Mccormick harvesting machine co. v. gates.

75 Iowa, 343. - 1888. [Reported herein at p. 581.]

(3.) Not by Parol, or by Writing less than Deed.

Stewart V. Clark

13 Metcalf (Mass.), 79. - 1847.

Action of waste. The declaration alleged that defendant Clark, was tenant for life and that plaintiff held the next immediate estate of inheritance in the premises, and that defendant had made waste.

1 But a clear intention of the parties to that effect would prevent the merger of the estate pur autre vie. Snow v. Boycott, (1892) 3 Ch. Div. (Eng.) 110. Equity will often prevent a merger where otherwise serious wrong would be done. - ED.

As evidence of the existence of a life interest in defendant, plaintiff offered a paper purporting to create a life estate, but neither sealed nor acknowledged. Defendant objected to said paper as evidence of a freehold interest in him on the ground that it was not under seal, and to its reception because it was not acknowledged. The paper was rejected and plaintiff submitted to a nonsuit subject to the opinion of this court. Plaintiff claims that under § 28, ch. 59 of the Rev. Sts., "the paper in question may be operative, as a writing, against the grantor and his heirs to create a life estate."

Dewey, J. - The objection taken to the instrument offered as a conveyance of a freehold interest to Lewis Clark is sound, and must prevail. The instrument is not under seal; is not a deed. As a valid conveyance of a life estate, it should be under seal. Rev. Sts. c. 59, § 1. The further provision of § 28 that, "no bargain and sale or other like conveyance of any estate in fee simple, fee tail, or for life, and no lease, for more than seven years from the making thereof, shall be valid and effectual against any other person than the grantor and his heirs, and devisees, and persons having actual notice thereof, unless it be made by a deed recorded," does not dispense with the necessity of passing such title by deed.

Nonsuit confirmed.

b. The words of limitation.

Adams V. Ross

30 New Jersey Law, 505. - 1860.

[Reported herein at p. 483.]1

c. Created out of what.2 d. Successive life-estates.3

1 See also cases pp. 489-520, supra. - Ed.

2 Life estates are usually created by the owner of a fee or of a life estate; but note that the transfer of a life estate gives the transferee an estate pur autre vie. See cases cited herein. In New York an estate for life may be created out of a term for years. § 40, N. Y. R. P. L. - Ed.

3 Remainders for life. See N. Y. R. P. L., § 33, for a special limitation on their creation. - Ed.

3. Legal Life Estates. a. Estate in tail after possibility of issue extinct.1

b. Estates by the marital right.

Babb V. Perley.2

I Maine, 6. - 1820. [Reported herein at p. 27.]

1 Lit. 32. "Tenant in fee tail after possibility of issue extinct is, where tenements are given to a man and to his wife in special tail, if one of them die without issue, the survivor is tenant in tail after possibility of issue extinct. And if they have issue, and the one die, albeit that during the life of the issue, the survivor shall not be said tenant in tail after possibility of issue extinct; yet if the issue die without issue, so as there be not any issue alive which may inherit by force of the tail, then the surviving party of the donees is tenant in tail after possibility of issue extinct."

Lit. § 33. "Also if tenements be given to a man and to his heirs which he shall beget on the body of his wife, in this case the wife hath nothing in the tenements, and the husband is seised as donee in special tail. And in this case, if the wife die without issue of her body begotten by her husband, then the husband is tenant in tail after possibility of issue extinct."

Lit. § 34. "And note, that none can be tenant in tail after possibility of issue extinct, but one of the donees, or the donee in special tail. For the donee in general tail cannot be said to be tenant in tail after possibility of issue extinct; because always during his life, he may by possibility have issue which may inherit by force of the same entail. And so in the same manner the issue which is heir to the donees in special tail, cannot be tenant in tail after possibility of issue extinct, for the reasons above said."

"And note, that tenant in tail after possibility of issue extinct shall not be punished of waste, for the inheritance that once was in him. 10 H. 6, 1. But he in the reversion may enter if he alien in fee. 45 E. 3, 22." - Ed.

2 See also Houghton v. Hapgood, supra, p. 24, and Foster v. Marshall, p. 622, infra.

For the interest of the husband in his wife's leaseholds, see Riley's Administrator v. Riley, supra, p. 26. For the wife's separate estate in equity, see Jaques v. Trustees, supra, p. 93, and Pullen v. Rianhard, supra, p. 95.

In most of the states the doctrine of the estate by the marital right has been abrogated; at first usually by the introduction of a statutory separate estate, later by more radical statutes which place the married woman as to her property rights on the same footing as,a feme sole. For the course of legislation in New York on this subject, see Laws of 1848, ch. 200; 1849, ch. 375; 1860, ch. 90, and the Domestic Relations Law of 1896, §§ 20 and 21. See also statutes with regard to divorce, Code Civ. Proc, §§ 1759, 1760. - Ed.

c. Estate by the curtesy.

(I.) Nature of Curtesy Initiate and Consummate.

Foster V. Marshall

22 New Hampshire, 491. - 1851.

Writ of entry. The facts appear in the opinion.

Bell, J. - The principal question arising in this case, is as to the effect of the statute of limitations upon the demandant's right of action. It appeared that the demanded premises were set off by a committee of partition, appointed by the Court of Probate, to Mary Foster, formerly Mary Eastman, the mother of the demandant, as her share of the estate of her father, Samuel Eastman, deceased, on the 14th of May, 1814. Mary Foster was then the wife of Frederick Foster, by whom she then had one or more children. Frederick Foster died in 1834, and his wife in 1836. They had six children, whose rights are said to be now vested in the plaintiff.