108 ties confidered as a fpecies of conveyance; for thereby an eftate in fee paffes by act and operation of law without the word "heirs:" as it does alfo, for particular reafons, by certain other methods of conveyance, which have relation to a former grant or eftate, wherein the word "heirs" was expreffed. 3. In creations of nobility by writ,' the peer fo created hath an inheritance in his title, without expreffing the word "heirs ;" for heirship is implied in the creation, unless it be otherwife fpecially provided: but in creations by patent, which are ftricti juris, the word "heirs" must be inferted, otherwife there is no inheritance. 4. In grants of lands to fole corporations and their fucceffors, the word "fucceffors" supplies the place of "heirs ;" for as heirs take from the an-[109 1 ceftor, fo doth the fucceffor from the predeceffor. Nay, in a grant to a bishop, or other fole fpiritual corporation, in frankalmoign; the word "frankalmoign” supplies the place of "fucceffors" (as the word "fucceffors" fupplies the place of " heirs") ex vi termini; and in all these cafes a fee-fimple vefts in fuch fole corporation. But, in a grant of lands to a corporation aggregate, the word "fucceffors" is not neceffary, though usually inferted: for, albeit fuch fimple grant be strictly only an estate for life, yet, as that corporation never dies, such eftate for life is perpetual, or equivalent to a feefimple, and therefore the law allows it to be one. 5. Laftly, in the cafe of the king, a fee-fimple will veft in him, without the word " heirs" or "fucceffors" 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". But the general rule is, that the word "heirs" is necessary to create an eftate of inheritance. z Co. Litt. 9. a See Vol. I. p. 484. b Ibid. 249. alfo where lands are given to Richard charged with the payment of a specific fum, and which is not to be raised out of the rents and profits, fuch a devife without words of perpetuity will carry a feefimple; for otherwife the devifee might be a lofer by dying before he was repaid the fum charged upon the eftate. Hargr. Co. Litt. 9. b. II. WE are next to confider limited fees, or fuch estates of inheritance as are clogged and confined with conditions, or qualifications, of any fort. fort. And these we may divide into two forts; 1. Qualified, or bafe fees: and 2. Fees conditional, fo called at the common law; and afterwards fees-tail, in confequence of the statute de donis. 1. A BASE, or qualified fee, is such a one as has 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 inftance, 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-Lifle in Berks, that he and his heirs, lords of the said manor, should be peers of the realm, by the title of barons of Lifle; here John Talbot had a base or qualified fee in that dignity, and, the instant he or his heirs quitted 110] the feignory of this manor, the dignity was at an end. This eftate is a fee, because by poffibility it may endure for ever in a man and his heirs; yet as that duration depends upon the concurrence of collateral circumstances, which qualify and debafe the purity of the donation, it is therefore a qualified or bafe fee. 2. A CONDITIONAL fee, at the common law, was a fee reftrained to fome particular heirs, exclufive of others: "donatio ftricta et coar&tataa; ficut certis haeredibus, quibusdam "a fucceffione exclufis" as to the heirs of a man's body, by which only his lineal defcendants were admitted, in exclufion of collateral heirs ; or, to the heirs male of his body, in exclufion both of collaterals, and lineal females alfo. It was called a conditional fee, by reafon of the condition expreffed or implied in the donation of it, that if the donee died without fuch particular heirs, the land fhould revert to the donor. For this was a condition annexed by law to all grants whatfoever; that, on failure of the heirs fpecified in the grant, the d Flet. 1. 3. c. 3. § 5. e Co. Litt. 27. grant grant should be at an end, and the land return to it's antient proprietor. Such conditional fees were strictly agreeable to the nature of feuds, when they first ceased to be mere eftates for life, and were not yet arrived to be abfolute eftates in feefimple. And we find strong traces of thefe limited, conditional fees, which could not be alienated from the lineage of the first purchafer, in our earliesft 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-fimple, on condition that he had iffue. Now we must obferve, that, when any condition is performed, it is thenceforth entirely gone; and the thing to which it was before annexed, becomes abfolute, and wholly unconditional. So that, as foon as the grantee [ 11 ] 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 iffue, but also the donor of his intereft in the reverfion 3. 2. To fubject him to for feit it for treason: which he could not do, till iffue born, longer than for his own life; left thereby the inheritance of the iffue, and reverfion of the donor, might have been defeated h To empower him to charge the land with rents, commons, and certain other incumbrances, fo as to bind his iffuet. And this was thought the more reasonable, because, by the birth of iffue, the poffibility 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 ftood, was folicitous to protect; without much regard to the right of fucceffion intended to be vefted in the iffue. e Plowd. 241. ↑ Si quis terram baereditariam kabeat, eam non vendat a cognatis baeredibus fuis, fi illi vire probibitum fit, qui eam ab initie acquifivit, ut ita facere nequear. LL. Alfred, c. 37. g Co. Litt. 19. 2 Inft. 233. However, [112] 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 iffue 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 defcend 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 defcent, the donees of these conditional fee-fimples took care to aliene as foon as they had performed the condition by having iffue; and afterwards re-purchased the lands, which gave them a fee-fimple abfolute, that would defcend to the heirs general, according to the course of the common law. And thus ftood the old law with regard to conditional fees: which things, fays fir Edward Coke, though they feem antient, are yet neceffary to be known; as well for the declaring how the common law stood in fuch cafes, as for the fake of annuities, and fuch like inheritances, as are not within the ftatutes of entail, and therefore remain as at the common law (5). THE inconveniences, which attended thefe limited and fettered inheritances, were probably what induced the judges to give way to this fubtile fineffe of construction, (for fuch it undoubtedly was) in order to fhorten the duration of thefe conditional eftates. But, on the other hand, the nobility, who were willing to perpetuate their poffeffions in their own families, to put a stop to this practice, procured the statute of Westminster the fecond', (commonly called the ftatute de donis conditionabilis) to be made; which paid a greater regard to the private will and intentions of the donor, than to the propriety of fuch intentions, or any public confiderations · whatfoever. This ftatute revived in fome fort the antient feodal restraints which were originally laid on alienations, by k I Inft. ig. 113 Edw. I. c. r. (5) See page 113, tot. enacing, enacting, that from thenceforth the will of the donor be obferved; and that the tenements fo given (to a man and the heirs of his body) fhould at all events go to the iffue, if there were any; or, if none, fhould revert to the donor: UPON the conftruction of this act of parliament, the judges determined that the donee had no longer a conditional fee-fimple, 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 eftate, which they denominated a fee-tail"; and vefting in the donor the ultimate fee-fimple of the land, expectant on the failure of issue; which expectant estate is what we now call a reverfion". And hence it is that Littleton tells us, that tenant in fee-tail is by virtue of the ftatute of Westminfter the second. HAVING thus fhewn the original of eftates tail, I now proceed to confider, what things may, or may not, be entailed under the statute de donis. Tenements is the only word used [ 113 1 in the ftatute: and this fir Edward Coke P expounds to comprehend all corporeal hereditaments whatsoever; and alfo all incorporeal hereditaments which favour of the realty, that is, which iffue out of corporeal ones, or which concern, or arè annexed to, or may be exercised within the fame; as, rents, eftovers, commons, and the like. Alfo offices and dignities, which concern lands, or have relation to fixed and certain places, may be entailed 9. But mere perfonal chattels, which favour not at all of the realty, cannot be entailed. Neither The expreffion fee-tail, or fecdum telliarum, was borrowed from the feu. dits; (See Crag. 7. 1. t. 1o. § 24, 25.) among whom it fignifiel any mutilated or truncated inheritance, from which the heirs general were cut off (6); being derived from the barbarous verb taliare, to cut; from which the French tailler n 2 Inft. 335. P1 Int. 19, 20. (6) Or is it not rather called fo because it is a part cut out of the whole? VOL. II. K can |