ject into fees simple, fees qualified, fees conditional, and fees tail.

a

(1.) Fee simple is a pure inheritance, clear of any qualification or condition, and it gives a right of succession to all the heirs generally, under the restriction that they must be of the blood of the first purchaser, and of the blood of the person last seised. It is an estate of perpetuity, and confers an unlimited power of alienation, and no person is capable of having a greater estate or interest in land. Every restraint upon alienation is inconsistent with the nature of a fee simple, and if a partial restraint be annexed to a fee, as a condition not to alien for a limited time, or not to a particular person, it ceases to be a fee simple, and becomes a fee subject to a condition.

The word heirs is, at common law, necessary to be used, if the estate is to be created by deed. The limitation to the heirs must be made în direct terms, or by immediate reference, and no substituted words of perpetuity, except in special cases, will be allowed to supply their place, or make an estate of inheritance in feoffments and grants.

a Litt. sect. 1. and 11. Co. Litt. 1. b. Fleta, lib. iii. c. 8. Plowd. 557. 8.-But the above restriction has been essentially changed in this country, as we shall see hereafter, when we come to treat of the law of descent.

b Lord Coke, in Co. Litt. 8. b. says, that a grant to a man and his heir in the singular number, conveys only an estate for life, because the heir is but one. This is a strange reason to be given, under a system of law which prefers males to females in the course of descent, and in which the right of primogeniture among the males is unrelentingly enforced. Mr. Hargrave, note 45. to Co. Litt. 8. b. questions the doctrine, and he says there are authorities to show that the word heir, in a deed as well as in a will, may be taken for nomen collectivum, and stand for heirs in general. The doctrine of Coke was very vigorously attacked by Lord Ch. J. Eyre, near a century ago, in Dubber v. Trollope, Amb. 453.; and Lord Coke himself showed, in Co. Litt. 22. a., that an estate tail, with the word heir in the singular number, was created and allowed in 39 Ass. pl. 20. Notwithstanding all this authority in opposition to the rule as stated by Lord Coke, and the unintelligible reason assigned for it, Mr. Preston states the rule as still the existing law. Treatise on Estates, vol. ii. p. 8.

r Litt. sec. 1.

The location of the word in any particular part of the grant is not essential; for a grant of a rent to A, and that he and his heirs should distrain for it, will pass a fee. The general rule is applicable to all conveyances governed by the rules of the common law; for though prior to the statute of uses, the fee, in the view of a Court of Chancery, passed by reason of the consideration, in a bargain and sale, or covenant to stand seised to uses, without any express limitation to the heirs; yet when uses were by statute transferred into possession, and became legal estates, they were subjected to the scrupulous and technical rules of the courts of law. The example at law was followed by the courts of equity, and the same legal construction applied by them to a conveyance to uses. If a man purchases lands to himself for ever, or to him and his assigns for ever, he takes but an estate for life. Though the intent of the parties be ever so clearly expressed in the deed, a fee cannot pass without the word heirs. The rule was founded originally on principles of feudal policy, which no longer exist, and it has now become entirely technical. A feudal grant was stricti juris, made in consideration of the personal abilities of the feudatory, and his competency to render military service; and it was consequently confined to the life of the donee, unless there was an express provision that it should go to his heirs.<

But the rule has for a long time been controlled by a more liberal policy, and it is counteracted in practice by other rules, equally artificial in their nature, and technical in their application. It does not apply to conveyances by fine, when the fine is in the nature of an action, as the fine sur conuzance de droit, on account of the efficacy and so

a Lord Coke, in 3 Bulst. 128.

b 1 Co. 87. b. 100. b. Gilbert on Uses and Trusts, by Sugdon, 29. 143. Tapner v. Merlot, Willes' Rep. 177. Van Horn v. Harrison,

1 Dal. Rep. 137.

c Holt, Ch. J., 6 Mod. Rep. 109.

d 2 Blacks. Com. 107, 108.

lemnity of the conveyance, and because a prior feoffment in fee is implied. Nor does the rule apply to a common recovery, which is in legal contemplation a real action; for the recoverer takes a fee by fiction of law, according to the extent of his former estate, of which he is supposed to be disseised. It does not apply to a release by way of extinguishment, as of a common of pasture; nor to a partition between joint-tenants, coparceners, and tenants in common; nor to releases of right to land by way of discharge or passing the right, by one joint-tenant or coparcener to another. In taking a distinct interest in his separate part of the land, the releasee takes the like estate in quantity which he had before in common. Grants to corporations aggregate pass the fee without the words heirs or successors, because in judgment of law a corporation never dies, and is immortal by means of perpetual succession. In wills a fee will also pass without the word heirs, if the intention to pass a fee can be clearly ascertained from the will, or a fee be necessary to sustain the charge or trust created by the will. It is likewise understood, that a court of equity will supply the omission of words of inheritance; and in contracts to convey, it will sustain the right of the party to call for a conveyance in fee, when it appears to have been the intention of the con tract to convey a fee,

Thus stands the law of the land, without the aid of legislative provision. But in this country, the statute law has in several instances abolished the inflexible rule of the common law, which has long survived the reason of its introduction, and has rendered the insertion of the word

a Co. Litt. 9. b. Preston on Estates, vol. ii. 51, 52.

b Ibid. 2 Blacks. Com. 357.

c Co. Litt. 280. a.

d Co. Litt. 9. b. 273. b. Preston, ub sup. 5. 55—59.

e Co. Litt. 9. b.

f Ibid. Holdfast v. Marten, 1 Term Rep. 411. Fletcher v. Smiton, 2 ibid. 656. Newkirk v. Newkirk, 2 Caines' Rep. 345. Dane's Abr. vol. iv. ch. 128.

9 Comm's Dig. tit. Chancery, 2. T. 1.

heirs no longer necessary. In Virginia, Kentucky, Alabama, and New-York, the word heirs, or other words of inheritance, are no longer requisite, to create or convey an estate in fee; and every grant or devise of real estate made subsequent to the statute, passes all the interest of the grantor or testator, unless the intent to pass a less estate or interest appears in express terms or by necessary implication. The statute of New-York also adds, for greater caution, a declaratory provision, that in the construction of every instrument creating or conveying any estate or interest in land, it shall be the duty of the courts to carry into effect the intention of the parties, so far as such intention can be collected from the whole instrument, and is consistent with the rules of law. Some of the other states, as New-Jersey, North Carolina, and Tennessee, have confined the provision to wills, and left deeds to stand upon the settled rules and construction of the common law. They have declared by statute, that a devise of lands shall be construed to convey a fee simple, unless it appears, by express words or manifest intent, that a lesser estate was intended.b

a Statute of Virginia, December 13, 1792. Statute of Kentucky, December 19, 1796. New-York Revised Statutes, vol. i. 748. sect. 1,2. Griffith's Law Register.

6 Mr. Humphreys, in his Essay on Real Property, and Outlines of a Code, p. 235. 1st edit. has proposed the same reform, of rendering the word heirs no longer necessary in conveyances in fee; and the American lawyer cannot but be forcibly struck, on the perusal of that work, equally remarkable for profound knowledge and condensed thought, with the analogy between his proposed improvements and the actual condition of the jurisprudence of this country. But I think it very probable that the abolition of the rule requiring the word heirs, to pass a fee by deed, will engender litigation. There was none under the operation of the rule. The intention of the grantor was never defeated by the application of it. He always used it when he intended a fee. Technical and artificial rules of long standing and hoary with age, conduce exceedingly to certainty and fixedness in the law, and are infinitely preferable on that account to rules subject to be bent every day by loose latitudinary reasoning. A lawyer always speaks with confidence on questions of right under a deed, and generally circumspectly as to questions of right under a will.

(2.) A qualified, base, or determinable fee, (for I shall use the words promiscuously,) is an interest which may continue for ever, but the estate is liable to be determined by some act or event, circumscribing its continuance or extent. Though the object on which it rests for perpetuity may be transitory or perishable, yet such estates are deemed fees, because it is said, they have a possibility of enduring for ever. A limitation to a man and his heirs, so long as A. shar have heirs of his body; or to a man and his heirs, tenants of the manor of Dale; or till the marriage of B.; or so long as St. Paul's church shall stand, or a tree shall stand, are a few of the many instances given in the books in which the estate will descend to the heirs, but continue no longer than the period mentioned in the respective limitations, or when the qualification annexed to it is at an end. If the event marked out as the boundary to the time of the continuance of the estate, becomes impossible, as by the death of B. before his marriage, the estate then ceases to be determinable, and changes into a simple and absolute fee; but until that time, the estate is in the grantee, subject only to a possibility of reverter in the grantor. It is the uncertainty of the event, and the possibility that the fee may last for ever, that renders the estate a fee, and not merely a freehold. All fees liable to be defeated by an executory devise, are determinable fees, and continue descendible inheritances until they are discharged from the determinable quality annexed to them, either by the happening of the event, or by a release. These qualified or determinable fees are likewise termed base fees, because their duration depends upon the concurrence of collateral circumstances, which qualify and debase the purity of the title. A tenant in tail may, by a bargain and sale, lease

a Plowd. 557. a. 10 Co. 97. b. 11 Co. 49. a. 1 Ld. Raym. 326. Powell, J. in Idle v. Cooke. 2 Ld. Raym. 1148. 2 Black. Com. 109: Preston on Estates, vol. i. 431, 432, 433. 441. 481, 482, 483.

b Goodwright v. Searle, 2 Wils. Rep. 29.