Separate estate

“ But where no such separate estate existed with respect to property owned by the wife at the time of the marriage, or acquired subsequently, the statute interposed and created a separate estate in her behalf, with such incidents and attributes as the legislature saw fit to prescribe. ”

“ It is defined to be a rent reserved to himself and his heirs by the grantor of land, out of the land itself. It is not granted like an annuity or rent charge, but is reserved out of a conveyance of the land in fee. It is a separate estate from the ownership of the ground, and is held to be real estate, with the usual characteristics of an estate in fee simple, descendible, devisable, alienable. ”

“ The joint estate is converted into the separate estate of the assignee by force of the contract of assignment. And it makes no difference whether the retiring partner sells to the other partner or to a third person, or whether the sale is made by him or under a judgment against him. ”

“ Without the aid of the rule of doubt recognized by all the authorities upon the subject, we have no difficulty in coming to the conclusion that the deed of Austill cannot be held to have vested in the grantee a separate estate, or any other estate than a fee-simple. When she executed the mortgage, she had, therefore, a statutory separate estate. ”

“ The effect of the constitution of 1868, and of the act of 1873, in respect to property acquired by a married woman after the adoption of the former, and after the passage of the latter, was to make that property her separate estate as between herself and her husband, whether the deed conveying the title to her was recorded or not, and, as between her and the creditors of h e husband, from the time the property so held by her separately was recorded in her name, in the county where she lived or had a residence. ”

“ There, real estate belonging to her, whether acquired by descent or purchase in the usual way, is termed, though not technically so, her 'separate property,' and she has in equity all the power to dispose of it which could be given to her by the amplest deed of settlement. The statute regulating conveyances to pass the legal title is not unlike those of most of the other States. ”

“ The last and most important of these, the Settled Estates Act, passed in 1882, gives the tenant for life power to sell any portion of the estate except the family mansion, and thus thoroughly undermines the principle upon which primogeniture and entails are founded. Much land which has hitherto been so tied up that the limited owners were either unable or unwilling to develop it can now be sold and improved. ”

“ 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. ”

“ Cases may, indeed, be conceived in which it would produce a limited effect; as, for example, if the heir should hold against tenant in dower, or by the curtesy. But there is nothing there to bar but the tenancy in dower or curtesy. If there was, the bar would extend to it. In our case, the whole fee is against the possession by wrong, and his possession is against the whole fee. His declarations, that he claimed only a life estate, did not give him a life estate. ”

“ When the Crown, originally elective, became hereditary, the barons sought to have their possessions governed by the same rule, to remove them from the class of TERRAREGIS (FOLC-LAND) , and to convert them into chartered land. Being gifts from the monarch, he had the right to direct the descent, and all charters which gave land to a man and his heirs, made each of them only a tenant for life; the possessor was bound to hand over the estate undivided to the heir, and he could neither give, sell, nor bequeath it. ”

“ But if a man grant an estate in fee-simple, reserving to himself and his heirs a certain rent; and that, if such rent be not paid at the times limited, it shall be lawful for him and his heirs to re-enter, and avoid the estate ”

“ The extreme legal limit of a "settlement" is for lives in being, and twenty-one years after but there is every inducement for a landowner to renew the entail, and so create a virtual perpetuity.
"The position of the father and son with reference to the property is this. The father has only a life-interest in it; the son is tenant-in-tail. The son cannot sell the estate without the consent of the father, though he can dispose of his own prospective and contingent interest. The father can still less deal with the property without the consent of the son. ”

“ Supposing a lady possessed of land about to marry, is she not to be allowed to limit the estate to herself for life, with remainder to her child? Must she take the estate absolutely, or, in other words, leave the future of her children dependent on the chances of her husband turning out a provident man? Or, take the case of a man dying leaving an only daughter, is he to be obliged to leave his property unconditionally to his daughter, with the chance of its being dissipated and squandered by her husband? ”

“ The heir, whether the eldest or the youngest son, is subjected to the same obligations as in respect of freehold; and if the gavelkind custom applies, each share on a further intestacy descends to the heirs of the co-heir. In this way has been illustrated the disadvantage of any rule of law which makes real estate divisible. We knew a small copyhold estate consisting of a cottage and garden, which became by successive intestacies subdivided into shares, some of which were worth no more than two shillings per year each. ”

“ Moreover none of the usual precautions are adopted to mark the limits of the different properties, which, in the absence of any reliable land survey, are often very vaguely described in the title deeds.”198 In cases of intestacy real property is divided equally among the children or nearest relatives. When there is a will the testator can only reserve for his disposal a share of the estate equivalent to that which, after an equal division, descends by right to each of the direct heirs. ”

“ Estates not of freehold or less than freehold are subdivided into (i.) estates for years (often called estates for a term of years, the instrument creating it being termed a lease or demise, and the estate itself a leasehold interest) ; (ii.) estates at will, that is, where lands or tenements are let by one man to another to have and to hold at the will of the lessor; (iii.) estates at sufferance, where one comes into possession of land under a lawful title, and continues in possession after his title has determined. ”

“ The words 'and equally divided per capita,' while they qualify the effect of the word 'inherited' so far as to prevent a taking by the grandchildren per stirpes as under the statute of descents, also plainly indicate a vested remainder. Words directing land to be conveyed to or divided among remainder-men after the termination of a particular estate are always presumed, unless clearly controlled by other provisions of the will, to relate to the beginning of enjoyment by the remainder-men, and not to the vesting of the title in them. ”

“ The covenant in the deed, being in fee between the parties and their heirs, that the land is free from encumbrances, except leases, &c., specified, is broken, if there be any other outstanding encumbrances; and an estate in expectancy oustanding is an encumbrance upon the land and the seizin thereof. ”

“ Thus we find these words:
'And said trustees and their successors shall have full power to let and lease said estate, and to do all other legal acts for the well ordering and managing of said estate, under the limitations and restrictions as hereinbefore expressed.'
Now these limitations and restrictions are, that they should not sell, that the estate should not be divided in case part of the society should secede, that they shall lease the estate, but shall not give a lease for more than thirty years. ”

“ In the familiar case of land held by several tenants in common, or even by joint tenants with right of survivorship, any one of them may compel a partition, upon which the court, if the land cannot be equally divided, will order owelty to be paid, or, in many states, under statutes the constitutionality of which has never been denied, will, if the estate is such that it cannot be divided, either set it off to one and order him to compensate the others in money, or else order the whole estate to be sold. ”

“ The essential feature of the system they devised was the power of settling land on an unborn eldest son, who, as soon as he came of age, could make a fresh settlement with his father in favour of his own unborn eldest son. In failure of a son the land goes to the next male legal representative of the family, in strict line of primogeniture, which thus works with entail to keep an estate intact. Only on the entire failure of heirs male did an estate go to a female. Under entail, the rights of the heir, born or unborn, are everything. ”

“ As long as Lord A and his son lived—probably for a whole generation—the land lay at the mercy of men who, already long kept out of their money, would grudge every penny spent on improvements. It was to the interest of the creditors to repay themselves before the son of Lord B should come of age and make a new settlement. We may be sure that the creditors would not spend a farthing more than they could help on improving the estate for Lord B's son. ”

“ The principle deducible from these authorities seems to be, that, whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seized or possessed of a particular estate in the premises, and which estate the deed purports to convey ”

“ And the first question that would seem to arise is, whether the term estate, as here used, will extend to the interest which the debtor has in lands held adversely. An estate in lands, tenements, and hereditaments, signifies such interest as a person has therein, and is the condition or circumstance in which the owner stands with regard to his property. Coke. sec. 345. a. 2 Black. Com. 103.
The language of the act is broad enough to include a right of entry; and there can be no reason to believe that such was not the intention of the legislature. ”

“ An estate by the entirety is held by the husband and wife in single ownership, by a single title. They do not take by moieties, but both and each take the whole estate, that is to say, the entirety. The tenancy results from the common-law principle of marital unity ”

“ Article 1988, Paschal's Digest, reads as follows: 'All bargains, sales, and other conveyances whatever, of any lands, tenements, and hereditaments, whether they may be made for passing any estate of freehold or inheritance, or for a term of years; and deeds of settlement upon marriage, whether land, slaves, money, or other personal thing, shall be settled or covenanted to be left or paid, at the death of the party or otherwise ”

“ The right to dispose both of the possession and estate follows necessarily from the ownership of the property, and, this being so, no valid objection can be urged against incorporating the contract and power in the same instrument with the mortgage. ”

“ Where, by one clause in a will, an estate for life, or an estate in fee-simple, is given by plain words, if it appear in other parts of the will, by explanatory words or by implication, that it was the intent of the testator in such devise that the issue should take the estate in succession after him, then the life estate is enlarged in the one case, and the estate in fee reduced in the other, to an estate tail. ”

“ The creation of an estate in joint-tenancy depends on the wording of the deed or devise, by which the tenants claim title; for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of law. Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A and B and their heirs, this makes them immediately joint-tenants in fee of the lands. ”

“ On the other hand, the lord may not enter the land to cut his own timber or open his mines. The limitations of estates usual in respect of other lands, as found in copyhold, become subject of course to the operations of its peculiar conditions as to the relation of lord and tenant. An estate for life, or pour autre vie (i.e. for another’s life) , an estate entail, or in fee-simple, may be carved out of copyhold. ”

“ And what objection can there be to this as a valid executory devise, which is such a disposition of lands, that thereby no estate vests at the death of the devisor, but only on some future contingency? By an executory devise, a freehold may be made to commence in futuro, and needs no particular estates to support it. The future estate is to arise upon some specified contingency, and the fee simple is left to descend to the heir at law until such contingency happens. A common case put in the books to illustrate the rule is: if one devises land to a feme sole and her heirs upon her marriage. ”

“ But, in general, the law looks upon this estate as equivalent to an estate for life only; and, as such, will permit this tenant to exchange his estate with a tenant for life; which exchange can only be made, as we shall see hereafter, of estates that are equal in their nature.
III. Tenant by the curtesy of England, is where a man marries a woman seised of lands or tenements in fee-simple or fee-tail; that is, of any estate of inheritance; and has by her issue, born alive, which was capable of inheriting her estate. ”

“ If it is a mere personal right, it can be enjoyed only by the owner of the right, and when he dies, the right dies with him. But a right of way belonging to an estate may be conveyed when the land is sold. Thus, if a man owns lot A and lot B, and he used a way from lot A, over lot B, to a mill, or to a river; and if he sells lot A with all ways and easements, the grantee will have the same privilege of passing over lot B as the grantor had. ”