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QUALIFIED OR BASE FEE, ETC.

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Qualified or base fee.]-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 a grant to A. and his heirs, tenants of the manor of Dale; the grant is determined when the heirs of A. cease to be tenants of that manor. It is a fee, because by possibility it may endure for ever; but base or qualified, because it may end sooner. The term "base fee" is also used by some writers in a different manner, and in some acts of Parliament, as the 3 & 4 Will. 4, c. 74, for the abolition of fines, &c.

Conditional fee.]-A conditional fee, at common law, was a fee restrained to some particular heirs, in exclusion of others: as, "to the heirs of a man's body," or, "the heirs male of his body." It was a fee, because it might possibly endure for ever; and conditional, because the condition expressed or implied at its creation was, that, on failure of such particular heirs, it should revert to the donor. Under the ancient rule of conditional fees remain annuities and copyholds (where there is no custom to entail), and such like inheritances as fall not within the statute de donis. As soon as the grantee had any issue born, his estate was supposed to become absolute, by performance of the condition, at least so far as to enable him to alien it, to forfeit it for high-treason, and to charge it with certain incumbrances. But upon the construction of 13 Edw. 1. c. 1, commonly called the statute de donis, the judges determined that the donor 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, vesting 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; and leaving in the donee a new kind of particular estate, which they denominate a feetail (e).

Estates tail.]-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, by the form of the gift. 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 happen several ways; 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. The words of inheritance, "to him and his heirs," give an estate in fee; but they being heirs "to be by him begotten," make it a fee tail; and the person being limited on whom such heirs shall be begotten, viz., "Mary his present wife," makes it a fee tail special. Estates in general and special tail are farther diversified by the distinction of sexes in such intails; for both of them may be either in tail male, or in tail female as if lands be given to a man and the heirs male of his body begotten, that 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 intail male, the heirs female shall never inherit, nor any derived from them; nor, e converso, the

FRANK MARRIAGE, ETC.

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heirs male in case of a gift in tail female. As the word "heirs," or some other word of inheritance, is necessary to create a fee, so the word "body," or some other word of procreation, is necessary to make an estate tail, and ascertain to what heirs the fee is limited; and if either the words of inheritance or procreation be omitted, it will not be an estate tail; but in last wills, estates tail may be devised by irregular modes of expression, such as to a man and his seed, or to a man and his heirs male, or to a man and his issue (f).

Frank marriage.]-Frank marriage is an obsolete species of estates tail, yet still capable of subsisting in law; which is, 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 and in this case the word frankmarriage gives the donees an estate in tail special.

Incidents of estates tail.]-The incidents to a tenancy in tail, under the statute de donis, are chiefly,-1. That the tenant may commit waste. 2. That the husband of a female tenant in tail may be tenant by the curtesy. 3. That it might formerly have been barred by fine or recovery and may now be by an assurance executed under the 3 & 4 Will. 4, c. 74. 4. That formerly it was not liable to debts, but the 1 & 2 Vict., c. 110, makes a judgment binding on tenant in tail and his issue (g). 5. Tenants in tail may also make certain leases under the provisions of the 32 Hen. 8, c. 28.

And these four species of estates are alone estates of inheritance; those which follow being freeholds, but not of inheritance.

CHAP. XIX.

ESTATES NOT OF INHERITANCE.

[See 2 Black. Com. ch. 8; 1 Steph. Com. ch. 4]

Freehold estates not of inheritance are life estates, of which some are created by the act of the parties, whilst others arise by construction of law.

Estates for life.]-Estates for life, created by the act of the parties, are, where a lease is made of lands or tenements to a man to hold for the term of his own life, or for that of any other person, or for more lives than one; and where the estate is for the life of another, the tenant is called tenant pur autre vie. These estates may be created not only by the express words before-mentioned, but also by a general grant, without defining or limiting any specific estate; as if one grants to A. the manor of Dale, this makes him tenant for life. Though in a will this would now carry a fee. Such estates 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

ESTATES FOR LIFE.

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contingencies, before the life for which they are granted 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 cases, whenever the contingency happens, the estate is determined and gone. The incidents to an estate for life are-1. That the tenant, unless restrained by covenant, may, of common right, take upon the land demised to him reasonable estovers or botes. 2. That his representatives shall have the emblements or profits of the crop if he dies before harvest; for as the determination of his estate is contingent and uncertain, he shall not be prejudiced thereby (a). 3. That the under-tenants, or lessees of tenant for life, shall have the same indulgences as their lessors; and in those cases, where tenant for life shall not have emblements, as where he forfeits for waste, or does anything to determine the estate by his own act, the deprivation shall not reach his lessee. By 11 Geo. 2, c. 19, s. 15, the executors or administrators of tenant for life, on whose death any lease determined, shall recover of the lessee a rateable proportion of the rent from the last day of payment to the death of such lessor. This act has been amended and extended by the 4 & 5 Will. 4, c. 22 (b).

Estates in tail, after possibility of issue extinct.]— This happens where one is tenant in special tail, and the person from whose body the issue was to spring dies without issue; or, leaving issue, that issue becomes extinct as, where one has an estate to him and his heirs, on the body of his present wife to be begotten, and the wife dies without issue, the man has an estate tail, which cannot possibly descend to any one; and therefore the law makes use of this long periphrasis as absolutely necessary to give an adequate

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