consequently, it has been held, there can be no remainder limited upon such a grant: but it seems there may be a limitation by way of executory devise, provided that is within the prescribed limits, and does not tend to a perpetuity. An annuity may be granted as a fee-simple conditional; but then, it must end or become absolute, in the life of a particularized person. (Turner v. Turner, 1 Br. 325; S. C. Ambl. 782; Earl of Stafford V. Buckley, 2 Ves. sen. 180.) An annuity granted to one, and the heirs male of his body, being a grant not coming within the statute de donis, all the rules applicable to conditional fees at common law still hold, with respect to such a grant. (Nevil's case, 7 Rep. 125.) As to the nature of those rules, see the references given at the commencement of this note.

Mr. Preston, (in the 1st volume of his Essay on Abstracts, p. 379,) observes, "Lord Hardwicke seems to have been surprised into a mistake, when (in the case of Earl of Stafford v. Buckley, 2 Ves. sen. 180,) he supposed that there could not have been any remainder at the common law, after a gift to a man and the heirs of his body." If Lord Hardwicke was mistaken, it does not appear, however, that he was taken by surprise; for he came to his conclusion upon deliberately formed reasons: in the soundness of which Lord Loughborough concurred, in the case of Turner v. Turner (before cited). The ground upon which these opinions were avowedly rested was this: A grant to a man, and the heirs of his body, was a conditional fee at the common law, (Wooddeson, 19 Vin. Lect. vol. 2, p. 9,) and though it left a possibility of reverter in the donor, it left no actual estate in reversion in him: (see ante, note (23) to p. 112:)

therefore, wherever a fee, though a qualified or base one, was granted, the judges mentioned thought it clear that no remainder could, at common law, be limited upon such grant. (Edward Seymour's case, 10 Rep. 97 a; Willion v. Berkley, Plowd. 248 a; Co. Litt. 18 a; 1 Eq. Ca. Ab. 186; 2 Inst. 336; Mr. Butler's note to Fearne, C. R. p. 13; 1 Roberts on Wills, 5; Machell v. Clarke, Ld. Raym. 779; Pells v. Brown, Palm. 138.)

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Lord Hardwicke and Lord Loughborough, as will be seen on reference to the cases observed upon as decided by them, were both speaking of annuities; and, of course, their words are to be restricted, if any restriction is necessary, so as to be understood secundum subjectam materiam. Now Mr. Preston himself tells us, (1 Treat. on Est. 477,) "this estate" (he is speaking of a conditional fee,) may arise from a gift to a man or a woman, and the heirs of the body of the donee of an hereditament which is not a tenement, and therefore not within the statute de donis. Annuities, not being rent charges, are of this description." (See ante, p. 16, n.) Again, (in p. 484,) he says, even on the conveyance of a determinable or qualified fee, the entire property is transferred to the person to whom the conveyance is made, though there may be a possibility of reverter. Hence the maxim of the common law, that no estate may be limited in remainder of a fee simple." He then remarks upon the doubt expressed by Ch. J. Vaughan, (in Gardner v. Sheldon, Vaugh. 269,) as to the correctness of Lord Coke's statement (in 1 Inst. 18,) that "if land be given to H. and his heirs so long as B. hath heirs of his body, remainder in fee, the remainder is void ;" and on this

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doubt (which is declared in note 9 to 2 Saund. 388 b, to be groundless,) Mr. Preston remarks, "there frequently occur in our books on the law, prior to the statute de donis, limitations of remainders after gifts of conditional, being also qualified, fees." At the foot of the page (485) in which this remark appears, Winchester's case (3 Rep. 3 b) is candidly referred to, where it was laid down, that he who has a remainder expectant upon an estate tail, shall have a writ of error upon false judgment given against tenant in tail, although there was no such remainder at the common law; for, when the statute de donis conditionalibus doth enable the donor to limit a remainder upon an estate tail, all actions which are necessary incidents are tacite given also."

The reference given to Fitz. N. B., on formedons, (if the present writer has not been inaccurate in his examination,) contains nothing in support of C. J. Vaughan's doubt; whilst the 2nd Inst. (which is also referred to) contains (in p. 336,) a very distinct statement, which, if admitted, goes to the complete removal of that doubt. It is there said, "The formedon in reverter did lie at the common law, but not a formedon in remainder upon an estate tail; because it was a fee simple conditional, whereupon no remainder could be limited at the common law, but since this statute de donis, a remainder may be limited upon an estate tail." Mr. Preston's remaining reference is to Bracton (fol. 18,) being part of the 6th chapter of his 2nd book; the whole of which chapter is devoted to the distinction between simple or absolute, and conditional or qualified donations; but in which it does not appear to the present writer that any conclusive grounds for Chief Justice Vaughan's doubt can be found. Brac

VOL. II.

ton certainly says, "fieri potest donatio, viro et uxori et hæredibus communibus, si tales extiterint, vel si non extiterint, tunc ejus hæredibus qui alium supervixerit.” And subsequently he adds, "item poterit pluribus fieri donatio, per modum, simul et successive, ut si quis plures habeat filios, et dicat, do A., primogenito filio meo, tantam terram habendam sibi et hæredibus suis de corpore suo procreatis, et si tales hæredes non habuerit, vel habuerit et defecerint, tunc terram illam do B., filio meo postgenito, habendum sibi et hæredibus suis de corpore suo procreatis, et si tales hæredes non habuerit," &c.then to his other children in like manner. But, these co-existing grants in the alternative, made "per modum, simul et successive," do not seem to answer any of the usually received definitions of a remainder; (see post, p. 165 of this volume;) and which, as will be seen in a subsequent part of this note, have been approved and adopted by Mr. Preston himself.

And in p. 486, of his Tr. on Est. Mr. Preston seems to vary not a little from the terms he used in his Ess. on Abst. when speaking of the dictum of Lord Hardwicke, in the case of the Earl of Stafford v. Buckley, instead of intimating that it was a hasty mistake, he speaks of it as an admission (and apparently as a just admission,) of the great Judge named, that no remainder could be created of any estate not within the statute de donis. Mr. Preston even goes further, he doubts the validity of the limitations above cited from Bracton, (and which have been copied from him by Reeves, 1 Hist. of Eng. L. 295,) observing that, although "the practice of limiting copyhold lands to one and the heirs of his body, and afterwards to another person," (which however

seems a very different limitation from

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:

a grant in the alternative to several, per modum, simul et successive,) seems to afford an argument in support of the doctrine mentioned in Reeves this particular instance of copyholds, is generally, and perhaps most correctly, referred to the assimilation of property, to put the limitations of freehold and copyhold lands on the same footing, notwithstanding freeholds alone were the express object of the statute of entails." (See Haydon's case, 3 Rep. 8, 9; Rowden v. Malster, Cro. Car. 44; Moore v. Moore, 2 Ves. sen. 601, 606; Everall v. Smalley, 1 Wils. 27; Doe v. Truby, 2 W. Bla. 946.)

That, under the doctrine of executory devises, whatever shall remain after the determination of a fee, (within the space of a life or lives in being at the time of the testator's decease, or twenty-one years afterwards,) may be the subject of an executory devise, though it cannot be taken as a re mainder, is now settled: (Gardner v. Sheldon, Vaugh. 270; Pells v. Brown, Cro. Jac. 591; Roe v. Jaffery, 7 T. R. 596) but Mr. Serjeant Williams, (in his note to Purefoy v. Rogers, 2 Saund. 388 b,) remarks, it is to be recollected that the case of Hinde v. Lyons, 3 Leon. 64, 70, (determined in the 19th year of the reign of Elizabeth,) was the first case in which it was solemnly decided, that a limitation over, in a will, after a devise carrying the fee, was not necessarily void : as it had been previously held to be by the greatest lawyers of their age, in the case reported in Dyer, 33 a.

In the Serjeant's case, (2 Rolle's Rep. 425,) it is said, that the judges who first expounded the statute de donis conditionalibus, so that a remainder could be limited upon an estate tail, did not perceive the mischief that was found to ensue from that construction; but when they did

perceive it, they invented means to destroy the remainder. Now, if it had been customary, before the statute, to allow remainders to be limited on conditional fees, the consequences of that practice must also have been familiar; and it was strange that they should have been unperceived by the judges who first expounded the sta

tute.

On the whole, though it must, in all cases, be dangerous to differ from Mr. Preston on a point of conveyancing, and more especially when he has undertaken the task, (which, of course, he must have felt a painful one, requiring more than ordinary circumspection,) to criticise the doctrine of such a lawyer as Lord Hardwicke ; still, as he cites no authority for that correction, it may be safer to rely on the statement which he makes in the 1st vol. of his Treat. on Estates, (pp. 90, 91,) and for which he does cite numerous authorities. In the work just referred to, Mr. Preston teaches us, (as Blackstone will be found also to do, post, in chap. 11 of this volume, p. 165,) that a remainder is a residue or remnant of an estate in lands expectant on a particular estate; and it must commence in interest after a particular estate, not after the determination of an estate in fee, either qualified, base, or determinable. And Mr. Preston draws the eyes of his readers to this observation, by the use of Italics. So, in his edition of Watkins's Princip. of Conv. (p. 76, 3rd edit.) Mr. Preston does not merely pass over without comment his author's statement, that "the common law does not permit any remainder to be limited on a fee either absolute or base;" but amplifies it, and adds in the margin fresh references in its support. If, in his Essay on Abstracts, he made a slip, his reputation is too well established to be in the slightest