the daughters equally. The custom also extends to collaterals, Gavelkind. and in default of children the lands go to all the brothers equally. The issue of a deceased son, daughter, or brother, who if living would have been entitled to a share, are entitled per stirpes, i.e. to the share of their deceased parent. The husband is entitled to curtesy (post, p. 30), on the death of his wife seised of gavelkind lands, whether he had issue or not, but only to a moiety; and this right ceases on his marrying again. Another marked peculiarity of this tenure is that an infant of the age of fifteen years can alienate by feoffment (post, p. 83). Lands of gavelkind tenure exist almost exclusively in Kent, where all lands are assumed to be gavelkind until the contrary is shown, and it is said that the word "gavelkind" is not properly used of lands outside Kent, even though affected by the custom. Various Acts have been passed from time to time, beginning with 31 Hen. 8, c. 3, for the purpose of "disgavelling" lands. Borough-English is a custom chiefly affecting lands held by Boroughburgage tenure within certain ancient boroughs and some English. manors; the descent is to the youngest son, to the exclusion of all other children. There are also certain modifications of this custom extending to females and to collateral descendants (1). Ancient demesne is a tenure existing only in manors which were in the hands of the Crown in the days of Edward the Confessor and William the Conqueror. The better opinion would seem to be that these tenants are freeholders, and they enjoy certain immunities, the chief of which is the right to sue and be sued only in the lord's Court, but this tenure is at the present time unimportant. Frankalmoign, or free alms, is the tenure by which the lands Frankalof parochial clergy of the Church of England are for the most moign. part held. There are no services incident to this tenure; and as the church has a perpetual existence in its corporate capacity there cannot be any escheat of the land. Hence, though in theory absolute ownership of land is not recognised by law, yet land held by this tenure is in effect held absolutely. The word "estate" is used in two significations: (1) its (1) See further as to other peculiar customs of descent: Challis. Law of Real Property, p. 14, where it is pointed out that the restriction upon the legality of local customs is founded upon the consideration that, if every trifling locality were indulged in the use of special customs, the common law, which is only the general custom Estates in land. technical sense, viz., the quantity of interest in real property 2. With regard to the number and connection of the tenants. 3. With regard to the quantity or legal magnitude of the estate. 4. With reference to the time of the enjoyment of the estate. 1. With regard to the nature of the estate. The estate may be either legal or equitable (post, p. 16). 2. With regard to the number and connection of the tenants. The estate may be held (1) in severalty or individual ownership, or it may be held (2) in concurrent ownership. In the latter case, it may be held (a) as a joint tenancy, or (b) as a tenancy in common, or (c) in coparcenary (post, p. 60). 3. With regard to the quantity or legal magnitude of the estate. The great division of estates considered with reference to their quantity is into estates of freehold and estates less than freehold. Estates of freehold are: (1) Estates for life; (2) Estates in tail; and (3) Estates in fee. Estates less than freehold are estates (1) at sufferance, (2) at will, (3) for years. Thus, beginning at the lowest and proceeding through all the stages to the highest estate known to English law, we find that the various estates in real property considered with reference to their respective quantities, are (1) Tenancy by sufferance (see infra, on this page); (2) Tenancy at will (see infra, on this page); (3) Estates for years (post, p. 112); (4) Estates for life (post, p. 22); (5) Estates in tail (post, p. 33); (6) Estates in fee simple (post, p. 43). A tenancy by sufferance is the lowest estate which can subsist. It arises where a person has held by a lawful title, and continues the possession after his title has determined, without either the agreement or disagreement of the person then entitled to the land, e.g., if a man has a lease for three years, and he holds over after that is out he is a tenant by sufferance (2). A tenancy at will is an estate in land, determinable at the will either of the landlord or tenant. Such a tenancy may be granted either by express words, written or orally, or by implication or construction of law. (1) Wharton's Law Lexicon. (2) Doe v. Smaridge, 7 Q. B. 957. 4. Estates considered with reference to times of their enjoyment are either in possession or in expectancy. Estates in expectancy are either— A. In reversion; B. In remainder; or C. Executory estates. These estates are treated together hereafter (p. 64, et seq.) under the head of "future estates." Legal estates. Equitable estates. CHAPTER III. LEGAL AND EQUITABLE ESTATES. One of the aspects, as has already been pointed out (ante, p. 14), in which the various interests in property may be regarded, is that denoted by the distinction of estates and interests into "legal" and "equitable." The legal estate is that which was prior to the Judicature Act alone recognised in the Courts of law; the equitable estate is that which was only recognised in the Courts of Equity. The distinction between the two classes of estates is pointed out by a well-known text-writer, as follows: : 1. A merely legal interest is such an interest in or ownership of real or personal property, as is not of a beneficial, but simply of a possessory and fiduciary character. 2. A merely equitable interest is a beneficial interest in or beneficial ownership of real or personal property unattended with the possessory and legal ownership thereof (1). 3. An interest both legal and equitable is an interest in or ownership of real or personal property, which confers a right both to the possession, and to the beneficial enjoyment of such property, as well at law as in equity. Where the equitable and legal estates are both equal and co-extensive and become vested in the same person in the same right the equitable estate is said "to merge " in the legal. The division of the ownership of property into legal and equitable estates or interests arose through the recognition by the early chancellors of uses of land. Uses were originally introduced by the ecclesiastics to avoid the effect of the Statutes of Mortmain which forbade the granting of land to religious houses, and were afterwards adopted by the laity, chiefly in turbulent times, to avoid the penalties of forfeiture for treason. The mode in which this was effected was that conveyances were made to persons to hold to some specific uses, and declarations were then made by the legal owners that they themselves would hold to such uses. These uses were not recognised by the Courts of common law jurisdiction, but were effectual only by the rules of equity administered by the chancellors and were therefore called "equitable" estates. The doctrine of equitable (1) Smith's Real and Personal Property, 248. interest, says Mr. Hayes (1), was founded on confidence in the Uses. person as opposed to the direct dominion over the land. The estate of the old common law proprietor was actual and manifest; the right of the new beneficiary presented nothing either tangible or visible. The legal owner of the land contracted a moral obligation to hold or to dispose of it for the benefit of another, who was said to have the Use. Thus, A. conveyed land to B., to his (A.'s) own use, or to the use of C. This declaration of the use charged the conscience of B., the legal feoffee or grantee, but did not attach itself to the land. The parents of the use, as it was somewhat sarcastically said, were fraud and fear (2), and a Court of conscience was its nurse. As the feudal and other obligations which attached to ownership at common law did not apply to the use, the creation of a use became a means whereby the benefits of ownership might be secured to a person without any of its burdens. This gave rise to various inconveniences. "The clergy who were prohibited (by the laws against mortmain) from purchasing land, but who could now take the profits to any extent without becoming the legal owner of a single rood, increased their possessions. The factious baron vested his estate in a few confidential friends, and committed treason with comparative safety. The peaceful proprietor adopting the same precautions enjoyed and disposed of the beneficial interest unvexed by the exactions of the lord, and regardless of the rules of the common law (3)." By way of remedy for this the legislature sought to abolish the system by a single blow. The famous Statute of Statute Uses (27 Hen. 8, c. 10) was accordingly passed in the year 1536. This Act provided that where any person or persons should stand seized of any lands or other hereditaments to the "use, confidence, or trust" of any other person or persons, or body politic, the person or persons or body politic that had any such use, confidence, or trust, i.e., the persons, &c., entitled to the beneficial interest in the property, should be deemed in lawful seizin of the lands and hereditaments for such estates as they had in the use, trust, or confidence. The same section also provided" that the estate, title, right, and possession, that was in such person or persons that were or thereafter should be seized of any lands, &c., to the use, confidence, or trust of any such person or persons, &c., should be from thenceforth clearly (1) Hayes on Conveyancing, p. 32. (2) "Fear," said Lord Coke, “in times of trouble and civil wars to save inheritances from being forfeited; VOL. I. and fraud, to defeat dne deb's, law- (3) Hayes on Conveyancing, p. 35. C of Uses. |