[tenants, having thus determined the estate by their own acts, shall not be entitled to take the emblements (t). The doctrine of emblements extends not only to corn sown, but to roots planted, or other annual artificial profit, but it is otherwise of fruit trees, grass, and the like, which are not planted annually at the expense and labour of the tenant, but are either a permanent or natural profit of the earth ("). For when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of its being useful to himself in future, and to future successions of tenants. The advantages also of emblements are particularly extended to the parochial clergy by the statute 28 Hen. VIII. c. 11. For all persons who are presented to any ecclesiastical benefice, or to any civil office, are considered as tenants for their own lives, unless the contrary be expressed in the form of donation. 3. A third incident to estates for life relates to the under tenants or lessees. For they have the same, nay greater indulgences than their lessors, the original tenants for life. The same; for the law of estovers and emblements, with regard to the tenant for life, is also law with regard to his under-tenant, who represents him and stands in his place (x): and greater; for in those cases where tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee, who is a third person. As in the case of a woman who holds durante viduitate: her taking husband is her own act, and therefore deprives her of the emblements; but if she leases her estate to an under tenant, who sows the land, and she then marries, this her act shall not deprive the tenant of his emblements, who is a stranger and could not prevent her (y). (t) Knevett v. Pool, Cro. Eliz. 461; 1 Roll. Abr. 727. (u) Co. Litt. 55 a, 55 b; 1 Roll. Abr. 728. (x) Co. Litt. 55 b. [The lessees of tenants for life had also at the common law another most unreasonable advantage; for, at the death of their lessors, the tenants for life, these under-tenants might if they pleased quit the premises, and pay no rent to any body for the occupation of the land since the last quarter day, or other day assigned for payment of rent (z). To remedy which it is now enacted (a), that the executors or administrators of tenant for life, on whose death any lease determined, shall recover of the lessee a rateable proportion of rent, from the last day of payment to the death of such lessor; and also by a later statute (b), that where any lease shall determine on the death of the person making the same (though he may not have been strictly tenant for life), or on the expiration of the life or lives for which he was entitled, a proportion of the rent shall in like manner be recoverable by his executors or administrators, or by himself, as the case may be. [II. The next estate for life is of the legal kind, as contradistinguished from conventional; viz. that of tenant in tail after possibility of issue extinct (c). This happens where one is tenant in special tail, and a person, from whose body the issue was to spring, dies without issue; or, having left issue, that issue becomes extinct: in either of these cases the surviving tenant in special tail becomes tenant in tail after possibility of issue extinct. As where one has an estate to him and his heirs on the body of his present wife to be begotten, and the wife dies without issue (d): in this case the man has an estate-tail, which cannot possibly descend to any one; and therefore the law makes use of this long periphrasis as absolutely necessary to give an adequate idea of his estate. For if it had called him barely tenant in fee-tail special, that would (*) Clun's case, 10 Rep. 127. (a) Stat. 11 Geo. 2, c. 19, s. 15; see Jenner v. Morgan, 1 P. Wms. 392. (b) 4 & 5 Will. 4, c. 22. (c) As to this estate, vide Lewis Bowles's case, 11 Rep. 79 b; Co. [not have distinguished him from others; and besides he has no longer an estate of inheritance, or fee (e), for he can have no heirs capable of taking per formam doni. Had it called him tenant in tail without issue, this had only related to the present fact, and would not have excluded the possibility of future issue. Had he been styled tenant in tail without possibility of issue, this would exclude time past as well as present, and he might under this description never have had any possibility of issue. No definition therefore could so exactly mark him out as this of tenant in tail after possibility of issue extinct, which (with a precision peculiar to our own law) not only takes in the possibility of issue in tail which he once had, but also states that this possibility is now extinguished and gone. This estate must be created by the act of God, that is, by the death of that person out of whose body the issue was to spring; for no limitation, conveyance, or other human act can make it. For, if land be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced a vinculo matrimonii, they shall neither of them have this estate, but be barely tenants for life, notwithstanding the inheritance once vested in them (f). A possibility of issue is always supposed to exist in law, unless extinguished by the death of the parties; even though the donees be each of them an hundred years old (g). This estate is of an amphibious nature, partaking partly of an estate-tail, and partly of an estate for life.] For besides the name of tenant in tail, the tenant is so far in the condition of a tenant in tail properly so called, as to be dispunishable (that is, not answerable) for waste (h); and he formerly possessed some other of the privileges of (e) Bowles v. Berrie, 1 Roll. Rep. 184; Lewis Bowles's case, 11 Rep. 80. (f) Co. Litt. 28 a. (g) Id. (h) Co. Litt. 27 b; vide Whitfield v. Bewitt, 2 P. Wms. 240; Williams v. Williams, 12 East, 209. a tenant in tail, connected with branches of the law which have now become extinct (i). But, on the other hand, his estate in a general point of view has always been considered as equivalent to an estate for life only; and therefore the law permits a tenant in tail of this description and an ordinary tenant for life to make mutual alienation of their estates by that particular method of conveyance called an exchange; which can take place (as we shall see hereafter) only in the case of estates that are equal in their nature. III. An estate by the curtesy of England (k) is that to which a man is by law entitled on the death of his wife, in the lands and tenements of which she was seised during the marriage, in fee simple or fee tail (1); provided he had issue by her born alive during the marriage, and capable of inheriting her estate: in this case he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England. If the lands, however, be in gavelkind, the rule is so far different, that he shall hold no more than a moiety, and that only while he lives unmarried; and, on the other hand, his title attaches whether he had issue born or not (m). This estate is said, in the Mirrour (n), to have been introduced by King Henry the First; and, notwithstanding its appellation, was not peculiar to this realm (0); for it (i) Co. Litt. 27 b; Lewis Bowles's case, 11 Rep. 80 a. (k) As to an estate by the curtesy, vide Co. Litt. 29 a-30 b; 2 Saund. by Williams, 45, n. (5), 46, n. (q), 382 a, b; Buckworth v. Thirkell, 3 Bos. & Pul. 652, n.; Barker v. Barker, 2 Sim. 249. (1) Doe v. Rivers, 7 T. R. 276. (m) Robins, Gavelk. b. 2, c. 1; et vide acc. as to birth of issue, Co. Litt. 30 a. (n) Cap. 1, s. 3. (0) It is said by Blackstone (citing Crag. 1. 2, t. 19, s. 4,) to have also obtained in Scotland, where it was called Curialitas; (see also Co. Litt. 30 a.) And Blackstone hence infers that probably our word curtesy signified an attendance by the husband on the lord's court,or curia, (in capacity of his vassal or tenant in respect of the wife's land). Tenant by the curtesy is said, however, by Littleton, to be so called, "because this is used in no other "realm but in England only;" Litt. [also appears to have obtained in Normandy (p); and was likewise used among the ancient Almains or Germans (q). And yet it is not generally apprehended to have been a consequence of feodal tenure (r), though some substantial feodal reasons may be given for its introduction. For if a woman seised of lands hath issue by her husband, and dies, the husband is the natural guardian of the child, and as such is in reason entitled to the profits of the lands in order to maintain it; for which reason the heir apparent of a tenant by the curtesy could not be in ward to the lord of the fee during the life of such tenant (s). As soon therefore as any child was born, the father began to have a permanent interest in the lands, he became one of the pares curtis, did homage to the lord, and was called tenant by the curtesy initiate; and this estate, being once vested in him by the birth of the child, was not suffered to determine by the subsequent death or coming of age of the infant. There are four requisites necessary to make a tenancy by the curtesy: marriage, seisin of the wife, issue, and death of the wife (t):]– 1. The marriage must be legal; so that if either void ipso facto, or avoided by a divorce a vinculo matrimonii, no estate by the curtesy can in either case be claimed (u). [2. The seisin of the wife must be an actual seisin, or possession, of the lands ; not a bare right to possess, which is a seisin in law, but an actual possession, which is a seisin in deed (x). s. 35. And the manner in which he is described in the old pleadings, "Tenaunt per lei d'Engleterre," (Year-Book, Trin. 1 Edw. II.) seems to confirm that etymology. See also Co. Litt. by Harg. 30 a, n. (5), and the Patent Roll of Hen. 3, there cited, which speaks of this estate as the consuetudo et ler Angliæ. But though the term may have been derived from a notion that the estate was peculiar to the law of England, it is clear that the supposed peculiarity did not in fact exist. (p) Grand Coustum. c. 119. (u) Vide Rennington v. Cole, Noy, 29. (r) Co. Litt. 31 a, 29 a. The term seisin in law is usually applied to a title by descent, before the heir has |