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and therefore subsists in many instances at this day: which is all that shall be remarked concerning it; herewith concluding our observations on the nature of tenures.
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 *estates into such as are freehold, and such as are less than freehold.'
[*104 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() 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.?
Estates of freehold (thus understood) are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances abso
(6) Dr. & Stud. b. 2, d. 22.
(a) Co. Litt. 345.
1A freehold estate seems to be any estate of inheritance, or for ufe, in either a coiporeal 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.-CHRISTIAN.
As to copyholders having a freehold interest, but not a freehold tonure, see 1 Presto on Estate, 212. 5 East, 51. -Cutty.
lute 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 hy 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 allodium;(f) which *105] 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(9) 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:) 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) (1) 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
(*) Co. Litt. 1. (1) Of Ten. 148. (**) Co. Litt. 1. (*) Feodum est qund quis tenet sati et hæredibus suis, sine sit tenementum, sive reditus, &c. Flet. 1. 5, c. 5, 27.
See pp. 45, 47. (0) Of Feuds, c. 1. (*) Co. Litt. 1.
(0) Prædium domini regis est directum dominium, cujus mulus est outhor nisi Deus. Ibid.
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 ia his demesne.(0) 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.) The dominicum or property is frequently *in one man, while the appendage or serrice is in another. Thus Caius may be seised as of fee of a way leading
[*107 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 hæres viventis: it remains therefore in waiting or abeyance, during the life of Richard.(r). 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.(8) 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)* () Litt. 2 10.
See page 20. (9) Servitus est jus, quo res mea alterius rei vel persons erri. Ff. 8, 1, 1.
Co. Litt. 342.
Litt. 646. (1) Ibid. 647.
? 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.
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.
* 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-sin-ple is conveyed to a sole corporation, the parson and his successors; but, if any interest is not conveyed, it still remains, as in the formar note,
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 *108]
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 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;' in which, as they were intro(w) Co. Litt. & 1.
(*) L. 1 t. 9, X 17. () See page 56.
() Co. Litt. 9, 10. 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. -CARISTIAN.
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.-COLE
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, (Idlé 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 Love acres vs. nt, 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 heid, 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 author ity of the devisee for life to a disposition by will only. Doe us. Thorley, 16 East. 443;
duced at the time when the feodal rigour was apace wearing out, a more liberai 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 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, 1P. 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 net 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) yests 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 à 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 declara. tion of such intent, still, where the subsequent clauses of devise are inexplicit, the intro. ductory 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 us. Coffin, 2 H. Bla. 450. But, though slight circumstances may be admitted to explain ob. scurities, (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 operat ve and effective clause in a will must be controlled by ambiguous words occurring in the intro ductory 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, 114. 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 wbom the land is devised, (in general terms, not where he has an estate-tail given him.