Front Page Titles (by Subject) CHAPTER VII.: OF FREEHOLD ESTATES OF INHERITANCE. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER VII.: OF FREEHOLD ESTATES OF INHERITANCE. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF FREEHOLD ESTATES OF INHERITANCE.
The next objects of our disquisitions are the nature and properties of estates. An estate in lands, tenements, and hereditaments, signifies such interest as the tenant has therein: so that if a man grants all his estate in Dale to A. and his heirs, every thing that he can possibly grant shall pass thereby.(a) It is called in Latin status; it signifying the condition or circumstance in which the owner stands with regard to his property. And to ascertain this with proper precision and accuracy, estates may be considered in a threefold view:—first, with regard to the quantity of interest which the tenant has in the tenement: secondly, with regard to the time at which that quantity of interest is to be enjoyed: and, thirdly, with regard to the number and connections of the tenants.
First, with regard to the quantity of interest which the tenant has in the tenement, this is measured by its duration and extent. Thus, either his right of possession is to subsist for an uncertain period, during his own life, or the life of another man; to determine at his own decease, or to remain to his descendants after him: or it is circumscribed within a certain number of years, months, or days: or, lastly, it is infinite and unlimited, being vested in him and his representatives forever. And this occasions the primary division of *[*104estates into such as are freehold, and such as are less than freehold.
An estate of freehold, liberum tenementum, or franktenement, is defined by Britton(b) to be “the possession of the soil by a freeman.” And St. Germyn(c) tells us that “the possession of the land is called in the law of England the franktenement or freehold.” Such estate, therefore, and no other, as requires actual possession of the land, is, legally speaking, freehold: which actual possession can, by the course of the common law, be only given by the ceremony called livery of seisin, which is the same as the feodal investiture. And from these principles we may extract this description of a freehold; that it is such an estate in lands as is conveyed by livery of seisin, or, in tenements of any incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton,(d) that where a freehold shall pass, it behooveth to have livery of seisin. As, therefore, estates of inheritance and estates for life could not by common law be conveyed without livery of seisin, these are properly estates of freehold; and, as no other estates are conveyed with the same solemnity, therefore no others are properly freehold estates.1
Estates of freehold (thus understood) 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 we usually call fee-tail.
I. Tenant in fee-simple (or, as he is frequently styled, tenant in fee) is be that hath lands, tenements, or hereditaments, to hold to him and his heirs forever:(e) generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. The true meaning of the word fee (feodum) is the same with that of feud or fief, and in its original sense it is **105]taken in contradistinction to allodium;(f) which latter the writers on this subject define to be every man’s own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree; and the owner thereof hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is held of some superior, on condition of rendering him service; in which superior the ultimate property of the land resides. And therefore Sir Henry Spelman(g) defines a feud or fee to be the right which the vassal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services: the mere allodial property of the soil always remaining in the lord. This allodial property no subject in England has;(h) it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king. The king therefore only hath absolutum et directum dominium:(i) but all subjects’ lands are in the nature of feodum or fee; whether derived to them by descent from their ancestors, or purchased for a valuable consideration; for they cannot come to any man by either of those ways, unless accompanied with those feudal clogs which were laid upon the first feudatory when it was originally granted. A subject therefore hath only the usufruct, and not the absolute, property of the soil; or, as Sir Edward Coke expresses it,(k) he hath dominium utile, but not dominium directum. And hence it is, that, in the most solemn acts of law, we express the strongest and highest estate that any subject can have by these words:—“he is seised thereof in his demesne, as of fee.” It is a man’s demesne, dominicum, or property, since it belongs to him and his heirs forever: yet this dominicum, property, or demesne, is strictly not absolute or allodial, but qualified or feodal: it is his demesne, as of fee: that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides.
**106]This is the primary sense and acceptation of the word fee. But (as Sir Martin Wright very justly observes)(l) the doctrine, “that all lands are holden,” having been for so many ages a fixed and undeniable axiom, our English lawyers do very rarely (of late years especially) use the word fee in this its primary original sense, in contradistinction to allodium or absolute property, with which they have no concern; but generally use it to express the continuance or quantity of estate. A fee therefore, in general, signifies an estate of inheritance; being the highest and most extensive interest that a man can have in a feud: and when the term is used simply, without any other adjunct, or has the adjunct of simple annexed to it, (as a fee, or a fee-simple,) it is used in contradistinction to a fee-conditional at the common law, or a fee-tail by the statute; importing an absolute inheritance, clear of any condition, limitation, or restrictions to particular heirs, but descendible to the heirs general, whether male or female, lineal or collateral. And in no other sense than this is the king said to be seised in fee, he being the feudatory of no man.(m)
Taking therefore fee for the future, unless where otherwise explained, in this its secondary sense, as a state of inheritance, it is applicable to, and may be had in, any kind of hereditaments either corporeal or incorporeal.(n) But there is this distinction between the two species of hereditaments: that, of a corporeal inheritance a man shall be said to be seised in his demesne, as of fee; of an incorporeal one, he shall only be said to be seised as of fee, and not in his demesne.(o) For, as incorporeal hereditaments are in their nature collateral to, and issue out of, lands and houses,(p) their owner hath no property, dominicum, or demesne, in the thing itself, but hath only something derived out of it; resembling the servitutes, or services, of the civil law.(q) The dominicum or property is frequently *[*107in one man, while the appendage or service is in another. Thus Caius may be seised as of fee of a way leading over the land, of which Titius is seised in his demesne as of fee.
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.2 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)3 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 in 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.(t)4
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 feodal strictness; by which we may remember(w) it was required **108]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 donee 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;5 in which, as they were introduced at the time when the feodal rigour was apace wearing out, a more liberal 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 perpetuity, 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.6 Nay, in **109]a grant to a 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.7
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,8 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 *[*110estate9 is a fee, because by possibility it may endure forever in a man and his heirs; yet as that duration depends upon the 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.10 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 called it a fee-simple, on condition that he had issue.11 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, **111]and wholly unconditional.12 So that, as soon as the grantee had any issue born, his estate was supposed to become absolute, by the performance of the condition; at least, for these three purposes: 1. To enable the tenant to aliene the land, and thereby to bar not only his own issue, but also the donor of his interest in the reversion.(g) 2. To subject him to forfeit it for treason; which he could not do, till issue born, longer than for his own life; lest thereby the inheritance of the issue, and reversion of the donor, might have been defeated.(h) 3. To empower him to charge the land with rents, commons, and certain other encumbrances, so as to bind his issue.(i) And this was thought the more reasonable, because, by the birth of issue, the possibility of the donor’s reversion was rendered more distant and precarious: and his interest seems to have been the only one which the law, as it then stood, was solicitous to protect; without much regard to the right of succession intended to be vested in the issue. However, if the tenant did not in fact aliene the land, the course of descent was not altered by this performance of the condition; for if the issue had afterwards died, and then the tenanth, or original grantee, had died, without making any alienation; the land, by the terms of the donation, could descend to none but the heirs of his body, and therefore, in default of them, must have reverted to the donor. For which reason, in order to subject the lands to the ordinary course of descent, the donees of these conditional fee-simples took care to aliene as soon as they had performed the condition by having issue; and afterwards repurchased the lands, which gave them a fee-simple absolute, that would descend to the heirs in general, according to the course of the common law. And thus stood the old law with regard to conditional fees: which things, says Sir Edward Coke,(k) though they seem antient, are yet necessary to be known; as well for the declaring how the common law stood in such cases, as for the sake of annuities, and such like inheritances, as are not within the statutes of entail, and therefore remain as at the common law.
*[*112The inconveniences which attended these limited and fettered inheritances, were probably what induced the judges to give way to this subtle finesse of construction, (for such it undoubtedly was,) in order to shorton the duration of these conditional estates. But, on the other hand, the nobility, who were willing to perpetuate their possessions in their own families, to put a stop to this practice, procured the statute of Westminster the second(l) (commonly called the statute de donis conditionalibus) to be made; which paid a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever. This statute revived in some sort the antient feodal restraints which were originally laid or alienations, by enacting, that from thenceforth the will of the donor be observed; and that the tenements so given (to a man and the heirs of his body) should at all events go to the issue, if there were any; or, if none, should revert to the donor.
Upon the construction of this act of parliament, the judges determined that the donee had no longer a conditional fee-simple, which became absolute and at his own disposal the instant any issue was born; but they divided the estate into two parts, leaving in the donee a new kind of particular estate, which they denominated a fee-tail;(m) and investing in the donor the ultimate fee-simple of the land, expectant on the failure of issue; which expectant estate is what we now call a reversion.(n)13 And hence it is that Littleton tells us(o) that tenant in fee-tail is by virtue of the statute of Westminster the second.
Having thus shown the original of estates-tail, I now proceed to consider what things may, or may not, be entailed *[*113under the statute de donis. Tenements is the only word used in the statute: and this Sir Edward Coke(p) expounds to comprehend all corporeal hereditaments whatsoever; and also all incorporeal hereditaments which savour of the realty, that is, which issue out of corporeal ones, or which concern, or are annexed to, or may be exercised within, the same; as, rents, estovers, commons, and the like. Also offices and dignities, which concern lands, or have relation to fixed and certain places, may be entailed.(q) But mere personal chattels, which savour not at all of the realty, cannot be entailed. Neither can an office, which merely relates to such personal chattels; nor an annuity, which charges only the person, and not the lands, of the grantor. But in these last, if granted to a man and the heirs of his body, the grantee hath still a fee-conditional at common law, as before the statute; and by his alienation (after issue born) may bar the heir or reversioner.(r)14 An estate to a man and his heirs for another’s life cannot be entailed:(s) for this is strictly no estate of inheritance, (as will appear hereafter,) and therefore not within the statute de donis. Neither can a copyhold estate be entailed by virtue of the statute; for that would tend to encroach upon and restrain the will of the lord: but, by the special custom of the manor, a copyhold may be limited to the heirs of the body;(t) for here the custom ascertains and interprets the lord’s will.
Next, as to the several species of estates-tail, and how they are respectively created. 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.(u)15 Tenant in tail special is where the gift is restrained to certain heirs of the donee’s body, and does not go to all of them in general. And this may *[*114happen several ways.(w) I shall instance in only one; 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 them two; not such as the husband may have by another wife; and therefore it is called special tail. And here we may observe, that 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.
Estates, in general and special tail, are further 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 tail female special. And, in case of an entail male, the heirs-female shall never inherit, nor any derived from them; nor, è converso, the heirs-male, in case of a gift in tail female.(x) Thus, if the donee in tail male hath 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.(y) And as the heir-male must convey his descent wholly by males, so must the heir-female wholly by females. And therefore if a man hath two estates-tail, the one in tail male, the other in tail female; and he hath issue a daughter, which daughter hath issue a son; this grandson can succeed to neither of the estates; for he cannot convey his descent wholly either in the male or female line.(z)
As the word heirs is necessary to create a fee, so in further limitation of the strictness of the feodal donation, the word body, or some other words of procreation, are necessary to make it a fee-tail, and ascertain to what heirs in particular *[*115the fee is limited. If, therefore, either the words of inheritance, or words of procreation, be omitted, albeit the others are inserted in the grant, this will not make an estate-tail. As, if the grant be to a man and his issue of his body, to a man and his seed, to a man and his children, or offspring; all these are only estates for life, there wanting the words of inheritance, his heirs.(a) So, on the other hand, a gift 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.(b) Indeed, in last wills and testaments, wherein greater indulgence is allowed, an estate-tail may be created by a devise to a man and his seed, or to a man and his heirs-male; or by other irregular modes of expression.(c)16
There is still another species of entailed estates, now indeed grown out of use, yet still capable of subsisting in law; which are estates in libero maritagio, or frankmarriage. These are defined(d) to be, where tenements are given by one man to another, together with a wife, who is the daughter or cousin of the donor, to hold in frankmarriage. Now, by such gift, though nothing but the word frankmarriage is expressed, the donees shall have the tenements to them and the heirs of their two bodies begotten; that is, they are tenants in special tail. For this one word, frankmarriage, does ex vi termini not only create an inheritance, like the word frankalmoign, but likewise limits that inheritance; supplying not only words of descent, but of procreation also. Such donees in frankmarriage are liable to no service but fealty; for a rent reserved thereon is void, until the fourth degree of consanguinity be past between the issues of the donor and donee.(e)
The incidents to a tenancy in tail, under the statute Westm. 2, are chiefly these.(f) 1. That a tenant in tail may commit waste on the estate-tail, by felling timber, pulling down houses, or the like, without being impeached, or called to account for the same. **116]2. That the wife of the tenant in tail shall have her dower, or thirds, of the estate-tail. 3. That the husband of a female tenant in tail may be tenant by the curtesy of the estate-tail. 4. That an estate-tail may be barred, or destroyed by a fine, by a common recovery, or by lineal warranty descending with assets to the heir. All which will hereafter be explained at large.
Thus much for the nature of estates-tail: the establishment of which family law (as it is properly styled by Pigott)(g) occasioned infinite difficulties and disputes.(h) Children grew disobedient when they knew they could not be set aside: farmers were ousted of their leases made by tenants in tail; for, if such leases had been valid, then under colour of long leases the issue might have been virtually disinherited: creditors were defrauded of their debts; for, if a tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth: innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; of suits in consequence of which our ancient books are full: and treasons were encouraged; as estates-tail were not liable to forfeiture longer than for the tenant’s life. So that they were justly branded as the source of new contentions, and mischiefs unknown to the common law; and almost universally considered as the common grievance of the realm.(i) But as the nobility were always fond of this statute, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature, and therefore, by the contrivance of an active and politic prince, a method was devised to evade it.
About two hundred years intervened between the making of the statute de donis, and the application of common recoveries to this intent, in the twelfth year of Edward IV.; which were then openly declared by the judges to be a **117]sufficient bar of an estate-tail.(k) For though the courts had, so long before as the reign of Edward III., very frequently hinted their opinion that a bar might be effected upon these principles,(l) yet it was never carried into execution; till Edward IV., observing(m) (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had on families whose estates were protected by the sanctuary of entails, gave his countenance to this proceeding, and suffered Taltarum’s case to be brought before the court:(n) wherein, in consequence of the principles then laid down, it was in effect determined, that a common recovery suffered by tenant in tail should be an effectual destruction thereof. What common recoveries are, both in their nature and consequences, and why they are allowed to be a bar to the estate-tail, must be reserved to a subsequent inquiry. At present I shall only say, that they are fictitious proceedings, introduced by a kind of pia fraus, to elude the statute de donis, which was found so intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal: and that these recoveries, however clandestinely introduced, are now become by long use and acquiescence a most common assurance of lands; and are looked upon as the legal mode of conveyance, by which tenant in tail may dispose of his lands and tenements; so that no court will suffer them to be shaken or reflected on, and even acts of parliament(o) have by a sidewind countenanced and established them.
This expedient having greatly abridged estates-tail with regard to their duration, others were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treason. For, notwithstanding the large advances made by recoveries, in the compass of about threescore years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them frequently *[*118resettled in a similar manner to suit the convenience of families, had address enough to procure a statute(p) whereby all estates of inheritance (under which general words estates-tail were covertly included) are declared to be forfeited to the king upon any conviction of high treason.
The next attack which they suffered in order of time, was by the statute 32 Hen. VIII. c. 28, whereby certain leases made by tenants in tail, which do not tend to the prejudice of the issue, were allowed to be good in law, and to bind the issue in tail. But they received a more violent blow, in the same session of parliament, by the construction put upon the statute of fines(q) by the statute 32 Hen. VIII. c. 36, which declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other persons claiming under such entail. This was evidently agreeable to the intention of Henry VII., whose policy it was (before common recoveries had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched, in his act, under covert and obscure expressions. And the judges, though willing to construe that statute as favourably as possible for the defeating of entailed estates, yet hesitated at giving fines so extensive a power by mere implication, when the statute de donis had expressly declared that they would not be a bar to estates-tail. But the statute of Hen. VIII., when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention. Yet, in order to preserve the property of the crown from any danger of infringement, all estates-tail created by the crown, and of which the crown has the reversion, are excepted out of this statute. And the same was done with regard to common recoveries, by the statute 34 & 35 Hen. VIII. c. 20, which enacts that no feigned recovery had against tenants in tail, where the estate was created by the *[*119crown,(r) and the remainder or reversion continues still in the crown, shall be of any force and effect. Which is allowing, indirectly and collaterally, their full force and effect with respect to ordinary estates-tail, where the royal prerogative is not concerned.
Lastly, by a statute of the succeeding year,(s) all estates-tail are rendered liable to be charged for payment of debts due to the king by record or special contract; as since, by the bankrupt law,(t) they are also subjected to be sold for the debts contracted by a bankrupt. And, by the construction put on the statute 43 Eliz. c. 4, an appointment(u) by tenant in tail of the lands entailed, to a charitable use, is good without fine or recovery.17
Estates-tail, being thus by degrees unfettered, are now reduced again to almost the same state, even before issue born, as conditional fees were in at common law, after the condition was performed, by the birth of issue. For, first, the tenant in tail is now enabled to aliene his lands and tenements, by fine, by recovery, or by certain other means; and thereby to defeat the interest as well of his own issue, though unborn, as also of the reversioner, except in the case of the crown: secondly, he is now liable to forfeit them for high treason: and lastly, he may charge them with reasonable leases, and also with such of his debts as are due to the crown on specialties, or have been contracted with his fellow-subjects in a course of extensive commerce.18
[(a) ] Co. Litt. 345.
[(b) ] C. 32.
[(c) ] Dr. & Stud. b. 2, d. 22.
[(d) ] 59.
[1 ] A freehold estate seems to be any estate of inheritance, or for life, in either a corporeal or incorporeal hereditament, existing in or arising from real property of free tenure; that is, now, of all which is not copyhold. And the learned judge has elsewhere informed us that “tithes and spiritual dues are freehold estates, whether the land out of which they issue are bond or free, being a separate and distinct inheritance from the lands themselves. And in this view they must be distinguished and excepted from other incorporeal hereditaments issuing out of land, as rents, &c., which in general will follow the nature of their principal, and cannot be freehold, unless the stock from which they spring be freehold also.” 1 Bl. Tracts, 116.—Christian.
As to copyholders having a freehold interest, but not a freehold tenure, see 1 Prest, on Estate, 212. 5 East, 51.—Chitty.
[(e) ] Litt. 1.
[(f) ] See pp. 45, 47.
[(g) ] Of Feuds, c. 1.
[(h) ] Co. Litt. 1.
[(i) ]Prædium domini regis est directum dominium, cujus [Editor: illegible character]ilus est author nisi Deus. Ibid.
[(k) ] Co. Litt. 1.
[(l) ] Of Ten. 148.
[(m) ] Co. Litt. 1.
[(n) ]Feodum est quod quis tenet sibi et hæred bus suis, [Editor: illegible word] sit tenementum, sive reditus, &c. Flet. l. 5, c. 5, 7.
[(o) ] Litt. 10.
[(p) ] See page 20.
[(q) ]Servitus est jus, quo res mea alterius rei vel personæ [Editor: Illegible character]errit. Ff. 8, 1, 1.
[2 ] 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 shown 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.”—Chitty.
[(r) ] Co. Litt. 342.
[3 ] 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 them. 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 lifetime of Richard, under which circumstances the remainder never could vest in the heirs of Richard, in that case the grantor or his heir may enter and resume the estate.—Christian.
[(s) ] Litt. 646.
[(t) ] Ibid. 647.
[4 ] 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 whom, upon the dissolution of the corporation, the estate will revert. See 1 book, 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 the predecessor.—Christian.
The case put of the glebe during the vacancy of the church is not perhaps easy of solution. That which Mr. Christian proposed in a note on this passage is not entirely satisfactory. He would place the freehold in the future successor, who is to be brought into view and notice by institution and induction. But if it is in him, it is not there usefully for either of the purposes for which alone the law requires it to be in any one: the services are not performed, and there is no one to answer the præcipe of a stranger. The same objection, indeed, applies if we place it in the heir of the founder or the ordinary. Perhaps it may be thought not unreasonable to admit this to be an exception to the general rule: an estate altogether is the creature of legal reasoning, to be moulded, raised, or extinguished accordingly; and it may be fairly argued that, as the freehold can exist in no one to any useful legal purpose, during the vacancy of the church, it may not exist at all. This is a conjecture, hazarded with great diffidence, but which may be allowed in a question of more curiosity than practical importance.—Coleridge.
[(u) ] Co. Litt. 1.
[(w) ] See page 56.
[(x) ]L. 1 t. 9, 17.
[(y) ] Co. Litt. 9, 10.
[5 ] 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 vs. 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,) “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 vs. 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 vs. 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 vs. Perkins, 2 Atk. 103. And the same doctrine was held in Goodtitle vs. 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 vs. 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 encumbrances: 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 vs. 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 vs. 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 vs. Perkins, as before cited. The distinction is pointed out in Tomlinson vs. Dighton, 1 P. Wms. 171. Thus, where a power is given, with a peculiar 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 consider a right of enjoyment for life, coupled with a power of appointment, as equivalent to the absolute property. Standen vs. Standen, 2 Ves. Jr. 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 vs. 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 vs. Coghill, 7 Ves. 506. Jones vs. Curry, 1 Swanst. 73. Reid vs. 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 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 forma 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. Bradley vs. Westcott, 13 Ves. 453. Anderson vs. Dawson, 15 Ves. 536. Barford vs. Street, 16 Ves. 139. Nannock vs. Horton, 7 Ves. 398. Irwin vs. Farrer, 19 Ves. 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 vs. 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 vs. Hurrell, 5 Barn. & Ald. 21,) is sufficient to carry real estate, (Barnes vs. Patch, 8 Ves. 608. Woollam vs. Kenworthy, 9 Ves. 142;) and that not merely a life-interest therein, but the fee, although no words of limitation in perpetuity are added. Roe vs. Wright, 7 East, 268. Right vs. Sidebotham, 2 Doug. 763. Chorlton vs. Taylor, 3 Ves. & Bea. 163. Pettiward vs. Prescott, 7 Ves. 545. Nicholls vs. Butcher, 18 Ves. 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 vs. Beckwith, Ca. temp. Talb. 160. Goodright vs. Stocker, 5 T. R. 13. Doe vs. Buckner, 6 T. R. 612. Gulliver vs. Poyntz, 3 Wils. 143. Smith vs. Coffin, 2 H. Bla. 450. But, though slight circumstances may be admitted to explain obscurities, (Randall vs. 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, (Keily vs. 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 vs. Churchill, 3 Ves. & Bea. 67. Hampson vs. Brandwood, 1 Mad. 388. Leigh vs. Norbury, 13 Ves. 344. Doe vs. 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 vs. Smith, 17 Ves. 33. Doe vs. Clayton, 8 East, 144. Denn vs. Gaskin, Cowp. 661;) whilst, 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 vs. Haynes, 8 Ves. 590. Barker vs. Lea, 3 Ves. & Bea. 117, S. C. 1 Turn. & Russ. 416. Jones vs. Colbeck, 8 Ves. 42. Parsons vs. Baker, 18 Ves. 478. Thackeray vs. Hampson, 2 Sim. & 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. Denn vs. 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 vs. Maddern, 4 East, 500. Doe vs. Holmes, 8 T. R. 1. Doe vs. Clarke, 2 New Rep. 349. Roe vs. Daw, 3 Mau. & Sel. 522. Baddeley vs. 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 vs. 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 vs. Denn, 2 Bos. & 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 primâ 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 vs. Canning, Mosely, 242, it was considered as quite settled by the decision in Hopewell vs. 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 vs. Moore, in its previous stages of litigation, 3 Anstr. 787. 5 T. R. 563. As also Pocock vs. The Bishop of London, 3 Brod. & Bing. 33.
Mr. Preston, in page 42 (4) of the second volume of his Treat. of Est., observes, “The rule requiring the designation in terms, or by reference, of heirs in the limitation of estates is confined, even with respect to common-law assurances, to those cases in which the assurances are to natural persons. The rule does not take place where the assurances are made to corporations, or are made by matter of record, or operate only to extinguish a right or a collateral interest, or which give one interest in lieu of another, or release the unity of title, or confer an equitable interest by way of contract, as distinguished from a conveyance.” These and other instances, as well as those of wills, (to which the rule does not extend,) he says are more properly to be considered as not coming within the scope of the rule, or of the policy of the law which was the foundation of the rule, than as exceptions to the rule; and he devotes the greater part of the remainder of the volume cited to a collection and illustration of the different classes of cases in which a fee has been held to pass though the word “heirs” has not been used. To this ample storehouse of materials the reader who wishes to examine the subject more at length is referred.—Chitty.
[(z) ] Co. Litt. 9.
[6 ] In a grant of lands to a sole corporation, the word “heirs” will not convey a fee any more than the word “successors” would in a grant to a natural person. For instance, a limitation to a parson in his politic capacity, and to his heirs, gives him only an estate for life. Co. Litt. 8, b. 4 H. 5, 9. The word successors, however, is not necessary to pass a fee to a sole corporation in case of a gift in frankalmoign. Co. Litt. 94, b. But if unnecessary words be added to those which suffice to pass the fee in grants to corporations sole or natural persons, they may be rejected as surplusage; as, if lands be granted to a bishop in his politic capacity, his heirs and successors, or to a man, his heirs and successors, the words “heirs” in the one case, and “successors” in the other, come within this rule. Co. Litt. 9, a.—Chitty.
[(a) ] See book i. p. 484.
[(b) ] See book i. p. 249.
[7 ] Two other classes of cases may be mentioned as exceptions to the rule that the word heirs is necessary to raise an estate in fee.
1. Where, by reference, another instrument which does contain the word heirs is incorporated with and made part of the conveyance. Nothing short of this, however clear the intent to do so may be, will enlarge a life-estate to a fee, not even if the reference be to a will, which, according to the liberal principles of interpretation adopted by the courts as to wills, creates a fee without words of inheritance. Lytle vs. Lytle, 10 Watts, 259. By the deed in that case the grantor conveyed to the grantee “all his part of the estate left to him by his father’s last will and testament;” and the will referred to ran thus:—“The remainder of my real and personal property I will to be equally divided betwixt my children.” It was held that nothing but a life-estate passed to the grantee. If the will had contained a clause giving the property to him and his heirs, it would have come within the reason of the case. A fee-simple is conveyed, because by reference the other instrument is incorporated and made part of the conveyance; and if that should contain the essential word heirs, it is adjudged good as a conveyance of the fee.
2. A mere executory agreement to sell and convey land (which, however, if in writing or within the provisions of the statute of frauds, a chancellor will decree to be specifically performed by the execution of a regular and formal deed) need not contain the word heirs in order to convey in equity a fee. If the vendee, having paid the consideration-money, has a right in equity to call on the vendor to convey, he has the equitable estate; and if the intention of the parties was to buy and sell a fee, he has an equitable fee-simple, though the word heirs were not used. Defraunce vs. Brooks, 8 W. & S. 67. In executory contracts, equity supplies words of inheritance, and implies a fee when the consideration evinces that not less than a fee was intended.—Sharswood.
[8 ] Even for a short period, and they afterwards resume it. Yelv. 150. Prest. on Estates, 20. But if A. die, the birth of a posthumous child will continue the tenancy and prevent the defeat of the grant. 1 Leon. 74.—Archbold.
[(c) ] Co. Litt. 27.
[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.—Chitty.
[(d) ] Flet. l. 3, c. 3, 5.
[10 ] In the passage above quoted from Fleta, Mr. Preston, in his Essay on Estates, p. 258, says he understands Fleta as speaking of estates-tail, and not of fees-conditional at common law; and he says (p. 285) that before the statute de donis a gift to a man and his heirs males of his body, or to a man and his heirs females of his body, would not have been allowed at common law. The word males in the one case, and the word females in the other, would have been rejected as repugnant to the estate.—Archbold.
[(e) ] Plowd. 241.
[(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.
[11 ] In the great case of Willion vs. Berkley, (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 donee acquired power to aliene, 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 of S. C.) 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 de donis was made. Since the statute, we call that an estate-tail which before was a conditional fee, (ibid. p. 239;) and whilst it continued so, if the donee had issue, he had power is 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. Ibid. pp. 242, 245.—Chitty.
[12 ] Where the person to whom a conditional fee was limited had issue, and suffered it to descend to such issue, he might aliene it. But, if they did not aliene, the donor would still have been entitled to his right of reverter; for the estate would have continued subject to the limitations contained in the original donation. Nevil’s case, 7 Rep. 124. Willion vs. Berkley, Plowd. 247. This authority supports the statement of our author, to a similar effect, lower down in the page; but it hardly authorizes the assertion that after issue the estate became wholly unconditional.—Chitty.
[(g) ] Co. Litt. 19. 2 Inst. 233.
[(h) ] Co. Litt. 19. 2 Inst. 234.
[(i) ] Co. Litt. 19.
[(k) ] 1 Inst. 19.
[(l) ] 13 Edw. I. c. 1.
[(m) ] The expression fee-tail, or feodum talliatum, was borrowed from the feudists, (see Crag. l. 1, t. 10, 24, 25,) among whom it signified any mutilated or truncated inheritance, from which the heirs-general were cut off, being derived from the harbarous verb taliare, to cut, from which the French tailler and the Italian tagliare are formed. Spelm. Gloss. 531.
[(n) ] 2 Inst. 335.
[13 ] The gift thus remains to the donee until there is a failure of such heirs as the gift describes. But still there is another manner in which the estate-tail may be determined; for if it be derived out of a determinable fee, the event which determines the original estate at the same time determines the estate-tail, although there have not been a failure of issue, (Preston on Est. 264, 265;) and for this reason, if the person who created the estate-tail had but a determinable fee, the recovery of tenant in tail will give him but a determinable fee. 1 Preston on Conv. 1, 2. Preston on Est. 266.—Archbold.
[(o) ] 13.
[(p) ] 1 Inst. 19, 20.
[(q) ] 7 Rep. 33.
[(r) ] Co. Litt. 19, 20.
[14 ] If an annuity is granted out of personal property to a man and the heirs of his body, it is a fee-conditional at common law, and there can be no remainder or further limitation of it; and when the grantee has issue, he has the full power of alienation and of barring the possibility of its reverting to the grantor by the extinction of his issue. 2 Ves. 170. 1 Bro. 325.
But out of a term for years, or any personal chattel, except in the instance of an annuity, neither a fee-conditional nor an estate-tail can be created; for if they are granted or devised by such words as would convey an estate-tail in real property, the grantee or devisee has the entire and absolute interest without having issue; and as soon as such an interest is vested in any one, all subsequent limitations of consequence become null and void. 1 Bro. 274. Harg. Co. Litt. 20. Fearne, 345, 3d ed. Roper on Legacies, ch. xvii. See post, 398.—Christian.
An annuity, when granted with words of inheritance, is descendible. It may be granted in fee: of course it may as a qualified or conditional fee; but it cannot be entailed, for it is not within the statute de donis; and, consequently, it has been held, there can be no remainder limited upon such a grant; but it seems there may be a limitation by way of executory devise, provided that it is within the prescribed limits and does not tend to a perpetuity. An annuity may be granted as a fee-simple conditional; but then it must end or become absolute in the life of a particularized person. Turner vs. Turner, 1 Br. 325. S. C. Ambl. 782. Earl of Stafford vs. Buckley, 2 Ves. Sr. 180. An annuity granted to one and the heirs-male of his body being a grant not coming within the statute de donis, all the rules applicable to conditional fees at common law still hold with respect to such a grant. Nevil’s case, 7 Rep. 125.
The instance of an annuity charging merely the person of the grantor seems to be the only one in which a fee-conditional of a personal chattel can now be created. Neither leaseholds, nor any other descriptions of personal property, (except such annuities as aforesaid,) can be limited so as to make them transmissible in a course of succession to heirs: they must go to personal representatives. Countess of Lincoln vs. Duke of Newcastle, 12 Ves. 225. Keiley vs. Fowler, Wilm. Notes, 310. There is consistency, therefore, in holding that the very same words may be differently construed, and have very different operations, when applied in the same instrument to different descriptions of property governed by different rules. Forth vs. Chapman, 1 P. Wms. 667. Elton vs. Eason, 19 Ves. 77. Thus, the same words which would only give an estate-tail in free hold property will carry the absolute interest in leasehold or other personal property Green vs. Stevens, 19 Ves. 73. Crooke vs. De Vandes, 9 Ves. 203. Tothill vs. Pitt, 1 Mad. 500.—Chitty.
[(s) ] 2 Vern. 225.
[(t) ] 3 Rep. 8.
[(u) ] Litt. 14, 15.
[15 ] Also a gift to the heirs of the body of a person to take as purchasers eo nomine will give an estate to his issue in successive order, in the same manner as if the estate had been given to the father, (Co. Litt. 26, b.;) or, if there be a grandfather, father, and son a gift to the grandfather and to his heirs of the body of his son will be an estate-tail in the grandfather. Co. Litt. 20, b. 12 H. 4, 2.—Archbold.
[(w) ] Litt. 16, 26, 27, 28, 29.
[(x) ] Ibid. 21, 22.
[(y) ] Ibid. 24.
[(z) ] Co. Litt. 25.
[(a) ] Co. Litt. 20.
[(b) ] Litt. 31. Co. Litt. 27.
[(c) ] Co. Litt. 9, 27.
[16 ] Or to a man and his children, if he has no children at the time of the devise, (6 Co. 17;) or to a man and his posterity, (1 H. Bl. 447;) or by any other words which show an intention to restrain the inheritance to the descendants of the devisee. See 381, post.—Christian.
[(d) ] Litt. 17.
[(e) ] Litt. 19, 20.
[(f) ] Co. Litt. 224.
[(g) ] Com. Recov. 5.
[(h) ] 1 Rep. 131.
[(i) ] Co. Litt. 19. Moor, 156. 10 Rep. 38.
[(k) ] 1 Rep. 131. 6 Rep. 40.
[(l) ] 10 Rep. 37, 38.
[(m) ] Pigott. 8.
[(n) ] Year-book. 12 Edw. IV. 14, 19. Fitsh. Abr. tit. faux recov. 20 Bro. Abr. ibid. 30; tit. recov. in value, 19; tit. taile, 36.
[(o) ] 11 Hen. VII. c. 20. 7 Hen. VIII. c. 4. 34 & 35 Hen. VIII. c. 20. 14 Eliz. c. 8. 4 & 5 Anne, c. 16. 14 Geo. II. c. 20.
[(p) ] 26 Hen. VIII. c. 13.
[(q) ] 4 Hen. VII. c. 24.
[(r) ] Co. Litt. 372.
[(s) ] 33 Hen. VIII. c. 39, 75.
[(t) ] Stat. 21 Jac. I. c. 19.
[(u) ] 2 Vern. 453. Chan. Prec. 16.
[17 ] But the most extensive and effectual relaxation is that lately introduced by 3 & 4 Wm. IV. c. 74, enabling the tenant in tail, by an ordinary deed of conveyance, (if duly enrolled,) and without resort to the indirect and operose expedient of a fine or recovery, (which the statute wholly abolishes,) to aliene in fee-simple absolute, or for any less estate, the lands entailed, and thereby to bar himself and his issue and all persons having any ulterior estate therein. Yet this is subject to an important qualification, designed for the protection of family settlements; for in them it is usual to settle a life-estate (which is a freehold interest) on the parent, prior to the estate limited to the children; and the nature of a recovery (by which alone interests ulterior to the estate-tail could formerly be barred) was such as to make the concurrence of the immediate tenant of the freehold indispensable to its validity. In order therefore to continue to the parent (or other prior taker) a control of the same general description, the act provides that when under the same settlement which created the estate-tail a prior estate of freehold or for years determinable with life shall have been conferred, it shall not be competent for the tenant in tail to bar any estate taking effect upon the determination of the estate-tail, without consent of the person to whom such prior estate was given, who receives for that reason the appellation of protector of the settlement. But the object not being to restrain the power of the tenant in tail over the estate-tail itself, (which he could have barred before the statute, by fine, without any other person’s concurrence,) his alienation (in the manner prescribed in the act) is allowed to be effectual even without the consent of the protector, so far as regards the barring of himself and his issue.
Even subsequently to the passing of this act, however, one of the ancient and justly-obnoxious immunities of an estate-tail still remained without disturbance,—viz., its exemption from liability for ordinary debts not contracted by a trader in the course of commerce. But this has been at length removed by 1 & 2 Vict. c. 110, which provides that 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 he shall be seized or possessed for any estate or interest in law or equity or over which he shall have any disposing power; and shall be binding as against him and the issue of his body and all claimants whatever whom he was competent, without the assent of any other person, to have barred.—Stephen.
[18 ] Estates-tail were introduced into this country with the other parts of the English jurisprudence, and they subsisted in full force before our Revolution, subject equally to the power of being barred by a fine or common recovery. But the doctrine of estates-tail and the complex and multifarious learning connected with it have become quite obsolete in most parts of the United States. In Virginia, estates-tail were abolished as early as 1776; in New Jersey, estates-tail were not abolished until 1820, and in New York as early as 1782; and all estates-tail were turned into estates in fee-simple absolute. So, in North Carolina, Kentucky, Tennessee, and Georgia, estates-tail have been abolished by being converted by statute into estates in fee-simple. In the States of South Carolina and Louisiana they do not appear to be known to their laws or ever to have existed; but in several of the other States they are partially tolerated and exist in a qualified degree. 4 Kent, 14. In Pennsylvania, by the act of Assembly of April 27, 1855, it was provided that whenever hereafter, by any gift, conveyance, or devise, an estate in fee-tail would be created according to the existing laws of the State, it shall be taken and construed to be an estate in fee-simple, and as such shall be inheritable and freely alienable.—Sharswood.