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heirs for another's life cannot be entailed (s): for this is
(s) 2 Vern. 225.
consequently, it has been held, there therefore, wherever a fee, though a can be no remainder limited upon qualified or base one, was granted, such a grant: but it seems there may the judges mentioned thought it clear be a limitation by way of executory that no remainder could, at common devise, provided that is within the law, be limited upon such grant. prescribed limits, and does not tend (Edward Seymour's case, 10 Rep. 97 to a perpetuity. An annuity may be a; Willion v. Berkley, Plowd. 248 a ; granted as a fee-simple conditional; Co. Litt. 18 a; 1 Eq. Ca. Ab. 186 ; but then, it must end or become abso. 2 Inst. 336 ; Mr. Butler's note to lute, in the life of a particularized Fearne, C. R. p. 13; 1 Roberts on person. (Turner v. Turner, 1 Br. 325; Wills, 5; Machell v. Clarke, Ld. S. C. Ambl. 782; Earl of Stafford Raym. 779; Pells v. Brown, Palm. v. Buckley, 2 Ves. sen. 180.) An an- 138.) nuity granted to one, and the heirs Lord Hardwicke and Lord Lough. male of his body, being a grant not borough, as will be seen on reference coming within the statute de donis, to the cases observed upon as decided all the rules applicable to conditional by them, were both speaking of anfees at common law still hold, with nuities; and, of course, their words respect to such a grant. (Nevil's case, are to be restricted, if any restriction 7 Rep. 125.) As to the nature of is necessary, so as to be understood those rules, see the references given secundum subjectam materiam. Now at the commencement of this note. Mr. Preston himself tells us, (1 Treat. Mr. Preston, (in the 1st volume of on Est. 477,) “ this estate"
(he is his Essay on Abstracts, p. 379,) ob- speaking of a conditional fee,) “ may serves,
“. Lord Hardwicke seems to arise from a gift to a man or a woman, have been surprised into a mistake, and the heirs of the body of the donee when (in the case of Earl of Stafford of an hereditament which is not a tev. Buckley, 2 Ves. sen. 180,) he sup- nement, and therefore not within the posed that there could not have been statute de donis. Annuities, not beany remainder at the common law, ing rent charges, are of this descripafter a gift to a man and the heirs of tion." (See ante, p. 16, n.) Again, his body.”
If Lord Hardwicke was (in p. 484,) he says, even on the mistaken, it does not appear, how. conveyance of a determinable or qua. ever, that he was taken by surprise ; lified fee, the entire property is transfor he came to his conclusion upon ferred to the person to whom the deliberately formed reasons: in the conveyance is made, though there soundness of which Lord Loughbo. may be a possibility of reverter. rough concurred, in the case of Turner Hence the maxim of the common v. Turner (before cited). The ground law, that no estate may be limited in upon which these opinions were avow- remainder of a fee simple." He then edly rested was this: A grant to a remarks upon the doubt expressed man, and the heirs of his body, was a by Ch. J. Vaughan, (in Gardner v. conditional fee at the common law, Sheldon, Vaugh. 269,) as to the cor(Wooddeson, 19 Vin. Lect. vol. 2, rectness of Lord Coke's statement p. 9,) and though it left a possibility (in 1 Inst. 18,) that “if land be given of reverter in the donor, it left no to H. and his heirs so long as B. hath actual estate in reversion in him; heirs of his body, remainder in fee, (see ante, note (23) to p. 112:) the remainder is void ;' and on this
strictly no estate of inheritance, (as will appear here
doubt (which is declared in note 9 to ton certainly says, “ fieri potest do2 Saund. 388 b, to be groundless,) natio, viro et uxori et hæredibus comMr. Preston remarks,“ there fre- munibus, si tales extiterint, vel si non quently occur in our books on the extiterint, tunc ejus hæredibus qui law, prior to the statute de donis, li
And subsemitations of remainders after gifts of quently he adds, “item poterit pluriconditional, being also qualified, fees." bus fieri donatio, per modum, simul et At the foot of the page (485) in successive, ut si quis plures habeat which this remark appears, Win- filios, et dicat, do A., primogenito chester's case (3 Rep. 3 b) is candidly filio meo, tantan terram habendam referred to, where it was laid down,
sibi et hæredibus suis de corpore suo that “ he who has a remainder ex procreatis, et si tales hæredes non hapectant upon an estate tail, shall have rit, vel habuerit et defecerint, tunc a writ of error upon false judgment
terram illam do B., filio meo postgiven against tenant in tail, although genito, habendum sibi et hæredibus there was no such remainder at the suis de corpore suo procreatis, et si common law; for, when the statute tales hæredes non habuerit,' &c.de donis conditionalibus doth enable then to his other children in like the donor to limit a remainder upon manner. But, these co-existing grants an estate tail, all actions which are ne- in the alternative, made “per modum, cessary incidents are tacite given simul et successive," do not seem to also.” The reference given to Fitz. answer any of the usually received deN. B., on formedons, (if the present
finitions of a remainder ; (see post, p. writer has not been inaccurate in his 165 of this volume ;) and which, as examination,) contains nothing in will be seen in a subsequent part of support of C. J. Vaughan's doubt ; this note, have been approved and whilst the 2nd Inst. (which is also adopted by Mr. Preston himself. referred to) contains (in p. 336,) a And in p. 486, of his Tr. on Est. very distinct statement, which, if ad- Mr. Preston seems to vary not a little mitted, goes to the complete removal from the terms he used in his Ess. on of that doubt. It is there said, “The Abst. when speaking of the dictum of formedon in reverter did lie at the Lord Hardwicke, in the case of the common law, but not a formedon in Earl of Stafford v. Buckley, instead of remainder upon an estate tail ; because intimating that it was a hasty mistake, it was a fee simple conditional, where- he speaks of it as an admission (and upon no remainder could be limited apparently as a just admission,) of the at the common law, but since this sta- great Judge named, that no remainder tute de donis, a remainder may be could be created of any estate not limited upon an estate tail." Mr. within the statute de donis. Mr. Preston's remaining reference is to Preston even goes further, he doubts Bracton (fol. 18,) being part of the the validity of the limitations above 6th chapter of his 2nd book; the cited from Bracton, (and which have whole of which chapter is devoted to been copied from him by Reeves, the distinction between simple or ab- 1 Hist. of Eng. L. 295,) observing solute, and conditional or qualified that, although “ the practice of limit. donations ; but in which it does not ing copyhold lands to one and the appear to the present writer that any heirs of his body, and afterwards to conclusive grounds for Chief Justice another person,” (which however Vaughan's doubt can be found. Brac- seems a very different limitation from
after (33),) and therefore not within the statute de donis.
a grant in the alternative to several perceive it, they invented means to per modum, simul et successive,) destroy the remainder. Now, if it
to afford an argument in had been customary, before the stasupport of the doctrine mentioned in tute, to allow remainders to be limited Reeves : this particular instance of on conditional fees, the consequences copyholds, is generally, and perhaps of that practice must also have been most correctly, referred to the assi- familiar ; and it was strange that they milation of property, to put the limi- should have been unperceived by the tations of freehold and copyhold lands judges who first expounded the staon the same footing, notwithstanding tute. freeholds alone were the express ob- On the whole, though it must, in ject of the statute of entails.” (See all cases, be dangerous to differ from Haydon's case, 3 Rep. 8, 9; Rowden Mr. Preston on a point of conveyancv. Malster, Cro. Car. 44 ; Moore v. ing, and more especially when he has Moore, 2 Ves. sen. 601, 606 ; Everall undertaken the task, (which, of course, v. Smalley, 1 Wils. 27 ; Doe v. Truby, he must have felt a painful one, re2 W. Bla. 946.)
quiring more than ordinary circumThat, under the doctrine of execu- spection,) to criticise the doctrine of tory devises, whatever shall remain such a lawyer as Lord Hardwicke; after the determination of a fee, (with- still, as he cites no authority for that in the space of a life or lives in being correction, it may be safer to rely on at the time of the testator's decease, the statement which he makes in the or twenty-one years afterwards,) may 1st vol. of his Treat. on Estates, be the subject of an executory devise, (pp. 90, 91,) and for which he does though it cannot be taken as a re. cite numerous authorities. In the mainder, is now settled : (Gardner v. work just referred to, Mr. Preston Sheldon, Vaugh. 270; Pells v. Brown, teaches us, (as Blackstone will be Cro. Jac. 591; Roe v. Jaffery, 7 T. found also to do, post, in chap. 11 of R. 596 :) but Mr. Serjeant Williams, this volume, p. 165,) that a remainder (in his note to Purefoy v. Rogers, is a residue or remnant of an estate in 2 Saund. 388 b,) remarks, it is to be lands expectant on a particular estate ; recollected that the case of Hinde v. and it must commence in interest after Lyons, 3 Leon. 64, 70, (determined a particular estate, not after the dein the 19th year of the reign of Eliza- termination of an estate in fee, either beth,) was the first case in which it qualified, base, or determinable. And was solemnly decided, that a limita- Mr. Preston draws the eyes of his tion over, in a will, after a devise readers to this observation, by the use carrying the fee, was not necessarily of Italics. So, in his edition of void : as it had been previously held Watkins's Princip. of Conv. (p. 76, to be by the greatest lawyers of their 3rd edit.) Mr. Preston does not merely age, in the case reported in Dyer, 33 a. pass over without comment his au
In the Serjeant's case, (2 Rolle's thor's statement, that “the common Rep. 425,) it is said, that the judges law does not permit any remainder to who first expounded the statute de be limited on a fee either absolute or donis conditionalibus, so that a re- base ;' but amplifies it, and adds in mainder could be limited upon an the margin fresh references in its supestate tail, did not perceive the mis- port. If, in his Essay on Abstracts, chief that was found to ensue from he made a slip, his reputation is too that construction ; but when they did well established to be in the slightest
Neither can a copyhold estate be entailed by virtue of the statute; for that would tend to encroach upon and restrain the will of the lord: but, by the special custom of the manor, a copyhold may be limited to the heirs of the body (t) (34); for here the custom ascertains and interprets the lord's will.
Next, as to the several species of estates-tail, and how they Estates tail are are respectively created. Estates-tail are either general or or special: special. Tail-general is where lands and tenements are General, given to one, and the heirs of his body begotten : which is are given to one, called tail-general, because, how often soever such donee his body begotien; in tail be married, his issue in general by all and every such marriage is, in successive order, capable of inheriting the estate-tail, per formam doni (u). Tenant in tail-special is Special, where where the gift is restrained to certain heirs of the donee's strained to cerbody, and does not go to all of them in general. And this heirs of the may *happen several ways (w). I shall instance in only one; [ * 114 ] as where lands and tenements are given to a man and the
where lands, &c.
the grant is re
(1) 3 Rep. 8.
(u) Litt. s. 14, 15.
(w) Litt. s. 16, 26, 27, 28, 29.
degree injured by it: but they who same words may be differently concannot so well afford to be occasion- strued, and have very different operaally wrong, have some right to com- tions, when applied, in the same inplain of his not giving any authority strument, to different descriptions of in his Essay on Abstracts, for his property, governed by different rules. correction of the doctrines of Lords (Forth v. Chapman, 1 P. Wms. 667 ; Hardwicke and Loughborough, which Elton v. Eason, 19 Ves. 77.) Thus, doctrines seem to derive ample sup- the same words which would only give port, not only from the cases cited in an estate tail in freehold property, this note, but from several of Mr. will carry the absolute interest in Preston's own most valuable works. leasehold, or other personal property.
The instance of an annuity, charg- (Green v. Stevens, 19 Ves. 73; Crooke, ing merely the person of the grantor, v. De Vandes, 9 Ves. 203; Tothill v. seems to be the only one in which a Pitt, 1 Mad. 509.) fee-conditional, of a personal chattel, (33) See post, chap. 16, pp. 258– can now be created. Neither lease- 261, and the notes thereto. holds, nor any other descriptions of (34) Copyholds are not within the personal property (except such annui. statute of frauds and perjuries, (29 ties as aforesaid) can be limited so as Car. II. c. 3,) but will pass by any to make them transmissible in a course testamentary writing, which is suffiof succession to heirs: they must go cient to bequeath personalty. (Wagto personal representatives. (Countess staff v. Wagstaff, 2 P. Wms. 258 ; of Lincoln v. Duke of Newcastle, 12 Attorney General v. Andrews, 1 Ves. Ves. 225 ; Keiley v. Fowler, Wilm. sen. 225 ; Tuffnell v. Page, 2 Atk. 37 ; Notes, 310.) There is consistency, Doe v. Danvers, 7 East, 322.) therefore, in holding, that the very
be either in tail. male, or tail
heirs of his body, on Mary his now wife to be begotten : here no issue can inherit, but such special issue as is engendered between them two; not such as the husband may have by another wife : and therefore it is called special tail. And here we may observe, that the words of inheritance (to him and his heirs) give him an estate in fee: but they being heirs to be by him begotten, this makes it a fee-tail ; and the person being also limited, on whom such heirs shall be begotten, (viz. Mary his present wife) this makes it a
fee-tail special. Estates tail may
Estates, in general and special tail, are farther diversified
by the distinction of sexes in such entails; for both of them female.
may either be in tail male or tail female. As if lands be given to a man, and his heirs male of his body begotten, this is an estate in tail male general; but if to a man and the heirs female of his body on his present wife begotten, this is an estate in tail female special. And, in case of an entail male, the heirs female shall never inherit, nor any derived from them; nor, è converso, the heirs male, in case of a gift in tail female (x). Thus, if the donee in tail male hath a daughter, who dies leaving a son, such grandson in this case cannot inherit the estate-tail; for he cannot deduce his descent wholly by heirs male (y). And as the heir male must convey his descent wholly by males, so must the heir female wholly by females. And therefore, if a man hath two estates-tail, the one in tail male, the other in tail female; and he hath issue a daughter, which daughter hath issue a son; this grandson can succeed to neither of the estates; for he cannot convey his descent wholly either in the male or female line (2).
As the word heirs is necessary(35) to create a fee, so in farther limitation of the strictness of the feodal donation, the word body, or some other words of procreation, are ne
cessary to make it a fee-tail, and ascertain to what heirs in [ *115 ] particular *the fee is limited. If, therefore, either the words
of inheritance or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an estate-tail. As, if the grant be to a man and his issue of
Words necessary to create a fee-tail.