that to his own pleasure, or to the disposition of the law. The true meaning of the word fee (feodum) is the same with that of feud or fief, and in its original sense it is *taken in contradistinction to allodium; (f) which latter the [*105] writers on this subject define to be every man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree; and the owner thereof hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is held of some superior on condition of rendering him service; in which superior the ultimate property of the land resides. And therefore Sir Henry Spelman (g) defines a feud or fee to be the right which the vassal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services: the mere allodial propriety of the soil always remaining in the lord. This allodial property no subject in England has; (h) it being a received, and now undeniable principle in the law, that all the lands in England are holden mediately or immediately of the king. The king therefore only hath absolutum et directum dominium : (i) but all subjects' lands are in the nature of feodum or fee: whether derived to them by descent from their ancestors, or purchased for a valuable consideration; for they cannot come to any man by either of those ways, unless accompanied with those feudal clogs which were laid upon the first feudatory when it was originally granted. A subject therefore hath only the usufruct, and not the absolute property of the soil; or, as Sir Edward Coke expresses it, (k) he hath dominium utile, but not dominium directum. And hence it is, that, in the most solemn acts of law, we express the strongest and highest estate that any subject can have, by these words: "he is seised thereof in his demesne, as of fee." It is a man's demesne, dominicum, or property, since it belongs to him and his heirs forever: yet this dominicum, property, or demesne, is strictly not absolute or allodial, but qualified or feudal: it is his demense, as of fee: that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides.

*This is the primary sense and acceptation of the word fee. But (as [*106] Sir Martin Wright very justly observes) (?) the doctrine, "that all lands

are holden," having been for so many ages a fixed and undeniable axiom, our English lawyers do very rarely (of late years especially) use the word fee in this its primary original sense, in contradistinction to allodium or absolute property, with which they have no concern; but generally use it to express the continuance or quantity of estate. A fee therefore, in general, signifies an estate of inheritance; being the highest and most extensive interest that a man can have in a feud: and when the term is used simply, without any other adjunct, or has the adjunct of simple annexed to it (as a fee or a fee-simple,) it is used in contradistinction to a fee conditional at the common law, or a fee-tail by the statute; importing an absolute inheritance, clear of any condition, limitation, or restrictions to particular heirs, but descendible to the heirs general whether male or female, lineal or collateral. And in no other sense than this is the king said to be seised in fee, he being the feudatory of no man. (m)

Taking therefore fee for the future, unless where otherwise explained in this its secondary sense, as a state of inheritance, it is applicable to, and may be had in, any kind of hereditaments either corporeal or incorporeal. (n) But there is this distinction between the two species of hereditaments: that, of a corporeal inheritance a man shall be said to be seised in his demesne, as of fee; of an incorporeal one, he shall only be said to be seised as of fee, and not in his demesne. (0) For, as incorporeal hereditaments are in their nature collateral to, and issue out of, lands and houses, (p) their owner hath no property, domin

(f) See pp. 45, 47.

(g) Of feuds, c. 1.

(2) Of ten, 148.

(h) Co. Litt. 1.

(i) Prædium domini regis est directum dominum, cujus nullus est author nisi Deus. Ibid.

(k) Co. Litt. 1.

(n) Feodum est quod

(0) Litt.

10.

(m) Co. Litt. 1.

quis tenet sibi et hæredibus suis, sive sit tenementum, sive reditus, &c. Flet. l. 5, c. 5. § 7 (p) See page 20.

Chap. 7.]

FEE-SIMPLE.

icum, or demesne, in the thing itself, but hath only something derived out of
it; resembling the servitutes, or services, of the civil law. (q) The dominicum
or property is frequently *in one man, while the appendage or service is
in another. Thus Gaius may be seised as of fee of a way leading over
the land, of which Titius is seised in his demesne as of fee. (2)

[ *107 ]

The fee-simple or inheritance of lands and tenements is generally vested and resides in some person or other; though divers inferior estates may be carved out of it. As if one grants a lease for twenty-one years, or for one or two lives, the fee-simple remains vested in him and his heirs; and after the determination of those years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee-simple. Yet sometimes the fee may be in abeyance, that is, (as the word signifies,) in expectation, remembrance, and contemplation in law; there being no person in esse in whom it can vest and abide: though the law considers it as always potentially existing, and ready to vest whenever a proper owner appears. (3) 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 vest in the heirs of Richard till his death, nam nemo est hæres viventis: it remains therefore in waiting or abeyance, during the life of Richard. (r) (4) This is likewise always the case of a parson of a church, who hath only an estate therein for the term of his life; and the inheritance remains in abeyance. (8) And not only the fee, but the freehold also, may be an abeyance; as, when a parson dies, the freehold of his glebe is in abeyance, until a successor be named, and then it vests in the successor. (†) (5)

(q) Servitus est jus, quo res mea alterius rei vel persona servit. Ff. 8. 1. 1. (r) Co. Litt. 342.

(8) Litt. 646.

(t) Ibid.

647.

(2) [See page 20, where the author does not confine incorporeal hereditaments to things issuing out of lands and houses, but to things issuing out of any thing corporate, real or personal. But the true reason of the distinction is clearly, not that the owner of the derivative has no property in the land or house from which it is derived, but that the thing in which he has a property, the right of way for instance, is incorporeal, and incapable of being in manu, or actual possession.

When a man is said to be seised in his demesne, it seems rather to be intended to express that he has the actual beneficial property, and not a mere seignory or right to services. This is the well known meaning of the term when the demesne lands of a manor are spoken of.]

(3) [This rule and its exceptions are thus distinctly stated by Mr. Preston in his treatise on "It may be assumed as a general rule, that the first estate of freehold Estates, 1 vol. 216, 217. passing by any deed, or other assurance operating under the rules of the common law, cannot be put in abeyance. 5 Rep. 94; 2 Bla. Com. 165; 1 Burr. 107. This rule is so strictly observed: 2 Bla. Com. 165; 5 Rep. 194; Com. Dig. Abeyance; that no instance can be shewn in which the law allows the freehold to be in abeyance by the act of the party. The case of a parson is not an exception to the rule: for it is by the act of law, and not of the party, that the freehold is, in this instance, in abeyance, from the death of the incumbent till the induction of his successor: 1 Inst. 341, a; and considered as an exception, it is not within the reason of the rule."]

(4) The inheritance or remainder in such a case has been said to be in abeyance, or in nubibus, Mr. Fearne proor in gremio legis; but Mr. Fearne, with great ability and learning, has exposed the futility of these expressions, and the erroneous ideas which have been conveyed by them. "that where a remainder of inheritance is duces authorities, which prove beyond controversy, limited in contingency by way of use, or by devise, the inheritance in the mean time, if not otherwise disposed of, remains in the grantor and his heirs, or in the heirs of the testator, until the contingency happens to take it out of them." Fearne Cont. Rem. 513, 4th edit.

But although, as Mr. Fearne observes, "different opinions have prevailed in respect to the admission of this doctrine in conveyances at common law :" id. 526; yet he adduces arguments and authorities which render the doctrine as unquestionable in this case as in the two former of uses and devises. If, therefore, in the instance put by the learned judge, John should determine his estate either by his death or by a feoffment in fee, which amounts to a forfeiture, in the life time of Richard, under which circumstance the remainder never could rest in the heirs of Richard, in that case the grantor and his heir may enter and resume the estate.]

(5) [Mr. Fearne having attacked with so much success the doctrine of abeyance, the editor may venture to observe with respect to the two last instances, though they are collected from the text of Littleton, that there hardly seems any necessity to resort to abeyance, or to the clouds, to explain the residence of the inheritance, or of the freehold. In the first case, the whole fee simple is conveyed to a sole corporation, the parson and his successors; but if any interest is not conveyed, it still remains, as in the former note, in the grantor and his heirs, to

395

2

The word "heirs" is necessary in the grant or donation, in order to make a fee, or inheritance. For if land be given to a man forever, or to him and his assigns forever, this vests in him but an estate for life. (u) This very great nicety about the insertion of the word "heirs" in all feoffments and grants, in order to vest a fee, is plainly a relic of the feudal strictness; by which we may [*108] remember (w) it was required, *that the form of the donation should be punctually pursued; or that, as Cragg (x) expresses it in the words of Baldus, "donationes sint stricti juris, ne quis plus donasse præsumatur quam in donatione expresserit." And therefore, as the personal abilities of the donee were originally supposed 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 express provision in the grant, gave it a longer continuance, and extended it also to his heirs. But this rule is now softened by many exceptions. (y)

For, 1. It does not extend to devises by will; (6) in which, as they were introduced at the time when the feudal rigour was apace wearing out, a more liberal

(u) Ibid. § 1.

(w) See page 56.

(x) l. 1, t. 9, 17.

(y) Co. Litt. 9. 10.

whom, upon the dissolution of the corporation, the estate will revert. See book 1, 484. And in the second case the freehold seems, in fact, from the moment of the death of the parson, to rest and abide in the successor, who is brought into view and notice by the institution and induction; for after induction he can recover all the rights of the church, which accrued from the death of his predecessor.] See 6 Cl. and Fin. 850.

(6) [See post, the 23d chapter of this book, page 380. Lord Coke teaches us, 1 Inst. 322, b, that it was the maxim of the common law, and not, as has been sometimes said, Idle v. Cook, 1 P. Wms. 77, a principle arising out of the wording of the statutes of wills: 32 Hen. VIII, c. 1; 34 Hen. VIII, c. 5; "quod ultima voluntas testatoris est perimplenda, secundum veram intentionem suam." For this reason, Littleton says, sect. 586, if a man deviseth tenements to another, habendum in perpetuum, the devisee taketh a fee simple; yet, if a deed of feoffment had been made to him by the devisor of the said tenements, habendum sibi in perpetuum, he should have an estate but for term of his life, for want of the word heirs. In Webb v. Herring, 1 Rolle's Rep. 399, it was determined, that a devise to a man and his successors, gives a fee. But, whether a devise to a man and his posterity would give an estate tail, or a fee, was doubted in The Attorney-General v. Bamfield, 2 Freem. 268. Under a devise to a legatee, "for her own use, and to give away at her death to whom she pleases," Mr. Justice Fortescue said, there was no doubt a fee passed: Timewell v. Perkins, 2 Atk. 103; and the same doctrine was held in Goodtitle v. Otway, 2 Wils. 7; see also infra. And a devise of the testator's lands and tenements to his executors, "freely to be possessed and enjoyed by them alike," was held, in Loveacres v. Blight, Cowp. 357, to carry the fee: for the testator had charged the estate with the payment of an annuity, which negatived the idea, that, by the word freely he only meant to give the estate free of incumbrances: the free enjoyment, therefore, it was held, must mean, free from all limitations. But, if the testator had not put any charge on the estate, this would not have been the necessary construction; nor would so extended a meaning have been given to those words against the heir, in any case where it was not certain that the testator meant more than that his devisee should possess and enjoy the estate, free from all charges, or, free from impeachment of waste. Goodright v. Barron, 11 East, 224.

Thus, if a man devises all his freehold estate to his wife, during her natural life, and also at her disposal afterwards, to leave it to whom she pleases, the word leave confines the authority of the devisee for life to a disposition by will only. Doe v. Thorley, 16 East, 443; and see infra. This, it will at once be obvious, is by no means inconsistent with what was laid down in Timewell v. Perkins, as before cited. The distinction is pointed out in Tomlinson v. Dighton: 1 P. Wms. 174; thus, where a power is given, with a particular description and limitation of the estate devised to the donee of the power, the power is a distinct gift, coming in by way of addition, but will not enlarge the estate expressly given to the devisee; though, when the devise is general and indefinite, with a power to dispose of the fee, there the devisee himself takes the fee. In some few instances, indeed, courts of equity have inclined to consider a right of enjoyment for life, coupled with a power of appointment, as equivalent to the absolute property. Standen v. Standen, 2 Ves. Jun. 594. A difference, however, seems now to be firmly established, not so much with regard to the party possessing a power of disposal, as out of consideration for those parties whose interests depend upon the non-execution of that power. Croft v. Slee, 4 Ves. 64. Confining the attention to the former, there may be no reason why that which he has power to dispose of should not be considered as his property; but the interests of the latter ought not to be affected in any other manner than that specified at the creation of the power. Holmes v. Coghill, 7 Ves. 506; Jones v. Curry, 1 Swanst. 73; Reid v. Shergold, 10 Ves. 383. When, therefore, a devise or bequest (for the principle seems to apply equally to realty as to personalty), is made to any one expressly for life, with a power

construction is allowed; and therefore by a devise to a man forever, or to one and his assigns forever, or to one in fee-simple, the devisee hath an estate of inheritance; for the intention of the devisor is sufficiently plain from the words 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 per

of appointment, by will only, superadded, that power (as already has been intimated) must be executed in the manner prescribed; for, the property not being absolute in the first taker, the objects of the power cannot take without a formal appointment; but, where the devise or bequest is made indefinitely, with a superadded power to dispose by will or deed, the property (as we have seen) vests absolutely. The distinction may, perhaps, seem slight, but it has been judicially declared to be perfectly settled. Bradly v. Westcott, 13 Ves. 453; Anderson v. Dawson, 15 id. 536; Barford v. Štreet, 16 id. 139; Nannock v. Horton, 7 id. 398; Irwin v. Farrer, 19 id. 87. Where an estate is devised absolutely, without any prior estate limited to such uses as a person shall appoint, that is an estate in fee. Langham v. Nenny, 3 Ves. 470. And the word "estate," when used by a testator, and not restrained to a narrower signification by the context of the will, Doe v. Hurrell, 5 Barn. and Ald. 21, is sufficient to carry real estate: Barnes v. Patch, 8 Ves. 608; Woollam v. Kenworthy, 9 id. 142; and that not merely a life interest therein, but the fee, although no words of limitation in perpetuity are added. Roe v. Right, 7 East, 268; Right v. Sidebotham, 2 Dougl. 763; Charlton v. Taylor, 3 Ves. and Bea. 163; Pettiward v. Prescott, 7 Ves. 545; Nicholls v. Butcher, 18 id. 195. And although the mere introductory words of a will, intimating in general terms the testator's intention to dispose of "all his estate, real and personal," will not of themselves pass a fee, if the will, in its operative clauses, contains no further declaration of such intent; still, where the subsequent clauses of devise are inexplicit, the introductory words will have an effect on the construction, as affording some indication of the testator's intention. Ibbetson v. Beckwith, Ca. temp. Talb. 160; Goodright v. Stocker, 5 T. R. 13; Doe v. Buckner, 6 id. 612; Gulliver v. Poyntz, 3 Wils. 143; Smith v. Coffin, 2 H. Bla. 450. But though slight circumstances may be admitted to explain obscurities: Randall v. Morgan, 12 Ves. 77; and words may be enlarged, abridged, or transposed, in order to reach the testator's meaning, when such liberties are necessary to make the will consistent: Keiley v. Fowler, Wilm. notes, 309; still, no operative and effective clause in a will must be controlled by ambiguous words occurring in the introductory parts of it, unless this is absolutely necessary in order to furnish a reasonable interpretation of the whole: Lord Oxford v. Churchill, 3 Ves and Bea. 67; Hampson v. Brandwood, 1 Mad. 388; Leigh v. Norbury, 13 Ves. 344; Doe v. Pearce, 1 Pr. 365: neither can a subsequent clause of limitation as to one subject of devise, be governed by words of introduction which, though clear, are not properly applicable to that particular subject: Nash v. Smith, 17 Ves. 33; Doe v. Clayton, 8 East, 144; Denn v. Gaskin, Cowp. 661; while, on the other hand, an express disposition in an early part of a will must not receive an exposition from a subsequent passage, affording only a conjectural inference. Roach v. Hynes, 8 Ves. 590; Barker v. Lea, 3 Ves. and Bea. 117; S. C., 1 Turn. and Russ, 416; Jones v. Colbeck, 8 Ves. 42; Parsons v. Baker, 18 id. 478; Thackeray v. Hampson, 2 Sim. and Stu. 217.

Where an estate is devised, and the devisee is subjected to a charge, which charge is not directed to be paid out of the rents and profits, the devise will carry a fee-simple, notwithstanding the testator has added no words of express limitation in perpetuity. Upon this point, the distinction is settled, that, where the charge is on the person to whom the land is devised (in general terms, not where he has an estate-tail given him, Dean v. 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 v. Maddern, 4 East, 500; Doe v. Holmes, 8 T. R. 1; Doe v. Clarke, 2 New Rep. 349; Roe v. Daw, 3 Mau. and Sel. 522; Baddeley v. 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 v. 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 v. Denn, 2 Bos. and 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 prima 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 v. Canning, Mosely, 242, it was considered as quite settled by the decision in Hopewell v. 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 v. Moore, in its previous stages of litigation: 3 Anstr. 787; 5 T. R. 563; as also Pocock v. The Bishop of Lincoln, 3 Brod. and Bing. 33.]

By the wills act, 1 Vic. c. 26, s. 28, it is provided that a devise of any real estate without words of limitation, shall carry the fee-simple, or the whole interest, whatever it may be, of the testator, unless a contrary intention appear by the will.

66

petuity, 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. (z) 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. (7) Nay, in a grant to a [*109] bishop, or other sole spiritual corporation, in frankalmoign; the word "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. (8)

66

(b) See book I, p. 249.

(7) [But the word "heirs" in a grant to a corporation sole, will not convey a fee, any more than the word "successors" in a grant to a natural person. Co. Litt. 8, b.]

(8) In many of the states of the American union, the strict rule of the common law requiring the use of the word "heirs" has been changed by statutes, which make a deed convey an estate of inheritance where it appears from the instrument that such was the intent of the parties. In the absence of such statutes, however, the common law rule is still in force. Sedgwick v. Laflin, 10 Allen, 430; Clearwater v. Rose, 1 Blackf. 137; Adams v. Ross, 1 Vroom, 511; Jones v. Bramblet, 1 Scam. 276; Van Horn v. Harrison, 1 Dall. 137.

And generally no other words, though conveying to the unprofessional mind a clear intent to transfer an inheritance, will be sufficient for the purpose. A strong illustration of this is the case of Foster v. Joice, 3 Wash. C. C. 498, where a deed to M. "and his generation, to endure so long as the waters of the Delaware run," was held to convey a life estate only. See an exceptional case in Johnson v. Gilbert, 13 Rich. Eq. 42. In Vermont, it was held that a lease of premises to hold, "as long as wood grows and water runs," conveyed a fee: Arms v. Burt, 1 Vt. 303; but this case is not in harmony with the others above referred to. See 4 Kent, 6. A legislative grant, it has been held, may convey a fee without making use of the technical words essential in a deed. Rutherford v. Greene, 2 Wheat. 196. And a government deed given to carry into effect & donation previously confirmed by the proper authorities, and which runs to the donee "or his heirs," in trust for the person or persons rightfully entitled, will be regarded as intending to convey the fee to the donee, if living, and to his heirs if he be dead. Ready v. Kearsley, 14 Mich. 215. See Freidman v. Goodwin, 1 McAll. 142; Griffing v. Gibb. Ibid. 212. A government grant in any form the legislature may prescribe is sufficient, and it will take effect according to the intent. Patton v. Easton, 1 Wheat. 476; Rutherford v. Greene, 2 Wheat. 196; Strother v. Lucas, 6 Pet. 763.

That where, by will, lands are devised in terms which indicate an intent to pass all the testator's interest, a fee (it he has it) will pass without the use of the word "heirs," see the following American cases; Newkerk v. Newkerk, 2 Caines, 345; Morrison v. Semple, 6 Binn. 94; Jackson v. Merrill, 6 Johns. 192; Jackson v. Housel, 17 id. 281; Fogg v. Clark, 1 N. H. 163; Baker v. Bridge, 12 Pick. 31; Godfrey v. Humphrey, 18 id. 537; Lambert v. Paine, 3 Cranch, 97; Kellogg v. Blair, 6 Metc. 322; Tracy v. Kilborn, 3 Cush. 557; Lilliard v. Robinson, 3 Litt. 415.

Another important class of cases ought to be mentioned here as an exception to the general rule, that the use of the word "heirs" is essential to pass a fee. We refer to conveyances in trust, in which case the trustee must be held to take an estate as large as may be necessary for the purposes of the trust, whether the instrument of conveyance contains words of inheritance or not. Illustra tions of this exception may be seen in the following cases: Spessard v. Rhorer, 9 Gill, 261; Newhall v. Wheeler, 7 Mass. 189; Farquharson v. Eichelberger, 15 Md. 63; Gould v. Lamb, 11 Metc. 87; Angell v. Rosenbury, 12 Mich. 241; Fisher v. Fields, 10 Johns. 495; Welch v. Allen, 21 Wend. 147; Attorney-General v. Proprietors, etc., 3 Gray, 48; Neilson v. Lagow, 12 How. 98; Korn v. Cutler, 26 Conn. 4; North v. Philbrook, 34 Me. 532. See as to this rule Weller v. Rolason, 2 Green, N. J., 13; Perry on Trusts, sec. 312 to sec. 320. A grant to a sovereignty requires no words of inheritance. Josephs v. United States, 1 Court of Claims R. 197.