which, as they were introduced at the time when the feodal rigour was apace wearing out, a more liberal construction is c. 1, 34 Hen. VIII. c. 5,) " quod ultima voluntas testatoris est perimplenda, secundum veram intentionem suam." For this reason, Littleton says, (sect. 586,) if a man deviseth tenements to another, habendum in perpetuum, the devisee taketh a fee simple; yet, if a deed of feoffment had been made to him by the devisor of the said tenements, habendum sibi in perpetuum, he should have an estate but for term of his life, for want of the word heirs. In Webb v. Herring, (1 Rolle's Rep. 399,) it was determined, that a devise to a man and his successors, gives a fee. But, whether a devise to a man and his posterity would give an estate tail, or a fee, was doubted in the Attorney General v. Bamfield. (2 Freem. 268.) Under a devise to a legatee," for her own use, and to give away at her death to whom she pleases," Mr. Justice Fortescue said, there was no doubt a fee passed: (Timewell v. Perkins, 2 Atk. 103 :) and the same doctrine was held in Goodtitle v. Otway. (2 Wils. 7; see also infra.) And a devise of the testator's lands and tenements to his executors, "freely to be possessed and enjoyed by them alike,” was held, (in Loveacres v. Blight, Cowp. 357,) to carry the fee: for, the testator had charged the estate with the payment of an annuity, which negatived the idea, that, by the word freely he only meant to give the estate free of incumbrances: the free enjoyment, therefore, it was held, must mean, free from all limitations. But, if the testator had not put any charge on the estate, this would not have been the necessary construction; nor would so extended a meaning have been given to those words against the heir, in any case where it was not certain that the testator meant more than that his devisee should possess and enjoy the estate, free from all charges, or free from impeachment of waste. (Goodright v. Barron, 11 East, 224.) Thus, if a man devises all his freehold estate to his wife, during her natural life, and also at her disposal afterwards, to leave it to whom she pleases, the word leave confines the authority of the devisee for life to a disposition by will only. (Doe v. Thorley, 16 East, 443; and see infra.) This, it will at once be obvious, is by no means inconsistent with what was laid down in Timewell v. Perkins, as before cited. The distinction is pointed out in Tomlinson v. Dighton, (1 P. Wms. 171,) thus: where a power is given, with a particular description and limitation of the estate devised to the donee of the power, the power is a distinct gift, coming in by way of addition, but will not enlarge the estate expressly given to the devisee; though, when the devise is general and indefinite, with a power to dispose of the fee, there the devisee himself takes the fee. In some few instances, indeed, courts of equity have inclined to consider a right of enjoyment for life, coupled with a power of appointment, as equivalent to the absolute property. (Standen v. Standen, 2 Ves. Junr. 594.) A difference, however, seems now to be firmly established, not so much with regard to the party possessing a power of disposal, as out of consideration for those parties whose interests depend upon the non-execution of that power. (Croft v. Slee, 4 Ves. 64.) Confining the attention to the former, there may be no reason why that which he has power to dispose of should not be considered as his property; but the interests of the latter ought not to be affected in any other manner than that specified at the creation of the power. (Holmes v. Coghill, allowed; and therefore by a devise to a man for ever, or to one and his assigns for ever, or to one in fee-simple, the 7 Ves. 506; Jones v. Curry, 1 Swanst. 73; Reid v. Shergold, 10 Ves. 383.) When, therefore, a devise or bequest (for the principle seems to apply equally to realty as to personalty) is made to any one expressly for life, with a power of appointment, by will only, superadded, that power (as already has been intimated) must be executed in the manner prescribed; for, the property not being absolute in the first taker, the objects of the power cannot take without a formal appointment; but, where the devise or bequest is made indefinitely, with a superadded power to dispose by will or deed, the property (as we have seen) vests absolutely. The distinction may, perhaps, seem slight, but it has been judicially declared to be perfectly settled. (Bradley v. Westcott, 13 Ves. 453; Anderson v. Dawson, 15 Ves. 536; Barford v. Street, 16 Ves. 139; Nannock v. Horton, 7 Ves. 398; Irwin v. Farrer, 19 Ves. 87.) Where an estate is devised absolutely, without any prior estate limited to such uses as a person shall appoint, that is an estate in fee. (Langham v. Nenny, 3 Ves. 470.) And the word " estate," when used by a testator, and not restrained to a narrower signification by the context of the will, (Doe v. Hurrell, 5 Barn. & Ald. 21,) is sufficient to carry real estate; (Barnes v. .Patch, 8 Ves. 608; Woollam v. Kenworthy, 9 Ves. 142;) and that not merely a life interest therein, but the fee, although no words of limitation in perpetuity are added. (Roe v. Wright, 7 East, 268; Right v. Sidebotham, 2 Dougl. 763; Chorlton v. Taylor, 3 Ves. and Bea. 163; Pettiward v. Prescott, 7 Ves. 545; Nicholls v. Butcher, 18 Ves. 195.) So, the word "property" may bear the same extensive construction. (Thomas v. Phelps, 4 Russ. 351; Doe v. Tucker, 3 Barn. & Adol. 477; Wilce v. Wilce, 7 Bing. 672; 5 Moo. & P. 682.) And although the mere introductory words of a will, intimating in general terms the testator's intention to dispose of " all his estate, real and personal," will not of themselves pass a fee, if the will, in its operative clauses, contains no further declaration of such intent; still, where the subsequent clauses of devise are inexplicit, the introductory words will have an effect on the construction, as affording some indication of the testator's intention. (Ibbetson v. Beckwith, Ca. temp. Talb. 160; Goodright v. Stocker, 5 T. R. 13; Doe v. Buckner, 6 T. R. 612; Gulliver v. Poyntz, 3 Wils. 143; Smith v. Coffin, 2 H. Bla. 450.) But, though slight circumstances may be admitted to explain obscurities, (Randall v. Morgan, 12 Ves. 77,) and words may be enlarged, abridged, or transposed, in order to reach the testator's meaning, when such liberties are necessary to make the will consistent; (Keiley v. Fowler, Wilm. Notes, 309;) still, no operative and effective clause in a will must be controlled by ambiguous words occurring in the introductory parts of it, unless this is absolutely necessary in order to furnish a reasonable interpretation of the whole: (Lord Oxford v. Churchill, 3 Ves. & Bea. 67; Hampson v. Brandwood, 1 Mad. 388; Leigh v. Norbury, 13 Ves. 344; Doe v. Pearce, 1 Pr. 365 :) neither can a subsequent clause of limitation as to one subject of devise, be governed by words of introduction which, though clear, are not properly applicable to that particular subject; (Nash v. Smith, 17 Ves. 33; Doe v. Clayton, 8 East, 144; Denn v. Gaskin, Cowp. 661;) whilst, on the other hand, an express disposition in an early part of a will must not receive an exposition from devisee hath an estate of inheritance; for the intention of the devisor is sufficiently plain from the words of perpetuity a subsequent passage, affording only a conjectural inference. (Roach v. Haynes, 8 Ves. 590; Barker v. Lea, 3 Ves. & Bea. 117; S. C. 1 Turn. & Russ. 416; Jones v. Colbeck, 8 Ves. 42; Parsons v. Baker, 18 Ves. 478; Thackeray v. Hampson, 2 Sim. & Stu. 217.) Where an estate is devised, and the devisee is subjected to a charge, which charge is not directed to be paid out of the rents and profits, the devise will carry a fee-simple, notwithstanding the testator has added no words of express limitation in perpetuity. Upon this point, the distinction is settled, that, where the charge is on the person to whom the land is devised (in general terms, not where he has an estate-tail given him, Denn v. Slater, 5 T. R. 337,) there he must take the fee; but not where the charge is upon the land devised, and payable out of it. And the reason given, why in the former case the devisee must take the fee, is, because otherwise the estate may not be sufficient to pay the charge during the life of the devisee, which would make him a loser, and that could not have been the intention of the devisor. (Goodtitle v. Maddern, 4 East, 500; Doe v. Holmes, 8 T. R. 1; Doe v. Clarke, 2 New Rep. 349; Roe v. Daw, 3 Mau. & Sel. 522; Baddeley v. Leapingwell, Wilm. Notes, 235; Collier's case, 6 Rep. 16.) With regard to the operation of the word "hereditaments" in a will, Mr. Justice Buller said, there have been various opinions; in some cases it has been held to pass a fee, in others not; (Doe v. Richards, 3 T. R. 360 ;) but the latter construction seems now to be firmly established as the true one. The settled sense of the word "hereditaments," Chief Baron Macdonald declared, (in Moore v. Denn, 2 Bos. & Pull. 251,) is, to denote such things as may be the subject matter of inheritance, but not the inheritance itself; and cannot, therefore, by its own intrinsic force, enlarge an estate which is prima facie a life estate, into a fee. It may have weight, under particular circumstances, in explaining the other expressions in a will, from whence it may be collected, in a manner agreeable to the rules of law, that the testator intended to give a fee: but in Canning v. Canning, (Mosely, 242,) it was considered as quite settled by the decision in Hopewell v. Ackland (1 Salk. 239,) that a fee will not pass merely by the use of the word hereditament. (And see the same case of Denn v. Moore, in its previous stages of litigation, 3 Anstr. 787; 5 T. R. 563; as also Pocock v. The Bishop of London, 3 Brod. & Bing. 33.) Mr. Preston (in page 42 of the 2nd volume of his Treat. of Est.) observes, the rule requiring the designation in terms, or by reference, of heirs in the limitation of estates, is confined, even with respect to common law assurances, to those cases in which the assurances are to natural persons; the rule does not take place where the assurances are made to corporations; or are made by matter of record; or operate only to extinguish a right, or a collateral interest; or which give one interest in lieu of another; or release the unity of title; or confer an equitable interest by way of contract, as distinguished from a conveyThese, and other instances, as well as those of wills, to which the rule does not extend, he says, are more properly to be considered as not coming within the scope of the rule, or of the policy of the law which was the foundation of the rule, than as exceptions to the rule: and he devotes the greater part of the remainder of the volume cited to a collection and ance. recoveries; of nobility by patent. annexed, though he hath omitted the legal words of inheritance. But, if the devise be to a man and his assigns, without annexing words of perpetuity, there the devisee shall take only an estate for life; for it does not appear that the devisor intended any more. 2. Neither does this rule ex- nor in fines or tend to fines or recoveries (13), considered as a species of conveyance; for thereby an estate in fee passes by act and operation of law without the word "heirs:" as it does also, for particular reasons, by certain other methods of conveyance, which have relation to a former grant or estate, wherein the word "heirs' was expressed (z). 3. In creations of nor in creations nobility by writ, the peer so created hath an inheritance in writ—aliter, by his title, without expressing the word "heirs ;" for heirship is implied in the creation, unless it be otherwise specially provided: but, in creations by patent, which are stricti juris, the word "heirs" must be inserted, otherwise there is no inheritance. 4. In grants of lands to sole corporations and In grants to cortheir successors, the word "successors" supplies the place word "succesof" heirs ;" for, as heirs take from the ancestor, so doth the successor from the predecessor. Nay, in a grant to a bishop, or other sole spiritual corporation, in frankalmoign, the word "frankalmoign" supplies the place of "successors," (as the word "successors" supplies the place of heirs,") ex vi termini; and, in all these cases, a fee-simple vests in such sole corporation. But, in a grant of lands to a corporation aggregate, the word "successors" is not necessary, though usually inserted: for, albeit such simple grant be strictly only an estate for life, yet, as that corporation never dies, such estate for life is perpetual, or equivalent to a fee-simple, and therefore the law allows it to be one (a). 5. Lastly, in the case of the king, a fee-simple A fee-simple will vest in him, without the word "heirs" or successors" king without in the grant; partly from prerogative royal, and partly "heirs" or "sucfrom a reason similar to the last, because the king in judg- grant. 66 (z) Co. Litt. 9. illustration of the different classes of cases in which a fee has been held to pass, though the word "heirs" has not been used. To this ample storehouse of materials, the reader who wishes to examine the subject more (a) See Vol. I. p. 484. at length is referred. (13) Nor, it is presumed, to the more simple modes of assurance sub.. stituted in the room of fines and recoveries, by the stat. of 3 & 4 Gul. IV. c. 74. porations, the sors" supplies the place of "heirs." [* 109 ] will vest in the either the words cessors" in the II. Of limited fees 1. Qualified or base fees; 2. Fees conditional; 3. Fees tail. 1. A base or qualified fee is one having a qualification or of which the duration depends on collateral circumstances. ment of law never dies (b). But the general rule is, that the word "heirs" is necessary to create an estate of inheritance. II. We are next to consider limited fees, or such estates of inheritance as are clogged and confined with conditions, or qualifications (14), of any sort. And these we may divide into two sorts: 1. Qualified, or base fees; and 2. Fees conditional, so called at the common law; and afterwards fees-tail, in consequence of the statute de donis. 1. A base, or qualified fee, is such a one as hath a qualification subjoined thereto, and which must be determined subjoined to it, whenever the qualification annexed to it is at an end. As, in the case of a grant to A. and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A. cease to be tenants of that manor, the grant is entirely defeated. So, when Henry VI. granted to John Talbot, lord of the manor of Kingston-Lisle in Berks, that he and his heirs, lords of the said manor, should be peers of the realm, by the title of barons of Lisle; here, John Talbot had a base or qualified fee in that dignity (c), and, the instant he or his heirs quitted the seignory of this manor, [110] the dignity was at an end. This (15) *estate is a fee, because by possibility it may endure for ever in a man and his heirs yet, as that duration depends upon the concurrence of collateral circumstances which qualify and debase the purity of the donation, it is therefore a qualified or base fee. 2. A conditional fee, at common strained to some particular heirs. 2. A conditional fee, at the common law, was a fee relaw, was a fee re- strained to some particular heirs, exclusive of others: "donatio stricta et coarctata (d); sicut certis haeredibus, quibusdam a successione exclusis:" as to the heirs of a man's body by which only his lineal descendants were admitted, in exclusion of collateral heirs ; or to the heirs male of his body, in exclusion both of collaterals, and lineal females also. It was called a conditional fee, by reason of (b) See Vol. I. p. 249. (c) Co. Litt. 27. (d) Flet. 1. 3, c. 3, s. 5. (14) See ante, p. 104, note. tingency upon which it is limited occurs, as if he were tenant in fee-simple. (Walsingham's case, Plowd. 557.) |