Estate (law)

“ But if the devise be to a man and his assigns, without annexing words of perpetuity, there the devisee shall take only an estate for life; for it does not appear that the devisor intended any more. 2. Neither does this rule extend to fines or recoveries, considered as a species of conveyance; for thereby an estate in fee passes by act and operation of law without the word "heirs:" as it does also, for particular reasons, by certain other methods of conveyance, which have relation to a former grant or estate, wherein the word "heirs" was expressed [24] . 3. ”

“ In a devise of real and personal property, the law makes a distinction as to the two estates, in the construction of devisees; and, when technical language is used, the devisee takes an absolute estate in the personal, and a limited estate, or an estate tail, in the real property. ”

“ Before proceeding to the particular examination of the legal effect of these different clauses in the will, it is necessary to state that, where there are no words of limitation to a devise, the general rule of law is, that the devisee takes an estate for life only, unless, from the language there used, or from other parts of the will, there is a plain intention to give a larger estate. ”

“ That one who wrongfully dispossessed another of his land, succeeded to the estate or interest in the land, was one of the most deeply rooted doctrines of the common law from the time when the idea of an estate in lands was first conceived. ”

“ Another kind of life estate is that which is acquired, not by the acts of the parties, as by lease, but by the operation of law. Such is the right of a husband to the real estate of his wife acquired by her before or after marriage. ”

“ An estate pur autre vie in incorporeal hereditaments—as a rent, for instance, granted by one person to another, during the life of a third party, and the grantor of which dies during the life-time of the person who holds the property—goes to the executor. ”

“ The authorities which have been quoted make it plain that the English law proceeds on the same theory as the Roman. One who buys land of another gets the very same estate which his seller had. He is in of the same fee, or hereditas, which means, as I have shown, that he sustains the same persona. On the other hand, one who wrongfully dispossesses another,—a disseisor,—gets a different estate, is in of a new fee, although the land is the same; and much technical reasoning is based upon this doctrine. ”

“ In support of this contention, common-law authorities are cited to the proposition that an estate created by the execution of a power takes effect in the same manner as if it had been created by the deed which raised the power; that the beneficiary takes, not under the execution of the power by the donee, but by authority and under grant from the grantor, in like manner as if the power and the instrument which created it had been incorporated into one instrument. ”

“ It is contrary to the policy of the law that there should be any outstanding titles, estates, or powers, by the existence, operation or exercise of which, at a period of time beyond lives in being and twenty-one years and a fraction thereafter, the complete and unfettered enjoyment of an estate, with all the rights, privileges and powers incident to ownership, should be qualified or impeded. ”

“ They may take a legal estate in one, because subsequent parts of the will require them to do acts in reference to it, which can be done only by the holder of the legal estate, and then the law assigns to them such an estate as the due execution of their trust demands; while at the same time, by force of the statute of uses, or of wills, the other land, as to which no duties are required of the trustees, goes to the cestuis que use. ”

“ An assent to an estate in remainder is an assent to the present estate, for a remainder can only be a continuation of an estate, and therefore a part of it. Whenever property, however, is so divided, that it has acquired two qualities, as is the case of land under a term for years, where there is the real property, and the chattel real arising out of it—the land and the rent—an assent to the legacy of one quality is no assent to the legacy of the other, and therefore, an assent to the legacy of [Pg 63] the rent is no assent to the legacy of the land ”

“ If a son or daughter be possessed of real and personal estate, and die unmarried, or widowed without children, and without making a will, leaving a surviving father, he would take the real estate as heir-at-law, and the personal estate as sole next of kin. ”

“ A devise of the real estate, therefore, subject to the payment of debts, will not exempt the personal estate, at least only in appearance; for if even the testator direct the real estate to be sold to pay the debts, the personal estate will, by the rule of law, be taken to exonerate the rule, unless the whole of the personal estate be left in specific legacies. It is indeed directed, by the decisions in several cases, to be thus applied, even though the personal debt should be secured by mortgage, and whether or not there be a bond or covenant for repayment. ”

“ Thus for instance the law of property of the Middle Ages, with the object of preserving family property from generation to generation, and protecting it against dissipation, declares family property or "Estate" to be inalienable without the consent of the heirs. ”

“ An executor has a still further right, when he is not named as expressly an executor in trust, and there is no appointment of the residue of the estate, after all the debts and legacies are satisfied, he, in right of his office, becomes residuary legatee; but, if either, by inference, expression, or legacy, he is debarred from that [Pg 96] advantage, he becomes tenant in trust for the next of kin, and among these he must divide the amount of the testator’s property. ”

“ She releases all claim or demand in law or equity, in possession or expectancy, 'so that neither she, nor her heirs, can or may, by any ways or means whatsoever, hereafter have, claim, challenge, or demand any right, title, interest, or estate in the premises.' It is hard to conceive how any conveyancer could devise language more comprehensive, or legal phraseology more stringent, to convey every possible estate of the grantor and operate as a perfect legal estoppel against all possible claim in any character whatever. ”

“ The estate is not to be divided in the event of a division of the society; and—
4. It is to be managed and directed exclusively by trustees who are appointed in the will, and by their successors; the surviving trustees to appoint when a vacancy happens.
The question is, whether these are strict common law conditions annexed to the estate, a breach of which, or of any one of them, will work a forfeiture, defeat the devise, and let in the heir ”

“ DOWER.—Under the rules of the common law, a wife was entitled, on the death of her husband, to an estate for life in one-third of the lands of which her husband was seized of an estate of inheritance at any time during the marriage. This dower right still exists in most States, although it may differ in some particulars. For example, in Connecticut, a dower right exists only in the real property which the husband owns at the time of his death, and not, as at common law, in all the real property of which he was seized during the whole marriage. ”

“ The English courts long ago declared it to be a rule of law to prevent perpetuities that no estate in lands could be created which was not to commence within the compass of a life or lives of persons then existing, with an exception intended to favor a minor heir. American courts accepted this rule, but some of them construed it as meaning that no estate in lands could be created which was to continue after the expiration of such a period. ”

“ Where lands are devised for the payment of portions, and any of the children entitled die before the lands are sold, the representatives of that child will be entitled to the money. In the case where a legacy is charged both upon the real and personal estate, and the executor claims out of the latter, he will succeed according to the rule of the spiritual court, where the claim is determinable, though the infant legatee should die before the time of payment, but the legacy will sink as far as it is charged upon the land. ”

“ If a person under conditions similar to the preceding case orders another person to cast his property overboard and such other person casts his property overboard, no responsibility shall be attached to the order, unless express responsibility is stated in the order.
59. The estate of a deceased person shall be held as security for the payment of his debt, whether the debt be known to his heirs prior to or after the division of the estate. ”

“ If a person wills his estate to one of his heirs, the will shall be sustained if the other heirs consent to it; but if they do not consent, the will shall not be sustained.
Article LXXV
If a person recognizes his property in the possession of another, which property he has neither sold nor given away as charity or otherwise, it shall be lawful for him to take or recover his property, unless he is afraid of being killed. In case he is afraid, he shall present the matter to the datu and then to the judge. ”

“ A distinction formerly prevailed as to the quantum of interest payable on legacies charged on lands, and such as were chargeable on personal property, for it was deemed but fair that [Pg 83] as land never produces a profit equal to the interest on money, so the interest on a legacy charged on such property, should be one per cent. lower than that charged on personalty. But the distinction is now set aside, and whether legacies are charged on realty or personal estate, the established practice is to allow only four per cent. where no other rate of interest is specified by the will. ”

“ Estates in land may be classified according to (1) the quantity of their interest or duration, (2) the time of enjoyment, and (3) the number and connexion of the tenants. According to (1) , an estate may be either a freehold of inheritance or a freehold not of inheritance. A freehold of inheritance may be (a) an estate in fee simple, which is the largest estate a man can hold in English law, and comes close to the idea of absolute ownership, repudiated by Williams ”

“ Where, however, a mortgagee has exhausted the personal assets, instead of taking the estate over which he held his particular power, the legatee will come upon the mortgaged premises for the satisfaction of his claim, for the personal assets ought not to be so appropriated, to the defeating of any legacy, either specific or pecuniary. Where, also, a specialty creditor shall have exhausted the personalty, the legatee will have a claim upon the real estate before a residuary devisee. ”

“ Indeed, he even says that the land "is erected into a legal or fictitious person, and is styled 'praedium dominans.'" /3/ But if this means anything more than to explain what is implied by the Roman metaphors, it goes too far. The dominant estate was never "erected into a legal person," either by conscious fiction or as a result of primitive beliefs. /4/ It could not sue or be sued, like a ship in the admiralty. It is not supposed that its possessor could maintain an action for an interference with an easement before his time, as an heir could for an injury to property of the hereditas jacens. ”

“ No estate or interest in real property other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred, or declared otherwise than by operation of law or by a conveyance or other instrument in writing, subscribed by the party creating, transferring, or declaring the same, or by his lawful agent, under written authority, and executed with such formalities as are required by law.' 'Sec. ”

“ The court may authorize him to sell real estate, and will authorize him, if it is necessary to pay debts or legacies, but only in such cases unless a power is expressly given. Trustees, executors and administrators have no power to pledge property unless expressly given in the instrument under which they act. They have power to make such contracts as are necessary to carry out their trust, but only these, and even when they make such contracts they are personally liable upon them, having, however, a right of reimbursement from the estate which they represent. ”

“ No man is in law the absolute owner of lands. He can only hold an estate in them.” That is, the notion of tenure, of holding by a tenant from a lord, prevails. The last lord of all from whom all land was ultimately held was the king. Persons holding directly from the king and granting to others were the king’s tenants in capite, and were the mesne lords of their tenants. ”

“ Simply this: that, putting aside the one or two cases where estates have been strictly entailed by the State upon families. as a reward for public services, there is no estate tail in England which cannot, the moment the owner of it is of age and sui juris, be turned into a fee simple by the simple process of enrolling a deed in the Chancery Division; and as the law disallows the tying up of estates for more than a life or lives in being and 21 years afterwards, it is practically impossible that the system of entail can keep land inalienable for more than a generation. ”

“ A mortgage of real estate has gradually, partly by the adoption of rules of equity in courts of common law, and partly by express provisions of statute, come to be more and more considered as a mere security for the debt, creating a lien or incumbrance only, and leaving the title in the mortgagor, subject to alienation, levy on execution, dower, and other incidents of a legal estate ”