icum, or demesne, in the thing itself, but hath only something derived out of it; resembling the servitutes, or services, of the civil law. (7) The dominicum or property is frequently *in one man, while the appendage or service is in another. Thus Gaius may be seised as of fee of a way leading over the land, of which Titius is seised in his demesne as of fee. (2)

[ *107 ]

The fee-simple or inheritance of lands and tenements is generally vested and resides in some person or other; though divers 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 fee-simple 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,) 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. (3) Thus, in a grant to John for life, and afterwards 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. (r) (4) 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 an 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 successor. (†) (5)

(q) Servitus est jus, quo res mea alterius rei vel persona servit. Ff. S. 1. 1. (r) Co. Litt. 342,

(8) Litt. 646.

(t) Ibid. & 617.

(2) [See page 20, where the author does not confine incorporeal hereditaments to things issuing out of lands and houses, but to things issuing out of any thing corporate, real or personal. But the true reason of the distinction is clearly, not that the owner of the derivative has no property in the land or house from which it is derived, but that the thing in which he has a property, the right of way for instance, is incorporeal, and incapable of being in manu, or actual possession.

When a man is said to be seised in his demesne, it seems rather to be intended to express that he has the actual beneficial property, and not a mere seignory or right to services. This is the well known meaning of the term when the demesne lands of a manor are spoken of.]

(3) [This rule and its exceptions are thus distinctly stated by Mr. Preston in his treatise on Estates, 1 vol. 216, 217. It may be assumed as a general rule, that the first estate of freehold passing by any deed, or other assurance operating under the rules of the common law, cannot be put in abeyance. 5 Rep. 94; 2 Bla. Com. 165; 1 Burr. 107. This rule is so strictly observed: 2 Bla. Com. 165; 5 Rep. 194; Com. Dig. Abeyance; that no instance can be shewn in which the law allows the freehold to be in abeyance by the act of the party. The case of a parson is not an exception to the rule: for it is by the act of law, and not of the party, that the freehold is, in this instance, in abeyance, from the death of the incumbent till the induction of his successor: 1 Inst. 341, a; and considered as an exception, it is not within the reason of the rule."]

(4) The inheritance or remainder in such a case has been said to be in abeyance, or in nubibus, or in gremio legis; but Mr. Fearne, with great ability and learning, has exposed the futility of these expressions, and the erroneous ideas which have been conveyed by thein. Mr. Fearne produces authorities, which prove beyond controversy, "that where a remainder of inheritance is limited in contingency by way of use, or by devise, the inheritance in the mean time, if not otherwise disposed of, remains in the grantor and his heirs, or in the heirs of the testator, until the contingency happens to take it out of them." Fearne Cont. Rem. 513, 4th edit.

But although, as Mr. Fearne observes, "different opinions have prevailed in respect to the admission of this doctrine in conveyances at common law :" id. 526; yet he adduces arguments and authorities which render the doctrine as unquestionable in this case as in the two former of uses and devises. If, therefore, in the instance put by the learned judge, John should determine his estate either by his death or by a feoffment in fee, which amounts to a forfeiture, in the life time of Richard, under which circumstance the remainder never could rest in the heirs of Richard, in that case the grantor and his heir may enter and resume the estate. ]

(5) [Mr. Fearne having attacked with so much success the doctrine of abeyance, the editor may venture to observe with respect to the two last instances, though they are collected from the text of Littleton, that there hardly seems any necessity to resort to abeyance, or to the clouds, to explain the residence of the inheritance, or of the freehold. In the first case, the whole fee simple is conveyed to a sole corporation, the parson and his successors; but if any interest is not conveyed, it still remains, as in the former note, in the grantor and his heirs, to

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 forever, or to him and his assigns forever, this vests in him but an estate for life. (u) This 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 the feudal strictness; by which we may [*108 ] remember (w) it was required, *that the form of the donation should be punctually pursued; or that, as Cragg (x) expresses it in the words of Baldus, "donationes sint stricti juris, ne quis plus donasse præsumatur quam in donatione expresserit." And therefore, as the personal abilities of the doneo 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)

For, 1. It does not extend to devises by will; (6) in which, as they were introduced at the time when the feudal rigour was apace wearing out, a more liberal

(u) Ibid. 1.

(w) See page 56.

(x) l. 1, t. 9, è 17.

(y) Co. Litt. 9. 10.

whom, upon the dissolution of the corporation, the estate will revert. See book 1, 484. And in the second case the freehold seems, in fact, from the moment of the death of the parson, to rest and abide in the successor, who is brought into view and notice by the institution and induction; for after induction he can recover all the rights of the church, which accrued from the death of his predecessor.] See 6 Cl. and Fin. 850.

(6) [See post, the 23d chapter of this book, page 380. Lord Coke teaches us, 1 Inst. 322, b, that it was the maxim of the common law, and not, as has been sometimes said, Idle v. Cook, 1 P. Wms. 77, a principle arising out of the wording of the statutes of wills: 32 Hen. VIII, c. 1; 34 Hen. VIII, c. 5; 66 quod ultima voluntas testatoris est perimplenda, secundum veram intentionem suam." For this reason, Littleton says, sect. 586, if a man deviseth tenements to another, habendum in perpetuum, the devisee taketh a fee simple; yet, if a deed of feoffment had been made to him by the devisor of the said tenements, habendum sibi in perpetuum, he should have an estate but for term of his life, for want of the word heirs. In Webb v. Herring, 1 Rolle's Rep. 399, it was determined, that a devise to a man and his successors, gives a fee. But, whether a devise to a man and his posterity would give an estate tail, or a fee, was doubted in The Attorney-General v. Bamfield, 2 Freem. 268. Under a devise to a legatee, "for her own use, and to give away at her death to whom she pleases," Mr. Justice Fortescue said, there was no doubt a fee passed: Timewell v. Perkins, 2 Atk. 103; and the same doctrine was held in Goodtitle v. Otway, 2 Wils. 7; see also infra. And a devise of the testator's lands and tenements to his executors, "freely to be possessed and enjoyed by them alike," was held, in Loveacres v. Blight, Cowp. 357, to carry the fee: for the testator had charged the estate with the payment of an annuity, which negatived the idea, that, by the word freely he only meant to give the estate free of incumbrances: the free enjoyment, therefore, it was held, must mean, free from all limitations. But, if the testator had not put any charge on the estate, this would not have been the necessary construction; nor would so extended a meaning have been given to those words against the heir, in any case where it was not certain that the testator meant more than that his devisee should possess and enjoy the estate, free from all charges, or, free from impeachment of waste. Goodright v. Barron, 11 East, 224.

Thus, if a man devises all his freehold estate to his wife, during her natural life, and also at her disposal afterwards, to leave it to whom she pleases, the word leave confines the authority of the devisee for life to a disposition by will only. Doe v. Thorley, 16 East, 443; and see infra. This, it will at once be obvious, is by no means inconsistent with what was laid down in Timewell v. Perkins, as before cited. The distinction is pointed out in Tomlinson v. Dighton: 1 P. Wms. 174; thus, where a power is given, with a particular description and limitation of the estate devised to the donee of the power, the power is a distinct gift, coming in by way of addition, but will not enlarge the estate expressly given to the devisee; though, when the devise is general and indefinite, with a power to dispose of the fee, there the devisee himself takes the fee. In some few instances, indeed, courts of equity have inclined to considet. right of enjoyment for life, coupled with a power of appointment, as equivalent to the absoluto property. Standen v. Standen, 2 Ves. Jun. 594. A difference, however, seems now to be firmly established, not so much with regard to the party possessing a power of disposal, as out of consideration for those parties whose interests depend upon the non-execution of that power. Croft v. Slee, 4 Ves. 64. Confining the attention to the former, there may be no reason why that which he has power to dispose of should not be considered as his property; but the interests of the latter ought not to be affected in any other manner than that specified at the creation of the power. Holmes v. Coghill, 7 Ves. 506; Jones v. Curry, 1 Swanst. 73; Reid v. Shergold, 10 Ves. 383. When, therefore, a devise or bequest (for the principle seems to apply equally to realty as to personalty), is made to any one expressly for life, with a power

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 per

of appointment, by will only, superadded, that power (as already has been intimated) must be executed in the manner prescribed; for, the property not being absolute in the first taker, the objects of the power cannot take without a formal appointment; but, where the devise or bequest is made indefinitely, with a superadded power to dispose by will or deed, the property (as we have seen) vests absolutely. The distinction may, perhaps, seem slight, but it has been judicially declared to be perfectly settled. Bradly v. Westcott, 13 Ves. 453; Anderson . Dawson, 15 id. 536; Barford v. Street, 16 id. 139; Nannock v. Horton, 7 id. 398; Irwin v. Farrer, 19 id. 87. Where an estate is devised absolutely, without any prior estate limited to such uses as a person shall appoint, that is an estate in fee. Langham v. Nenny, 3 Ves. 470. And the word "estate," when used by a testator, and not restrained to a narrower signification by the context of the will, Doe v. Hurrell, 5 Barn. and Ald. 21, is sufficient to carry real estate: Barnes v. Patch, 8 Ves. 608; Woollam v. Kenworthy, 9 id. 142; and that not merely a life interest therein, but the fee, although no words of limitation in perpetuity are added. Roe v. Right, 7 East, 268; Right . Sidebotham, 2 Dougl. 763; Charlton v. Taylor, 3 Ves. and Bea. 163; Pettiward v. Prescott, 7 Ves. 545; Nicholls v. Butcher, 18 id. 195. And although the mere introductory words of a will, intimating in general terms the testator's intention to dispose of "all his estate, real and personal," will not of themselves pass a fee, if the will, in its operative clauses, contains no further declaration of such intent; still, where the subsequent clauses of devise are inexplicit, the introductory words will have an effect on the construction, as affording some indication of the testator's intention. Ibbetson v. Beckwith, Ca. temp. Talb. 160; Goodright v. Stocker, 5 T. R. 13; Doe v. Buckner, 6 id. 612; Gulliver v. Poyntz, 3 Wils. 143; Smith v. Coffin, 2 H. Bla. 450. But though slight circumstances may be admitted to explain obscurities: Randall v. Morgan, 12 Ves. 77; and words may be enlarged, abridged, or transposed, in order to reach the testator's meaning, when such liberties are necessary to make the will consistent: Keiley v. Fowler, Wilm. notes, 309; still, no operative and effective clause in a will must be controlled by ambiguous words occurring in the introductory parts of it, unless this is absolutely necessary in order to furnish a reasonable interpretation of the whole: Lord Oxford v. Churchill, 3 Ves and Bea. 67; Hampson v. Brandwood, 1 Mad. 388; Leigh v. Norbury, 13 Ves. 344; Doe v. Pearce, 1 Pr. 365: neither can a subsequent clause of limitation as to one subject of devise, be governed by words of introduction which, though clear, are not properly applicable to that particular subject: Nash v. Smith, 17 Ves. 33; Doe v. Clayton, 8 East, 144; Denn v. Gaskin, Cowp. 661; while, on the other hand, an express disposition in an early part of a will must not receive an exposition from a subsequent passage, affording only a conjectural inference. Roach v. Hynes, 8 Ves. 590; Barker v. Lea, 3 Ves. and Bea. 117; S. C., 1 Turn. and Russ, 416; Jones v. Colbeck, 8 Ves. 42; Parsons v. Baker, 18 id. 478; Thackeray v. Hampson, 2 Sim. and Stu. 217.

Where an estate is devised, and the devisee is subjected to a charge, which charge is not directed to be paid out of the rents and profits, the devise will carry a fee-simple, notwithstanding the testator has added no words of express limitation in perpetuity. Upon this point, the distinction is settled, that, where the charge is on the person to whom the land is devised (in general terms, not where he has an estate-tail given him, Dean v. Slater, 5 T. R. 337), there he must take the fee; but not where the charge is upon the land devised, and payable out of it. And the reason given why, in the former case, the devisee must take the fee, is because otherwise the estate may not be sufficient to pay the charge during the life of the devisee, which would make him a loser, and that could not have been the intention of the devisor. Goodtitle v. Maddern, 4 East, 500; Doe v. Holmes, 8 T. R. 1; Doe v. Clarke, 2 New Rep. 349; Roe v. Daw, 3 Mau. and Sel. 522; Baddeley v. Leapingwell, Wilm. Notes, 235; Collier's Case, 6 Rep. 16.

With regard to the operation of the word "hereditaments" in a will, Mr. Justice Buller said, there have been various opinions; in some cases it has been held to pass a fee, in others not: Doe v. Richards, 3 T. R. 360; but the latter construction seems now to be firmly established as the true one. The settled sense of the word "hereditaments," Chief Baron Macdonald declared in Moore v. Denn, 2 Bos. and Pull. 251, is, to denote such things as may be the subject-matter of inheritance, but not the inheritance itself; and cannot, therefore, by its own intrinsic force, enlarge an estate which is prima facie a life estate, into a fee. It may have weight, under particular circumstances, in explaining the other expressions in a will, from whence it may be collected, in a manner agreeable to the rules of law, that the testator intended to give a fee; but in Canning v. Canning. Mosely, 242, it was considered as quite settled by the decision in Hopewell v. Ackland, 1 Salk. 239, that a fee will not pass merely by the use of the word "hereditament." And see the same case of Denn v. Moore, in its previous stages of litigation: 3 Anstr. 787; 5 T. R. 563; as also Pocock v. The Bishop of Lincoln, 3 Brod. and Bing. 33.]

By the wills act, 1 Vic. c. 26, s. 28, it is provided 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 testaor, unless a contrary intention appear by the will.

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petuity, there the devisee shall take only an estate for life; for it does not appear that the devisor intended any more. 2. Neither does this rule extend to fines or recoveries considered as 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 nobility by writ, the peer so created hath 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. 4. 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. (7) Nay, in a grant to a [*109] bishop, or other sole spiritual corporation, in frankalmoign; the word "frankalmoign" 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 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, albeit such simple grant be strictly only an estate for life, yet, as that corporation never dies, such estate for life is perpetual, or equivalent to a fee-simple, and therefore the law allows it to be one. (a) 5. 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. (b) But the general rule is, that the word "heirs" is necessary to create an estate of inheritance. (8)

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(b) See book I, p. 219.

(7) [But the word "heirs" in a grant to a corporation sole, will not convey a fee, any more than the word successors " in a grant to a natural person. Co. Litt. 8, b.]

(8) In many of the states of the American union, the strict rule of the common law requiring the use of the word "heirs" has been changed by statutes, which make a deed convey an estate of inheritance where it appears from the instrument that such was the intent of the parties. In the absence of such statutes, however, the common law rule is still in force. Sedgwick v. Laflin, 10 Allen, 430; Clearwater v. Rose, 1 Blackf. 137; Adams v. Ross, 1 Vroom, 511; Jones v. Bramblet, 1 Scam. 276; Van Horn v. Harrison, 1 Dall. 137.

And generally no other words, though conveying to the unprofessional mind a clear intent to transfer an inheritance, will be sufficient for the purpose. A strong illustration of this is the case of Foster v. Joice, 3 Wash. C. C. 498, where a deed to M. "and his generation, to endure so long as the waters of the Delaware run," was held to convey a life estate only. See an exceptional case in Johnson v. Gilbert, 13 Rich. Eq. 42. In Vermont, it was held that a lease of premises to hold, "as long as wood grows and water runs," conveyed a fee: Arms v. Burt, Vt. 303; but this case is not in harmony with the others above referred to. See 4 Kent, 6. A legislative grant, it has been held, may convey a fee without making use of the technical words essential in a deed. Rutherford v. Greene, 2 Wheat. 196. And a government deed given to carry into effect a donation previously confirmed by the proper authorities, and which runs to the donee "or his heirs," in trust for the person or persons rightfully entitled, will be regarded as intending to convey the fee to the donee, if living, and to his heirs if he be dead. Ready v. Kearsley, 14 Mich. 215. See Freidman v. Goodwin, 1 McAll. 142; Griffing v. Gibb. Ibid. 212. A government grant in any form the legislature may prescribe is sufficient, and it will take effect according to the intent. Patton v. Easton, 1 Wheat. 476; Rutherford v. Greene, 2 Wheat. 196; Strother v. Lucas, 6 Pet. 763.

That where. by will, lands are devised in terms which indicate an intent to pass all the testator's interest, a fee (it he has it) will pass without the use of the word "heirs," see the following American cases; Newkerk v. Newkerk, 2 Caines, 345; Morrison v. Semple, 6 Binn. 94; Jackson v. Merrill, 6 Johns. 192; Jackson v. Housel, 17 id. 281; Fogg v. Clark, 1 N. H. 163; Baker v. Bridge, 12 Pick. 31; Godfrey v. Humphrey, 18 id. 537; Lambert v. Paine, 3 Cranch, 97; Kellogg v. Blair, 6 Metc. 322; Tracy v. Kilborn, 3 Cush. 557; Lilliard v. Robinson, 3 Litt. 415.

Another important class of cases ought to be mentioned here as an exception to the general rule, that the use of the word "heirs" is essential to pass a fee. We refer to conveyances in trust, in which case the trustee must be held to take an estate as large as may be necessary for the purposes of the trust, whether the instrument of conveyance contains words of inheritance or not. Illustrations of this exception may be seen in the following cases: Spessard v. Rhorer, 9 Gill, 261; Newhall v. Wheeler, 7 Mass. 189; Farquharson v. Eichelberger, 15 Md. 63; Gould v. Lamb, 11 Metc. 87; Angell v. Rosenbury, 12 Mich. 241; Fisher v. Fields, 10 Johns. 495; Welch v. Allen, 21 Wend. 147; Attorney-General e. Proprietors, etc., 3 Gray, 48; Neilson v. Lagow, 12 How. 98; Korn v. Cutler, 26 Conn. 4; North v. Philbrook, 34 Me. 532. See as to this rule Weller v. Rolason, 2 Green, N. J., 13; Perry on Trusts, sec. 312 to sec. 320. A grant to a sovereignty requires no words of inheritance. Josephs v. United States, 1 Court of Claims R. 197.

II. We are next to consider limited fees, or such estates of 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 afterwards fees-tail, in consequence of the statute de donis.

1. A base, or qualified fee, is such a one as hath a qualification 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 Kingston-Lisle 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, (c) and, the instant he or his heirs quitted the seignory of this manor, the dignity was at an end. This *estate (9) is a fee, because by possibility it may endure forever in a man and his heirs: yet as that duration depends upon the [*110] 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 restrained 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 condition annexed by law to all grants whatsoever; that, on failure of the heirs specified in the grant, the grant should be at an end, and the land return to its ancient proprietor. (e) Such conditional fees were strictly agreeable to the nature of feuds, when they first ceased to be mere estates for life, and were not yet arrived to be absolute estates in fee-simple. And we find strong traces of these limited, conditional fees, which could not be alienated from the lineage of the first purchaser, in our earliest Saxon laws. (f)

Now, with regard to the condition annexed to these fees by the common law, our ancestors held, that such a gift (to a man and the heirs of his body) was a gift upon condition, that it should revert to the donor if the donee had no heirs of his body; but, if he had, it should then remain to the donee. They therefore call it a fee-simple, on condition that he had issue. (10) Now we must observe, that, when any condition is performed, it is thenceforth entirely gone; and the thing to which it was before annexed becomes absolute,

f) Si quis terram hæreditariam habeat. eam non vendat a cognatis hæredibus suis, si illi viro prohibitum sit, qui eam ab initio acquisivit, ut ita facere nequeat. LL. Ælfred, c. 37.

(9) [The proprietor of a qualified or base fee has the same rights and privileges over his estate, till the contingency upon which it is limited occurs, as if he were tenant in fee simple. Walsingham's Case, Plowd. 557.]

(10) [In the great case of Willion v. Berkeley, Plowd. 233, Lord C. J. Dyer said, upon the grant of a conditional fee, the fee-simple vested at the beginning; by having issue, the dones acquired power to alien, which he had not before, but the issue was not the cause of his having the fee, the first gift vested that: and in p. 235 it was said, when land was given (before the statute de donis) to a man and the heirs of his body, this was a fee-simple, with a condition annexed, that, if the donee died without such heirs, the land should revert to the donor; to whom, therefore, the common law gave a formedon in reverter. But he was not entitled to a writ of formedon in remainder, for no remainder could be limited upon such an estate, which, though determinable, was considered a fee-simple, until the statute of de donis was made: since the statute we call that an estate-tail, which before was a conditional fee: id. p. 239; and while it continued so, if the donee had issue, he had power to alienate the fee, and to bar not only the succession of his issue, but the reversion of the donor in case his issue subsequently failed. To redress which evils (as they were thought to be), the act de donis conditionalibus was made. Id. p. 242, 245.]