described into its extent, and entitle them to take derivatively, through or from him, as the root of succession, or person in whom the estate is considered as commencing, they are properly words of limitation. But when they operate only to give the estate imported by them to the heirs described, originally, and as the persons in whom that estate is considered as commencing, and not derivatively from or through the ancestor, they are properly words of purchase." 93. In some cases the same words operate as words of purchase, and also as words of limitation. Thus Lord Coke says, where a remainder is limited to the 1 Inst. 10 a. right heirs of B., it need not be said, and to their heirs; for being plurally limited, it includes a fee simple; and yet it rests but in one by purchase. So where an estate is limited to the heirs male of the body of A., the eldest son of A. takes by purchase, and his male issue by descent. TITLE XXXII. DEED. CHAP. XXI. Construction.-By what words different Estates may be created 1. What Words create an Estate 35. Effect of a Limitation to the in Fee. 12. What Words create an Estate Tail. Heirs of the Body of A. 40. Usual Mode of limiting Estates Tail. 13. What Words restrain the 42. What Words create an Estate word Heirs. '25. Limitation to A. and his over. 29. Limitation to a Man and his for Life. 44. What Words create an Estate for Years or at Will. 46. What Words create a Joint Tenancy. Wife, and the Heirs of 52. What Words create a Tenancy 33. Distinction between Heirs of 61. What Words create Cross the Body, and upon or on the Body. Remainders. 67. Cases of Marriage Articles. What words Formulare WITH SECTION 1. WITH respect to the words required to create an estate in fee simple, it is laid down by Littleton and by Lord Coke, that in all feoffiments and grants the word heirs is absolutely necessary for that purpose, and cannot be supplied by any other word whatever. 2. Mr. Madox contends, that this doctrine is not so ancient as is generally supposed; for that formerly there were several modes of expression by which an estate in fee simple might have been created, without the word heirs; such as, to the feoffee et suis, 2-336. or suis post ipsum, or habendum et jure hæreditario perpetuo possidendum; so that it is probable this 1 Inst. 23 b. maxim was not fully established, till the principles of the feudal law were generally adopted: in which it was a rule, that the donation of a feud should be construed strictly, and not carried beyond the words. 3. The form of a gift in fee simple in Bracton's Bract. 17 b. time was, habendum tali et hæredibus suis; or tali et hæredibus suis, vel cui terram illam dare vel assignare voluerit. And it may be now laid down as a general rule, that in all feoffments and grants to natural persons, and also in all conveyances deriving their effect from the statute of uses, no word but the word heirs, however strong the intention may appear, will create an estate in fee simple. And it is observable, that there is really no other word in the English language, expressive of all the circumstances which constitute the idea of an heir. Plowd. 28. 4. A gift to a man et heredibus, with livery of 1 Inst. 8b; seisin, though the word suis be omitted, will pass an estate in fee simple: because the livery shall be taken most strongly against the feoffor. But if one gives land to two persons, to hold to them two, et hæredibus, omitting suis, they only take an estate for life, for the uncertainty. n. 4. 5. Lord Coke says, if lands are given to a man 1 Inst. 8 b. and his heir, in the singular number, he will not take an estate in fee. But Mr. Hargrave observes, that according to many authorities, the word heir may be nomen collectivum; and operate in the same 1 Roll. Ab. manner as heirs in the plural number. 6. It was determined in a modern case, that the words, to the use of all and every the child or children of a marriage, equally share and share alike; if more than one, as tenants in common, and not as 832. Doe v. 4 Term Rep. 39. 1 Inst. 9 b. n. 6. Idem. Id. 10 a. ante, c. 6. $31. 1 Inst. 9 b. Idem. joint tenants; and if but one child, then to such only child, his or her heirs or assigns for ever; should be construed so as to create an estate in fee in all the children. The words "his or her heirs" being allowed to operate as words of limitation on all the preceding words in the sentence. 7. The rule that the word heirs is absolutely necessary to create an estate in fee simple, admits of a few exceptions. Thus, if a father enfeoffs his son, to hold to him and his heirs, and the son re-enfeoffs the father, as fully as the father enfeoffed him, an estate in fee simple will pass to the father. 8. If one coparcener or joint tenant releases all his right to another, it will pass a fee, without the word heirs. So if one coparcener grants a rent to the other, for equality of partition, an estate in fee simple in the rent will pass, without the word heirs ; for as the rent comes in lieu of the inheritance, it has as strong a relation to the inheritance as if the word heirs had been mentioned. 9. In releases that enure by way of mitter le droit, the word heirs is not necessary to create a fee simple, as has been already stated. 10. In conveyances to corporations, whether sole or aggregate, the word heirs is not necessary to create a fee simple. But the law makes a distinction between a corporation aggregate, and sole corporation for a feoffment to a corporation aggregate will pass a fee without any words of limitation; whereas in a feoffment to a corporation sole, the word successors is nccessary. 11. An estate in fee will pass to the king without the words heirs or successors, partly, on account of his prerogative, and partly, because in judgement of law the king never dies. 12. With respect to the words that are necessary What Words create an Estate Tail. to create an estate tail in a deed, it is said by Lord Coke, that the word heirs is as necessary as in the Inst. 20 a. case of a fee simple. For as every estate tail was a fee simple at common law, and as no fee simple could be created without the word heirs, it followed that an estate tail could not be created without that word. Therefore, if lands are given to a person et semini Id. 20 b. suo, or, exitibus vel prolibus de corpore suo; to a man and to his seed, or to the issues or children of his body; he has but an estate for life. For although the statute Nevil v. Nevil, de donis provides that the will of the donor shall be observed, yet that will and intent must agree with 587. the rules of law. And it has been long settled, that v. Fletcher, the word issue cannot operate in a deed as a word Com. R. 457. of limitation, so as to create an estate tail. 1 Roll. Ab. Makepeace 4 Ves. Jun. 794. What Words restrain the word Heirs. 13. No technical words, however, are required to restrain the general import of the word heirs to the lineal descendants of the grantee; therefore any words that show such an intention, will be sufficient. 14. Thus, Lord Coke says, if lands be given to B. 1 Inst. 20 b. et hæredibus quos idem B. de prima uxore sua legitimè procrearet; this is a good estate in special tail, although B. has no wife at the time, without the words de corpore. So it was if lands were given to a man and to his heirs, which he should beget of his wife; or to a man, et hæredibus de carne sua, or et hæredibus de se; in all these cases an estate tail was created, though the words de corpore were omitted. 15. Lord Coke also says, the word engendrés, or Idem, & n. 3. begotten, may be omitted; and if the word be procreandis, or quos procreaverit, the estate tail is good : and as the word procreatis shall extend to the issue begotten afterwards; so procreandis shall extend to the issue begotten before. But Lord Hale has obVOL. IV. 2 & Id. 26 b. n. 1. |