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.(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. Nay, in a grant *109] to a bishop, or other sole spiritual corporation, in frankalmoign, the word

(*) Co. Litt. 9.

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.

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 succes rors, the words "heirs" in the one case, and "successors" in the other, come within this rule. Co. Litt. 9, a.-CHITTY.

"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."

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.

8

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, 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 *estate is a fee, because by possibility it may endure forever in a man and his heirs; yet as that duration depends upon [*110 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 par(b) See book i. P. 249.

(a) See book i. p. 484.

(*) Co. Litt. 27.

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 betwxt 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,

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.-ARCH bold.

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 feesimple. Walsingham's case, Plowd. 557.-CHITTY.

ticular 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 collaterai 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.(ƒ)

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." 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, *and wholly

*111] unconditional." 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.(1) And this was thought

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.-ARCH BOLD.

"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 to 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.

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 tenant, 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.

*The inconveniences which attended these limited and fettered in[*112 beritances, were probably what induced the judges to give way to this subtle finesse of construction, (for such it undoubtedly was,) in order to shorten 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(1) (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 priety of such intentions, or any public considerations whatsoever. This statute revived in some sort the antient feodal restraints which were originally laid on 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.

pro

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 à reversion.(n) And hence it is that Littleton tells us(0) that tenant in fee-tail is by virtue of the statute of Westminster the second.

a

Having thus shown the original of estates-tail, I now proceed to consider what things may, or may not, be entailed *under the statute de donis. [*113 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

(*) 1 Inst. 19.

() 13 Edw. I. c. 1.

()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 barbarous verb taliare, to cut, from which the French tailler and the Italian tagliare are formed. Spelm. Gloss. 531.

(") 2 Inst. 335.
(°) 13.

(P) 1 Inst. 19, 20.

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.

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) 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

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 rs. Fason, 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. 509.-CHITTY.

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 Feen gives to the father, (Co. Litt. 26, b. ;) or, if there be a grandfather, father, and son,