And estates tail, and all other particular estates, are derived out of a fee simple. Co. L. 18..a. And therefore, after a limitation in fee simple, absolutely, there cannot be another estate in fee limited for if land be conveyed to A. and his heirs, remainder to B. and his heirs, the remainder is void. Co. L. 18. a. 269. 2 Cro. 591. Vau. So, if two fee simples come to one person, they are united into one estate: As, if tenant in tail, the reversion to the king, be attainted for treason, whereby the estate tail is forfeited to the king; yet the king has only one estate in fee for the estate forfeited is united to the reversion. 18. a. (y) Co. L. So, if tenant in tail grants his estate to the king. Co. L. 18. a. So, if an estate tail be made to a villein, by which the lord enters, and grants his estate to the donor; the donor has but one fee. Co. L. 18. So by a grant executed by the party, a fee cannot depend upon a fee though the first fee be not absolute: As, if land be conveyed to A. so long as B. has heirs of his body, the remainder to C., the remainder is void. Dub. Vau. 269.. Acc. Pl. Com. 29. b. Co. L. 18. a. But two fee simples of the same land may, by act of law, be in several persons: As, if a man gives land in tail to a villein, the donor has the reversion in fee, and if the lord enters, he has a fee determinable upon the death of the villein without issue. Co. L. 18. a. So a fee may be limited to another upon a contingency: As, if land be to the use of A. and his heirs, and if he dies without heir in the life of B. then to C. and his heirs; the estate to C. is good. R. 2 Cro. 591. So, if a devise be to A. so long as B. has issue of his body, and for want of such issue to D. and his heirs; the devise to D. shall be good, by way of an executory devise. Per Vau. 270. So, if a copyhold be granted to A. and his heirs, and if he dies within [Jage, and not married, to B.: it shall be good. 2 Rol. 791. I. 40. Vide Copyhold, (C 11.) If A. devises to his eldest son and his heirs, and other land to his youngest son and his heirs, charged with legacies, and if either son dies before entry or legacy paid, it shall be to the survivor; it shall be good to the survivor. Dub. Jon. 17. (A 5.) When it may be variable. So a fee ought to be fixt. And therefore, a grant to the eldest son of the king, and the eldest song of him and his heirs, kings of England, is not good without an act of parliament for the law does not allow an inheritance to merge and revive, as often as the king has or has not an eldest son. R. 8 Co. 17. b. Vide Roy, (G) So a feoffment cannot be to the use of A. every Monday, of B. every Tuesday, &c. 1 Co. 87. a. But an estate, certain in quantity, may be variant as to place As, if (y) 1. The same person may have in the same lands a fee, and eventually and by descent an interest by executory devise, which may devest the fee, and vest it in the former owner. 15 Ves. 174.-2. But by the rule of the common law, the same person cannot have the fee, and a power over the fee. 1 B. & P. 192. 3 Prest. Con. 265. 494. 1 Est. 505. A. has 12 acres to him and his heirs to be annually allotted in a meadow of 80 acres. Co. L. 4. a. {It seems, that if A. grants all his right and title to land included within a certain patent, without specifying the quantity or bounds, and the grantor is seized of a part, a part is unoccupied, and another part is in the possession of another, claiming adversely, to the grantor, the deed is good for so much as the grantor is lawfully seized of. Van Dyck v. Van Beuren, 1 Johns. Rep. 345.} So it may vary as to the person: As, there may be a partition, that A. shall have the manor of D. for a year, and B. the manor of S., and the next year A. the manor of S. and B. the manor of D. and so alternis vicibus for ever. Co. L. 4. a. That A. shall have from Lammas to Easter, B. from Easter to Lammas. Co. L. 4. a. (A 6.) What shall be a fee simple qualified or conditional. A fee simple estate is absolute, or qualified (2), or conditional. (a) Co. L. 1. b. As, if land be given to A. and his heirs, tenants of such a manor. To the king and his heirs, kings of England. Co. L. 27. a. (c) Co. (2) 1. A qualified fee is an interest, given on its first limitation to a man and to certain of his heirs, and not extended to all of them generally, nor confined to the issue of his body. Fleta, lib. 3. c. 3.-2. Of which species of estate, a limitation to a man and his heirs on the part of his father, affords an example. Litt. 1. 354. 1 Inst. 27. a. 220. 1 Prest. Est. 449.-3. It is a quality of this estate, that it will not descend under the original grant to all the heirs of the persons to whom it is granted: it will determine after a failure of those heirs who are within the prescribed degree. 1 Prest. Est. 460. (a) 1. A conditional fee, in the more general acceptation of the term is, when, to the limitation of an estate, a condition is annexed, which renders the estate liable to be defeated. In which application of the term, either a determinable or qualified fee may, at the same time be a conditional fee. 1 Prest. Est. 475.-2. Also an estate limited to a man and his heirs, to commence on the performance of a condition, is frequently described by this appellation; though it may with greater accuracy and precision be distinguished by the appellation of a limitation on condition, or rather contingency. Id. 476.-3. And the estate at this day most frequently expressed by this term, arises from a gift to a man or a woman, and the heirs of the body of the donee; or from a gift to two persons, and the heirs of their two bodies, of an hereditament, which is not a tenement, and therefore not within the statute de donis. Id. 477. (b) 2 Blk. Com. 109. (c) Kings of Scotland. 1 Cruise. Dig. 24. (d) 1. During the time while a particular tree, a tree in any wood, or any tree in a certain wood, &c. shall stand. Kitch. 301. 27 Hen. 6. 29. 11 Rep. 49. 1 Ld. Raym. 326. -2. Whilst a man (or woman not being the donee,) shall have heirs of his body, or issue of his body. Plowd. 557. 1 Inst. 18. 10 Rep. 97. b. Shep. Touch. 46. 103. 402. 3 Leon. 117.-3. Till the marriage of a person shall take place. Cro. Jac. 593. 10 Vin. Abr. 233.-4. Till a person at Rome shall return from Rome. Fearne, 8.-5. Or till a person shall go to Rome. Shep. Touch. 122.-6. Till debts shall be paid. Fearne, 187.— 7. Till default shall be made in payment of his debts. Leon. 33. 2 Woodd. 733.-8. As long as A. [and his heirs] shall pay 201. annually to B. Plowd. 557. 11 Rep. 49. a.-9. So long as St. Paul's shall stand. Plowd. 349. 557.-10. Until a sum (uncertain) shall be paid by a particular person. Moor, 15.-11. Until an act shall be done. Dyer, 300. b. Vide 2 Vern. 523. 578. Carter, 75. 107.-12. Until a minor shall attain his age of twenty3 Atk. 74. Amb. 204. Fearne, 342. 9 Mod. 29. 10 Vin. Abr. 203.-13. Until legacies shall be paid. 3 Atk. 560. 562.-14. Until they shall have made a lease. Dyer, 290. a.-15. Until he otherwise should dispose of the same. Carter, 96. 1 Prest. Est. 431, 433.-16. A. conveys land to B., in fee, subject to the following restrictions, to wit: that B. should not sell the land during the life of A., unless A. should sell the land on which he one. [*]So, by common law, if a man conveys land to another and the heirs male of his body; this will be a fee simple conditional. Co. L. 19. a. Or, to husband and wife, and the heirs of their bodies. 2 Inst. 333. But a man cannot create a new estate of inheritance (e): And therefore, if a man conveys lands to A. and his heirs male, the word, male, shall be rejected, and he shall have it to him and his heirs. Lit. S. 31. Or, to A. and his heirs female. Lit. S. 31. (f) If he conveys lands in gavelkind to A. and his eldest heirs, the custom shall not be defeated; for the word, eldest, shall be rejected. Co. L. 27. (g) Or, lands at the common law to A. and his eldest heirs female of his body; all the daughters ought to inherit. Co. L. 27. b. The grant of the dukedom of Cornwall by the king to his son, et ipsius et hæredum suorum regum Angliæ filiis primogenitis in regno Angliæ successoris, would not have been good, if not confirmed by parliament. (h) R. 8 Co. 16. The Prince's case. Co. L. 27. a. (A 7.) What would be a performance of the condition. If an estate, at common law, was given to a man and the heirs of his body; by having issue, the condition was performed, and the donee might alien. Co. L. 19. a. 1 Rol. 840. I. 15. So, if an estate was given to a man and the heirs male of his body, [*]the having issue a son was a performance of the condition. Vide Co. L. 19. a. But if an estate was given to a man and the heirs male of his body, who had issue a daughter; the condition was not performed. Co. L. 19. a. A. conveyed land to B. on condition that B. should pay the quit rents, and build a dwelling-house on the premises, and suffer A. and his wife to reside there during their joint lives; and until it should be built, they were to reside in the old tenement then on the premises. B. paid the quit rents, but did not build the house. A. and his wife resided in the old tenement during their lives, and A. sometime before his death, conveyed the land to another; it was held, that B. had forfeited his estate by not build lived, or should die before B.; and if B. should die before A., he, in that case, should leave the land to his wife, or her lawful issue. B. conveys the land, by sundry conveyances, at different times, and A. dies before B. It was held that the estate of B. was unlimited, and that his conveyances were valid. M'Williams r. Nisly, 2 Serg. & Rawle, 507. } (e) 1 Inst. 11. 9 Hen. 6. 25. 11 Hen. 6. 14. 1 Inst. 27. b. 18 Ass. pl. 5. 18 Ed. 3. 45. b. 46. a. Moor, 424. & Rep. 14. 1 Prest. Est. 461. (f) Which, however, does not apply to descendible freeholds; there the occupancy or title may be conducted wholly through the line of males or females. 1 Prest. Est. 461. (g) 1. But by purchase any class of customary heirs may become purchasers, under the customary denomination or character. Hob. 31. 1 Vent. 72. 2 Mer. 171.-2. And if customary or copyhold lands, descendible contrary to the rules of the common law, be limited to right heirs as purchasers, the law will prefer the common law heir, and deem him to be the purchaser. 1 Atk. 607. Watk. Desc. 223. n. d. Co. Lit. 10. a. n. (4.)—3. Unless the donor has expressly designated the customary heir as the purchaser. Rob. Gavelk. lib. 1. c. 6. 117.-4. But when the customary heir is in express terms the object of the gift, as the right heirs in gavelkind, right heirs in borough english, &c. the customary heirs may take under this express designation. Hob. 31. 1 Prest. Est, 462, 463. (h) 1. For an act of parliament may limit an inheritance of lands or tenements, otherwise than by common law is allowable. Co. Lit. 27. a.-2. And in the case on the title to the earldom of Oxford, decided in parliament, 1 Cha. 1., the judges held, that a limitation of the earldom to Aubrey de Vere and his heirs male, being by act of parliament, was sufficient to raise a fee simple, descendible to males only. See W. Jones, 100. Co. Lit. 27. a. n. (5.) ing in a reasonable time; and that it reverted to a grantor. Hamilton v. Elliott, 5 Serg. & Rawie, 375. 334. Land was conveyed to A. in trust, for the use of the grantor, during her life, and after her death, to the use of B., his heirs and assigns for ever; B. to go into possession of a part of the premises as soon as he should arrive at full age; and if B. should die under age, or should die without issue, then to the use of C., her heirs and assigns for ever; subject to certain other reservations and exceptions ;-B. arrived to the age of twenty-one years, but died without issue. It was held, that B. was seised in fee of the land conveyed by the deed of trust, from and after the execution of the deed, subject to the reservations, &c. therein contained. Coleman v. Holladay, 3 Munf. 510. Vide Carroll's Les. v. Llewellin, 1 Har. & M'Hen. 162. } (A 8.) The effect of the condition performed. If the condition was performed, he who had the fee simple conditional, by the common law, might alien his land. Co. L. 19. a. Or might charge it with a rent, common, &c. Co. L. 19. a. Or might forfeit it. Co. L. 19. a. But though the condition was performed by having issue, and the issue. inherits, the land does not descend to the heir general: for, if the donee, or his issue, afterwards dies without issue, the estate reverts to the donor. Co. L. 19. a. So, if he dies without issue male, where the gift was to him and the heirs male of his body. Co. L. 19. a. Vide post, (B. 1, &c.) (B) ESTATE TAIL. (B 1.) The commencement of it. An estate is said to be entailed, when it is ascertained, what issue shall inherit it. Lit. S. 18. By the common law, all estates of inheritance were fee simple absolute, or (i) conditional. Co. L. 19. a. But by the st. (k) W. 2. 13 Ed. 1. 1. The will of the giver according to the form in the deed of gift manifestly expressed shall from henceforth Modus (4). Item sicut ampliari possunt hæredes, sicut prædictum est, ita coarctari poterunt per modum donationis, quod omnes hæredes generaliter ad successionem non vocantur. enim legem dat donationi, et modus tenendus est contra jus commune, et contra legem, quid modus et conventio, vincunt legem. Ut si dicatur-Do tali tantam terram cum pertinentiis in N. habendum et tenendum sibi et hæredibus suis, quos de carne suà et uxore sibi desponsatà procreatos habuerit. Vel sic-Do tali, et tali uxori suæ, vel cum tali filiâ meâ, &c. habendum et tenendum sibi et hæredibus suis, de carne talis uxoris, vel filiæ exeuntibus, vel procreatis vel procreandis: quo casu cum certi hæredes exprimuntur in donatione, videri poterit quod tantum sit descensus ad ipsos hæredes communes per modum in donatione appositum; omnibus aliis hæredibus suis a successione penitus exclusis, quia hoc voluit donator. Bract. lib. 2. c. 6. Vide Fleta, lib. 3. c. 9. Britton, c. 36.-2. These limited donations were evidently derived from the feudum taliatum.-3. They were probably introduced into England about the end of the reign of King Henry II., or that of one of his sons; for Glanville, who gives a very accurate account of the different estates that were known in his time, makes no mention whatever of limited donations; whereas Bracton, as we have seen, who wrote in the reign of King Henry III. has given a full description of them. 1 Cruise, 81. (k) 1. The evident object of limited donations was to restrain the donees from disposing of the estates thus given; but the general propensity which prevailed about the reign of EdVOL. IV. 3 [*]be observed, so that they to whom the land was given under such condition shall have no power to alien the land so given, but it shall remain to the issue or revert to the giver, if issue fail. (B 2.) What tenements may be entailed. And therefore, all lands and inheritances corporeal may be entailed. Co. L. 19. b. Vide Copyhold, (C 8, 9.) So all inheritances issuing out of them, or which concern or are annexed to lands and tenements, or exercisable in land, though they cannot be holden. Co. L. 20. a. ward I. to favour a liberty of alienation, induced the judges to construe limitations of this kind in a very liberal manner. Instead of declaring that the estates must descend to those heirs who were particularly described in the grant, according to the evident intention of the donors, and the strict principles of the feudal law; and that the donecs should not in any case be enabled by their alienation to defeat the succession of those who were mentioned in the gift, or the donors' right of reverter; they had recourse to an ingenious device, taken from the nature of a condition. Now it is a maxim of the common law, that when a condition is once performed, it is thenceforth entirely gone, and the thing to which it was before annexed, becomes absolute and wholly unconditional. And the judges, reasoning upon this ground, determined that these estates were conditional fees; that is, were granted to a man and the heirs of his body, upon condition that he had such heirs; therefore, as soon as the donee of an estate of this kind had issue born, his estate became absolute, by the performance of the condition, at least for these three purposes:-1 deg. to enable him to alien the land, and thereby to bar, not only his own issue, but also the donor himself of his right of reverter; 2 deg. to subject him to forfeit the estate for treason or felony; which, till issue born, he could not do, for any longer term than that of his own life; lest the right of inheritance of the issue, and that of reverter of the donor, might be thereby defeated; 3 deg. to enable him to charge the lands with rents and other incumbrances, so as to bind his issue. 1 Cruise, 81. 83. Plowd. 235. 241. 1 Inst. 19. a. 2 Inst. 333.7 Rep. 34. b.2. The donee of a conditional fee might also alien the lands before issue had; nor could the donor have entered in such a case, because that would have been contrary to his own donation, which limited the lands to the donor and his issue. And if the donee had issuc born, after the alienation, the donor was excluded during the existence of such issue. The issue were also bound by the alienation of their ancestor, though previous to their birth; because they could only claim in the character of his representatives, and were therefore bound by his acts. But where the donee of a conditional fee aliened before he had issue, such alienation did not bar the donor's right of reverter, whenever there happened a failure of issue; because the subsequent birth of issue was not a sufficient performance of the condition to render the precedent alienation valid. 1 Cruise, 83. Plowd. 241.-3. Where the person to whom a conditional fee was limited, had issue, and suffered it to descend to such issue, they might alien it; because, having succeeded by descent to this estate of their ancestor, who had acquired a power of alienation by having issue, they took the estate in the same manner; discharged from any restraint whatever. But if the issue did not alien, the donor would still be entitled to his right of reverter; as the estate would have continued subject to the limitations contained in the original donation. 1 Cruise, 83. 7 Rep. 34. b. 1 Inst. 19. a.-4. From this mode of construing conditional fees, the purposes for which they were intended were completely frustrated; and therefore the nobility, whose object was to perpetuate their possessions in their own families, procured the above statute to be passed. 1 Cruise, 84.-5. Which statute, as observed by Lord Mansfield, only repeated what the law of tenures had said before, that the tenor of the grant should be observed. 1 Burr. 115.— 6. And therefore the judges, in the construction of it determined, that where an estate was limited to a man and the heirs of his body, the donee should not in future have a conditional fee; but divided the estate by creating a particular estate in the donce, called an estate tail, subject to which the reversion in fee remained in the donor. 1 Cruise, 84. 2 Inst 335. Plowd. 248.-7. In consequence of which construction, estates limited in this manner are not conditional; nor is the right of entry of the donor, on failure of issue of the donee, considered as arising from a breach of the condition, but as a right of reverter accruing to the donor on the natural expiration of the estate granted. The statute rejects the erroneous opinion which had been held by the judges, that a donation of this kind created a conditional fee; and declares that it vests an estate of inheritance in the donee, and some particular heirs of his, to whom it must descend; and that the estate of the donor is a reversion, expectant on the determination of that estate. 1 Cruise, 85. Plowd. 242. |