vendor and vendee, what are to be considered fixtures. 3. When the owner leases. In this case, the question is more important than in either of the preceding; for the lessee often finds it necessary for his business or comfort to make various additions and improvements, during the continuance of the lease; and it is therefore of the utmost consequence for him to understand, whether, at the expiration of his lease, these are to belong to his landlord or himself. Now in all these cases the ancient rule was, that all chattels, when once fixed to the realty, became parcel thereof, and pass or remain there with; but in modern times, this rule has been very much relaxed, for the benefit of trade and agriculture, in favor of lessees; while in regard to the other persons above named, it remains very nearly as at first. Thus a lessee has been allowed to take away kettles fixed in mortar, steam-engines, mills, and even buildings, which he had constructed during his lease. On the whole, the rule, as it now stands, seems to be, that if the articles in question are annexed for the special purpose of immediate profit, and make no necessary or customary appendage to the realty, and if they can be severed without injury to the value of that which remains, they belong to the lessee; otherwise to the owner. It is hardly necessary to add that these remarks apply only to cases where the parties have made no special provision concerning the fixtures. They can make what contract they please, and the law will enforce it; but when they are silent the law gives the construction I have mentioned.

I have before named the American law of incorporeal hereditaments, as one of the instances of improvement in the law of realty. If the student will now take the trouble to read Blackstone or Cruise on the same subject, he will feel the truth of the remark; and he will see that the chief difference is to be traced to two causes: our entire disunion of church and state permitting nothing like a religious establishment; and our total abolition of hereditary personal distinctions. In a word, he will find in this very comparison, one of the best illustrations of the proposition, that the essential genius of republicanism is simplicity.

LECTURE XXI.

ESTATES WITH RESPECT TO DURATION. (a)

§ 129. Nature of Estates. The inquiry next in order, relates to the various kinds of estates. The term estate when applied to realty, signifies the interest which the owner has therein: so that

(a) See 4 Kent, Com. lec. 54-56; 2 Bl. Com. ch. 7-9; 1 Swift, b. 2, ch. 2-7.

if I grant all my estate in a certain parcel of land, all my interest thereby passes, without any other words. In common language, the term is used in a broader sense. Thus when we speak of the estate of a certain person, we mean by it all he is worth, whether of personalty or realty. But at present we are concerned with estates in their technical acceptation: and here they divide themselves into various classes, depending, first, upon their duration; secondly, upon their commencement; thirdly, upon the number of owners; and fourthly, upon the conditions which may be annexed to them. In this lecture, I shall consider estates only with reference to their duration; and in this view they divide themselves into five classes; namely, estates in fee, for life, for years, at will, and at sufferance. It has been customary to make a more general division of estates into two classes; namely, freehold estates and estates less than freehold; and then estates in fee and for life are included in the first class, being the only estates of freehold dignity. For by the common law an estate for the longest fixed term of years, though it might exceed a hundred lives, is accounted no more than a chattel interest; while an estate for life, however short that life may be, is a freehold interest. This doctrine originated in feudal reasons, which have long since ceased to exist. As a feud, when once created, could not be terminated by the mere will of the lord, whatever could be held as a feud was called a frank tenement or freehold. Now feuds could not be conferred for a term of years, but were either for life, or hereditary; and hence freeholds included only estates in fee, and for life. Again, feuds were always conferred by corporeal investiture; and hence by the common law, freeholds could not be created without livery of seisin. (a) This term seisin, seisina, originally signified actual possession of land under a feudal grant. But when feuds became hereditary, and the heir succeeded by law to the rights of the ancestor, a distinction was made between seisin in fact, which was the actual possession before mentioned, and seisin in law, which was the right of possession acquired by the heir before entry, but not perfected into actual possession until entry. A similar distinction is said to prevail now, where the ceremony of livery of seisin is still in use, which signifies that formal delivery of possession required to perfect the conveyance of a freehold. The par

(a) As to livery of seisin, the court, in Holt v. Hemphill, 3 Ohio, 232, say: "We have always held that a complete title may be created, without an actual entry, and where the grantee may never have been within hundreds of miles of the property granted. The delivery of the deed has been considered as giving possession, in contemplation of law, and the grantee is presumed to have entered, unless that presumption is rebutted by facts. ... And that I may not be misunderstood on this important point, I repeat that I do not consider a formal livery of seisin, as practised in former times, or an actual corporeal entry, as being at all necessary to consummate a title, or to vest a seisin in deed, in any case where the premises are vacant, or occupied by a person holding under the grantor, or otherwise, without claim of title. In all such cases, the execution and delivery of the deed vests the seisin, completes the title, and puts the grantee in the same situation as if he had made a formal entry, and received the twig and turf from the hand of the grantor."

ties, grantor and grantee, with their witnesses, go to or upon the land, and the grantor actually delivers to the grantee a key, twig, or some other thing, as a symbol of the delivery of the land. But the case was entirely different with estates for years; not being created with feudal solemnities, they were held by the most precarious tenure; it depended upon the will of the feudal owner to terminate the tenancy when he pleased; and though he should violate an express agreement, the tenant had no remedy for the recovery of possession. An estate for years, therefore, when held by so frail and slavish a tenure, could with no propriety be called a freehold. And such continued to be the law until the year 1530, when it was altered by act of Parliament; and the tenant for years was made as secure in his possession as a tenant for life. From that time, the real difference between freehold and other estates ceased; but the technical difference in the mode of creating them continues to this day in England, and perhaps in many of the States; and from this difference resulted another; namely, that freeholds could not be made to commence at a future time, while other estates could. The reason was, that livery of seisin, being in its nature a present act, could not have a future operation; whereas, estates for years, requiring no livery of seisin, might commence at any time the parties should agree. In this State, however, these technical differences have also ceased; for here, livery of seisin, as will appear in the sequel, is never necessary in the creation of any estate. The distinction, then, between freehold and other estates, is of no further use to us, than as it serves to determine who are entitled to exercise certain civil functions, which by our law are confined to freeholders. And I shall accordingly consider estates, with reference to their duration, as divided into the five classes before named.

§ 130. Estates in Fee. (a) An estate in fee, is one, which, at the death of its owner, if not otherwise disposed of by him, descends to his heirs. In feudal times, as we have seen, the term fee had a different signification; but now it means nothing more than a descendible estate; so that an estate in fee is the same thing as an estate of inheritance. Of the various ways in which this estate may be created, I shall speak hereafter. It is sufficient now to say, that where it is created by deed, the word heirs, is indispensable, unless otherwise provided by statute; which is not the case here. This is an inflexible rule of the common law, and no words of perpetuity will supply the place of the word heirs, except in the grant to corporations, where the word successors, though not essential, is usually substituted. (b) Accordingly, if in creating this estate

(a) 2 Black. Com. chap. 7; 4 Kent, Com. lec. 54; 1 Cruise's Dig. 1. (b) Congregational Society v. Stark, 34 Vt. 243. A fee may be conveyed to a corporation without the word successors. Ross c. Adams, 4 Dutcher, 160. This case intimates that by the use of language indicating a clear intention, a fee-simple might be conveyed to an individual without the word "heirs;" but this is entirely contrary to the common law. The necessity of the word "heirs" to the creation of an estate in fee simple is removed by statute in the following States: Alabama, Arkansas,

by deed the word heirs happen to be omitted, however clear may be the intention to create a fee, the grantee will take only a lifeestate. But in regard to wills, this severity is relaxed, on account of the hurry and want of advice with which they are often made; and there, any words of perpetuity signifying an intention to create a fee will have that effect. Several of the States have, by express provision, put deeds upon the same footing as wills, in this respect; and I cannot help looking upon the common-law rule as arbitrary and unjust. It is certainly in direct opposition to one of the prevailing rules of interpreting contracts; which is, to construe them most strongly against the maker or grantor; and most beneficially for the other party. But its origin is to be traced to the feudal system. At first, as we have seen, feuds were not hereditary. At length they began to be conferred on feudatories and their heirs. At this stage of the law, if the word heirs was omitted, the presumption was that the lord only intended to create an original feud, not hereditary; and this presumption, which was then reasonable, has ever since prevailed in courts of law. In courts of equity, however, when a contract for conveyance is to be construed, this rigid rule is departed from; and the omission of the word heirs is supplied, whenever this appears to have been the intention of the parties.

What has now been said applies to all estates in fee. But it is usual to divide these estates into two classes, fees simple and fees conditional. Since, however, conditions may be annexed to every other species of estate as well as an estate in fee, I have thought it better to consider conditional fees, in connection with other conditional estates, in a separate division. At present, therefore, I am only concerned with estates in fee-simple. This is the highest possible interest which a man can have in real property, whether corporeal or incorporeal. It includes all interests, present and future. It forms a unit or whole, of which all other estates are but fractions or parts. It comes to the owner with the unlimited power of alienation during life; and unless he does something to encumber it, passes in the same absolute character to his heirs. Such estates are obviously more in harmony with the free spirit of our institutions than those which are clogged with conditions and limitations. It does not suit the genius of our citizens to be put under restrictions with regard to the disposition of property. Hence, those "fettered inheritances," which are so common in England, are rare in this country. The prevailing estate is a feesimple. And this is one leading cause of the exceeding simplicity of our land system.

§ 131. Estates for life. (a) Estates for life rank next in importance to estates in fee. We have seen, that for feudal reasons,

Georgia, Illinois, Indiana, Iowa, Kentucky, Mississippi, Missouri, New York, Tennessee, Texas, and Virginia, the presumption in those States being declared to be, that the deed passes all the grantor's estate, unless some limitation appears. (a) 2 Black. Com. ch. 8; 4 Kent, Com. lec. 55; 1 Cruise's Dig. 59.

they are esteemed of higher dignity than the longest estate for years. An estate for life is so much taken off from a complete estate in fee. The future estate in fee expectant on the termination of the life-estate, is called either a reversion or remainder, as will be explained hereafter; and the two together constitute one complete estate in fee. An estate for life may either be for the life of him who has it, or for the life of a third person. In the first case, the owner is called tenant for life, simply; in the second, tenant for another's life, or in law French, tenant pur autre vie; while he for whose life the estate is held, is called cestui que vie. Both these estates are of freehold dignity, though the former is justly regarded as the preferable estate, because it certainly must last as long as the owner lives, while the latter may not. But connected with an estate for another's life, is one curious question. Suppose the owner dies before the man for whose life it is held; to whom does the residue of this estate belong? It does not revert to the grantor, for the time has not expired; and it does not descend to the heirs of the grantee, unless they are expressly mentioned. This was the reasoning of the ancient common law; and to solve the difficulty, any person was permitted to take possession by way of special occupancy, as of a vacant estate, and hold it till the death of him by whose life the estate was measured. In England, and in many of the States, this doctrine has been altered by statute. In this State, we have no provision on the subject; but yet I would venture to say that our courts would never recognize so absurd a doctrine, as to allow a stranger to take possession. Undoubtedly, the residue of the estate would go to the representatives of the deceased owner, according to our rules of distribution. And whether we call this residue a freehold, or a chattel interest, is of little consequence; for in either case the heirs will have it, if there be no debts to pay. But from the phraseology of our statute of descent, which confines its operation to real estates of inheritance, of which the above is certainly not one, I presume that this remaining interest would be distributed as personal property. Estates for life may be created either by the act of the parties, or by the operation of law. Thus, if I grant land to you for the term of your life, I create in you an estate for life, by express words. If I grant land to you without any specification of time, I create in you an estate for life, by legal construction! For it cannot be a fee, because it has not the word heirs; and it cannot be an estate for years, because the years are not specified. It is therefore construed as a life-estate. There are but two estates for life by the operation of law: namely, dower and curtesy; both resulting from marriage, and both having the same general incidents as other life-estates. Of these general incidents only I shall now speak; reserving what is peculiar to these two estates for a more appropriate place, in connection with the mode of acquiring title.