It seldom happens that any subject is brought frequently to a person's notice, without his forming concerning it opinions of some kind. And such opinions carelessly picked up are often carefully retained, though in many cases wrong, and in most inadequate. The subject of property is so generally interesting, that few persons are without some notions as to the legal rights appertaining to its possession. These notions, however, as entertained by unprofessional persons, are mostly of a wrong kind. They consider that what is a man's own is what he may do what he likes with; and with this broad principle they generally set out on such legal adventures as may happen to lie before them. They begin at a point at which the lawyer stops, or at which indeed the law has not yet arrived, nor ever will; but to which it is still continually approximating. Now the student of law must forget for a time that, if he has land, he may let it, or leave it by his will, or mortgage it, or sell it, or settle it. He must humble himself to believe that he knows as yet nothing about it; and he will find that the attainment of the ample power, which is now possessed over real property, has been the work of a long period of time; and that even now a common purchase deed of a piece of freehold land cannot be explained without going back to the reign of Henry VIII. (a), or an ordinary settlement of land without recourse to the laws of Edward I. (b). That such should be the case is certainly a matter of regret. History and antiquities are, no doubt, interesting and delightful studies in their place; but their perpetual intrusion into modern practice, and the absolute necessity of some acquaintance with them, give rise to much of the difficulty experienced in the study of the law, and to many of the errors of its less studious practitioners.
(a) Stat. 27 Hen. VIII. c. 10, the Statute of Uses.
The first thing then the student has to do is to get rid of the idea of absolute ownership. Such an idea is quite unknown to the English law. No man is in law the absolute owner of lands. He can only hold an estate in them.
The most interesting, and perhaps the most ancient of estates, is an estate for life; and with this we shall begin. Soon after the commencement of the feudal system, to which, as we have seen, our laws of real property owe so much of their character, an estate for life seems to have been the smallest estate in conquered lands which the military tenant was disposed to accept (c). This estate was inalienable, unless his lord's consent could be obtained (d). A grant of lands to A. B. was then a grant to him as long as he could hold them, that is, during his life, and no longer (e); for feudal donations were not extended beyond the precise terms of the gift by any presumed intent, but were taken strictly (f); and, on the tenant's death, the lands reverted to the lord or grantor. If it was intended that the descendants of the tenant should, at his decease, succeed him in the tenancy, this intention was expressed by additional words of grant; the gift being then to the tenant and his heirs, or with other-words expressive of the intention. The heir was thus a nominee in the original grant; he took every thing from the grantor, nothing from his ancestor. So that, in such a case, " the ancestor and the heirs took equally as a succession of usufructuaries, each of whom during his life enjoyed the beneficial, but none of whom possessed, or could lawfully dispose of, the direct or absolute dominion of the property" (g). The feudal system, however, had not long been introduced into this country before the restriction on alienation began to be relaxed (h). Subsequently, by a statute of Edward I. (i), the right of every freeman to sell at his own pleasure his lands or tenements, or part thereof, was expressly recognized; at a still later period the power of testamentary alienation was bestowed (k), until, at the present day, the right to dispose of property is not only established, but has become inseparable from its possession (l). Moreover, the old feudal rule of strict construction has long since given way to the contrary maxim, that every grant is to be construed most strongly against the grantor (m). Yet so deeply rooted are the feudal principles of our law of real property, that, in the case before us, the ancient interpretation remains unaltered; and a grant to A. B. simply now confers but an estate for his life (n), which estate, though he may part with it if he pleases, will terminate at his death, into whosesoever hands it may have come.
An estate for life.
(b) Stat. 13 Edw. I. c. 1, De Donis Conditionalibus to which estates tail owe their origin.
(c) Watk. Descents, 107 (113, 4th ed.); 1 Hallam's Middle Ages, 160. There seems no good reason to suppose that feuds were at any time held at will, as stated by Blackstone (2 Black. Com. 55) and by Butler (Co. Litt. 191 a, n. (1), vi. !).
(d) Wright's Tenures, 29; 2 Black. Com. 57.
(e) Bracton, lib. 2, fol. 92 b, par. 6.
(f) Wright's Tenures, 17, 152.
Blackstone's reason for the estate being for life - that it shall be construed to be as large an estate as the words of the donation will bear (2 Black. Com. 121) - is quite at variance with this rule of construction.
(g) Co. Litt. 191 a, n. (1), vi. 5; Burgess v. Wheate, 1 Wm. Black. 133.
(h) Leg. Hen. I. 70; 1 Reeves's Hist. Eng. Law, 43, 44; Co. Litt.
191 a, n. (1), vi. (5.
(i) Stat. 18 Edw. I. c. 1.
(k) By stat. 32 Hen. VIII. c. 1, as to estates in fee simple, and by stat. 29 Car. II. c. 3, s. 12, as to estates held for the life of another person. See 1 Jarm. on Wills, 54, 1st ed.; 49, 2nd ed.; 55, 3rd ed.
(l) Litt. sect. 360; Co. Litt. 223 a; Ware v. Cann, 10 Barn. & Cress. 433.
(m) Shep. Touch. 88.
The most remarkable effect of this antiquated rule has been its frequent defeat of the intentions of unlearned testators (o), who, in leaving their lands and houses to the objects of their bounty, were seldom aware that they were conferring only a life interest; though, if they extended the gift to the heirs of the parties, or happened to make use of the word estate, or some other such technical term, their gift or devise included the whole extent of the interest they had power to dispose of. "Generally speaking," says Lord Mansfield (p), "no common person has the smallest idea of any difference between giving a horse and a quantity of land. Common sense alone would never teach a man the difference; but the distinction, which is now clearly established, is this: - If the words of the testator denote only a description of the specific estate or land devised, in that case, if no words of limitation are added, the devisee has only an estate for life. But if the words denote the quantum of interest or property that the testator has in the lands devised, then the whole extent of such his interest passes by the gift to the devisee. The question, therefore, is always a question of construction, upon the words and terms used by the testator." Such questions, as may be imagined, have been sufficiently numerous. Happily by the act of parliament for the amendment of the laws with respect to wills (q), a construction more accordant with the plain intention of testators is now given in such cases.