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ius may be seized as of fee of a way leading over the land, of
which Titius is seized in his demesne as of fee.'
The fee-simple or inheritance of lands and tenements is gen-

The fee-sim

ple general. erally vested and resides in some person or other; though di- ly vested, vers inferior estates may be carved out of it. As, if one grants a lease for twenty-one years, or for one or two lives, the feesimple remains vested in him and his heirs; and after the determination of those years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee-simple. Yet sometimes the fee may be in abeyance, that is (as the word signifies), but may be

in abeyance. in expectation, remembrance, and contemplation in law; there being no person in esse in whom it can vest and abide ; though the law considers it as always potentially existing, and ready to vest whenever a proper owner appears. Thus, in a grant to John for life, and afterward to the heirs of Richard, the inheritance is plainly neither granted to John nor Richard, nor can it vest in the heirs of Richard till his death, nam nemo est hæres viventis : it remains, therefore, in waiting or abeyance during the life of Richard. This is likewise always the case of a parson of a church, who hath only an estate therein for the term of his life; and the inheritance remains in abeyance.s And not only the fee, but the freehold also, may be in abeyance; as, when a parson dies, the freehold of his glebe is in abeyance until a successor be named, and then it vests in the suc

cessor.t?

i Co. Litt., 342.

* Litt., Ø 646.

Litt., 0 647.

(5) See the previous page, n. (3): If But although, as Mr. Fearne observes, the word “demesne" be used to distin- “different opinions have prevailed in guish the lord's lands, which he has ab- respect to the admission of ihis doctrine solutely and fully, from the tenants’, over in conveyances at common law” (Id., which he has a seigniory only, there is 526), yet he adduces arguments and auan obvious reason why it should be in- thorities which render the doctrine as applicable to an incorporeal heredita- unquestionable in this case as in the two ment, of which there can be no seign- former of uses and devises. If, there. iory, and which can not be held in fee fore, in the instance put by the learned by way of sub-tenancy.

judge, John should deterinine his estate

either by his death, or by a feoffment in (6) The inheritance or remainder in fee, which amounts to 'a forfeiture, in such a case has been said to be in abey- the lifetime of Richard, under which cirance, or in nubibus, or in gremio legis ; cumstances the remainder never could but Mr. Fearne, with great ability and vest in the heirs of Richard; in that learning, has exposed the futility of case, the grantor or his heir may enter these expressions, and the erroneous and resume the estate.—[Christias.] ideas which have been conveyed by them. Mr. Fearne produces authori- (7) Mr. Fearne having attacked with ties, which prove beyond controversy so much success the doctrine of abey“that, where a remainder of inheritance ance, the editor may venture to observe, is limited in contingency by way of use, with respect to the last two instances, or by devise, the inheritance in the though they are collected from the text mean time, if not otherwise disposed of, of Littleton, that there hardly seems any remains in the grantor and his heirs, or necessity to resort to abeyance, or to the in the heirs of the testator, until the con- clouds, to explain the residence of the tingency happens to take it out of them.” inheritance, or of the freehold. In the (Fearne, Cont. Rem., 513, 4th edit.) first case, the whole fee-simple is con

nec

The word The word " heirs" is necessary in the grant or donation, in "heirs" essary in

order to make a fee or inheritance. For, if land be given to a grant of fee. man forever, or to him and his assigns forever, this vests in simple;

him but an estate for life. This very great nicety about the insertion of the word “ heirs” in all feoffments and grants, in or

der to vest a fee, is plainly a relic of the feodal strictness; by ( 108 ) which, we may remember,w it was required that the form of

the donation should be punctually pursued; or that, as Crags expresses it in the words of Baldus, donationes sint stricti juris, ne quis plus donâsse præsumatur quam in donatione expresserit.“And, therefore, as the personal abilities of the donee were originally supposed to be the only inducements to the gift, the donee's estate in the land extended only to his own person, and subsisted no longer than his life; unless the donor, by an express provision in the grant, gave it a longer continuance, and extended it also to his heirs. But this rule is now softened

by many exceptions.y* devise by

For, i. It does not extend to devises by will ;' in which, as will, u Litt., 91. [2 W. Bl., 1185.]

* L. 1, t. 9, V 17. w See page 56.

y Co. Litt., 9, 10.

but not in

veyed to a sole corporation, the parson ing an estate in fee, to limit the proper.
and his successors; but if any interest is ty to the grantee, his heirs and assigns
not conveyed, it still remains, as in the forever, but these latter words are une
former note, in the grantor and his heirs, necessary and immaterial. (2 Preston
to whom, upon the dissolution of the on Est., 2.)-[Chitty.]
corporation, the estate will revert. (See
vol. i., p. 484.) And in the second case, (9) In wills a fee might have passed,
the freehold seems, in fact, from the mo. without any words of limitation to the
ment of the death of the parson, to rest heirs, as often as it could by any means
and abide in the successor, who is be clearly collected that it was the in-
brought into view and notice by the tention of the testator to give an interest
institution and induction; for, after in- of this extent. In the construction of
duction, he can recover all the rights of wills, the testator is supposed to have
the church which accrued from the wanted that professional assistance of
death of the predecessor.—[Christian.] which a party to a deed may always
See 6 Cl. & Fin., 850.

avail himself.' The law, therefore, re

garded the intention, more than the pre(8) Mr. Preston observes, that the cise legal import of the words in which word “heirs," or, in the case of a cor- the testator had expressed his meaning poration, “ successors," needs not be in (per Lord Mansfield, Cowp., 352); and, the identical deed or grant; and there- as often as it could be collected from any fore, where one to whom lands had been circumstance in a will, or be reasonably granted in fee does, after reciting the inferred, from the whole will taken to grant, or without any recital, grant the gether and applied to the subject-matter, lands to another, “ as fully as they were that the testator intended to pass all his granted to him," the fee-simple will pass estate in his property, that estate would without limitation to the heirs in ex. have passed though the property were press terms. (2 Prest. on Est., 2; Shep. not limited to the heirs of the person to Touchs., 101; Com. Dig., Estate, A. 2.) whom the devise was made. This was It is the practice at this day, in convey- rather a rule of construction on the in

any

In New York, the term heirs, or other words of inheritance, are no longer requisite to create or convey an estate in fee; it being enacted that every grant or devise of real estate, or any interest therein, to be executed after the revision of 1830, should pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest should appear by express terms, or be neces sarily implied in the terms of the grant.-(1 R. S., 748, 1.)

10

and recover

they were introduced at the time when the feodal rigor was apace wearing out, a more liberal construction is allowed ; and, therefore, by a devise to a man forever, or to one and his assigns forever, or to one in fee-simple, the devisee hath an estate of inheritance; for the intention of the devisor is sufficiently plain from the words of perpetuity 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. Nei, nor in fines ther does this rule extend to fines or recoveries, considered as ies, 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 or creations nobility by writ, the peer so created hath an inheritance in his by writ, 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 their successors, nor in grant the word “successors” supplies the place of “heirs ;" for, as

to corpora.

tion, 3 Co. Litt., 9.

tention, than a rule of positive law. (See paid the sum charged upon the estate.
2 Prest. on Estates, 69 to 77, &c.)- (Hargr., Co. Litt., 9, b; 3 T. R., 356 ; 8
[Chitty.) But the law has been alter. T. R., 1.)
ed, and now, wherever, in a will made And where an estate was given gen.
since the year 1837, land is given with- erally, without words being added which
out any words of limitation, the fee, or would create a fee or an estate tail, and
whatever other estate the testator has it was charged with the payment of an-
power over, will pass, unless a contrary nuities, the devisee took a fee; but that
intention appear on the will. (Statute was not the case where an estate tail
7 Will. IV., & 1 Vict., c. 26, s. 28.) was given to the devisee. (5 T. R., 335.)

The distinction turned, in respect to
(10) (See the preceding note.). It carrying the fee, on this, whether the
was not necessary to use any words of debts, &c., were merely a charge on the
perpetuity in a devise, in order to give estate devised, or a charge on the devises
a fee-simple, where it appears to be the himself, in respect of such estate in his
intention of the testator to dispose of all hands. (4 East, 496.)
his interest in an estate, and that was But where a testator left all his here-
implied from the word estate alone; as ditaments to A., A. took only an estate
if a testator gave to Richard his estate or for life. (5 T. R., 558.) A fee, also,
estates in or at Dale, though neither would not have passed by general intro-
heirs, assigns, nor any other word was ductory words in a will, by which the
annexed to Richard's name, yet he took testator declared his intention to dispose
an estate in fee-simple. (7 East, 259; of all his estate both real and personal,
4 M. & S., 369; 4 Taunt., 176; 6 Id., if there was not afterward in the will
410; 2 Marsh., 113.) So, also, where some specific devise for that purpose.
lands were given to Richard charged But where such subsequent devise was
with the payment of a specific sum, and in some degree ambiguous, then the in-
which was not to be raised out of the troductory words might have some ef-
rents and profits, such a devise without fect, as indicative of the intention of the
words of perpetuity carried a fee-simple; testator. (5 T. R., 13; 6 T. R., 610.)
for otherwise the devisee might have [Christian.]
been a loser by dying before he was re-

heirs take from the ancestor, so doth the successor from the [109] predecessor.". Nay, in a grant to a bishop, or other sole spir

itual corporation, in frankalmoigne, the word "frankalmoigne" 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 rests 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 equiv

alent to a fee-simple, and, therefore, the law allows it to be one.a or to the 5. Lastly, in the case of the king, a fee-simple will vest in him, king. without the word " heirs" or "successors" in the grant; partly

from prerogative royal, and partly from a reason similar to the last, because the king, in judgment of law, never dies. But the general rule is, that the word " heirs" is necessary to create an estate of inheritance.

II. Limited II. We are next to consider limited fees, or such estates of fees.

inheritance as are clogged and confined with conditions, or
qualifications, 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 afterward fees-tail, in conse-
quence of the statute De Donis."
a See vol. i., p. 484.

See vol. i., p. 249.

(11) In a grant of lands to a sole cor- important distinction between a fee-sim. poration, the wordheirs" will not con- ple, whether qualified or absolute, and vey a fee any more than the word “suc- à fee-tail

, is, that the former, while it cessorswould in a grant to a natural endures, descends to the heirs general, person. For instance, a limitation to a the latter to heirs special. Whether the parson in his corporate capacity, and to fee is conditional or absolute may furnish his heirs, gives him only an estate for another principle of classification, but life. (Co. Litt., 8, b; 4 H.,5, 9.) The not any distinction between a fee-tail word successors, however, is not neces- and other fees, since the former as well sary to pass a fee to a sole corporation in as the latter may be subject to a qualifithe case of a gift in frankalmoigne. (Co. cation or condition. Litt., 94, b.) But if unnecessary words The old writers, however, are not be added to those which suffice to pass quite agreed as to their classification of the fee in grants to corporations sole, or estates in fee; perhaps the clearest acnatural persons, they may be rejected as count of them is that given by Lord surplusage ; as if lands be granted to a Coke, in his report of Seymour's case bishop in his politic capacity, his heirs (10 Rep., 976); “Nota, reader, every and successors, or to a man, his heirs estate descendible to the heir is either an and successors, the word "heirs," in the estate of inheritance or an estate of freeone case, and “ successors” in the other, hold; an estate of inheritance is either come within this rule. (Co. Litt., 9, a.) fee-simple or fee-tail; an estate of fee-[CHITTY.]

simple is either an estate of inheritance

absolute and indeterminable, as, where (12) A fee-simple is often put in op- lands are given to a man and his heirs, position to a fee-tail

, and so includes con- he has such a pure and absolute estate ditional or qualified fees, which our au- which can never determine; or a ferthor (copying from Bracton and others simple determinable, and that is in two who wrote before the statute De Donis), manners, scilicet, either expressly dewith more appearance than substance of rived out of an absolute and pure estate accuracy, classes with fees in tail. The in foe-simple, or implicit, and derived

1. A base, or qualified, fee is such a one as has a qualifica- 1. Base fee tion subjoined thereto, and which must be determined 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 KingstonLisle, 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, and the instant he or his heirs quitted the seigniory of this manor the dignity was at an end. This estate is a fee, be- [110] cause, by possibility, it may endure forever 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 the common law, was a fee re- 2. Conditionstrained to some particular heirs, exclusive of others : " donatio stricta et coarctata ;d sicut certis hæredibus, 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 the condition, expressed or implied in the donation of it, that, if the donee died without such particular heirs, the land should revert to the donor; for this was a c Co. Litt., 27.

d Flet., l. 3, c. 3, $ 5.

al fee.

out of an estate-tail. Out of an abso- [but can not be limited; see p. 164, n.];
lute estate in fee, also in two manners: and yet in all these cases he who has any
first, by condition, as, upon mortgage, such estate of inheritance may plead
and that is called a fee-simple condition- that he is seized of the land in his de-
al; secondly, by limitation, as, if A. en- mesne as of fee, without showing the
feoffs B. of the manor of D., to have and beginning of his estate, as well when he
to hold to him and his heirs so long as has a fee-simple derived out of an estate-
C. has heirs of his body, and that is tail as a fee-simple conditional or lim-
called a fee-simple limited and qualified; ited.”
and in both these cases the whole estate The term base fee is now generally
in the land is in the feoffee, and there- used to designate that kind of determin-
fore no remainder or reversion can be able fee-simple which Lord Coke calls
expectant upon either of them [but only implicit, namely, that derived out of an
a right of entry by the feoffor or his estate-tail by any assurance which bars
heirs, when the condition is determin- the right of the issue in tail, but does not
ed]: IMPLICIT, and derived out of an bar the right of the remainder-man or
estate-tail, as in the case at bar, where reversioner. It is used in this sense in
tenant in tail bargains and sells the said the Act for abolishing Fines and Recov-
messuage by deed indented and enrolled eries, 3 & 4 Will. IV., c. 74.
to W. H. and his heirs, and afterward
levies a fine to him and his heirs, with (13) Even for a short period, and
proclamations, he has an estate in fee- they afterward resume it. (Yelv., 150;
simple, as long as the tenant in tail has Prest. on Estates, 20.) But if A. die,
heirs of his body, derived out of the es- the birth of a posthumous child will
tate-tail; and this is a more inferior and continue the tenancy and prevent the
subordinate estate in fee-simple than the defeat of the grant. (1 Leon., 74.)
other two aforesaid, for upon this a re- [Chitty.]
mainder or reversion may be expectant

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