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or suis post ipsum, or habendum et jure hæreditario perpetuo possidendum ; so that it is probable this ! 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 downí 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 obseryable, that there is really no other word in the English language, expressive of all the circumstances which constitute the idea of an heir. 4. A gift to a man et heredibus, with livery of Inst. 8b:
Plowd. 28. 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.
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 Roll. Ab.
832. manner as heirs in the plural number. 6. It was determined in a modern case, that the Doe v.
, words, to the use of all and every the child or chil. Martin,
4 Term dren of a marriage, equally share and share alike; if Rep. 39. more than one, as tenants in common, and not as
1 Inst. 9 b.
Id. 10 a.
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.
ante, c. 6. $31.
I Inst. 9 b.
12. With respect to the words that are necessary What Words to create an estate tail in a deed, it is said by Lord Estate Tail
. Coke, that the word heirs is as necessary as in the 1 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
1 Roll. Ab. observed, yet that will and intent must agree with 587,
Makepeace 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.
4 Ves. Jun. of limitation, so as to create an estate tail.
794. 13. No technical words, however, are required to What Words restrain the general import of the word heirs to the word Heirs. 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.
& Id. 26 b. begotten, may be omitted ; and if the word be pro- . 1. creandis, 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.
served on this passage, that where the words were Canon's
in posterum procreandis, sons born before shall be Case, 3 Leon. 5. excluded, on account of the peculiar force of the
words in posterum. Hebble- 16. Lord Talbot held, that where lands were thwaite v. Cartwright,
limited in a deed to C. H. for life, and after his de Forrest, 30. cease, to the heirs male of his body thereafter to be
begotten ; the words “thereafter to be begotten" did not confine it to the issue born after, but would like.
wise take in issue born before. $ 30. 17. Littleton says, if a man has issue, and dies; and
land is given to the son and to the heirs of the body of his father begotten, this is a good entail, though the father was dead at the time of the gift. Lord Coke has observed on this passage, that the words, the heirs, were observable : for if the words had been his heirs, it would have altered the case. Therefore, if lands were given to the son, and to his heirs of the body of his father; the son could not take as heir of the body of his father, because the grant was to him and to his heirs, &c. But if there were grandfather, father, and son, and the father died, and lands were given to the son, and to the heirs of the body of the grand
father, this would be a good estate tail in the son. 1 lnst. 20 a. 18. The word heir in the singular number may in & b. 22 a.
a special case create an estate tail. Thus, where lands were given to a man and his wife, and to one heir of their bodies lawfully begotten, and to one heir of the body of that heir only; it was held an
estate tail. ante, c. 20.
19. It has been stated, that where lands are given in the premises of a deed to A. and his heirs, haben
dum to him and the heirs of his body, he will only 1 Inst. 121 a. take an estate tail. And Lord Coke says, if lands are given to B. and his heirs, if B. have heirs of his body, and if he die without heirs, that it shall revert to the donor ; this is an estate tail. 20. It has also been stated, that where a person, in ante, c. 20.
$ 89. the premises of a deed, gives lands to another and the i Inst. 21 a. heirs of his body, habendum to him and his heirs for ever, he will take an estate tail with a fee simple expectant; but if it be added, that if he dies without heirs of his body, the lands shall revert to the donor, it will be an estate tail.
21, Littleton says, if lands are given to a man and $31. his heirs males, or to a man and his heirs females, the donee will take an estate in fee simple ; because the gift does not specify from what body the heirs male or female shall issue. And Lord Coke says, it 1 Inst. 27 b. was adjudged in Parliament, that where lands were given to a man and his heirs male, this was a fee simple ; for the grant of a subject shall be taken most strongly against himself.
22. A feoffment was made to the use of the feoffee Abraham v. and the heirs of his body; and for default of such cro. Eliz.
Twigg issue, to G. D. and his heirs male lawfully engen- 478. dered; and for default of such issue, to the right heirs of the feoffor. All the Judges were of opinion, that G. D. took an estate in fee ; and that it could not be an estate tail, because there was not any body from whom his heir male should come.
28. But if there be any other words in a gift of this kind, from which an intention to restrain the generality of the words heirs male, to the body of the grantee, can be inferred, such gift will be construed to
pass an estate tail. 24. A feoffment was made to the use of the feoffor Beresford's
Case, for life, remainder to the use of G. B. son and heir
7 Rep. 41. of the feoffor, and the heirs male of his body lawfully begotten; and for default of such issue, to the
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