demefne, as of fee; of an incorporeal one, he fhall only be faid to be feifed as of fee, and not in his demefne. For, as incorporeal hereditaments are in their nature collateral to, and iffue out of, lands and houses P, their owner hath no property, dominicum, or demefne, in the thing itself, but hath only fomething derived out of it; refembling the fervitutes, or services, of the civil law. The dominicum or property is frequently [107] in one man, while the appendage or fervice is in another. Thus Gaius may be feifed as of fee of a way leading over the land, of which Titius is feifed in his demefne as of fee. THE fee fimple or inheritance of lands and tenements is generally vefted and refides in fume perfon or other; though divers inferior eftates may be carved out of it. As if one grants a leafe for twenty-one years, or for one or two lives, the fee-fimple remains vefted in him and his heirs; and after the determination of thofe years or lives, the land reverts to the grantor or his heirs, who fhall hold it again in fee-fimple. Yet fometimes the fee may be in abeyance, that is (as the word fignifies) in expectation, remembrance, and contemplation in law; there being no perfon in effe, in whom it can vest and abide though the law confiders it as always potentially exifting, and ready to veft 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 veft in the heirs of Richard till his death, nam nemo eft haeres viventis : it remains therefore in waiting or abeyance, during the life of Richard' (2). This is likewife always the cafe of a parfon of a church, who hath only an eftate therein for the term of his life; and the inheritance remains in abeyances. And not only the fee, but the freehold alfo, may be in abeyance; as, • Litt. § 10. P See page 20. Servitus eft jus, quo res mea alterius rei vel perfonae fervit. Ff. 8. 1. 1. r Co. Litt. 342. • Litt. § 646. (2) The inheritance or remainder in fuch a cafe has been faid to be in abeyance, or in nubibus, or in gremio legis; but Mr. Fearne, with great ability and learning, has expofed the futility of thefe expreffions, when a parfon dies, the freehold of his glebe is in abeyance, until afucceffor be named, and then it vefls in the fucceffor '(3). THE word "heirs" is neceffary 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 affigns for ever, this vefts in him but an eftate for life". This very great nicety about the infertion of the word "heirs" in all feoffments and expreffions, 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 ufe, or by devife, the inheritance in the "mean time, if not otherwife difpofed of, remains in the grantor and his heirs, or in the heirs of the teftator, until the contin"gency happens to take it out of them." Fearne, Cont. Rem. 513. 4th edition. But although, as Mr. Fearne obferves, "different opinions have "prevailed in respect to the admiffion of this doctrine in convey❝ances at common law," (ib. 526.) yet he adduces arguments and authorities, which render the doctrine as unquestionable in this cafe as in the two former of ufes and devifes. If therefore in the inftance put by the learned Judge, John should determine his eftate, either by his death, or by a feoffment in fee, which amounts to a forfeiture, in the life-time of Richard, under which circumftances the remainder never could veft in the heirs of Richard; in that cafe, the grantor or his heir may enter and refume the eftate, (3) Mr. Fearne having attacked with fo much fuccefs the doctrine of abeyance, the Editor may venture to obferve, with respect to the two last inftances, though they are collected from the text of Littleton, that there hardly feems any neceffity to refort to abeyance, or to the clouds, to explain the refidence of the inheritance, or of the freehold. In the first cafe, the whole fee-fimple is conveyed to a fole corporation, the parfon and his fucceffors; but if any interest is not conveyed, it ftill remains, as in the former note, in the grantor and his heirs, to whom, upon the diffolution of the corporation, the eflate will revert. See 1 vol. 484. And in the fecond cafe, the freehold feems, in fact, from the moment of the death of the parfon, to reft and abide in the fucceffor, who is brought into view and notice by the inftitution and induction; for after induction he can recover all the rights of the church, which accrued from the death of the predeceffor. grants, W grants, in order to veft a fee, is plainly a relic of the feodal ftriétness by which we may remember it was required that the form of the donation should be punctually pursued; or that, as Crag expreffes it in the words of Baldus, "do"nationes fint fricti juris, ne quis plus donaffe praefumatur quam "in donatione exprefferit." And therefore, as the personal abilities of the donee were originally fuppofed 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 exprefs provifion in the grant, gave it a longer continuance, and extended it alfo to his heirs. But this rule is now foftened by many exceptions'. FOR, 1. It does not extend to devifes by will; in which, as they were introduced at the time when the feodal rigour was apace wearing out, a more liberal conftruction is allowed; and therefore by a devife to a man for ever, or to one and his affigns for ever, or to one in fee-fimple, the devisee hath an eftate of inheritance; for the intention of the devifor is fufficiently plain from the words of perpetuity annexed, though he hath omitted the legal words of inheritance. But if the devife be to a man and his affigns, without annexing words of perpetuity, there the devisee shall take only an estate for life; for it does not appear that the devifor intended any more (4). 2. Neither does this rule extend to fines or recovey Co. Lit. 9, 10. 56. w See pag. (4) But it is not neceffary to ufe any words of perpetuity in a devife, in order to give a fee-fimple, where it appears to be the intention of the teftator to dispose of all his intereft in an estate, and that is implied from the word cftate alone; as if a teftator gives to Richard his eftate or eftates in or at Dale, though neither heirs, affigns, or any other word is annexed to Richard's name, yet he takes an eftate in fee-fimple. T. R. 411. 2 T. R. 656. So also where lands are given to Richard charged with the payment of a specific fum, and which is not to be raifed 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 fun charged upon the eftate. Hargr. Co. Litt. 9. b. 3 T. R. 356. And ries 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 estate, 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 ftrifti juris, the word "heirs" must be inserted, otherwise there is no inheritance. 4. In grants of lands to fole corporations and their fucceffors, the word "fucceffors" fupplies the place of "heirs ;" for as heirs take from the an-[109] ceftor, fo doth the fucceffor from the predeceffor. Nay, in a grant to a bishop, or other fole fpiritual corporation, in frankalmaign; the word "frankalmoign" fupplies 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 ftrictly only an estate for life, yet, as that corporation never dies, fuch estate for life is perpetual, or equivalent to a feeSimple, and therefore the law allows it to be one. 5. Lastly, in the cafe of the king, a fee-fimple will veft in him, with2 Co. Litt. 9. See Vol. I. p. 484. 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 devifee takes a fee; but that is not the cafe where an eftate tail is given to the devisee. 5 T. R. 335. But where a teftator leaves all his hereditaments to A, A takes only an estate for life, 5 T. R. 558. A fee alfo will not pafs by general introductory words in a will, by which the teftator declares his intention to dispose of all his eftate both real and perfonal, if there is not afterwards in the will fome fpecific devife for that purpose. But where fuch fubfequent devife is in fome degree ambiguous, then the introductory words may have fome effect, ast indicative of the intention of the teftator. 5 T.R. 13. 6 T.R.610. out out the word "heirs" or "fucceffors" in the grant; partly from prerogative royal, and partly from a reason fimilar to the laft, because the king in judgment of law never dies". But the general rule is, that the word "heirs" is neceflary to create an eftate of inheritance. II. We are next to confider limited fees, or such estates of inheritance as are clogged and confined with conditions, or qualifications, of any 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 ftatute de donis. 1. A BASE, or qualified fee, is fuch a one as has a qualification fubjoined thereto, and which must be determined when ever the qualification annexed to it is at an end. As, in the cafe of a grant to A and his heirs, tenants of the manor of Dale; in this inftance, whenever the heirs of A ceafe 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, fhould be peers of the realm, by the title of barons of Lifle; here John Talbot had a bafe or qualified fee in that dignity, and, the inftant 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 qua lified 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 coarctataa; ficut certis haeredibus, quibufdam : 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 • Co. Litt. 27. Flet. 3. c. 3. § 5. See Vol. I. p. 249. fuch |