tenure of lands in England fell off, every reason on which this rule had rested fell with them. Why should the rule itself be retained? Lord Coke says: "Cessante ratione legis, cessat ipsa lex." Coke, Litt., 70, b. And that has come to be-indeed, it was then-one of the most familiar maxims of the law.

In the nature of things the word [heirs] is no more necessary to the valid conveyance of land than to the valid conveyance of a horse. Its use was necessary in the scheme of a semi-barbarous institution, a vast engine of slavery and oppression, an instrument of violence and disorder, which had no better security for its continued existence than superiority of brute force, and which was swept away upon the dawn of a better civilization more than five hundred years ago. Why is its use still required in one class of instruments and not in the other, when both have the same object in view, namely, the conveyance of land?

I have not found any answer to this inquiry. The legal signification and effect of the word as used in our deeds of bargain and sale are purely technical. Strictly speaking, there is no one in existence at the time of the grant to answer the description. Nemo est haeres viventis. Those who may become the heirs of the grantee take not the slightest present interest by virtue of the word. The conveyance vests the absolute and unlimited ownership in the grantee; the word imposes no restraint on his power of alienation. Nevertheless it has a settled and well-understood meaning as thus used, and, as a legal term, is very convenient and useful to show that the estate granted is a fee. It could not now be safely omitted without using some other form of expression showing with legal accuracy the intention and contract of the parties.

Of course it will not be omitted by any conveyancer or other person who knows the significance it has acquired. But when a case arises where the intention of the grantor to convey a fee-simple is clearly shown by other words in the deed, we think the court have no power to say a fee shall

not pass because he has not, in addition, inserted this technical word, using it in a sense entirely distinct and different from its usual and common import. Our conclusion is that the rule, which would defeat the obvious intention and destroy the plainly expressed contract of the parties in the present case, is not adapted to our institutions or the condition of things in this State; that it never became part of the law of the State, and, therefore, that this instrument conveys to the lessees a perpetual right to take and use the water upon the terms and conditions specified, which right may pass to their heirs and assigns as a fee.-Per Ladd, J., in Cole v. Lake Co. (1874).

FINCH, CASES, PROP. IN LAND, 489. It would seem that technical words of limitation are still required to pass a fee in Maine, Vermont, Massachusetts, Rhode Island, Connecticut, Pennsylvania, New Jersey, Delaware, South Carolina, Florida, Ohio and Wyoming.-Finch's note.

N. Y. REAL PROP. LAW, § 205. Every instrument creating, transferring, assigning, or surrendering an or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law.

§ 210. A grant or devise of real property passes all the estate or interest of the grantor or testator unless the intent to pass a less estate or interest appears by the express terms of such grant or devise or by necessary implication therefrom.

CHAPTER III.

ESTATES IN FEE TAIL.

(a) Conditional Fee.

BRACTON, 17. Likewise as the class of heirs may be enlarged, so can it be restricted by the limitations expressed in the gift, and in that case the heirs general do not succeed. For the limitations fix the legal effect of the gift, and the limitations of the gift must be abided by contrary to common right, and contrary to the general law, because such limitations, when agreed on, override the general law, as if the words are, "I give such a one so much land with the appurtenances in N. to have and to hold to him and his heirs whom he may have begotten of his body by his wedded wife." . . . In which case, since a restricted class of heirs is mentioned in the gift, it may be seen that the descent is only to the common heirs of husband and wife according to the limitations expressed in the gift, all other heirs of the husband being altogether excluded from the succession, because such was the intention of the donor. Hence it is that if heirs of this kind have been begotten, they alone are called to the succession, and if one who is enfeoffed in this manner has proceeded to enfeoff any one else of the land, this feoffment holds good, and the heirs of the feoffer are bound to warranty, since they can claim nothing except by succession and descent from their ancestors, although some think that the heirs themselves have been enfeoffed together with their parents, which is not true. But if a feoffee to himself and the heirs of his body have no such heirs, the land will revert to the donor by an implied condition, even if there be no mention in the

deed of gift of such reversion, or if there be such express mention; and this will be the case, too, if heirs have at any time come into existence and have failed. But in the first case, where no heir has come into existence, the donee will always hold the property given as an estate for life and not as a fee. Also in the second case, until an heir has come into existence the estate is an estate for life; when, however, an heir has come into existence the life estate passes into a fee, and when there ceases to be any heir the fee also comes to an end and passes into an estate for life, and as a consequence such a gift will never support a claim of dower unless it be an absolute gift, because it is never the practice to make express mention of the reversion.

PLOWD., 245. And at the common Law there was no Estate of Inheritance but what was Fee-simple. But these Estates in Fee-simple were of two Sorts, the one absolute, and the other conditional, as hath been said. And the Feesimple conditional was, where Land was given to a Man [and] to the Heirs of his Body begotten, and herein the Abuse was after Issue had rather than before Issue had. For before Issue had, if he had aliened, this should not have bound the Issues had afterwards, nor the Donor if there had been no Issue, for until Issue had the Donee had no Power to alien, though he had after Issue. For when the Gift was to one and to the Heirs of his Body, they took it that he could not lawfully alien until he had such Heirs, and that if he did alien, the Donor (although he could not enter presently) after the Death of the Donee, if he had no Issue, might have a Formedon in Reverter. For the Gift being to one and to the Heirs of his Body, they adjudged it not to be a full Feesimple until he had Heirs of his Body, for when it was incertain whether he should have an Heir of his Body or not, they did not take him to have a full inheritance.

.

But after Issue had such Donee at the common Law had Power to alien, and thereby to bar the Issues and the Donor, for by having Issue the Condition was performed, and his

Inheritance was made more full.-Per Brown, J., in Willion v. Berkley (1562).

Co. LIT., 19, a. Before which statute of Donis Conditionalibus, if land had beene given to a man, and to the heires males of his body, the having of an issue female had beene no performance of the condition; but if he had issue male, and dyed, and the issue male had inherited, yet he had not had a fee simple absolute; for if he had died without issue male, the donor should have entered as in his reverter. By having of issue, the condition was performed for three purposes: First, to alien; Secondly, to forfeit; Thirdly, to charge with rent, common, or the like. But the course of descent was not altered by having issue; for if the donee had issue and died, and the land had descended to his issue, yet if that issue had dyed (without any alienation made) witho issue, his collaterall heire should not have inherited, because he was not within the forme of the gift, viz., heire of the body of the donee.

If donee in taile at the common law had aliened before any issue had, and after had issue, this alienation had barred the issue, because he claimed a fee simple; yet if that issue had died without issue, the donor might re-enter, for that he aliened before any issue, at what time he had no power to alien to barre the possibilitie of the donor.

DIGBY, HIST. REAL PROP., Ch. IV., § 3. The technical expression, "conditional gift," has been already explained in commenting on the passage of Bracton given above. It has been already seen that in Bracton's time a gift accompanied by words of procreation, as, for instance, to a man and the heirs of his body, or to a man and his wife and the heirs of their bodies, and similar expressions, was held to be an estate of inheritance conditional on issue being born; until this event happened the interest was in effect merely an estate for life. It was, strictly speaking, an estate descendible to the class of heirs mentioned in the gift, if such