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Abeyance

freehold, inheritance, legal, hereditas, law, heres, capacity, time and person

ABEYANCE is a legal term, derived from the French bayer, which, says Ri chelet, means to "look at anything with mouth wide open." Coke (Co. Litt. 342, b.) explains the term thus, " Ea abeiance, that is, in expectation, of the French bayer to expect. For when a parson dieth, we say that the freehold is in abeyance, be cause a successor is in expectation to take it ; and here note the necessity of the true interpretation of words. If tenant par terme d'autre vie dieth, the freehold is said to be in abeyance until the occupant en tereth. If a man makes a lease for life, the remainder to the right heirs of J. S., the fee-simple is in abeyance until J. S. dieth. And so in the case of the parson, the fee and right is in abeyance, that is in expectation, in remembrance, entend ment or consideration of law, in consi deratione sive intelligentia legis ; because it is not in any man living ; and the right that is in abeyance is said to be in nubibus, in the clouds, and therein bath a qualitie of fame whereof the poet gagrediturque solo et ova inter nubilacondit.".

Such is a specimen of the ridiculous absurdity with which Coke seeks to re lieve the dryness of legal learning.

The expression that the freehold or the inheritance of an estate is in abeyance means that there is no person in whom the freehold or the inheritance is then vested, and that the ownership of the free hold or of the inheritance is waiting or expecting for an owner who is to be ascer tained. This doctrine of the suspense of the freehold or of the inheritance is re pugnant to the general principles of the tenure of land in England. By the old law, it was always necessary that some person should be in existence as the representative of the fee or freehold for the discharge of the feudal duties, and to answer the actions which might be brought fir the fief; and thus the maxim arose that the freehold of lands could never be in abeyance. Still it was ad mitted that both the inheritance and the freehold might in some cases be in abey ance. Thus, in the case of glebe lands belonging to parsons, and of lands held by bishops and other corporations sole, it is said that the inheritance must always be in abeyance, as no one can, under any circumstances, be entitled to more than an estate for life in these lands ; and during a vacancy of the church, it is said that the freehold is in abeyance, for there is then no parson to have it, and it is said that the freehold cannot be in the patron, I who, though he possesses a right to pre sent to the benefice, has no direct interest in the land annexed to it. This subject is further considered under TENURE.

But whatever may be the true doctrine I of abeyance in the case just mentioned, it is certain that such an abeyance cannot be created by the voluntary acts of par ties. Therefore if a man grant land in such a manner that the immediate free hold would, if the deed were allowed to operate, be in abeyance, it is a rule of law that the deed by which such a grant is made, is void ; and if the grant be so framed that the inheritance would be in abeyance, it is a rule of law that the inheritance shall remain in the person who makes the pant. The object of

this rule of law is to prevent the pos sibility of the freehold subsisting for a time without an owner. Also, " When a remainder of inheritance is limited in contingency by way of use or devise, the inheritance in the mean time, if not other wise disposed of; remains in the grantor and his heirs, or, in the heirs of the testator, until the contingency happens to take it out of them." (Fearne, Contingent Re mainders, p. 513, 4th edit.) Titles of Honour are also sometimes said to be in abeyance, which occurs when the persons next in inheritance to the last possessor are several females or co-par oeners. In this case the title is not ex tinct, but is in abeyance ; and may be revived at any time by the king. Several instances of the exercise of this preroga tive are on record both in ancient and modern times. (Coke upon Littleton, 165, a.) Among the Romans an hereditas, of which the heres was not yet ascertained, was said jacere ; and this is a case which corresponds to the abeyance of the English law. When the heres was ascer tained, his rights as heres were considered to commence from the time of the death of the testator or the intestate. During the interval between the death and the ascertainment of the heres, the herediuts was sometimes spoken of as a person ; and sometimes it was viewed as representing the defunct. These two mode% of view ing the hereditas in this intermediate time express the same thing, the legal capacity of the defunct. The reason for this fiction was peculiar to the Roman law, and it had no other object than to facilitate certain acquisitions of property by means of slaves who were a part of the hereditas. A slave could in many cases acquire for his master ; but in the case of an hereditas jacens, the slave could only acquire for the benefit of the hereditas by virtue of a fiction that he had still an owner of pro per legal capacity. The fiction accord ingly made the acquisition of the slave valid by reference to the legal capacity of his defunct owner, which was known, and not to the condition of the unascertained heres, who might not have the necessary legal capacity. Thus, if a Roman, who had a legal capacity to make a will, died intestate, and one of the intestate's slaves was appointed his heres by an other person, the slave could take as heres for the benefit of the hereditas to which he belonged, by virtue of the fiction which gave to this hereditas the legal capacity of the defbnct intestate. (Savigny, System des heutigen Rdmischen Rwhts, ii. 363.)