grantee had is the grantee had any issue born, his estate was supposed to sue born, the estate became absolute, to a certain extent. become absolute, by the performance of the condition; at least, for these three purposes: 1. To enable the tenant to aliene the land, and thereby to bar not only his own issue, but also the donor of his interest in the reversion (g). 2. To subject him to forfeit it for treason; which he could not do, till issue born, longer than for his own life; lest thereby the inheritance of the issue, and reversion of the donor, might have been defeated (h). 3. To empower him to charge the land with rents, commons, and certain other incumbrances, so as to bind his issue (i). And this was thought the more that, after issue, the estate became wholly unconditional. (See post, note (19) to this chapter). Bracton (lib. 2, c. 6) says, "Si do tali, habendum et tenendum sibi et hæredibus suis de carne talis exeuntibus, eo casu, cum certi hæredes exprimantur in donatione, quousque tales inceperint hæredes esse, est liberum tenementum, cum autem inceperint hæredes, incipit liberum tenementum esse feodum, et cum desierint esse, desinit esse feodum, et incipit esse liberum tenementum, et ita ibi nunquam erit dotis exactio." And, in Paine's case, (8 Rep. 71) it is distinctly laid down that, "after issue had, the tenant in tail at the common law had not such a fee-simple that his collateral heir should inherit." In the preceding page of the same case, it is said, "at the common law, after issue, it was taken, to three purposes, that the tenant in tail had a full fee-simple: 1. To alien; 2. To forfeit it by attainder; so that, although the tenant in tail afterwards died without issue, the land should not revert to the donor; 3. That in the case of a woman tenant in special tail, if she once had such special issue, the lands were descendible to other issue than those pointed out by the grant; for, as by alienation the donee might have made strangers to her blood absolutely inheritable; so, by construction of law, after the special issue had, all lineal issues of her body, by whatsoever husband they were begotten, should inherit, as a benefit and incident tacite annexed to her estate by the law: for, by having issue, the husband is entitled to his curtesy in the lands, which disposition and alteration of the estate, although it be for life, tacite, as an incident to it, make the issue of the second husband inheritable." (And see Willion v. Berkley, Plowd. 246). In Paine's case (ubi supra), it is also said, when, before the statute de donis, land was given to husband and wife, and the heirs of their two bodies, and they had issue, and the wife died, the second wife of the husband would be entitled to her dower, and his issue by her would, consequently, be capable of inheriting the land. reasonable, because, by the birth of issue, the possibility of the donor's reversion was rendered more distant and precarious: and his interest seems to have been the only one which the law, as it then stood, was solicitous to protect; without much regard to the right of succession intended to be vested in the issue. However, if the tenant did not in fact aliene the land, the course of descent was not altered by this performance of the condition; for if the issue had afterwards died, and then the tenant, or original grantee, had died, without making any alienation; the land, by the terms of the donation, could descend to none but the heirs of his body, and therefore, in default of them, must have reverted to the donor (17). For which reason, in order to subject the lands to the ordinary course of descent, the donees of these conditional fee-simples took care to aliene as soon as they had performed the condition by having issue; and afterwards repurchased the lands, which gave them a feesimple absolute, that would descend to the heirs general, according to the course of the common law. And thus stood the old law with regard to conditional fees: which things, says Sir Edward Coke (k), though they seem antient, are yet necessary to be known; as well for the declaring how the common law stood in such cases, as for the sake of annuities, and such like inheritances, as are not within the statutes of entail, and therefore remain as at the common law (18). *The inconveniences, which attended these limited and fettered inheritances, were probably what induced the judges to give way to this subtle finesse of construction, (for such it undoubtedly was,) in order to shorten the duration of these conditional estates. But, on the other hand, the nobility, who were willing to perpetuate their possessions in (k) 1 Inst. 19. [ * 112 ] The statute de donis. (17) As to the qualification of this right of reverter, in cases of special tail, although the conditions of gift were not literally fulfilled, see the last note. Upon the construction of which it was held that the donee acquired an absolute fee, their own families, to put a stop to this practice, procured the statute of Westminster the second () (commonly called the statute de donis conditionalibus) to be made; which paid a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever. This statute revived in some sort the antient feodal restraints which were originally laid on alienations, by enacting, that from thenceforth the will of the donor be observed; and that the tenements so given (to a man and the heirs of his body) should at all events go to the issue, if there were any; or, if none, should revert to the donor. Upon the construction of this act of parliament, the judges determined that the donee had no longer a conditional feesimple, which became absolute (19) and at his own disposal, the instant any issue was born; but they divided the estate which was called into two parts, leaving in the donee a new kind of particua fee-tail. lar estate, which they denominated a fee-tail (m) (20); and investing in the donor the ultimate fee-simple of the land, expectant on the failure of issue; which expectant estate is what we now call a reversion (n) (21). And hence it is that (1) 13 Edw. I. c. 1. (m) The expression fee-tail, or feodum talliatum, was borrowed from the feudists; (see Crag, 1. 1, t. 10, s. 24, 25); among whom it signified any mutilated or truncated inheritance, from which the heirs general were cut off; (19) A conditional fee might have been disposed of by the donee after he had issue born, and during the life of the donee; but if the issue died before the alienation of the fee, the donee could not alien, nor would the subsequent birth of issue confirm the validity of a prior alienation. (Nevil's case, 7 Rep. 125. Willion v. Berkley, Plowd. 235 b). Whenever, therefore, it is said, that the instant issue was born a conditional fee became absolute, it must be understood, not that it was ipso facto absolute, (for that is expressly denied in Nevil's case, 7 Rep. 125), but that it was capable of being made so. (And see ante, note (16) to this chapter). (20) See ante, note (14) to this chapter. (21) Before the statute de donis, no reversion, strictly speaking, remained in the donor, after he had created a Littleton tells us (0), that tenant in fee-tail is by virtue of the statute of Westminster the second. Having thus shewn the original of estates-tail, I now proceed to consider, what things may, or may not, be entailed under the statute de donis. Tenements (22) is the only word used in the statute: and this Sir Edward Coke (p) expounds to comprehend all corporeal hereditaments (23) whatsoever; and also all incorporeal hereditaments, which savour of the realty, that is, which issue out of corporeal ones, or which concern, or are annexed to, or may be exercised within the same; as, rents (24), estovers (25), commons (26), and the like. Also offices (27) and dignities (28), which concern lands, or have relation to fixed and certain places, may be entailed (7). But mere personal chattels, which savour not at all of the realty, cannot be entailed. Neither can an office, which merely relates to such personal chattels; nor an annuity (29), which charges only the person, and not the lands of the grantor. But in these last, if granted to a man and the heirs of his body, the grantee hath still a fee-conditional at common law, as before the statute; and by his alienation (after issue born) may bar the heir or reversioner (r) (30). An estate to a man and his (0) Sec. 13. (p) 1 Inst. 19, 20. conditional fee; he had only a possibility of reversion, not an actual estate in reversion. But, after the statute, an estate given to a man and the heirs of his body, was held to be only a particular estate, leaving the fee-simple as an estate in reversion in the donor. (Willion v. Berkley, 1 Plowd. 248 a. Co. Litt. 22 b). (22) See ante, notes (1) and (5) to chapter 2, and note (2) to chapter 5. (23) See ante, note (6) to chapter 2. (24) See ante, the 10th section of chapter 3, and the notes thereto. (q) 7 Rep. 33. (r) Co. Litt. 19, 20. (25) See ante, note (55) to chap ter 3. (26) See ante, the 3rd section of chapter 3, and the notes thereto. (27) See ante, the 5th section of chapter 3, and the notes thereto. (28) See ante, the 6th section of chapter 3, and the note thereto. (29) See ante, note (1) to chapter 2, and the 9th section of chapter 3, with the note thereto: as also the next note here following. (30) See ante, notes (15), (16), and (19) to this chapter. An annuity, What may or may not be enstatute de donis. [113] tailed, under the heirs for another's life cannot be entailed (s): for this is (s) 2 Vern. 225. when granted with words of inheritance, Loughborough concurred, in the case is descendible. It may be granted in of Turner v. Turner, (before cited). fee: of course it may as a qualified or The ground upon which these opinions conditional fee; but it cannot be entail- were avowedly rested was this: A grant ed, for it is not within the statute de to a man, and the heirs of his body, donis; and, consequently, it has been was a conditional fee at the common held, there can be no remainder limit- law, (Wooddeson, 19 Vin. Lect. vol. 2, ed upon such a grant: but it seems p. 9), and though it left a possibility of there may be a limitation by way of reverter in the donor, it left no actual executory devise, provided that is with estate in reversion in him: (see ante, in the prescribed limits, and does not note (21) to this chapter): therefore, tend to a perpetuity. An annuity may wherever a fee, though a qualified or be granted as a fee simple conditional; base one, was granted, the judges menbut then, it must end or become abso- tioned thought it clear that no remainlute, in the life of a particularized per- der could, at common law, be limited son. (Turner v. Turner, 1 Br. 325. upon such grant. (Edward Seymour's S. C. Ambl. 782. Earl of Stafford v. 10 Rep. 97 a. Willion v. Berkley, Buckley, 2 Ves. senr. 180). An anPlowd. 248 a; Co. Litt. 18 a; 1 Eq. nuity granted to one, and the heirs male Ca. Ab. 186; 2 Inst. 336; Mr. Butler's of his body, being a grant not coming note to Fearne, C. R. p. 13; 1 Roberts within the statute de donis, all the rules on Wills, 5. Machell v. Clarke, Ld. applicable to conditional fees at com- Raym. 779. Pells v. Brown, Palm. 138). mon 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. Bulkley, 2 Ves. senr. 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 case, 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." Again, (in p. 484), he says, "even on the conveyance of a determinable or qualified fee, |