Or, to him and his assigns for ever. (0) Lit. S. 1.

So, if he purchases to him and his heir in the singular number. Co. L. 8. b. Cont. (p) per 2 J. 1 Rol. 832. K.

To him or his heirs, in the disjunctive. Co. L. 8. b.

So, if it be to A. et B. et hæredibus, without saying, suis, it shall be void for the incertainty. Co. L. 8. b. 1 Rol. 833. 1. 20.

Though a warranty be added to them et hæredibus suis: for this cannot enlarge it. 1 Rol. 833. 1. 25.

So, if by deed, reciting an agreement to convey to A. and his heirs, a man grants estovers for easement of him and his heirs by assignment, and if no assignment that he and his heir shall cut; A. has only for life. R. 1 Leo. 2.

So, if a natural person purchases to him and his successors, he has only for life. Co. L. 8. b.

So, if a body politick takes in its natural capacity: As, a lease to a dean, &c. for 100 years, and afterwards a release to him and his successors, it gives to him only for life: for he takes the lease in his natural capacity. Co. L. 9. a.

So, if a corporation sole, as a bishop, parson, &c. purchases, he has not a fee without the word, successors. (q) 1 Rol. 832. l. 50.

But a feoffiment to B. et hæredibus, without saying, suis, gives him a fee simple. Co. L. 8. b. (r)

So, to a son and the heirs of his father.

Semb. Co. L. 220. b.

So, to B. et liberis suis and their heirs; if he has issue, it gives them a joint-estate in fee. Co. L. 9. a.

So, to B. hæredibus et successoribus suis, gives a fee. Co. L. 9. a. (s) So a feoffment or grant to a body politic and their successors, gives them a fee simple. Co. L. 8. b.

a man and his heirs, but so qualified, that the continuance of the same under the limitation is bounded by the life of one person, or the lives of several persons, is not an estate in fee, for it cannot continue for ever.-3. Hence a limitation to A. and his heirs, during the life of B. is a mere freehold, not an inheritance. 1 Rep. 140. b. 4. So till an event shall arise which must happen and necessarily must take place within the period of a life, or the period of one of several lives; as an estate to A. and his heirs during the widow-hood of C., is an estate of mere freehold. 1 Inst. 42.

1 Prest. Est. 479. 480.

(0) As to the operation of these words, see 2 Prest. Est. 3. 4.

(p) 1. Extrajudicially. - 2. And in the annotations on 1 Inst. it is said that, according to many authorities, heir may be nomen collectivum, as well in a deed as a will, and operate in both in the same manner, as heirs in the plural number. 2 Rol. Abr. 253. Ambl. 453. Godbolt. 155. T. Jones. 111. Cro. Eliz. 313. Robinson's Gavelkind, 95. 96. 1 Burr. 58. Vin. Abr. 10 vol. 233. k. pl. 1. 8 vol. 233. -5. But the contrary is asserted by Mr. Preston. 2 Prest. Est. 9. 10.

(9) A limitation to a person in his politic capacity, and his heirs, gives him an estate for life only. 1 Inst. 8. b. 4 Hen. 5. 9.

(r) 1. It is not universally true, that a limitation to a man and his heirs conveys an estate in fee.-2. Either from words of qualification, or from the nature and extent of the interest which is granted, an estate for life, or a mere chattel interest, or an estate at will, may pass 2 Prest. Est. 11.

(3) 1. The mere possibility, that an interest limited to a man and his heirs may determine within the period of a life, or the period of several lives, as to A. and his heirs till his marriage, or till his return from Rome, or till B. shall attain twenty-one, will not qualify the interest into an estate of mere freehold. 1 Prest. Est. 482. 2. For, admit it to be possible that the interest may continue for ever, and it will follow that the interest is a fee. Ibid. — 3. A limitation to a man and his heirs so long as another person shall have heirs of his body, conveys a fee. Ibid. cit. Plowd.

So a grant to the king in perpetuum gives him a fee, without the words, his heirs or successors: for he never dies. Co. L. 9. b.

So a feoffment to a corporation aggregate in perpetuum gives a fee: for it never dies. Co. L. 9. b. 1 Rol. 832. 1. 55.

Or, to a corporation sole, to be held in frankalmoigne. Co. L. 9. b. 1 Rol. 833. 1. 5.

So, if A. re-enfeoffs B. adeo plene as B. enfeoffed him, he has a fee without the word, heirs. Co. L. 9. b. Q. 1 Rol. 833. l. 12.

So a grant to the church of B. gives a fee without the word, heirs, or, successors. 1 Rol. 833. l. 3.

And a limitation to the right heirs of B. gives a fee, without the words, and their heirs. 1 Rol. 833. l. 16.

So, by devise (t), a fee may be given without the words, his heirs. Co. L. 9. b. Vide Devise, (N 4.)

Or, by fine sur conuzance de droit come ceo, &c. Co. L. 9. b.
Or, by a common recovery. Co. L. 9. b.

So a fee passes without the words, his heirs, where a man gives land with his daughter, &c. in Frankmarriage. Co. L. 9. b.

If a parcener, or joint-tenant releases to his companion. Co. L. 9. b. If the lord, &c. releases to the terre-tenant; which enures by way of extinguishment. Co. L. 9. b.

If a man releases a mere right; as, where a disseisee releases to the disseisor all his right. Co. L. 9. b.

So, if a rent be granted upon partition, for owelty of partition. Co. L. 9. 10. (u)

So, if a peer be summoned to parliament by writ, he has a fee' in his dignity, without the word, heirs. Co. L. 9. b. Vide Dignity, (C 3.)

So, by the forest-law, if the king at a justice-seat, grants to another an assart in perpetuum, without more, he has a fee. Co. L. 10. a. So, by custom a grant of a copyhold, sibi et suis, or, sibi et assignatis, may give the inheritance. 4 Co. 29. b. Vide Copyhold, (C 7.)

(A 3.) By what means.

A man takes a fee by descent, or by purchase.

When he takes by descent, and how it shall descend, Vide in Discent, (AC 1., &c.)

A man may purchase a fee simple by feoffment.

Or, by fine, or common recovery; which are of the nature of a feoffment upon record.

So, by grant, or by exchange, release, or confirmation, which are in the nature of a grant.

So, by bargain and sale. Vide Bargain and Sale, (B 1., &c.)

So, by covenant to stand seised. Vide Covenant, (G 1., &c.)

So, by devise. Vide Devise, (N 4.)

So a man may gain a fee by wrong: As, by disseisin, abatement, or intrusion.

(t) 1. There is a case in which it is reported to have been adjudged, that an estate in fee in a rent created by deed, passed without the word, heirs. 26 Ass. 126. b. pl. 38. 18 Vin. 472.-2. But this is denied by Mr. Preston. 2 Est. 5.

(u) Shep. Touch. 101.

(A 4.) When there may be a fee upon a fee.

A man cannot have a more ample, or greater estate of inheritance than a fee simple. Lit. S. 11. (x)

And therefore, where a man is said to be seised in fee, generally, it shall be understood in fee simple. Lit. S. 293.

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. Vau. 269. 2 Cro. 591.

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. Co. L. 18. a. (y)

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. Co. L. 18. a. Dub. Vau. 269. Acc. Pl. Com. 29. b.

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

(r) 1. Dyer, 4. a. 33. a. 330. 1 Rep. 85. a. Cro. Jac 591. 3 Atk. 774. Amb. 204. Fearne, 342-349. Cro. Car. 57. Cro.Jac. 695. 1 Ld. Raym. 326. 1 Inst 18. 2 Ves. 180. 10 Rep. 97. b.-2. And Lord Coke, in commenting on this text, lays it down, that the doctrine extends as well to fees simple conditional and qualified, as to fees simple pure and absolute.-3. And he gives this example of its application; if land be given to H. and his heirs so long as B. hath heirs of his body, remainder in fee, the remainder is void. 1 Prest. Est. 484. doubted by Vaughan C. J., Vaugh. 269. et vide the comment in Prest. from 484. to 487. .-3. Who states that the consent of authorities has clearly stated the law to be, that a fee may not, by the grant of the party, be limited with effect to depend on, and to take place after, a fee not being an estate tail, so as to be a remainder under a conveyance at common law. 1 Blk. 177.-4. And that the same observation applies to limitations, or declarations of use and of trust.5. But that still it is clear, that at common law, there may be two concurrent fees; the latter to take place, in case the former should fail of effect, and never vest in interest. 1 L. Raym. 203. 6 T. R. 30.

(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.

age,

age, and not married, to B: it shall be good. 2 Rol. 791. 1. 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 sons 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 A. has 12 acres to him and his heirs to be annually allotted in a meadow of 80 acres. Co. L. 4. a.

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 (≈), or conditional. (a) Co. L. 1. b.

As, if land be given to A. and his heirs, tenants of such a manor. Co. L. 27. a. (b)

To the king and his heirs, kings of England.
To B. and his heirs, lords of the manor of D.

Co. L. 27. a. (c)
Co. L. 27. a. (d)

So,

(x) 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

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. Cc. 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. () 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. l. 15.

So, if an estate was given to a man and the heirs male of his body,

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 20%. 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. 525. 578. Carter, 75. 107.-12. Until a minor shall attain his age of twenty-one. 3 Atk. 74. Amb. 204. Fearne, 342. 9 Mod. 28. 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.

-

(e) 1 Inst. 11. 9 Hen. 6. 25. 11 Hen. 6. 13. 1 Inst. 27. b. 18 Ass. pl. 5. 18 Ed. 3. 45. b. 46. a. Moor, 424. 8 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. Litt. 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 boroughenglish, &c. the customary heirs may take under this express designation. Hob. 31. 1 Prest. Est. 462, 463.

(4) 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.)

the