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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 cornerions 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 for ever. And this oc- [104] casions the primary division of estates 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 behoveth 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.

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Estates of freehold (thus understood) are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances c Dr. & Stud. b. 2. d. 22. d § 59.

a Co. Litt. 345.

b c. 32.

(2) In 1 Preston on Estates, 20. the term is thus defined :-" The interest which any one has in lands, or any other subject of property, is called his estate, and to this term (at least in a conveyance by deed) some adjunct or expression should be added, when the time for which the estate is to continue; as for years, for life, in tail, or in fee; or the manner in which it is to be held, as on condition, in joint-tenancy, &c. is to be described; thus, it is said, a man has an estate in fee, in tail, for life, for years, on condition, &c." Sometimes the term " estate" is used merely as a local description, as all my estate at Ashton," but the word estate, when so used in a will, carries a fee to the devisee, unless expressly restrained by other words, though it would be otherwise in a conveyance by deed 7 East, 259. 4 M. and S. 369. 4 Taunt. 176. 6 Taunt. 410. 2 Marsh. 113. Chitty.

(3) See Preston on Estates, 1 vol. 200. and Cru. Dig. 1 vol. 7 to 17.

(4) 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." I Bl. Tracts, 116. As to copyholders having a freehold interest, but not a freehold tenure, see 1 Prest, on Estate, 212. 5 East, 51.

Christian.

THE RIGHTS

[Book 2. absolute or fee-simple; and inheritances limited, one species of which we usually call fee-tail.

I. Tenant in fee-simple 5 (or, as he is frequently styled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever: (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 taken in contradistinction to allo[105] dium; (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 sun, 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. feud or fee to be the right which the vassal or tenant hath in lands, to use And therefore sir Henry Spelman (g defines a 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 ti belongs to him and his heirs for ever: 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 simple his own, since it is held of a superior lord, in whom the ultimate property resides. This is the primary sense and acceptation of the word fee. Martin Wright very justly observes) () the doctrine, "that all But (as sir "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 feud: and when the term is used

[106]

f See p. 45. 47.

g of feuds, c. 1.

e Litt. § 1.
i Praedium domini regis est directum dominium, cujus nullus est author nisi Deus. Ibid.
b Co. Litt. 1.
k Co. Litt. 1.

1 Of ten. 148.

(5) See in general, Preston on Estates, 1 vol. 419 to 511. and 2 vol. 1 to 68. Bac. Ab. tit. Estate in Fee-simple; Com. Dig. Estates, A.; Cru. Dig. 1. 17. and index, tit. Estate in Fee-sinple; Fearne, Con. Rem. 12. 304. 319 and index; Prest. on Conv. index, tit. Fee.

(6) See Definition, Prest, on Est. 1 vol. 419.

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. 7 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. (2) 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. (y) The dominicum or property is frequently in [107] 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." 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 haeres viventis: it remains therefore in waiting or abeyance, during the life of Richard. (r) This is likewise al

m Co. Litt. 1.

n Feedum est quod quis tenei sibi et haeredibus suis, sive sit tenementum, sive reditus, &c. Fiet, 1. 5. c. 5. § 7. o Litt. § 10. p See page 20. q Servitus est jus, quo res mea alterius rei vel personae servit. Ff. 8. i. 1.

(7) Prest. on Est. 1 vol. 420.

r Co. Litt. 342.

(8) This rule and its exceptions are thus distinctly stated by Mr. Preston in his treatise on Estates, 1 vol. 216, 7. "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 Bl. 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 par son 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.

(9) 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.

ways 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 an abeyance, until a successor is named, and then it vests in the successor. (1) 10

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 for ever, or to him and his assigns for ever, this vests in him but an estate for life. (u) "

This very great nicety about the insertion of the word “heirs,” in [108] 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 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 praesumatur 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; in which, as they were ins Litt. 646. 1 Litt. § 647. u Litt. § 1. w See page 56. x l. 1. t. 9. § 17. y Co. Litt. 9. 10.

But although, as Mr. Fearne observes, "different opinions have prevailed in respect to the admission of this doctrine in conveyances at common law," (ib. 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.-Note of Mr.

Christian.

(10) 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 vol. 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.-Mr. Christian's note.

(11) Co. Litt. 9. a. Com. Dig. Estate, A. 2. Shep. Touchs. 101. Mr. Preston observes, that the words "heirs, or successors," in the case of a corporation, need not be in the identical deed or grant, and therefore, where one to whom lands had been granted in fee does, after reciting the grant, or without any recital, grant the lands to another" as fully as they were granted to him," the fee-simple will pass without any limitation to the heirs in express terins. 2 Prest. on Est 2. Shep. Touchs. 101. Com Dig. Estate, A. 2 It is the practice at this day, in conveying an estate in fee, to limit the property to the grantee, his heirs and assigns for ever, but these latter words are unnecessary and immaterial. 2 Prest. on Est. 3.

(12) In wills, a fee may pass without any words of limitation to the heirs, as often as it can by any means be clearly collected, that it was the intention of the testator to give an interest of this extent. In the construction of wills, the testator is supposed to have wanted that professional assistance of which a party to a deed may always avail himself. (Treat. on Eq. 59. 2. 2 Eunomus, 47. Latch. 42. per Dodderidge.) The law, therefore, regards the intention, more than the precise legal import of the words in which the testator has expressed his meaning, (per Ld. Mansfield in Loveacres v Blight, Cowp. 352.); and as often as it can be collected from any circumstance in a will, Cowp. 235.; or from the whole will taken together, and applied to the subject matter, be reasonably inferred, that the testator intended to pass all his estate in his property, that estate will pass, though the property be not limited to the heirs of the person to whom the devise is made. This is rather a rule of construction on the intention, than a rule of posttive law. As it will always happen, under rules of this sort, the cases are various. The able author then gives several instances in a very distinct and lucid manenr, see 2 Prest, on Estates, 69 to 77, &c. Chitty.

troduced 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 for ever, or to one and his assigns for ever, 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 devise shall take only an estate for life; for it does not appear that the devisor intended any more. 13 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. (2) 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." [109] Nay, in 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 a See Book 1. p. 484.

z Co. Litt. 9.

(15) See 2 Prest. on Est. 68, &c. But it is not necessary to use any words of perpetuity in a devise, in order to give a fee-simple, where it appears to be the intention of the testator to dispose of all his interest in an estate, and that is implied from the word estate alone; as if a teslator gives to Richard his estate or estates in or at Dale, though neither heirs, assigns, or any other word is annexed to Richard's name, yet he takes an estate in fee-simple. 7 East, 259. 4 M. & S. 369. 4 Taunt. 176. 6 Taunt. 410. 2 Marsh. 113. So also where lands are given to Richard charged with the payment of a specific sum, and which is not to be raised out of the rents and profits, such a devise without words of perpetuity will carry a fee-simple; for otherwife the devisee might be a loser by dying before he was repaid the sum charged upon the estate. Hargr. Co. Litt. 9. b. 3 T. R. 356. 8 T. R 1.

And where an estate is given generally without words being added, which would create a fee or an estate tail, and it is charged with the payment of annuities, the devisee takes a fee; but that is not the case where an estate tail is given to the devisee. 5 T. R. 335. The distinction turns in respect to carrying the fee on this, whether the debts, &c are merely a charge on the estate devised, or a charge on the devisee himself, in respect of such estate in his hands. 4 East, 496.

But where a testator leaves all his hereditaments to A., A. takes only an estate for life. 5 T. R. 558. A fee also will not pass by general introductory words in a will, by which the testator declares his intention to dispose of all his estate both real and personal, if there is not afterwards in the will some specific devise for that purpose. But where such subsequent devise is in some degree ambiguous, then the introductory words may have some effect, as indicative of the intention of the testator. 5 T. R. 13. 6 T. R. 610. Christian. fee any

(14) In a grant of lands to a sole corporation, the word "heirs" will not convey 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 the 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 word "heirs" in the one case, and "successors" in the other, come within this rule. Co. Litt. 9. a. Archbold

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