CHAPTER V.

ESTATES OF INHERITANCE.

Having examined the Feudal System, with some of its peculiar incidents of tenure, let us next consider the nature and properties of estates, and such interest as the tenant has in them. First, with regard to the quantity of interest which the tenant has in the land or tenement; secondly, with regard to the time at which the quantity of that interest is to be enjoyed; and thirdly, with regard to the number and connection of the tenants or possessors.

Explain the Nature and Properties of Estates.

The estate, which a man has in lands, tenements, and hereditaments, signifies the interest which he has therein, and the power he has over such tenements. It is called in Latin status, indicating the position or circumstances in which the owner stands with regard to his property. An actual permanent interest is implied in the term; a mere possibility is not sufficient.

The quantity of interest which the tenant has in the tenement is measured by its duration and extent; and this occasions the primary division of estates, into such as are freehold, and such as are less than freehold.

An estate of freehold, liberum tenementum, or frank-tenement, is defined by Britton to be the possession of the soil by a freeman; but a freehold estate may consist either in land or in some tenement other than land. Estates of freehold are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances absolute, or fee-simple; and inheritances limited, one species of which is called fee-tail.

An estate in fee-simple (feudum simplex) or freehold is the greatest estate or interest a man can possess in landed property; for a tenant in fee-simple is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever; generally,

absolutely, and simply, without mentioning what heirs, but leaving that to his own pleasure; or, if dying intestate, to the disposition of the law.

The fee-simple or inheritance of lands and tenements is generally vested and resides in some person, though divers inferior estates may be carved out of it. As if one grants a lease for twentyone years, or for one or two lives, the fee-simple remains vested in the grantor 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. Yet sometimes the fee may be in abeyance; that is, in expectation, intendment, and consideration of the law, there being no person in esse in whom it can vest and abide; but the law considers it as always potentially existing and ready to vest whenever a proper owner appears. 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; it remains therefore in waiting, or abeyance,* during the life of Richard.

Estates in fee-simple are divided into three sorts:-1. Feesimple. 2. Fee qualified.-3. Fee conditional.

A fee-simple, as stated, is the greatest estate a man can possess, being free from all qualifications.

A qualified fee is such a one as has 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.

A conditional fee, at the common law, was a fee restrained in its form of duration to some particular heirs, exclusive of others 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

*The strict interpretation of this word as to freehold interests has perplexed eminent lawyers. The accepted opinion is, that the inheritance remains in the grantor, until some person arises answering the description given, and so capable of taking under the grant.

ESTATES IN FEE-TAIL.

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heirs, the land should revert to the donor; but the donee, in order to subject the lands to the ordinary course of descent, took care to aliene as soon as the condition was performed-by having issue; and he afterwards repurchased the lands which gave him a fee-simple absolute, which would descend to his heirs general, according to the course of the common law.

The inconveniences and disputes that attended these limited and fettered inheritances gave rise to the statute of Westminster the Second, commonly called the Statute De Donis Conditionalibus,* upon the construction of which the judges determined that the donee had no longer a conditional feesimple which became absolute the instant the issue was born; but they divided the estate into two parts, leaving in the donee a new kind of estate, which they denominated a fee-tail, and vesting in the donor the ultimate fee-simple of the land expectant on the failure of issue, which expectant estate is that which we now call a reversion.t

What is an Estate in Fee-tail, and explain it?

An estate-tail (feodum talliatum) is an estate cut off from or out of the greater estate in fee-simple. Estates-tail are either general or special. Tail-general is where lands and tenements are given to one, and the heirs of his body begotten, which is called tail-general, because, how often soever such donee in tail be married, his issue in general by all and every such marriage is, in successive order, capable of inheriting the estate-tail, per formam doni. Tenant in tail-special is where the gift is restrained to certain heirs of the donee's body by a particular person, as where lands and tenements are given to a man and the heirs of his body, on Mary his now wife to be begotten. Here no issue can inherit but such special issue as is engendered between these two; not such as the husband may have by another wife; and therefore it is called special-tail. The words of inheritance "to him and his heirs" give him an estate in fee; but they being heirs to be by him begotten, this makes it a fee-tail; and the person being also limited on whom such heirs shall be begotten, viz., Mary his present wife, this makes it a fee-tail special.

* See De Donis Act, 13 Ed. L., c. 1.

† See "an estate in reversion," page 150.

Estates in general and special tail are farther diversified by the distinction of sexes in such entails; for both of them may either be in tail male or tail female. As if lands be given to a man, and his heirs male of his body begotten, this is an estate in tail male general; but if to a man and the heirs female of his body on his present wife begotten, this is an estate in tail female special. And, in case of an entail male, the heirs female shall never inherit, nor any derived from them; nor conversely, the heirs male, in case of the gift in tail female. Thus, if the donee in tail male has a daughter, who dies leaving a son, such grandson in this case cannot inherit the estate-tail; for he cannot deduce his descent wholly by heirs male; and as the heir male must show his descent wholly by males, so must the heir female wholly by females.

The word "heirs" in a deed is necessary to create a fee; so the word "body" or some other words of procuration are necessary to make a fee-tail, and ascertain to what heirs in particular the fee is limited. A gift by deed to a man and his heirs male or female is an estate in fee-simple and not in fee-tail, for there are no words to ascertain "the body out of which they shall issue." In last wills and testaments, however, indulgences and irregular modes of expression are allowed; the desire being to carry out the intention of the testator.*

A devise of any real estate, without words of limitation, now carries the fee-simple, or the whole interest, whatever it may be, of the testator, unless a contrary intention appears by the will.

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 does the successor from the predecessor. By 3&4Wm.IV., c. 74, the Fines and Recoveries Abolition Act, a tenant-in-tail can, by a common deed duly enrolled, aliene in feesimple absolute, or for any less estate the lands entailed; and by 1 & 2 Vict., c. 110; 17 & 18 Vict., c. 75; 20 & 21 Vict., c. 57; all estates-tail are rendered liable to be charged for debts, and are subject to be sold for debts contracted by a bankrupt; and a judgment entered up against the debtor in any of the superior courts at Westminster shall operate as a charge upon all lands, tenements, or hereditaments of which the debtor shall be seised or possessed.

* See Jarman on "Wills;" also Wills Acts, 7 Wm. IV. & 1 Vict., c. 26; and 15 & 16 Vict., c. 24.

CHAPTER VI.

ESTATES FOR LIFE.

The next Estates that come under our observation are such estates of Freehold as are not of "Inheritance," but for "Life" only; of these some are conventional, created by the acts of the parties; others legal, or created by construction and operation of law.

Explain Estates "not of Inheritance," and how they are Created.

Estates for Life expressly created by deed or will are, where an estate is limited to a man, to hold for the term of his own life, or for that of another person, or for more lives than one; in any of which cases he is styled tenant for life; but when he holds the estate for the life of another, he is usually called tenant pur autre vie. These estates for life, like inheritances of a feudal nature, were for some time the highest estate that any man could have in a feud, which was not in itself hereditary.

Estates for life may also be created by a general grant, without defining or limiting any specific estate. As, if one grants to A. B. the manor of Dale, this makes him tenant for his (the grantee's) life. For though, as there are no words of inheritance or heirs mentioned in the grant, it cannot be construed to be a grant in fee; it shall, however, be construed to be as large an estate as the words of the donation will bear, and therefore an estate for life.

Such estates for life will, generally speaking, endure as long as the life for which they are granted; but there are some estates for life which may determine upon future contingencies, before the life for which they are created expires. As, if an estate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice; in these, and similar cases, whenever the contin