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

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 T. R. 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, (Keily 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. & Bea. 67. Hampson v. Brandwood, I Mad. 388. Leigh v. Norbury, 13 Ves. 344. Doe v. Pearce, I 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;) whilst, 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. Haynes, 8 Ves. 590. Barker v. Lea, 3 Ves. & Bea. 117, S. C. 1 Turn. & Russ. 416. Jones v. Colbeck, 8 Ves. 42. Parsons v. Baker, 18 Ves. 478. Thackeray v. Hampson, 2 Sim. & 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, Denn 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. Holmes, 8 T. R. 1. Doe v. Clarke, 2 New Rep. 349. Roe v. Daw, 3 Mau. & Sel. 522. Baddeley v. Leapingwell, Wilm. Notes, 235. Collier's case, 6 Rep. 16. Jackson v. Merril, 6 Johnson, 192, N. Y., 1810. Washburn on Real Prop. vol. 1, 5 ed. p. 91.

Doe v.

With regard to the operation of the word "hereditaments" in a will, Mr. Justice Buller said there had 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. & 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, I 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 London, 3 Brod. & Bing. 33.

Mr. Preston, in page 42 (4) of the second volume of his Treat. of Est., observes, "The rule requiring the designation in terms, or by reference, of heirs in the limitation of estates is confined, even with respect to common-law assurances, to those cases in which the assurances are to natural persons. The rule does not take place where the assurances are made to corporations, or are made by matter of record, or operate only to extinguish a right or a collateral interest, or which give one interest in lieu of another, or release the unity of title, or confer an equitable interest by way of contract, as distinguished from a conveyance.' These and other instances, as well as those of wills, (to which the rule does not extend,) he says are more properly to be considered as not coming within the scope of the rule, or of the policy of the law which was the foundation of the rule, than as exceptions to the rule; and he devotes the greater part of the remainder of the volume cited to a collection and illustration of the different classes of cases in which a fee has been held to pass though the word "heirs" has not been used. To this ample store

words of inheritance. (27)(28) But if the devise be to a man and his assigns, without annexing words of perpetuity, there the devisee shall take only an estate for life; for it does not appear that the devisor intended any more. (29) 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. (2) 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, (30) the word "heirs" must be inserted, otherwise there is no inheritance. (31) 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. (32) *109] Nay, in a grant to a bishop, or other sole spiritual corporation, in frankalmoign, the word "frankalmoign" supplies the place of "successors," (as the word (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)(33) 5. Lastly, in the case of the king, a fee-simple will vest in him, without the word "heirs" or ་་ successors "in the grant;

(z) Co. Litt. 9.

(a) See book i. p. 484.

house of materials the reader who wishes to examine the subject more at length is referred. -CHITTY.

(27) It is now provided by statute in England that where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will. 7 Will. IV. and I Vict. c. 26. Chitty's Eng. Stats. vol. 12, title Wills, p. 21.

Williams on Real Prop. 6 ed. p. 217.

Cole v. Lake Co., 54 N. H. 288 (1874). Washburn on Real Prop. 5 ed. vol. 1, p. 90. Trimble v. Hensley, 10 Mo. 311 (1847).

(28) If it be shown from the words of the deed that it was the intent to convey a fee simple, the proper words may be added to the deed by a decree of the court in an action, for the reformation of the deed.-Tiedeman on Real Prop. 2 ed. par. 37.

(29) The expression "I give and bequeath to and the heirs of her body for her sole and separate use during her natural life," was held at common law to create an estate tail Skillin v. Lloyd, 6 Cold. (Tenn.) 564 (1869).

(30) [Of strict right.]

(31) Emerson v. Mooney, 50 N. H. 320 (1870). Goodeve's Mod. Law of R. P. (3 ed.) 81. (32) In a grant of land to a sole corporation the word heirs will not convey a fee any more than the word successors would in a grant to a natural person. For instance, a limitation to a parson in his politic capacity and to his heirs gives him only an estate for life. Co. Litt. 8, b. 4 H. 5, 9. The word successors, however, is not necessary to pass a fee to a sole corporation in case of a gift in frankalmoign, and should be omitted as surplusage. Co. Litt. 94, 5. When a corporation has entered into a binding contract to supply water to a mill it will not be allowed to repudiate after the demise of the lessee on the ground that the term legal representatives, instead of heirs, was used in the lease. Cole v. Lake Co., 54 N. H. 278 (1874). In a grant of land, although the word heirs was omitted, when it was plainly shown by popular language used, that a title in fee simple was intended to be conveyed, the court held that the intent, rather than the technical words should be followed. Ibid. 289 (1874).

(33) Railway v. Bosworth, 46 Ohio, 85 (1890). People v. Obrien, 45 Hun. 526, N. Y. (1887).

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. (34)

II. We are next to consider limited fees, or such estates of inheritance as are clogged and confined with conditions, or qualifications, of any sort. And these we may divide into two sorts: 1. Qualified, or base fees; (35) and, 2. Fees conditional, so called at the common law; and afterwards fees-tail, in consequence of the statute de donis. (36)

1. A base, or qualified fee, is such a one as hath a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. (37) As, in the case of a grant to A. and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A. cease to be tenants of that manor, (38) the grant is entirely defeated. So, when Henry VI. granted to John Talbot, lord of the manor of Kingstone-Lisle in Berks, that he and his heirs, lords of the said manor, should be peers of the realm, by the title of barons of Lisle; here John Talbot had a base or qualified fee in that dignity, (c) and, the instant he or his heirs quitted the seignory

(b) See book i, p. 249.

(c) Co. Litt. 27.

(34) Two other classes of cases may be mentioned as exceptions to the rule that the word heirs is necessary to raise an estate in fee.

I. Where, by reference, another instrument which does contain the word heirs is incorporated with and made part of the conveyance. Nothing short of this, however clear the intent to do so may be, will enlarge a life-estate to a fee, not even if the reference be to a will, which, according to the liberal principles of interpretation adopted by the courts as to wills, creates a fee without words of inheritance. Lytle v. Lytle, 10 Watts, 259. By the deed in that case the grantor conveyed to the grantee "all his part of the estate left to him by his father's last will and testament;" and the will referred to ran thus:-"The remainder of my real and personal property I will to be equally divided betwixt my children." It was held that nothing but a life-estate passed to the grantee. If the will had contained a clause giving the property to him and his heirs, it would have come within the reason of the case. A fee-simple is conveyed, because by reference the other instrument is incorporated and made part of the conveyance; and if that should contain the essential word heirs, it is adjudged good as a conveyance of the fee.

2. A mere executory agreement to sell and convey land (which, however, if in writing or within the provisions of the statute of frauds, a chancellor will decree to be specifically performed by the execution of a regular and formal deed) need not contain the word heirs in order to convey in equity a fee. If the vendee, having paid the considerationmoney, has a right in equity to call on the vendor to convey, he has the equitable estate; and if the intention of the parties was to buy and sell a fee, he has an equitable feesimple, though the word heirs were not used. Defraunce v. Brooks, 8 W. & S. 67. In executory contracts, equity supplies words of inheritance, and implies a fee when the consideration evinces that not less than a fee was intended.-SHARSWOOD.

(35) Tiedeman on Real Prop. 2 ed. par. 44.

(36) [Of gifts.]

A question has arisen, whether after all, there is any such estate as a qualified or determinable fee, or whether this form of estate was done away with by the statute of quia emptores. "Whatever may be the true solution of this question in England, where the doctrine of tenure still has some significance, we think the existence of such an estate as a qualified or determinable fee must be recognized in this country." First Univ. Society v. Bowland, 155 Mass. 175 (1891).

(37) Washburn on Real Prop., vol. 1, 5 ed. p. 93. Brondage v. Warner, 2 Hill (N. Y.) 147 (1842). Hoge v. Hollister, 2 Chan. Tenn. 610 Cooper (1876). Clopton v. Clopton, 2 Heisk. (Tenn.) 36 (1870). State v. Brown, 3 Dutch. (Ñ. J.) 20 (1858).

Yelv. 150. Prest. on

I Barb. Rights of Pers. and Prop. 390-1. I Pingrey on R. P. 308, 309. (38) Even for a short period, and they afterwards resume it. Estates, 20. But if A die, the birth of a posthumous child will continue the tenancy and prevent the defeat of the grant. I Leon. 74.-ARCHBOLD.

*110] of this manor, the dignity was at an end. This estate (39) is a fee, because by possibility it may endure forever in a man and his heirs; (40) yet as that duration depends upon the concurrence of collateral circumstances, which qualify and debase the purity of the donation, it is therefore a qualified or base fee. (41)

2. A conditional fee, at the common law, was a fee restrained to some particular heirs, exclusive of others: "donatio stricta et coarctata; (d) sicut certis hæredibus quibusdam a successione exclusis;" (42) as to the heirs of a man's body, by which only his lineal descendants were admitted, in exclusion of collateral heirs; or to the heirs-male of his body, in exclusion both of collaterals, and lineal females also. (43) (44) It was called a conditional fee, by reason of the condition expressed or implied in the donation of it, that if the donee died without such particular heirs, the land should revert to the donor. (45) For this was a condition annexed by law to all grants whatsoever; that, on failure of the heirs specified in the grant, the grant should be at an end, and the land return to its ancient proprietor. (e) (46) Such conditional fees were strictly agreeable to the nature of feuds, when they first ceased to be mere estates for life, and were not yet arrived to be absolute estates in fee-simple. And we find strong traces of these limited, conditional fees, which could not be alienated from the lineage of the first purchaser, in our earliest Saxon laws. (ƒ)

Now, with regard to the condition annexed to these fees by the common law, our ancestors held, that such a gift (to a man and the heirs of his body) was a gift upon condition, that it should revert to the donor if the donee had no heirs of his body; but, if he had, it should then remain to the donee. (47) They therefore called it a fee-simple, on condition that he had issue. (48)

(d) Flet. l. 3, c. 3, 5.

Plowd. 241.

) Si quis terram hæreditariam habeat, eam non vendat a cognatis hæredibus suis, si illi viro prohibitum sit, qui eam ab initio acquisivit, ut ita facere nequeat. LL.

Alfred. c, 37. [He who possesses an hereditary estate may not, by sale, deprive his heirs by consanguinity of it, if he be prohibited from so doing by him who first acquired the land.]

(39) The proprietor of a qualified or base fee has the same rights and privileges over his estate, till the contingency upon which it is limited occurs as if he were tenant in feesimple. Walsingham's case, Plowd. 557.-CHITTY.

(40) Patterson v. McCausland, 3 Bland, 72, Md. Chan. (1872). Challis' Law of Real Property, 2 ed. 228, (1892.)

(41) See Minor's Insts. vol. 2, title Base Fees.

(42) ["A strict and limited donation; as to certain heirs, others being excluded from the succession."]

(43) In the passage above quoted from Fleta, Mr. Preston, in his Essay on Estates, p. 258, says he understands Fleta as speaking of estates-tail, and not of fees-conditional at common law; and he says (p. 285) that before the statute de donis a gift to a man and his heirs males of his body, or to a man and his heirs females of his body, would not have been allowed at common law. The word males in the one case, and the word females in the other, would have been rejected as repugnant to the estate.-ARCHBOLD. (44) Vanderheyden v. Crandall, 2 Denio N. Y. 19 (1846). Such a fee was called a feudum talliatum, from tailler, to cut or mutilate. Washburn on Real Prop. vol. 1, 5 ed. p. 98.

(45) I Pingrey on R. P. 310. Goodeve's Mod. Law of R. P. (3 ed.) 82. Rowland v. Warren, 10 Oregon 130 (1882). Boone, Real Property, 44, 45.

(46) Frazer v. Supervisors, 74 Ill. 286. Freeman(1874). Williams on Real Prop. 6 ed. p. 37. Overbaugh v. Patrie, 8 Barber 37 N. Y. (1850). I Sheppard's Touchstone, Pres

ton 102.

(47) Minor's Insts. supra.

(48) In the great case of Willion v. Berkley, (Plowd. 233,) lord C. J. Dyer said, upon the grant of a conditional fee, the fee-simple vested at the beginning by having issue, the donee acquired power to aliene, which he had not before; but the issue was not the cause of his having the fee; the first gift vested that; and, (in p. 235 of S. C.) it was said, when land was given (before the statute de donis) to a man and the heirs of his body, this was

(49) Now, we must observe, that, when any condition is performed, it is thenceforth entirely gone; and the thing to which it was before an nexed becomes absolute, and wholly unconditional. (50) So that, as [*1 soon as the grantee had any issue born, his estate was supposed to become absolute, by the performance of the condition, (51) at least, for these three. purposes: 1. To enable the tenant to aliene the land, and thereby to bar fot only his own issue, but also the donor of his interest in the reversion. (g) 2. To subject him to forfeit it for treason; which he could not do, till issue. born, longer than for his own life; lest thereby the inheritance of the issue, and reversion of the donor, might have been defeated. (h) 3. To empower him to charge the land with rents, commons, and certain other encumbrances, so as to bind his issue. (1) And this was thought the more reasonable, because, by the birth of issue, the possibility of the donor's reversion was rendered more distant and precarious: and his interest seems to have been the only one which the law, as it then stood, was solicitous to protect; without much regard to the right of succession intended to be vested in the issue. However, if the tenant did not in fact aliene the land, the course of descent was not altered by this performance of the condition; for if the issue had afterwards died, and then the tenant, or original grantee, had died, without making any alienation; the land, by the terms of the donation, could descend to none but the heirs of his body, and therefore, in default of them, must have reverted to the donor. For which reason, in order to subject the lands to the ordinary course of descent, the donees of these conditional fee-simples took care to aliene as soon as they had performed the condition by having issue; and afterwards repurchased the lands, which gave them a feesimple absolute, that would descend to the heirs in general, according to the course of the common law. And thus stood the old law with regard to conditional fees: which things, says Sir Edward Coke, (k) though they seem ancient, are yet necessary to be known; as well for the declaring how the common law stood in such cases, as for the sake of annuities, and such like inheritances, as are not within the statutes of entail, and therefore remain as at the common law.

*The inconveniences which attended these limited and fettered [*112

(g) Co. Litt. 19. 2 Inst. 233. (h) Co. Litt. 19. 2 Inst. 234.

(i) Co. Litt. 19.
(k) 1 Inst. 19.

a fee-simple, with a condition annexed, that, if the donee died without such heirs. the land should revert to the donor; to whom, therefore, the common law gave a formedon in reverter. But he was not entitled to a writ of formedon in remainder; for no remainder could be limited upon such an estate, which, though determinable, was consid ered a fee-simple until the statute de donis was made. Since the statute, we call that an estate-tail which before was a conditional fee, (ibid. p. 239;) and whilst it continued so, if the donee had issue, he had power to alienate the fee, and to bar not only the succes sion of his issue, but the reversion of the donor in case his issue subsequently failed: to redress which evils (as they were thought to be) the act de donis conditionalibus was made. Ibid. pp. 242, 245.-CHITTY.

(49) Ford v. Flint, 40 Vt. 392, Veazy (1867). Betty v. Moore, 1 Ky. 236 (1833). Izard v. Izard, 1 Baily S. C. Eq. 229 (1831). 2 Pingrey on R. P. 992.

(50) Where the person to whom a conditional fee was limited had issue, and suffered it to descend to such issue, he might aliene it. But, if they did not aliene, the donor would still have been entitled to his right of reverter; for the estate would have continued subject to the limitations contained in the original donation. Nevil's case, 7 Rep. 124. Willion v. Berkley, Plowd. 247. This authority supports the statement of our author, to a similar effect, lower down in the page; but it hardly authorizes the assertion that after issue the estate became wholly unconditional.-CHITTY.

(51) King v. Rhea, 56 Ind. 13 (1877). Orndoff v. Turman, 2 Leighs, Va. 232 (1830). Jewell v. Warner, 35 N. H. 181, Fogg (1858). Washburn on Real Prop. vol. 1, 5 ed. p. 98. Tiedeman on Real Prop. 2 ed. par. 45.