NUANCE OF DISCONTI- interest, title, or inheritance, after the decease of the woman, appertained," he is intitled and may enter under the authority and express words of the ESTATE. Stat. 11 Hen. And when the act of the first issue in tail will and will not bar the rights of entry of the succeeding issue. statute. Accordingly in Brown's case (a), A enfeoffed trustees upon condition that they gave back the lands to him and his wife, and the heirs of their two bodies, remainder to the right heirs of A. The condition having been performed, A died, leaving his wife and B a son by her. B during his mother's life conveyed the lands by a fine to C, after which the mother demised them for three lives to D, the lease not being made according to the statute 32 Henry the eighth (b). C therefore entered upon the estate under the statute of Henry the seventh for a forfeiture; the question was, whether his entry was lawful under that act? And it was resolved in the affirmative, because he was the person who had the immediate right to the inheritance after the death of the wife. It must be remarked that the alienation in the last case by the son tenant in tail in remainder being by fine, the effect of that mode of conveyance was not only to bar the conusor, but also the right of entry of his issue by barring the estate tail, and transferring such right of entry from the issue to the conusee, as before described. But if the conveyance had been by lease and release, &c. instead of fine, then although the remainder in fee would have passed to the releasee, yet as by such mode of conveyance the intail would not be barred, the issue's right of NUANCE OF entry would be preserved. So also if after the widow DISCONTIhad made the discontinuance, the son had conveyed HUSBAND'S by lease and release, the entry of his issue would not ESTATE. have been prejudiced. Stat. 11 Hen. Thus the case put in Doctor and Student (a) was VII. in that of Lincoln College (b), affirmed to be good law. The case proposed was to this effect, that if a woman tenant in tail ex provisione viri suffer a recovery, and the issue in tail release to the recoveror, yet the issue of the releasor may enter. The reason is, that immediately upon the recovery being suffered, a right of entry became vested in the issue, and by a mere deed of release the first issue in tail could not bar his descendants of such a right. Rule, that to authorise an entry under the widow's death; The rule laid down by the Court in the case of Lincoln College was, that a person who is not in rerum naturâ, or who has not the immediate interest, title the act, the or inheritance at the time of the forfeiture, shall to the estate person's title never take the benefit of the statute when another must be immediate after person was in esse at that period, and could not enter, but had the power to bar by fine or recovery the person who would claim the benefit of the act. It was accordingly resolved, that the first issue in tail having, by recovery had against him by his own agreement, disabled himself from entering, under the act, on the widow's forfeiture by alienation, his issue were equally precluded from so doing after his death. But Lord Coke states a case that may happen which would not be within the rule, although the person except in the upon whom the reversion in fee descended, disabled posthumous herself from entering for a forfeiture by the widow's son. discontinuance. His Lordship said, he conceived instance of a DISCONTI NUANCE OF ESTATE. VII. that if a man made a feoffment in fee to the use of, himself and wife in tail, remainder to the use of himself in fee, and had issue a daughter, and died, Stat. 11 Hen, leaving his wife enseint of a son, so that the reversion in fee descended to the daughter, if she and her mother joined in levying a fine or suffering a recovery before the birth of the son, or if the widow alone levied a fine or suffered a recovery, and the daughter neglected to enter, or had disabled herself from taking the benefit of the act, yet the son would be intitled to enter under the provisions of the statute. The principle upon which such opinion is founded seems to be this, that the son's right being intitled to a preference to that of the daughter, and he consequently not claiming or deriving title from or through her, she had no power to prejudice his estate by any act or omission of her own; the son, therefore, having the immediate interest, title or inheritance after the death of the widow is intitled to enter for the forfeiture committed by her (a). Widow's discontinuance with consent of heir, &c. no forfeiture giving a right of entry. The reader will have noticed that the statute excepts out of its provisions such recoveries and discontinuances as are suffered and made with the heir next inheritable to the widow, or where the person who next after her death has the inheritance and assents as of record to those acts. If, therefore, a jointress for life, and the heir of her husband, the first tenant in tail in remainder expectant upon her estate for life, concur after the husband's death in levying a fine or suffering a recovery, neither of those acts being within the pe (a) 3 Rep. 61 b. NUANCE OF nalties of the statute, there will be no forfeiture DISCONTIincurred, and consequently no right of entry given HUSBAND'S to any person, but the assurance will be lawful, and ESTATE. the intail barred (a). Stat. 11 Hen. 5. Connected with the present subject is the effect VII. of a fine by the issue in tail in confirming the widow's Leases for lease for years, granted by deed of the estate in years by jointress jointure settled upon her in special tail, and not confirmed by warranted by the statute of Henry the eighth (b). the fine of Such a lease is good till avoided by the issue after the widow's death, who may determine it by entry; but if he omit to do so, and levy a fine of the estate, the lease will be rendered firm and binding both upon the issue in tail and the conusee, and also upon the persons in reversion or remainder, during the continuance of the intail, if the term do not sooner expire; and although the reversion in fee, expectant upon the estate tail, be in the issue at the time of levying the fine, which reversion will in that case pass to the conusee, that circumstance will not operate to the prejudice of the lessee, since the conusee cannot be in a better situation than the person in remainder or reversion before mentioned; so that in both instances whilst there are issue in existence who might have inherited under the intail, the lease cannot be impeached. But if there should be a failure of persons capable of inheriting under the intail during the term, then the reversioner in the first case, and the conusee in the second, may avoid so much of the term as remains unexpired, for then the reversion is DISCONTI NUANCE OF let in, which the reversioner or conusee claims paramount the lease, and the interest of the lessor (a). III. The last subject for consideration in this Stat.11 Hen. chapter is, the effect of the statute upon the practice of Courts of Equity in decreeing specific performances of marriage articles. ESTATE. VII. If wife be tenant in tail ex provisione viri under marriage articles, a Court of Equity will not, as usual, The principle which induces Courts of Equity to direct the preparation of marriage settlements in such a manner as best to answer the intention of the parties, and the purposes of the marriage contract (although articles entered into prior to marriage, if restrain their literally followed, would not have that effect), does effect by dinot apply to limitations of the husband's lands in jointure made to the wife in tail by articles in contemplation of a subsequent settlement. In order to mainder to illustrate the principle of the distinction it is to be the children successively observedin tail, and for what reason. recting a settlement life only, re on her for That if articles be entered into before marriage with a view to a future settlement, limiting real estates of the husband to the parents for their lives, and during the life of the survivor, remainder to the heirs of the body of the husband, the limitation to such heirs will be considered words of purchase, and a settlement directed accordingly, viz. after the life estates to the parents, to their first and other son and sons in tail; and for this reason, if an estate tail were given by the settlement to the husband as directed by the articles, he alone might immediately after the marriage bar the issue and defeat a principal (a) Crocker v. Kelsey, Bridgm. 27. 2 Roll. Rep. 490, 498, S. C. |