33. As to mode of creation, life estates are:
(a) Conventional, created by act of the parties (p. 56),
(b) Legal, created by operation of law (p. 69).
1 2 Bl Comm. 120.
2 Hurd v. Cushing, 7 Pick. (Mass.) 169; Warner v. Tanner, 38 Ohio St 118; Beeson v. Burton, 12 C. B. 647. But cf. Gilrnore v. Hamilton, 83 Ind. 198. 3 Roseboom v. Van Vechten, 5 Denio (N. Y.) 414.
The main division of life estates is into conventional and legal life estates. The former are those which the parties create by their acts, having the creation of such estates in view as the result of the acts, as where the owner of a fee simple grants another the land for so long as he lives.4 Legal life estates, on the other hand, result from the operation of law, without any acts by the parties looking to such result, but from acts done for other purposes. For example, marriage may give both husband and wife interests in the realty of the other, although nothing has been said, or no express contract rnade, in relation to such realty. These estates are created by operation of law, and are called life estates. Conventional life estates will be considered in the remainder of this chapter, and legal life estates in the succeeding chapter.
34. Conventional life estates may be measured by one or more lives.
35. At common law no words of limitation need be added to the grantee's name to create a life estate.
Conventional life estates are of two sorts, depending on the person whose life limits the duration of the estate. They are either for one's own life,5 or during the life of another person, in which case they are called "estates per autre vie."6 An estate for one's own life is regarded as of a higher nature than an estate per autre vie.7 Estates during two lives, as "to A. and B., during their joint lives," or "to A., during the lives of B. and C," are in tate for the grantor's life. A man may take a life estate by implication, as by a devise of land to the testator's heirs after the death of B., from which it would be presumed that B. was to have the land during his life.13 But, if the devise is to a stranger after B.'s death, no such presumption arises, and the estate goes to the heir during B.'s life.14
4 2 Bl Comm. 120. By statute In several states, life estates "may be created in a term of years and a remainder limited thereon." 1 Stim. Am. St. Law, § 1427. A life estate cannot be created by parol Stewart v. Clark, 13 Metc. (Mass.) 79; Garrett v. Clark, 5 Or. 464.
5 Co. Litt. § 56.
6 Co. Litt. § 56; 2 Bl Comm. 120. 7 2 Bl Comm. 121, reality measured by a single life. A limitation during joint lives is in effect the same as during the life of the shortest liver of those named, and one during two or more lives is equivalent to an estate during the life of the one who lives longest.8 An estate for joint lives must be expressly so limited.9