that no inconvenience will be produced, as administration can be obtained by a stranger, in case the party who is entitled to adminis-[ 45 ] tration shall, on being cited, refuse to take letters of administration. Thus the freehold of the church will be in abeyance, till a successor to the parson shall be appointed (p); and on the death of the tenant pour autre vie, leaving the possession vacant, the freehold will be in abeyance till some one enters (q). The former hypothesis is most consonant with our system of tenures. Thus in the case of the birth of a posthumous child, the heir for the time being is allowed to take (r): and the statute of Will. III. (s) applies only to posthumous children, who are to take by purchase, on the death of their parent; and consequently are in esse to many purposes (t). All estates of inheritance are estates of freehold. Estates of freehold, however, are not necessarily estates of inheritance. Under the division of estates of freehold, may be classed, First, The estate of tenant for his own life. Secondly, For the life of another person, or pour autre vie. Thirdly, For the joint lives of several per sons. [46] Fourthly, For a period which is circumscribed by, and may determine during a life or lives, as, 1st, During widowhood. 2d, During chastity. 3d, While sole. 4th, Till the return of A. from Rome, and the like; of which a great variety of examples, with the circumstances distinguishing estates of uncertain duration, which are of freehold, from those which are of inheritance, will be found in the essay on estates (u). Some of these estates of mere freehold may be transmissible to heirs, or heirs of the body; still, however, they are merely estates of freehold and not of inheritance. The heirs are to take by special occupancy or designation, not by descent (v). Estates of inheritance are, 1st, Estates in fee simple. 2d, Qualified fees. 3d, Determinable fees. 4th, Fees subject to conditions. (u) Chap. Estates for Life. Grey v. Manock, stated 6 Doe d. Blake v. Luxton, & Term Rep. 289. Ripley v. Waterworth, 7 Ves. jun. 425. 5th, Fees conditional, and 6th, Estates-tail, in all their varieties (w). And whatever is the nature or extent of[ 47 ] the freehold, vested in the tenant, whether it is of the superior or inferior denomination, is of no material importance to the validity of the recovery. All that is regarded is, that the tenant should have the freehold: no attention is paid to the circumstance, that the estate is absolute or conditional, indefinite or determinable. It will be sufficient, even though it should continue in the tenant only for an instant; as in case of a grant made within the term to A. and his heirs, till he shall be tenant of the freehold. Though the freehold commences, and, as it should seem, determines in the same instant, under this grant, the rule of law, which requires the tenant to have the freehold before judgment is given, will be satisfied. Who shall be said to have the Freehold. The law does not merely and simply require that the tenant should have an estate of freehold.-Any estate of freehold or inheritance would answer that description. He must have that estate which confers the interest, emphatically denominated the freehold in other words, the immediate (w) Essay on Estates, Chap. Fee. [ 48 ] freehold; namely, the first of all the estates of freehold. For example, when A. is tenant for life, remainder to B. for life, in tail, or in fee, B. has an estate of freehold, but A. has the immediate freehold; and it is he, or the person claiming under his conveyance, who must (to bar the estate-tail, &c.) be named tenant in the proceedings (x): unless indeed an end be put to his interest, by the surrender or merger of his estate; so as to accelerate the remainder or reversion, and thus confer on the owner of the remainder or reversion the title to the immediate freehold. And it is immaterial whether the tenant has the freehold in fact, or the freehold in law only, as an heir before entry (y). Another conclusion to be drawn from these observations is, that the tenant must have the estate of freehold. A mere contingent executory interest is not any estate: such interest will not answer the description of an estate of freehold (z). [ 49 ] Whoever wishes to understand this subject in a scientific manner must study the learning of real actions. As an introduction to this interesting subject, the chapter on Freeholds in the Essay on Estates, will, it is hoped, be found of some use. (x) Pigot, 37. Smith ex. dem. Dormer v. (y) See Piggot v. Waller, (z) See Tracts on Cross Remainders, Index. vo. Executory. Who, in Point of Estate, &c. can make a suf-[ 50 ] ficient Tenant to the Writ of Entry; and to what extent in POINT OF SHARE. Any person in whom the freehold is vested, may convey it by a formal and efficient instrument, unless incapacitated by infancy, coverture, idiocy, or lunacy. The freehold in all cases belongs either to one person solely; or to several persons jointly; or to several persons in common or severalty; or to two persons as tenants by in'tireties (a). Thus there will be either a sole tenant of the freehold, joint-tenants, tenants in common, or tenants by entireties. Again, persons are to be considered as having the freehold either in their own right, or in right of some other person. When a person is solely seised, he alone may be, or may make, a tenant to the freehold of the intirety. When several persons are seised of the freehold as joint tenants, or tenants in common, neither of them can, by a conveyance, make a tenant of the freehold for more than his aliquot part. Nor can a tenant in common (a) Essay on Estates, introductory Chap. p. 46. Greneley's case, 8 Co. 71, b. Beaumont's case, 9 Co. 138, b. |