has conveyed, without the wife's concurrence, land to an alienee during the coverture, but dies seised of land sufficient to satisfy the widow's dower right in both the land sold and the land retained. In this case it is held, without the aid of statute, that to avoid the necessity of a suit by the alienee against the heir upon the husband's war- ranty, dower shall be assigned the widow entirely out of the lands of which her husband died seised. This at least is the rule in equity. See 2 Scribner, Dower, 637; 10 Am. & Eng. Eney. Law, 183; Wood v. Keys, 6 Paige (N. Y.) 478; Law- son v. Morton, 6 Dana (Ky.) 471; Richmond v. Harris, 19 Ky. Law, 1443 (43 S. "W. 703) ; Stimson v. Thorn, 35 Grat. 378. GENERAL INDEX [References are to Sections.'i A ABEYANCE, doctrine as to fee simple, 180. ACCOUNT, as between cotenants, 159. ACTIONS, for breach of covenant, 133. ADMINISTRATOR, See Exectjtobs and Adminibtbatobs. takes emblements, 11. takes lease, 10. ADVANCEMENT, defined, 166. evidence that gift is, 167. person advanced may elect to come in or remain out of hotchpot, 172. to whom and by whom made, 168. value fixed at date of gift, 171. what property may be given, 169. ADVERSE POSSESSION, begun in privity with owner, 139n. conflicting deeds or patents, 141. defined, 136, 139. disabilities of coverture, infancy and Insanity, 142. effect of statute, 138. holding through mistake as to true location of bound- ary, 139n. holding with and without claim of color of title dis- tinguished, 140. owner out of possession may grant Interest, 123. requisites for, 138 n. 551 552 GENERAL INDEX. [References are to Sections.'] ADVERSE POSSESSION — Continued. subtraction of war period, 144. tacking disabilities not allowed, 143. Virginia statute, 137. AIDER IN EQUITY, defective execution of a power, 240. AIDS, payment for ransom, 2. ALIENATION, conditions in restraint, 270. forfeiture, 270. restraint without condition or conditional limitation, 271. ANCESTOR, defined, 70. heir not in esse at death, 77. APPOINTMENTS, See Powees. illusory, defined, 238n. over property, 235, 236, 237. ATTORNEY IN FACT, power to make deeeds, 122. BARGAIN AND SALE, defined, 115. BASE OR QUALIFIED FEE, examples, 37. BASTARDS, common law and Virginia statute distinguished, 76-77n. BEQUESTS, considered future estate in personalty, 233. to unformed corporations, 214. BUILDING RESTRICTIONS, construction of deeds, 262. GENERAL INDEX. 553 [References are to Sections.] C CHILDREN, limitations to surviving children, 204. interpretation of word, 200, 202. "surviving children," 203. CLASSIFICATION, fixtures, 16. leases, 52. CLASSES OF PROPERTY, ancient names of property, 1. terms "real" and "personal" modern, 1. CODICIL, effect on will, 86. revocation, 91. COLLATERALS, half blood, 75. COLLATERAL LIMITATION, See Limitation. COLOR OP TITLE, defined, 140. COMMON, right, 5. COMMON RECOVERY, defined, 39n. CONDITIONAL LIMITATIONS, See Limitations. CONDITIONS, attached to fee simple when void, 270. building restrictions, 262. conditional limitation on alienation of estate, 270. continuous and non-continuous, effect of waiver of breach, 283n. construed as subsequent, 251n. in lease, not to assign without license, 285n. 36 554 GENERAL INDEX. [References are to Sections.'] CONDITIONS— Continued. in terrorem, effect of limitations over as negativing con- dition, 268n. legacies dependent on, 250n. limitation on alienation attached, 270. limitation on alienation attached to life estate, 270. limitation on alienation attached to estate in fee-tail is good, 270. marriage as limitation or condition subsequent, 254. not personally binding on grantee, 279n. not subsequent when conveyance of land for particular purpose, 259. precedent distinguished from subsequent, 38. precedent made impossible by act of God, 265. precedent, performance of made impossible by grantor, 265n. precedent and subsequent, defined, 249. precedent and subsequent, distinguished, 250. precedent or subsequent, which favored in law, 251. precedent, relief in equity against, 282n. rescission of support deeds, 281n. remainders dependent on, 250n. restraint of alienations, 270. restraint of marriage, 268. restraint on alienation without conditional limitation, 271. rule against perpetuities applied, 275n. subsequent, breach of, possibility of reverter alienable, 276. subsequent, breach of, when relief in equity, 282. subsequent, distinguished from a covenant, 257. subsequent, distinguished from limitation, 253. subsequent distinguished from trust, 258. subsequent, Dumpor's Case, 284. subsequent, equity will not enforce forfeiture for breach, 281. subsequent, how created, 272. subsequent, injunction in equity, 280. subsequent, mode of enforcement of forfeiture for breach, 277. subsequent, no damages at law for breach, 278. subsequent, no specific performance in equity, 279. subsequent, time of performance, 274n. subsequent, waiver of forfeiture for breach, 283. subsequent, who may enforce forfeiture for breach, 275. GENERAL INDEX. 556 [References are to Sections.] CONDITIONS— OontiJMied. subsequent, who liable to forfeit for Its breach, 273. subsequent, who may perform, 274. subsequent, words proper for, 252. summary of effect of conditions, in restraint of mar- riage, 269. void because impossible, 265. void because repugnant or uncertain, 267. void because unlawful, 266. void, precedent or subsequent, 264. CONFLICTING DEEDS OR PATENTS, adverse possession doctrine, 141. CONSANGUINITY, at common law, 70. children by adoption, 70n. CONTRACT, to make will, 81n. CONVEYANCES, at common law, 112. conflicting deeds or patents, 141. consideration deed of bargain and sale, 118n. construction of deeds, 120. construction of prohibiting the sale, etc., of intoxicating liquors, 263. construction of, providing for support of grantor or ap.- other by grantee, 261. covenants of title, see Covenants. covenant to stand seized, bargain and sale and lease and release, 115. deed by grantor out of possession with adverse possession against him, 123. deed of poll and indenture defined, 121. deeds made by attorney in fact, 122. deed necessary for term of more than five years, 117. expression as to use, not condition subsequent, 259. form of deed of grant, 119. 556 GENERAL INDEX. [References are to Sections.] CONVEYANCES— Continued. in fee by tenant in dower, 126. map referred to in deed, 120. modern covenants of title, 130. of land, paramount to survivorship, 150 (2). power to fill in blanks, 119n. quitclaim deed, 132n. requisites for a deed, 117n. statutory deed of grant, 117. tortious, 43. trust, when for particular purpose, 260. under statute of uses, 113. ut res magis voleat quam pereat as applied to deeds, 118. warranty (see warranty), what covenants purchaser entitled to, 132. COPARCENERS, accounting between, 159n. distinguished and defined, 156. CORPORATION, as executor and administrator, 96n. bequest to unformed, good, 214. CORPOREAL TENEMENTS, See Tenements. COTENANTS, See Joint Tenants; Tenants by Entireties; Tenants in Com- mon; CoPAacENEEs; Advancements. account as between, 159. partition, 162. privity between, 156n. receiving more than comes to his just share and propor- tion, 160. trespass as between, 157. waste as between, 158. COVENANTS, See Leases. actions for breach, 133. classified, 130. conditions subsequent distinguished from, 257. GENERAL INDEX. 557 [References are to Sections,} COVENANTS— CojiiinMed!. defined, 257n. express covenants of title, 131. express defined, 131. measure of damages for breach, 135. purchaser entitled to general warranty, 132. running with the land, 64, 134. to stand seized, 115. what constitutes breach, 132. words implying quiet possession, 130. COVERTURE, adverse possession, 142. CREDITORS, competent witnesses to wills, 85. CROPS, what estate, 11. CROSS REMAINDERS, See Remaindees. CURTESY, See "Dowee and Cuetest" and "Dower." actual seisin required at common law, 290n. defined, 287. summary of requisites, 287n. valid marriage essential, 287n. CY PRES DOCTRINE, as to contingent remainders, 188. D DAMAGES, see covenants, 135. DE DONIS CONDITIONALIBUS, created estate tail, 38 explained, 38. 558 GENERAL INDEX. [References are to Sections.] DEEDS, See Conveyances. building restrictions, 262. conflicting title or grants, 141. construction of support deeds, 261n. fee simple title passes without word heirs, 36. old and modern rule limitation, 41. quitclaim, 132n. rescission of support, 281n. remainders in, by way of use, 213. title by deed requires assent of grantee, 70. DEED OF GRANT, See Conveyances. DEFINITIONS, advancement, 166. adverse possession, 136, 139. ancestor, 70. bargain and sale, 115. base or qualified fee, 37. color of title, 140. common recovery, 39n. conditions precedent and subsequent, 38, 249. contingent remainders, 175n. coparceners, 156. covenant, 257n. covenants of title, 130, 131. curtesy, 287. deed of poll and indenture, 121. definite and indefinite failure of issue, 221. dower, 286. emblements, 11. estate at will, 67. estate by sufferance, 68. estate for years, 49. executor and administrator, 95. executor de son tort, 97. executory devise, 206. executory use, 206. fee simple conditional, 38. fee simple estate, 34. GENERAL INDEX. 559 [References are to Sections. \ DEFINITIONS— ContiwMett. fee tail, 39. fixtures, 15. freehold estates, 9. hereditaments, 6. hotchpot, 165. Joint tenants, 145. lands, 3. lease, 50. lease and release, 115. legacies. 111. livery of seisin, 10. nuncupative wills, 83. olographic wills, 83. per stirpes and per capita, 72. power of appointment over property, 235. remainders, 174. right of reverter, 38. statute of uses, 114. tenants by entireties, 151. tortious conveyances, 43. trade fixtures, 27n. vested remainders, 175n. warranty, 124. waste, 46. widow's quarantine, 313. words of limitation and purchase, 192. DESCENT, collaterals of half blood, 75. common law and Virginia statute distinguished, 71. executor and administrator take personal property only, 95. from infant, 74. heir at law cannot be disinherited unless estate actually devised to another, 70. heir cannot disclaim title, 70. heir not in esse at ancestor's death, 77. heir takes as devisee and not by descent when quantity same, 70. inheritance by bastard, 76. murderer of ancestor takes legal title, 70n. per stirpes and per capita, 72. statutes of various states distinguished, 78. 560 GENERAL INDEX. [References are to Sections.] DESCENT— Continued. title by, distinguished from title by devise or deed, 70. Virginia statute, 71, 72. DETAINER, See Ejectment. DEVISEE, must prove will, 70. DEVISES, See Wills, Executors and Administkatoes, Executory Devises. English and Virginia statute distinguished, 80. lapsed, see wills, power of disposition over property on estate of devisee — validity of limitation over, 242. to A and the heirs of his body; and if A die without issue living at his death, then to B and his heirs, 231. to A and the heirs of his body; and if A die without issue then to B and his heirs, 230. to A and his heirs and if A dies without issue remainder to B and his heirs, Virginia rule, 229. to A for life, and if A die without issue, remainder to B and his heirs, Virginia rule, 227. DISABILITIES, tacking not allowed, 143. DISCHARGE, condition subsequent, Dumpor's Case, 284. DISCLAIMER, deed must be accepted by grantee, 70n. DISTRESS, common law distinguished from Virginia rule, 56. DISTRIBUTION, Virginia statute, 79. DOWER, See Widow's Quarantine. according to common right, 318. assigned by summary proceeding in court on motion, 317. assigned in pais by tenant of freehold, 317. GENERAL INDEX. 561 [References are to Sections.^ DOWER— CowimwetZ. assignment, in partition suit, 316n. assignment of, procedure — Virginia, 317. cases where no dower on ending of husband's inheri- tance, 312. encumbrance created after marriage paramount to dower in Virginia, 299n. defined, 286. denied in trusts, 292n. equitable estates in United States, 293. equitable estates in Virginia, 294. equity of redemption mortgaged land, 301. equity of redemption in United States, 303. equity of redemption in Virginia, 304. equity of redemption when mortgage foreclosed in hus- band's lifetime, 302. exoneration, in mortgaged land out of husband's other land, 306. exoneration in mortgaged land out of husband's per- sonalty, 305. husband's estate of inheritance terminates in his life- time or at his death, 310. husband has reversion on which rent reserved, 297. husband joint tenant or tenant by entireties, 291. husband rescinding contract of purchase, 293n. in encumbered land, 299. in equitable estates, 292. in kind, 319. insane wife, contingent right of dower extinguished, 308n. origin of, 288n. out of dower, 298. ownership of husband must be beneficial, 295. present value of wife's contingent right, 308. present value widow's vested right of dower, 307. proportion of principal of mortgage debt widow liable for as between herself and heirs, 309. purchase money mortgage, 300. reversions and remainders, 296, 297n. summary of requisite, 287n. unassigned, inalienable by widow, 316. unassigned, not liable at law for widow's debts, 316. unassigned, no right of entry, 316. 562 GENERAL INDEX. [References are to Sections.l DOWER — Continued. valid marriage essential, 287n. when husband dies seised of several tracts of land, which descend to the heirs, 320. widow's quarantine, 313. widow receives dower although husband's estate of in- heritance has come to end, 311. widow's unassigned, 316. DOWER AND CURTESY, See "Dowee"' akd "Cuktest." distinguished, 289. origin of, 288. seisin in fact, seisin in law, and a right to action or entry, 290. shifting fees, 311n. DUMPOR'S CASE, doctrine as to discharge of condition subsequent, 284. E EJECTMENT, for non-payment of rent, 59. rents, 61. tenant by sufferance, 68. EMBLEMENTS, defined, 11. pass to administrator, 11. tenant at will, 69. when estate less than freehold, 69. EQUALITY, in partition, 164n. EQUITABLE ESTATES, dower in, 292. dower in Virginia, 294. EQUITABLE LIFE ESTATE, restraint on alienation, 271n. GENERAL INDEX. 563 [References are to Sections.] EQUITY, aider in, as to defective execution of a power, 240. forfeiture for breach of condition subsequent, not en- forcible, 281. injunction condition subsequent, 280. relief against enforcement of penalties, 282. relief against forfeiture for breach of condition subse- quent, 282. relief for condition precedent, 282n. specific performance, as to conditions subsequent, 279. EQUITY OP REDEMPTION, dower in, of mortgaged land, 301. dower in United States, 303. dower in, when mortgage is foreclosed in husband's life- time, 302. ESTATES, freehold, 9. freehold, classified, 33. real and personal, 8. ESTATE AT WILL, defined, 67. distinguished from estate from year to year, 67. how created, 67. ESTATE BY SUFFERANCE, defined, 68. to regain possession, 68. ESTATE FOR LIFE, conditional limitation on alienation good when attached to life estate, 270. effect of limitation over, 222. emblements, 44. enlarged to a fee tail, 223u. limit for natural life, 42. reversion annexed, 243. reversion as to rents on death of lessee, 60. ESTATES FOR LIFE OF ANOTHER, Virginia rule, 47. 564 GENERAL INDEX. [References are to Sections.l ESTATE FOR YEARS, alienation of, void, 271n. conditional limitation on alienation attached, 270. distinguished from an interesse termini, 49. landlord and tenant entitled to notice of termination, 65. tenancy from year to year defined, 65. ESTATES IN FEE, words of limitation, 41. ESTATES IN FEB SIMPLE, See Fee Simple. ESTATES IN LAND, with power of disposition annexed, 241. ESTATES LESS THAN FREEHOLD, emblements, 69. ESTATES ON CONDITION, See Conditions. nature and classification, 249. ESTATE-TAIL, after possibility of issue extinct, 48. cannot exist by implication when failure of issue definite, 224. defined, 39. ESTOPPEL, by tenant to deny landlord's title, 66n. ESTOVERS AND EMBLEMENTS, incident to life estate, 44. EXECUTOR AND ADMINISTRATOR, appointment of debtor as executor, 109. corporation may be, 96n. defined and distinguished, 95. de son tort, 97. liability of personal representative, 106. GENERAL INDEX. 565 [References are to Sections.} EXECUTOR AND ADMINISTRATOR— ComimMed. order of payment of decedent's debts, 107-8. power of an executor of an executor, 99. power of executor before probate, 100. powers of personal representative, 105. right of retainer by executor, 110. temporary grant of administration, 98. who entitled to qualify as administrator, 101. who may be, 96. EXECUTOR OF LIFE TENANT, rule as to fixtures, 25. EXECUTORS, competent witnesses to wills, 85. EXECUTORY DEVISES, See Executory Interests. contingent remainder may not be construed as, 214. examples, 211. limited per verba de praesenti, 214. of fee on a fee, 211n. of a fee on a fee not affected by a failure of first estate, 214. rules for, 214. sacred rule, 207. EXECUTORY INTERESTS, See Executory Use and Executory Devise. classified and defined, 206. effect of the words "if he die without issue" on a prior fee simple, 223. examples not violating rule against perpetuities, 217. examples violating rule against perpetuities, 216. how distinguished, 208. limitation in deed must be considered remainder, 207. limitation over, dependent on if he die without issue, on a prior estate for life, 222. may be vested, 211n. no estate-tail by implication when failure of issue definite, 224. 566 GENERAL INDEX. [References are to Sections.] EXECUTORY INTERESTS— Cojiiiwited. personalty, 233. practical test to recognize, 209. rule against perpetuities, 219. rule of perpetuities, 215. sacred rule, 207. springing use and shifting use distinguished, 211. Virginia statutes, 234. EXECUTORY LIMITATIONS, hefore and after Jan. 1, 1820, 225. EXECUTORY USES, See Bxeoutoey Interests. examples, 210. shifting use, 210. springing use, 210. EXONERATION, dower in mortgaged land out of husband's other land, 306. dower in mortgaged land out of husband's personalty, 305. dower out of personalty as against pecuniary legatee, 305n. EXPECTATION OF LIFE, mortality table, 307. FAILURE OF ISSUE, See Issue. P FEARNE, four classes of remainders, 178. FEB, base or qualified, defined, 37. limitation by devise, 36. passes without words of limitation, 36. FEE SIMPLE, abeyance, 180. distinguished from base fee and fee conditional, 34. estate descends to kindred of owner, 35. effect of words "if he die without issue" on a prior fee simple, 223. GENERAL INDEX. 567 [References are to Bections.'i FEE SlMPL,m— Continued. limitation by (eofEment, 35. nature of estate, 34. provision restraining alienation of estate, real or per- sonal, Toid, 271. reduced to fee-tail, 223n. unqualified condition cannot be joined with, 270. words of limitation, 41. PEE SIMPLE CONDITIONAL, defined, 38. FEE-SIMPLE ESTATE, defined, 34. FEE-TAIL, conditional limitation on alienation attached, 270. guardianship of minor, 2. FEUDAL SYSTEM, historical. In, 2. right to sell under, acquired, 35. FINE, right of alienation, 2. FIXTURES, agricultural, erected for use, 29. annexation to realty, 17. constructive annexation, 20. debtor and execution creditor rights between, 21. defined, 15. domestic, removable, 28. executor of life tenant and remainderman, 25. furnaces, 24. gas fixtures, 24. heir and executor, 17-24. landlord and tenant, 26. machinery mode of annexation determines, 22. manure, 24, 30. miscellaneous examples, 24. mortgagor and mortgagee, 21. qualification of right of removal by tenant, 31. railway rolling stock, 23. 568 GENERAL INDEX. [References are to Sections.] F1X.TVKEB— Continued. removable, exceptions, 28. rules to determine, 18. stoves, 24. Teafi V. Hewitt, 19. test, 18. time of removal by tenant, 32. trade, removable, 27. vendor and vendee, rights between, 21. what erections removable, 27. FORFEITURE, alienation, 270. default in payment of rent, 282(2). waste, 46. FORMS, deed of grant in Virginia, 119. FRAUD, on a power, 239. FRAUD AND MISTAKE, as to title, 130n. FREEHOLD ESTATES, classification, 33. defined, 9. distinguished from estates not of freehold, 9. G GIFTS, dependent on marriage, 269n. GOODS AND CHATTELS, See Peksonai, Pbopeety. GRASS, estate in, 11. H HEIRS, grant to heirs intends lineal heirs, 38. need not prove ancestors' intestacy, 70. GENERAL INDEX. 569 IReferences are to Sections.} HEIRS— Continued. not in esse at ancestor's death, 77. when applied as fee simple conditional, 38. word not necessary, 36. word of limitation, 35. HEIR AT LAW, purchaser from, 103n. HEIRS; HEIRS OP THE BODY, interpretation of words, 200. HEREDITAMENT, defined, 6. HISTORICAL, names of property, 1. HOMAGE, under feudal system, 2. HOTCHPOT, advancements must be turned into, 165. defined, 165. election of person advanced, 172. for benefit of children, not widow, 170. what property may be given, 169. HOUSES, estate in when built on another's land, 14. HUSBAND AND WIFE, witnesses to wills, 85n. I INCORPOREAL TENEMENTS, See Tenements. IMMOVABLE PROPERTY, distinguished from movable, 1. IMPLIED COVENANTS, leases, 62. 37 570 GENERAL INDEX. [References are to Sections.] INFANTS, adverse possession, 142. descent from, 74. guardianship under feudal system, 2. not in esse at ancestor's death, 77. INHERITANCE, per stirpes per capita, 72. right to title by murderer of ancestor, 70n. INITIALS, when sufficient signature to wills, 87. INJUNCTION IN EQUITY, See Bqottt. INSANITY, adverse possession, 142. INTOXICATING LIQUORS, construction of deeds prohibiting sale, 263. ISSUE, definite and indefinite failure defined, 221. eflfect of definite failure on rule in Shelley's Case — ^Prof. Miner's view, 228. interpretation of word, 200. law presumes possibility, 217n. JOINT TENANTS, See Advancement. alienation of land paramount to survivorship, 150 (2). definition, 145. distinguished from tenants in common, 148. right of survivorship between, 149. right of survivorship paramount to encumbrances, 150 (3). survivorship between abolished, 152. survivorship paramount to will, 150. unities classified, 146. unity of interest, 147. unity of possession, 148. GENERAL INDEX. 571 [References are to Sections.'] L LAND, covenants running with, 64. defined, 3. dower in encumbered, 299. estates in, 8. estate in house built by other than owner, 14. title by devise, 80. LANDLORD AND TENANT, adverse possession, 139n. estoppel to deny landlord's title, 66n. notice of termination, 65. notice to quit, 66. removal by tenant of fixtures, 31. rule as to fixtures, 26. LEASE, actual distinguished from contract to lease, 51. administrator acquires as personal property, 10. assignee bound by covenants, 63. chattel real, 10. classified, 52. condition, not to assign without license, 285n. covenants affecting sublessee, 63. covenants running with land, 64. creation for years, 52. defined, 50. ejectment, 61. mining, 50n. notice to quit, 66. special covenants, 62. tenant holding over term, 68. termination, 61. when must be in writing, 52. words creating, 50. LEASE AND RELEASE, defined, 115. dependent on condition precedent, 250n. LEGACIES, See "Wills. 572 GENERAL INDEX. [References are to Sections.] LEGAL PHRASES, Per my et per tout, 148, 149. LESSEES, of tenants for life, 45. LETTERS, effect as wills, 88. LIFE ESTATE, restraint on alienation, 271n. LIMITATIONS, collateral, by way of base fee, 256. collateral defined, 255. conditional limitations distinguished and defined, 212. defined, 192. distinguished from condition subsequent, 253. effect of, over after dying without issue — ^tabular view, page 284. estates in fee and in tail, 41. executory, before and after January 1, 1820, 232. remainder after collateral distinguished from conditional limitations, 255n. words not necessary to constitute fee simple title, 36. LIVERY OF SEISIN, defined, 10. M MACHINERY, when fixtures, 22. MARRIAGE, conditions in restraint of, 268. gifts dependent on, 269n. limitation or condition subsequent, 254. reasonable or unreasonable restraints, 268n. MARRIED WOMEN, adverse possession, 142. defective execution of a power by, 240n. may be restrained from alienating separate life estate, 271n. GENERAL INDEX. 573 [References are to Sections.'] MARSHALLING, by legatees. 111. MAXIMS, alienatio rei praefertur juri accrescendi, 150 (2). dos de dote peti non debet, 298. jus accrescendi praefertur oneribus, 150 (3). jus accrescendi praefertur ultimas voluntati, 150. MAY V. JOYNES, Virginia cases distinguisbing, 246. MINERAL RIGHTS, nature, 12. MINING LEASES, See Leases. MORTGAGES, an interest in land of a personal nature, 9. proportion widow liable for as between herself and heirs, 309. purchase money, defined, 300. when paramount to right of survivorship, 150 (3). MORTALITY TABLE, widow's expectation of life, how ascertained, 307. MORTGAGED LAND, dower in equity of redemption, 301. N NOTICE, landlord and tenant as to termination, 65. to quit possession, 66. O OWELTY IN PARTITION, See Paetition. PARTITION, advancements, 166. assignment of dower in suit, 316n. 574 GENERAL INDEX. [References are to Sections.'i PARTITION— Goniinued. in equity as between cotenants generally, 163. sale instead of partition in kind, 164. who entitled to, 162. PATENTS, conflicting grants, 141. PENALTIES, non-performance of collateral act, 282n. relief in equity for, 282. PER CAPITA, defined, 72. PER MY BT PER TOUT, as affecting joint tenancy, 148. PER STIRPES AND PER CAPITA, defined, 72. Virginia statute explained, 72. PERPETUITIES, applied to contingent remainders and executory interests, 219. executory interest not violating, 217. executory interest violating, 216. Fearne's view, 233. rule against, 174, 215n, 220. rule against, applied to condition subsequent, 275n. rule of, for contingent remainders, 187. rule for executory interest, 215. PERSONALTY, appraisement, 103. executory interest, 233. wills for, same as for realty, 94. PERSONAL PROPERTY, chattels real, 10. disposed of by will, 81. distinguished from real, 1. goods and chattels under feudal system, 4. house built by other than owner of land, 14. includes corporeal and incorporeal, 13. mineral rights, 12. origin of term, 7. GENERAL INDEX. 575 [References are to Sections.] PERSONAL, REPRESENTATIVES, See Executors and Administrators. POWERS, aider in equity of defective execution, 240. appointment distinguished from an Interest in land, 241. appointment over property defined, 235. defective execution by married women, 240n. disposition over property on estate of devisee, 242. estate given to person generally or indefinitely, 247. fraud on, 239. May V. Joynes distinguished, 246. not coupled with a trust, 238 (3). over property classified, 238. power in trust, 238 (2). reversion is annexed, when, 243. Smith V. Bell, explained, 248. will for deed in the exercise of, 240 n. PROCEDURE, on partition, 164n. PROPERTY, power of appointment over, 235, 236, 237. PUR AUTER VIE, does not apply in Virginia, 47. PURCHASE, defined, 192. Q QUARANTINE, See Widow's Quarantinb. QUIA EMPTORES, effect on rents, 54. granting right to sell real estate, 35. R RAILROADS, rolling stock, when personalty, 23. REAL ESTATE, defined and classified, 9. 576 GENERAL INDEX. [References are to Sections.^ REAL PROPERTY, distinguished from personal, 1. growing timber and grass considered, 11. house built by other than owner of land, 14. mineral rights, 12. origin of term, 7. statute of quia emptores granting right to sell, 35. RESCISSION, of support deeds, 281n. REDEMPTION, See Equity of Redemption. REMAINDERS, abeyance, Fearne's view, 181. abeyance, fee simple, 180. after collateral limitation distinguished from conditional, 255n. cannot be limited after fee simple, 182. cannot be separated from particular estate, 182. REMAINDER, See RtTLE in Shehet's Case. cannot take in derogation of particular estate, 182. classified, 174. contingent, by way of use, 213. contingent by will, 213. contingent, how destroyed, 185. contingent may be conveyed, 190. contingent not alienable at common law, 190n. contingent, not of freehold, requires no freehold sup- port, 176. contingent, of freehold, must vest eo instanti, 176. contingent, of freehold, requires particular estate to sup- .port, 176. contingent, rule against perpetuities, 220n. contingent, sale of, by decree of court, 191. contingent, subject to rules of common law, 213. contingent, with double aspect, 183. cross, defined, 184. cy pres doctrine as to contingent, 188. GENERAL INDEX. 577 [References are to Sections.'] REMAINDER— Continued. defined, 173. descendilDle and devisable, 189. dower in, 296. examples of limitations to surviving children in Vir- ginia, 204. ■ examples of vested, 177. Fearne's four ' classes, 179. how preserved at common law, 186. in deeds by way of use, and in devises, 213. must have support of particular estate, 182. not under Fearne's third class, 179. rule against perpetuities for contingent, 219. Rule in Shelley's Case, 193. rule of perpetuities for contingent, 187. surviving children, meaning of words, 203. three great rules, 175. to heirs, heirs of body or issue, 199n. vested, 211n. vested, of freehold, requires no freehold support, 176. Virginia statutes changing, 205. words of limitation and purchase, 192. REMAINDERMAN, rules as to fixtures, 25. RENT, common law defined, 53. effected by quia emptores, 54. ejectment for non-payment, 59. forfeiture for default in payment, 282 (2). go to personal representative on lessor's death, 60. granted out of land, 55. how reserved, 58. incident of land, 5. reserved out of real property, 57. tenant must pay for emblements, 44. when become due, 59. RENT SERVICE, incident to reversion, 54. RESTRAINT OF MARRIAGE, See Mabriage. 578 GENERAL INDEX. [References are to Sections.] RESTRAINT ON ALIENATION, See Alienation. REVERSIONS, dower in, 296. may be vested, 211n. when annexed to an estate for life, 243. REVOCATION, See Wills. RIGHT OP REVERTER, defined, 38. RIGHT OF WAY, Incident of land, 5. RULE AGAINST PERPETUITIES, See Pebpettjities. RULE IN SHELLEY'S CASE, distinguished, 193. effect of rule, 19 6n. five requisites of, 194. inflexihle character of, 196. origin of rule, 195. status of in United States, 198. Virginia statutes, 199. RULE IN WILD'S CASE, See Wild's Case. S SEISIN, See Livfby of Seisin. difference between seisin in fact, seisin in law, and right of acting for entry, 290. transitory, distinguished, 300n. SHELLEY'S CASE, See RtiLE in Shelley's Case. GENERAL INDEX. !;79 [References are to Sections.^ SHIFTING USE, See Executory Uses. SMITH V. BELL, status of doctrine, 248. SPRINGING USE, See Execdtobt Uses. SPECIFIC PERFORMANCE IN EQUITY, See Equitt. STATUTE OF LIMITATIONS, subtraction of war period, 144. STATUTE OF USES, See Uses. affecting conveyances, 113. defined, 114. in United States, 116. STATUTE ON WILLS, See Wills. SURVIVORSHIP, See Joint Tenants. riglits between joint tenants, 149. T TABLES OF MORTALITY, Wigglesworth's table adopted in Virginia, 307n. TABULAR VIEW, executory limitations, page 284. TACKING DISABILITIES, not allowed, 143. TENANCY IN COMMON, See Joint Tenants. 580 GENERAL INDEX. [References are to Sections.'] TENANTS BY ENTIRETIES, defined, 151. distinguished from joint tenants, 154. right of survivorship between, 153. TENANTS IN COMMON, See Advancement. distinguished, 155. how created, 155n. take by purchase, 156. TENANTS FOR LIFE, privileges of lessees, 45. TENANCY FROM YEAR TO YEAR, See Estates foe Yeaks. TENANT AT WILL, entitled to emblements, 69. TENEMENTS, corporeal and incorporeal distinguished, 5. distinguished from hereditaments, 6. under feudal system, 2. TENURE, English lands under feudal system, 2n. TERM OP YEARS, effect of breach of condition subsequent annexed thereto, 277n. TESTATOR, devise takes effect at death, 89. TESTAMENTARY CAPACITY, requisite to make valid will, 93. TIMBER, estate In, 11. TIME, to be subtracted in Virginia in computing for adverse pos- session, 144. GENERAL INDEX. 581 [References are to 8ections.'\ TITLE, mistake as to title authorizes rescission, 130n. modern covenants ol title, 130. warranty not Implied, 130n. TITLE BY ADVERSE POSSESSION, See Adverse Possession. TRESPASS, as between cotenants, 157. TRUSTS, condition subsequent distinguished from, 258. in devises and voluntary grants, 260n. powers not coupled with, 238 (3). spendthrift, 271n. when conveyance is for a particular purpose, 260. TRUSTEE, widow of, not entitled to dower, 295n. TRUST ESTATES, contingent remainders, 213. U USES, See Statute of Uses. example of power of appointment under the statute, 236. no dower or curtesy at common law, 292. VENDOR AND VENDEE, rights as to fixtures, 21. VIRGINIA, accounting between, cotenants, 161. adverse possession, 137. children by adoption, 70n. collaterals of the half blood, 75. construction of phrase, "to a woman and her children," 203. contingent Interests, sale of by decree of court, 191. 582 GENERAL INDEX. [References are to /Sections.] YIRGINIA.— Continued. death of lessee, 45. deed of grant, 117. distribution, 79. doctrine as to word "children," 202. dower, 286n. dower, assignment of, 317. dower in equitable estates, 294. effect of statutes on limitations contingent on dying with- out issue, 226. equity of redemption of dower, 304. estate-tail, after possibility of issue extinct, 48. estates for life of another, 47. executor and administrator, 96. executory interest, 234. general code provisions as execution and probate of wills, 95-111. hotchpot, 165. Inheritance by bastard, 76, 77n. leases, 52, 52n. leases, special provision affecting, 62. May V. Joynes distinguished, 246. modern rule, "if he die without issue," 225. penalty for non-performance of conditions, 282n. per stirpes and per capita, 72. personal property may be disposed by will, 81. personal representatives, 105-107. possibility of reverter alienable, 276. remainders, changed by statute, 205. remainders in fee upon contingency with double aspect, 224. rents, when due, 59. revocation of will, 91. right of distress, 56. rules against perpetuities, 220. statutes abolishing rule in Shelley's Case, 199. statute of descents, 71,72. statute of uses, 116. survivorship between joint tenants abolished, 153. survivorship between tenants by entireties, 153. title by devise, 80. warranty, 132. wills, 80, 84. GENERAL INDEX. 583 [References are to Sections.] YIRGINIA— Continued. witnesses to wills, 85. words of limitation, deeds or wills, 41 (II). WARRANTY, apparent injustice of collateral, 128. classified, 125. defined, 124. example of lineal and collateral, 126. measure of damages for breach, 135. purchaser entitled to general warranty, 132. status now of ancient feudal, 129. what heirs are affected by, 127. WARRANTY OF TITLE, not implied, 130n. WASTE, as between cotenants, 158. defined, 46. forfeiture for committing, 46. liability of tenant, 62n. WIDOW'S QUARANTINE, defined and explained, 313. interest on incumbrances, 315. nature and incidents, 314. rents and profits, 315. taxes, 315. WILD'S CASE, rule defined, 201. WILLS, See Exeoutoe and Administratoe. ademption. 111. alteration of law between execution of will and death of testator, 226n. appraisement personal estate, 103. capacity to make, 81. classification, 83. codicil, how revoked, 91. conditions in restraint of marriage, summary of the ef- fect, 269. 584 GENERAL INDEX. [References are to Sections.] WILLS — Continued. contract to make, 81n. demonstrative legacies, llln. devise must prove, 70. devise takes effect at death, of testator as to both realty and personalty, 89. effect of codicil, 86. example of power of appointment over property, 237. for deed in exercise of a power, 240n. form of attestation, 84. formalities for making, 84. fraud and undue influence, 93. future estate in personalty, 233. future limitation not executory devise, 213. initials when sufficient signature, 8. inventory of personalty, 104. lapsed devises, English and Virginia rule distinguished, 90. law governing making, 83. legacies — classified. 111. letter may be considered, 88. lost will may be probated, 92. marshalling of debts. 111. nuncupative defined, 83. olograph need not be attested, 84. per stirpes and per capita, 73n. power of executor of an executor, 99. realty and personalty same, 94. revocation, Virginia act, 91. specific legacy. 111. survivorship paramount to will, 150. testamentary capacity, 93. verbal testamentary trusts, 80n. Virginia law distinguished from common law, 80. what may be disposed of, 82. what parties in interest competent witnesses, 85. when may be probated, 92. when takes effect, 89. who are competent witnesses, 85. words limiting fee, 41. WITNESSES, competent to will, 80-85. GENERAL INDEX. 585 [References are to Sections.] WORDS OF LIMITATION AND PURCHASE, defined, 192. WOMEN, See Mabkied Women. KF 570 G77 Author Graves, Chalres Alfred Vol. Title Notes on the law of real Copy propert; 1