THIS

CHAPTER SIXTH.

OF ESTATES IN FEE SIMPLE.

HIS is the largest and nobleft estate that a man can have in real property. The proprietor is invefted with an abfolute power to improve and difpofe of his lands as he pleafes. Almost all our estates in this government are of this nature. Our ancestors being animated with the spirit of freedom and equality, at the time of their emigration from England, where they had experienced the inconvenience of feudal restraints upon landed property, were determined to hold their poffeffions by the freeft tenure, and clearest title. To this happy circumstance we are now indebted for singular advantages and privileges. Had this country been first fettled by a colony under the direction and controul of the British crown, it is probable that our lands would have been incumbered with all the restraints of the feudal system, and our titles involved in the labyrinth of English jurisprudence. But as the government at first, granted the territory to be holden in estates in fee fimple, fo the fubfequent conveyances have generally paffed fimilar eftates. In confequence of this, almost all the lands are now in the actual poffeffion and improvement of proprietors in fee. As we never have admitted into our code of laws, the doctrine of primogeniture, or the entailment of eftates, our lands are distributed among the proprietors in that equal manner, which is favorable to the highest cultivation, and calls forth the greatest exertions of industry. We behold Connecticut divided into well-proportioned farms, exhibiting a rapid progress in agricultural knowledge, and poffeffed by a race of refpectable farmers, in the enjoyment of that ease, independence and moderate affluence, which produce the most permanent felicity, which falls to the lot of any portion of mankind.

In

To understand this fubject, we muft explain the meaning of fee fimple. The term fee is derived from the law of feuds, which was established in Europe by the conquerors of the Roman empire. the division of the lands by thofe conquerors, two kinds of estates were granted, which were diftinguifhed by the name of feud, and allodium. Feud, fief, or fee, may be defined to be an estate in lands, holden by a tenant of fome fuperior lord, and granted to him originally 2 Black. 44

e Mill. Eng. Gov. 75.

ginally as a ftipend or reward for fervices done, and were to be holden on condition of performing further fervices, which render. ed it a conditional estate. Such eftates were granted to the vaffals of the chiefs and leaders who made conquests of parts of the Roman empire. Allodium, or alleud, may be defined to be an abfolute eftate in the proprietor, holden unconditionally and independent of any fuperior. Such eftates were granted to the freemen of the nations, who attended the northern conquerors in their fuccefsful expeditions. These estates were however converted into feuds, which in the progrefs of fociety underwent an infinite variety of changes, and gave birth to that intricate fyftem of jurisprudence, refpecting landed property, which has fo long employed the refearches of the lawyer and antiquarian.

To hold lands in fee, according to the primary meaning of the term, was to hold of fome fuperior, upon condition of rendering certain services, while the ultimate property of the foil rested in the fuperior. But in England this term is not now used in its prima" ry fenfe. A fee is defined to be an estate of inheritance, being the highest interest that a man can have in lands. When the word fee is used without any addition, or with the addition of the word fimple, it is opposed to fee conditional, or fee-tail, and denotes an unconditional, unlimited estate, transferable at pleasure, and defcendible to the heirs general. Such is the meaning of this term, as used in our laws. But confidering the nature of the tenure of our lands, we may with propriety say that fee is fynonymous with allodium, and in this light it will be contemplated in our enfuing enquiries.

The incidents to eftates in fee fimple are, that the proprietor has the power to transfer, and devise them to whom he pleases, that they defcend to his heirs generally, according to the ftatute law, in cafe no difpofition is made by will, that he is accountable to no perfon for their use and improvement, and may commit waste, or do any act which he pleases.

g The fee fimple in all lands refts and refides at all times in fome perfon. This being the largest poffible estate, it comprehends all inferior and leffer eftates into which it may be divided. If a proI i 2 prietor g2 Black. 107. Co. Lit. 342

fa Black. 106.

prietor in fee makes a lease for years, the freehold remaire in him, and his heirs, and the leffee has only a temporary estate, ferior to a freehold, and at the expiration of the leafe, the land reverts to the grantor in fee. An eftate of freehold in fee fimple, may be divided and carved out into all the inferior and leffer eftates, and on the expiration of fach eftates, the lands revert to the proprietor in fee. The fee fimple of lands is fometimes in abeyance, in remembrance in law, there being no perfon in existence, where it can actually veft: yet it exists in idea, and vefls in the proper owner whenever he appears. Thus for example, in a grant to one man for life, and then to the heirs of another forever, it is evident that the fee fimple is not in him, who has the estate for life, and the heirs of the other can never be known till his death, for nobody is the heir of the living, therefore there is no perfon in being who has the fee fimple, of course it remains in abeyance.

It is a general rule of law, that to create an estate of inheritance by deed, it is neceflary to use the word heirs, and that no circum locution, or other words, will fupply the want of that word. A conveyance to a man and his affigns forever, transfers only an eftate for life. This general rule however, does not operate in devises ; for thefe having been introduced at a later period, their construction has been more liberal. If the devife contain words that fufficiently evidence an intention in the devifor to tranfmit an abfolute, per petual eftate, then the intention of the devifor fhall be purfùted, and the devisee shall take an estate of inheritance. Thus a devife to a man forever, to one, and his affigns forever, or to one in fee fimple, will veft an estate of inheritance in the devifee, because the words fufficiently evidence fuch an intention in the devifor, tho he does not ufe the word heirs. But a devife to a man, and his afligus, without annexing words of perpetuity, tranfmits only an eftate for life.

In grants of lands to corporations, the word, heirs, is not es fential, because corporations have no heirs, but the word, fucceflors, feems to be the proper term, denoting the fame relation between corporate perfons, as the word heir, and ancestor, between natural perfons; therefore in grants to corporations, fucceffors ufually fupply

b2 Black. 107. i Ibid. c8.

k 2 Black. 109.

fapply the place of heirs; but this is not neceffary, because, tho a grant to a corporation without words of perpetuity, will create only an estate for life, yet as a corporation never dies, an estate for life must be as large as they can poffibly take. Of course, a fimple grant to a corporation, constitutes a perpetual estate equivalent to a fee fimple.

ESTATES

CHAPTER SEVENTH.

OF ESTATES IN FEE-TAIL.

TATES in fee-tail, are where the lands are limited to fome particular heirs, and do not defcend to the heirs in general. To explain this subject clearly, it is neceffary to recur to the English law, and deduce the origin of these estates.

a

At common law eftates in fee fimple were of two kinds. Fee fimple abfolute, which we have confidered in the preceding chapter, and fee fimple conditional, which we are now to confider. A conditional fee was restrained to fome particular heirs, in exclufion of others, as a limitation to the heirs of a man's body, which admitted lineal, and excluded collateral heirs or to the heirs male of : man's body, which excluded collateral and female lineal heirs. But to all eftates of this kind, a condition was either expreffed, or implied, that if the donee died without fuch particular heirs, the land fhould revert to the donor. The estate therefore, was a fee simple, on condition that the donee had iffue. When the grantee had iffùe born, the performance of the condition vefted in him an abfolute eftate, with power to alien, fo as to bar his own iffue, and the reverfion to the donor, and to charge it with certain incumbrances, bining on his iffue, and fuch estates were then fubject to forfeiture for treafon. But if no alienation was made by the donee, then in default of fuch heirs as were defcribed in the deed, the land at any future period would revert to the donor, because no heirs could take by descent, only those to whom the estate was limited. It therefore became the practice for the grantees, as foon as the condition was performed by the birth of iffue, to alien to fome friend, and then inftantly repurchase, and take back a conveyance, which rendered the estate a fee fimple abfolute, defeated the condition, barred the 2 Iuft. 333.

/ Co. Lit. 19. 2 Black. Com, 110,

功

the reverfion to the donor forever. But the nobility difcovering that this practice defeated them of their reverfions, and prevented them from perpetuating their eftates in their families, procured to be paffed in the reign of Edward I. the celebrated statute of West minfter the fecond, which enacted, that the will of the donor as expreffed in the deed, should be obferved, and that the donee should not on birth of iffue, alien the estate : but that the fame fhould remain to his heirs, if he had any, and on failure, fhould revert to the donor, or his heirs. In conftruction of this ftatute, the judges de. termined, that the donee had not a conditional fee, but they divided fuch eftates into two parts, leaving to the donee a new kind of eftate, which they denominated fee-tail, fignifying a limited eftate, and vefting in the donor, the ultimate fee fimple of the land, expectant on the failure of the iffue, which is called a reverfion.

Thefe eftates are divided into general and fpecial. Tail general is where lands are given to one and the heirs of his body begotten, which allows his iffue by every marriage to inherit the eftate. Tail-fpecial, is where the eftate is reftrained to certain heirs, as the heirs of his body, on Mary his now wife to be begotten, which excludes ifiue by any other marriage. Thefe are fubdivided into tail-male, and tail-female, both which may be general and fpecial, for the purpose of diftinguishing the fexes, to whom they are limited to defcend. The word heirs in the donation, is neceflary to create a fee, and fome words of inheritance or procreation, are neceflary to make a fee-tail, as heirs of his body, or heirs of his body, to be begotten on his wife. The omiffion of his heirs can be fupplied by no other word, and fuch deed will transfer only an eftate for life.

The entailment of eftates being found extremely inconvenient, and detrimental to the public, by aggrandifing particular families and preventing the free transfer and alienation of landed property, every poffible method was devised to exonerate it from thefe refraints. The collufive fictions of fines and common recoveries, were introduced for the purpofe of docking entailments, and became a very common mode of conveyance in England. Statutes were made at different periods, which fabjected eftates in tail to forfeiture

2 Inft. 332.