remainders. But there are cases in which it is not very obvious how this may be. To take a much discussed instance; suppose a grant to John for life, and afterwards to the heirs of Richard, a living person. Here the seisin is in John, by virtue of his freehold estate for life, but plainly, the inheritance is not so, neither is it in any person answering the description of the heirs of Richard, for nemo est hæres viventis. Formerly, a case like this was explained by saying that during John's life it was in abeyance, or in gremio legis, or in nubibus, but this artificial doctrine is not now accepted, the true opinion being that the inheritance remains in the grantor until some person arises by the death of Richard, answering the description given, and so capable of taking [* 212] under the grant. Indeed it is obvious that if John died before Richard, the only person who could enter would be the grantor, who might then resume his former estate, and the estate given to Richard's heir would never take effect. The establishment of this opinion is due to the treatise upon contingent remainders, originally published by the late Mr. Fearne in the year 1772, the great learning of which, and the able discussions therein contained, have contributed greatly to the clear understanding of many disputed questions of this nature. A similar difficulty in determining where the inheritance resides occurs in the case put by Littleton (r), of land belonging to a corporation sole, as the parson of a church. Here, during the life of the parson, the freehold of the glebe of the parsonage is in him, but the fee simple, Littleton says, is in abeyance, and after the death of a parson, and before the church is filled by his successor, the freehold also seems to be without an owner, or in abeyance. Perhaps, however, notwithstanding Littleton's view of this case, it may be explained by observing that a freehold, equivalent to one of inheritance, is in the parson subject to the restriction of there being no power of alienation, and further, that the successor takes exactly as the heir would take on intestacy in an ordinary case, the succession by blood being replaced by the succession in the office of parson. As to the period during which the church is void, it may be noticed that the successor must then be in existence, though not actually pointed out till his institution and induction. He, on institution, claims and can receive all the rights accruing since the death of his predecessor (s). It is clear, however, that the original grantor and his heirs are entitled to everything which is not taken by the corporation; and the estate will revert to them on the dissolution of the corporation. *Such is the nature of an estate in fee-simple, which a subject pos- [213] sesses. It only remains to notice that the possession of this estate carries with it the invariable right of alienation, by which not only the ownership of the estate is transferred from one person to another, but in some sense the estate is itself affected, for being before an estate capable of enduring so long as there shall be any heirs of the alienor, after the alienation it becomes an estate, limited to endure so long as there shall be heirs of the alienee, the latter class of heirs being substituted for the former. This right of fee alienation constitutes one of the most valuable attributes of this estate. The various modes of alienation will come under our consideration when investigating the various kinds of title under which a man may claim an estate. A few points may, however, here be noticed, regulating the grant or creation of an estate, which also govern the present powers of alienation. (r) Sects. 646, 647. (8) 6 Cl. & Fin. 850. The word "heirs" neces fee simple. The word "heirs" is necessary in the grant or donation, in order to make a fee, or inheritance. For, if land be given to a man for ever, or to him and his assigns for ever, this vests in him but an estate for life (t). This sary in grant of very great nicety about the insertion of the word "heirs" in all feoffments and grants, in order to vest a fee, is plainly a relic of feudal strictness; by which we may remember (u), it was required that the form of the donation should be punctually pursued; or that, as Crag (x) [* 214] *expresses in the words of Baldus, "donationes sint stricti juris, ne quis plus donásse 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 has been softened by many exceptions (y). In the case of wills made before the year 1838, the necessity for the use of the word "heirs" was dispensed with if the testator had sufficiently expressed his intention that a devise should be in perpetuity. Thus if the devise were to A. in fee-simple (z), or for ever (a), or to A. and his assigns or successors for ever (b); in all these cases the words of perpetuity or description sufficiently denote the intention of the testator. And as the power of alienation by will was introduced when feudal rigour was rapidly declining, the court adopted such a liberal construction of wills as would give effect to that which was thus manifestly intended, though not couched in the formal language which had always been required in deeds. There must, however, be no ambiguity in the mode in which the intention appears, and, therefore, a gift to A. and his assigns, since there could be no inconsistency with this gift, that A. should take an estate for life only, that is all which will be taken under it (c). This question as to the estate taken under a will cannot now arise in cases where the will has been made since the year 1837, for it being found that, notwithstanding the anxiety of the court thus to [*215] give effect to the intention of testators* which seemed the most probable, it was often defeated from not being sufficiently expressed, it has been enacted (d), that a devise of any real estate without words of limitation shall carry the fee-simple or the whole interest, whatever it may be, of the testator, unless a contrary intention appear by the will. In the peculiar assurances which formerly were made with the aid of the courts by the pretence of actions, an estate was conveyed without the use of the word "heirs" (e); for, by these fines and recoveries (ƒ), the estate in fee (t) Litt. s. 1; 2 W. Bl. 1185. Mr. Preston observes, that the word "heirs," or, in the case of a corporation, "successors," needs not be in the identical deed or grant; and therefore, where one to whom lands had been granted in fee does, after reciting the grant, or without any recital, grant the lands to another, "as fully as they were granted to him," the fee-simple will pass without any limitation to the heirs in express terms. (2 Prest. on Est. 2; Shep. Touch. 101; Com. Dig., Estate, A. 2.) It is the practice at this day, in conveying an estate in fee, to limit the property to the grantee, his heirs and assigns for ever, but these latter words are unnecessary (2) Baker v. Raymond, And. 51; 8 Vin. Ab. 206, pl. 8. (a) Co. Litt. 9 b; 8 Vin. Ab. 206, pl. 6. (b) Co. Litt. 9 b. (c) Co. Litt. 9 b. For a collection of forms of devises which have been held to carry a fee simple, see 2 Jarm. Wills, 253 et seq. (d) 1 Vict. c. 26, s. 28. (e) Co. Litt. 9. (f) As to these, see post. passed by the operation of law. The same result occurs in many cases of release by deed, the effect of which is the extinction of an estate or interest, and this effect may be produced without the use of the word "heirs" (g). In creations of nobility by writ, the peer so created has an inheritance in 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 (h). In grants of lands to sole corporations and their successors, the word "successors" supplies the place of "heirs;" for, as heirs take from the ancestor, so doth the successor from the predecessor (i). 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 [*216] "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 although such simple grant be strictly only an estate for life, yet, as a corporation never dies, such estate for life is perpetual, or equivalent to a fee simple, and therefore the law allows it to be one (k). Lastly, in the case of the king, a fee simple will vest in him, 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 (7). But the general rule is, that the word "heirs" is necessary to create an estate of inheritance. (230) (g) Co. Litt. 9. (h) Co. Litt. 9. It appears from recent inquiries in Parliament that the crown cannot now create life peerages. (i) In a grant to a sole corporation, the word "heirs" will not convey a fee any more than the word "successors" would in a grant to a natural person. For instance, a limitation to a parson as such, and to his heirs, gives him only an estate for life. Co. Litt. 8b; 4 H. 5, 9. The word successors, is not necessary to pass a fee to a sole corporation in frankalmoign. Co. Litt. 94 b. But if unnecessary words be added to those which suffice to pass the fee, in grants to corporations sole, or natural persons, they may be rejected as surplusage; as if lands be granted to a bishop as such, his heirs and successors, or to a man, his heirs and successors, the word "heirs," in the one case, and " successors" in the other, come within this rule. Co. Litt. 9 a. (k) See vol. 1, p. 484. (230) In many of the States of the Union the word "heirs," or other words of inheritance are not required in deeds or wills for the purpose of carrying a fee, if such intent is evident from the language employed. Where the rule has not been changed by statute the common-law rule generally prevails, and the word "heirs" is necessary to create an estate of inheritance. Taylor v. Marshall, Hill and Denio, 93; Adams v. Ross, 30 N. J. Law (1 Vroom) 505, 511; Clearwater v. Rose, 1 Black f. 137; Sedgwick v. Laflin, 10 Allen, 430; Jones v. Bramblet, 1 Scam. 276; Van Horn v. Harrison, 1 Dall. 137. Usually no other words will supply the place of the word "heirs." A deed to M. "and his generation, to endure so long as the waters of the Delaware run," was held to convey but a life estate. Foster v. Joice, 3 Wash. C. C. 498. But it has been held that an omission of the word "heirs" may be supplied by other words. A deed given in 1804 conveyed the right to the grantee to erect mills, to have and to hold for ever, but omitting the word "heirs" in the habendum clause; but there was a subsequent clause which restricted the grantee, his heirs and assigns in certain respects, and this was held to convey a fee at common law. Saunders v. Hanes, 44 N. Y. (5 Hand) 353. A lease which is to continue "as long as wood grows and water runs 99 was held to convey a fee. Arms v. Burt, 1 Vt. 303. In conveyances in trust the trustee may take a fee without the word "heirs" when the purposes of the trust require that a fee should pass. Fisher v. Fields, 10 Johns. 495; Angell In discussing hitherto the nature and quality of an estate in fee simple, or the largest estate a man may possess in lands, we have treated it as absolute, free from condition or qualification (m). But besides such absolute * fees there are others commonly called base fees, which are to be dis[* 217 ] tinguished by the peculiarity that they are liable to come to a determination sooner than the natural determination of a fee simple, by the cesser of some other continuous fact, the duration of which has been made the measure of the continuance in existence of the estate. Thus, 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 (n), 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 (0), and the instant he or his heirs quitted the seignory of this manor, the dignity was at an end. This 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. Another example of a base fee, and one which is the most com[* 218] mon, or indeed in the present day the only one that is not very uncommon is, a fee-simple which continues so long as A. or any lineal descendants of A. shall be alive, and no longer; this is a base fee, and is one which (m) For a classification of estates by Lord Coke, see his note to Seymour's Case, 10 Rep. 976: Nota, reader, every estate descendible to the heir is either an estate of inheritance or an estate of freehold; an estate of inheritance is either fee-simple or fee-tail; an estate of fee-simple is either an estate of inheritance absolute and indeterminable, as, where lands are given to a man and his heirs, he has such a pure and absolute estate which can never determine; or a fee-simple determinable, and that is in two manners, scilicet, either expressly derived out of an absolute and pure estate in fee-simple, or implicit, and derived out of an estate-tail. Out of an absolute estate in fee, also in two manners, first, by condition, as, upon mortgage, and that is called a fee-simple conditional; secondly, by limitation, as if A. enfeoffs B. of the manor of D., to have and to hold to him and his heirs so long as C. has heirs of his body, and that is called a feesimple limited and qualified; and in both these cases the whole estate in the land is in the feoffee, and therefore no remainder or reversion can be expectant upon either of them (but only a right of entry by the feoffor or his heirs, when the condition is determined): Implicit, and derived out of an estate-tail, as in the case at bar, where tenant in tail bargains and sells the said messuage by deed indented and enrolled to W. H. and his heirs, and afterwards levies a fine to him and his heirs, with proclamations, he has an estate in fee-simple, as long as the tenant in tail has heirs of his body, derived out of the estatetail; and this is a more inferior and subordinate estate in fee-simple than the other two aforesaid, for upon this a remainder or reversion may be expectant; and yet in all these cases he who has any such estate of inheritance may plead that he is seised of the land in his demesne as of fee, without showing the beginning of his estate, as well when he has a fee-simple derived out of an estate-tail, as a fee-simple conditional or limited." (n) Even for a short period, and they afterwards resume it. Yelv. 150; Prest. on Est. 20. But if A. die, the birth of a posthumous child will continue the tenancy and prevent the defeat of the grant. 1 Leon. 74. (0) Co. Litt. 27. v. Rosenbury, 12 Mich. 241; Newhall v. Wheeler, 7 Mass. 189; Spessard v. Rohrer, 9 Gill. 261 ; Welch v. Allen, 21 Wend. 147; Korn v. Cutler, 26 Conn. 4; North v. Philbrook, 34 Me. 532; Neilson v. Lagow, 12 How. (U. S.) 98; Wilcox v. Wheeler, 47 N. H. 488. See Weller v. Rolason, 17 N. J. Eq. (2 C. E. Green) 13, as to the rule in equity. In a will the use of the word "heirs" is not necessary when the testator owns the fee, and it is evident from the will that he intends to pass all his estate in the lands. Jackson v. Merrill, 6 Johns. 185; Spraker v. Van Alstyne, 18 Wend. 200; Fogg v. Clark, 1 N. H. 163; Baker v. Bridge, 12 Pick. 27, 31; Lambert v. Paine, 3 Cranch, 97; Lillard v. Robinson, 3 Litt. 415. most frequently in practice arises in a manner which will appear hereafter (p). A base fee is in no way distinguishable from an absolute fee-simple, except by this liability to an abnormal termination. It is to be remembered (q), that, though these base or qualified fees are of a duration which may be considerably less than that of an estate in fee simple; yet a tenant in fee simple cannot, upon granting a base fee, reserve to himself an estate in remainder to come into possession upon the determination of the base fee. What in such a grant is reserved to the grantor is merely a right of entry upon the determination of the fee so created (r). Estate in fee-tail. The next estate which we shall notice is an estate limited to a man and the heirs of his body begotten. This is such an estate that it descends to the issue of the first owner in regular succession; but it comes to an end upon the failure of his descendants on the happening of which event the land reverts to the grantor or creator of the estate. This estate is called an estate-tail, feodum talliatum (s), or an estate cut out of the greater estate in fee-simple; and herein we notice at once a distinction which the law makes between this and a base fee such as that above described, where the estate continues so long as there should be descendants of a given person. * Because, although the duration of the estate-tail is the same as that [*219] of the base fee, yet there may be an estate in fee tail, or a series of estates in fee tail, or estates for life followed ultimately by an estate in fee simple, limited to take effect in succession, one after the other, as the prior estates determine. Thus, a limitation to A. and the heirs of his body, and after the determination of this estate to B. (a living person) for life, and after B.'s death to C. (also a living person) and the heirs of his body, and after the determination of the last estate, to D. and his heirs, would be a perfectly good limitation. But a limitation to A. and his heirs so long as B. or any lineal descendant of B. shall live, with remainder to C. and his heirs, would have no effect in giving any estate to C. (t). There are also special forms of estate-tail; thus, the limitation may not only be to a man and the heirs of his body generally, but it may be confined to him and the heirs of his body by a particular wife, or to him and the heirs male of his body, or the heirs female of his body. In all these cases the descent is only to those who fall within the special description; thus no daughter or remoter female issue, or person claiming through any female, could succeed to an estate in tail male (u), and conversely, no male or person derived from one could claim an estate given in tail female (x). Thus, if the donee in tail male has a daughter, der expectant upon the determination of the estate-tail would seem to be an exception to the general rule that there can be no remainder after a fee, for having been good at its creation it does not lose its character by the alteration of the prior estate. See 3 & 4 Will. 4, c. 74, s. 39, which provides for certain consequences which might ensue upon the union of the two estates. (u) See Litt. ss. 14, 15, 16, 21, 22, 24, 26, 27, 28, 29, for examples. (x) Tail female is very rarely, if ever, now found. When an estate-tail is given to a female it is always tail general. |