Title 44

An absolute estate may be created to commence in the future, and the fee may be in abeyance without detriment to the rights of subsequent remainders. A fee may be limited upon a fee, either by deed or will, where the plain intention of the grantor or testator requires it and no o…

Limitations over to ‘‘heirs,’’ ‘‘heirs of the body,’’ ‘‘lineal heirs,’’ ‘‘lawful heirs,’’ ‘‘issue,’’ or words of similar meaning shall be held to mean ‘‘children’’ whether the parents are alive or dead. Under such words the children and the descendants of deceased children by rep…

(a) Estates tail are prohibited and abolished and the law shall not presume or imply such an estate. Gifts or grants to a person and the heirs of his body, to his male heirs or female heirs, to his heirs by a particular person, to his children, or to his issue shall convey an abs…

All limitations over after the death of the first taker, upon his ‘‘dying without heirs,’’ ‘‘dying without issue,’’ ‘‘dying without leaving heirs or issue,’’ ‘‘on failure of issue,’’ or other and equivalent terms, shall be construed to mean a failure of heirs or issue at the time…

An estate may be granted upon either express or implied conditions. The estate shall commence, be enlarged, or be defeated upon the performance or breach of the conditions. (Orig. Code 1863, § 2275; Code 1868, § 2268; Code 1873, § 2294; Code 1882, § 2294; Civil Code 1895, § 3136;…

Conditions may be either precedent or subsequent; conditions precedent require performance before the estate shall vest, and conditions subsequent may cause a forfeiture of a vested estate. The law favors conditions to be subsequent rather than precedent and to be remediable by d…

Upon the breach of a condition subsequent, which breach works a forfeiture of the estate, the person to whom the estate is limited may enter immediately. (Orig. Code 1863, § 2280; Code 1868, § 2273; Code 1873, § 2299; Code 1882, § 2299; Civil Code 1895, § 3141; Civil Code 1910, §…

Conditions which are repugnant to the estate granted, which require impossible or illegal acts to be performed, or which in themselves are contrary to the policy of the law are void. (Orig. Code 1863, § 2277; Code 1868, § 2270; Code 1873, § 2296; Code 1882, § 2296; Civil Code 189…

(a) An estate in remainder is one limited to be enjoyed after another estate is terminated or at a time specified in the future. (b) An estate in reversion is the residue of an estate, usually the fee left in the grantor and his heirs after the termination of a particular estate …

Remainders are either vested or contingent. A vested remainder is a remainder which is limited to a certain person at a certain time or which is dependent upon the happening of a necessary event. A contingent remainder is a remainder which is limited to an uncertain person or whi…

Since no particular estate is necessary to sustain a remainder, the defeat of the particular estate for any cause does not destroy the remainder. (Orig. Code 1863, § 2246; Code 1868, § 2238; Code 1873, § 2264; Code 1882, § 2264; Civil Code 1895, § 3099; Civil Code 1910, § 3675; C…

Estates in remainder may not be created by parol. (Orig. Code 1863, § 2250; Code 1868, § 2242; Code 1873, § 2268; Code 1882, § 2268; Civil Code 1895, § 3103; Civil Code 1910, § 3679; Code 1933, § 85-705.)

Estates in remainder may be created for persons not in being. If such a remainder is vested, it will open to take in all persons within the description who come into being up to the time the enjoyment of the estate com649 mences. (Orig. Code 1863, § 2250; Code 1868, § 2242; Code …

The law favors the vesting of remainders in all cases of doubt. In construing wills, words of survivorship shall refer to those survivors living at the time of the death of the testator in order to vest remainders unless a manifest intention to the contrary shall appear. (Orig. C…

The assent of an executor to a legacy to a life tenant inures to the benefit of the remainderman. At the termination of the life estate, the remainderman may take possession immediately unless the will provides for a sale or other act to be done for the purpose of or prior to a d…

Limitations over upon the marriage of a widow shall be valid unless such limitations are manifestly intended to operate as a restraint upon the free action of such widow in respect to marriage and are not simply prudent provisions for the protection of the interest of children or…

Estates which may extend during the life of a person but which must terminate at his death are deemed life estates during their existence. Estates during widowhood are life estates. (Orig. Code 1863, § 2234; Code 1868, § 2228; Code 1873, § 2254; Code 1882, § 2254; Civil Code 1895…

An estate for life may be either for the life of the tenant or for the life of some other person or persons. (Orig. Code 1863, § 2232; Code 1868, § 2226; Code 1873, § 2252; Code 1882, § 2252; Civil Code 1895, § 3087; Civil Code 1910, § 3663; Code 1933, § 85-601.)

(a) An estate for life may be created by deed or will, by express agreement of the parties, or by operation of law. (b) A life estate cannot be created in property which will be destroyed on being used. (Orig. Code 1863, § 2233; Code 1868, § 2227; Code 1873, § 2253; Code 1882, § …

The tenant for life shall be entitled to the full use and enjoyment of the property if in such use he exercises the ordinary care of a prudent man for its preservation and protection and commits no acts which would permanently injure the remainder or reversion interest. For the w…

The natural increase of the property shall belong to the tenant for life. Any extraordinary accumulation of the corpus, such as an issue of new stock upon the share of a corporation, shall attach to the corpus and go with it to the remainderman. (Orig. Code 1863, § 2236; Code 186…

If a life estate is terminated by the act of someone other than the tenant for life, the tenant and his legal representative shall be entitled to emblements, which are the profits of the crop sowed by him during life, whether the plants are annual or perennial. (Orig. Code 1863, …

If the tenant for life rents the land by the year and the life estate is terminated during the year by his death or otherwise, the lessee, upon complying with his contract with the tenant for life, shall be entitled to the land for the balance of the year. (Orig. Code 1863, § 223…

No forfeiture shall result when a tenant for life purports to sell the entire estate in lands. In such a case, the purchaser shall acquire only the interest of the life tenant. (Orig. Code 1863, § 2242; Code 1868, § 2234; Code 1873, § 2260; Code 1882, § 2260; Civil Code 1895, § 3…

Upon the demand of anyone interested in the remainder or his agent or attorney, which demand shall be accompanied by a statement under oath of his interest, it shall be the duty of the officer making the sale of a life estate in personalty under process of law to require the purc…

The tenant for life in personalty shall not remove such personalty outside this state without the consent of the remainderman. If the tenant for life fraudulently attempts to remove the personalty, he shall forfeit his interest therein; if he attempts to do so without fraud, the …

(a) The judge of the superior court shall have jurisdiction to hear any case that: (1) Involves a tenant for life in real property or the proceeds of real property; (2) Involves a contingent remainder interest of a class subject to open through the subsequent event of a birth or …

(a) An estate for years is one which is limited in its duration to a period which is fixed or which may be made fixed and certain. Such an estate may be for any number of years, provided the limitation is within the rule against perpetuities. (b) An estate for years in lands pass…

As applied to personalty, an estate for years differs from a contract of hiring, which is a bailment conveying no interest in the property to the bailee but merely the right of use. As applied to realty, an estate for years does not involve the relationship of landlord and tenant…

The grant by one person to another of an estate for years out of his own estate, with reversion to himself, is usually termed a lease. Such a lease may be confined to a particular interest in lands, such as the right to mine or farm the same, in which case no other interest shall…

An estate for years carries with it the right to use the property in as absolute a manner as may be done with a greater estate, provided that the property or the person who is entitled to the remainder or reversion interest is not injured by such use. The acts of omission and com…

A tenant for years is not entitled to emblements unless, before the end of the period which had been fixed for the termination of the estate for years, the happening of some contingency as provided in the creation of the estate terminates the estate without fault on the part of t…

A tenant for years is liable for all repairs or other expenses which are necessary for the preservation and protection of the property. (Orig. Code 1863, § 2259; Code 1868, § 2251; Code 1873, § 2277; Code 1882, § 2277; Civil Code 1895, § 3113; Civil Code 1910, § 3689; Code 1933, …

In light of the entire instrument, the dependence or independence of covenants or conditions must be determined from the intention of the parties. If the conditions are dependent, the failure of the person first required to act shall be an excuse to the other party for failing to…

Unless otherwise specifically provided by statute and unless the document or instrument provides otherwise, a tenancy in common is created wherever from any cause two or more persons are entitled to the simultaneous possession of any property. Tenants in common may have unequal s…

(a) Every tenant in common shall have the right to possess the joint property. As long as a tenant in common occupies no greater portion of the joint property than his own share would be on partition and does not withdraw from the joint property any of its essential value, such a…

If one tenant in common receives more than his share of the rents and profits, he shall be liable therefor as the agent or bailee of the other cotenant. The claim for such indebtedness shall be superior to liens held by third persons which have been placed on the interest of the …

There may be no adverse possession against a cotenant until the adverse possessor effects an actual ouster, retains exclusive possession after demand, or gives his cotenant express notice of adverse possession. In such event, the cotenant may bring an action to recover possession…

Equity has jurisdiction in cases of partition whenever the remedy at law is insufficient or peculiar circumstances render the proceeding in equity more suitable and just. (Orig. Code 1863, § 3115; Code 1868, § 3127; Code 1873, § 3183; Code 1882, § 3183; Civil Code 1895, § 4783; C…

In every case, the court will mold its decree to meet the general justice and equity of each cotenant and in its discretion may postpone or deny either a partition or a sale if it appears that the present or prospective interest of any cotenant may not be protected thereby. (Orig…

When two or more persons are common owners of lands and tenements, whether by descent, purchase, or otherwise, and no provision is made, by will or otherwise, as to how such lands and tenements shall be divided, any one of such common owners may apply by petition to the superior …

If the party desiring the writ of partition is of full age and free from disability, he may make the application either in person or by his agent or attorney in fact or at law. An application may be made for the benefit of a minor, a mentally ill or retarded person, or the benefi…

The party applying for the writ of partition shall give the other parties concerned at least 20 days’ notice of his intention to make the application. If any of the other parties is a minor, a mentally ill or retarded person, or a beneficiary of a trust, the 20 days’ notice shall…

When the application for partition is made and when due proof is made that the notice required by Code Section 44-6-162 has been given, the court shall examine the petitioner’s title and share of the premises to be partitioned and shall thereupon pass an order directing the clerk…

The partitioners shall have the power to select a surveyor to aid them in the discharge of their duties. After giving all the parties, if possible, at least eight days’ notice of the time of executing the writ and after being sworn to execute the writ duly and impartially before …

At the term of the court when the application is made or at the next term after the partitioners have made their return, any of the persons against whose right or title a judgment is sought may file objections to the right of the applicant and the writ of partition or to the retu…