ESTATES of freehold (thus understood) are either estates of inheritance, or eftates not of inheritance. The former are again divided into inheritances abfolute or fee-fimple; and inheritances limited, one fpecies of which we ufually call fee-tail. I. TENANT in fee-fimple (or, as he is frequently ftiled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever; generally, abfolutely, and fimply; without mentioning what heirs, but referring, that to his own pleasure, or to the difpofition of the law. The true meaning of the word fee (feodum) is the fame with that of feud or fief, and in it's original sense it is [105] taken in contradistinction to allodium; which latter the writers on this fubject define to be every man's own land, which he poffeffeth merely in his own right, without owing any rent or fervice to any fuperior. This is property in it's highest degree; and the owner thereof hath abfolutum et directum dominium, and therefore is faid to be feised thereof absolutely in dominico fuo, in his own demefne. But feodum, or fee, is that which is held of fome fuperior, on condition of rendering him fervice; in which fuperior the ultimate property of the land refides. And therefore fir Henry Spelman defines a feud or fee to be the right which the vafal or tenant hath in lands, to use the fame, and take the profits thereof to him and his heirs, rendering to the lord his due fervices; the mere allodial propriety of the foil always remaining in the lord. This allodial property no fubject in England has; 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 abfolutum et directum dominium: but all fubjects' lands are in' the nature of feodum or fee; whether derived to them by defcent from their ancestors, or purchased for a valuable confideration for they cannot come to any man by either of thofe ways, unless accompanied with thofe feodal clogs, which e Litt. § 1. f See pag. 45.47. g of feuds, c. I. à Co. Litt. 1. i Praedium domini regis eft directum dominium, cujus nullus eft author nifi Deus, Ibid. were were laid upon the first feudatory when it was originally granted. A fubject therefore hath only the ufufruct, and not the abfolute property of the foil; or, as fir Edward Coke expreffes it, he hath dominium utile, but not dominium directum, And hence it is that, in the most folemn acts of law, we exprefs the strongest and highest eftate that any fubject can have, by these words; "he is feifed thereof in his demefne, << as of fee." It is a man's demefne, dominicum, or property, fince it belongs to him and his heirs for ever: yet this dominicum, property, or demefne, is ftrictly not abfolute or allo dial, but qualified or feodal: it is his demefne, as of fee; that is, it is not purely and fimply his own, fince it is held of a fuperior lord, in whom the ultimate property refides. THIS is the primary fenfe and acceptation of the word fee. [ 106 ] But (as fir Martin Wright very justly obferves 1) the doctrine, "that all lands are holden," having been for fo many ages a fixed and undeniable axiom, our English lawyers do very rarely (of late years efpecially) ufe the word fee in this it's primary original fenfe, in contradiftinction to allodium or abfolute property, with which they have no concern; but generally use it to exprefs the continuance or quantity of eftate. A fee therefore, in general, fignifies an eftate of inheritance; being the highest and most extenfive intereft that a man can have in a feud: and, when the term is used fimply, without any other adjunct, or has the adjunct of simple annexed to it, (as a fee, or a fee-fimple) it is used in contradiftinction to a fee conditional at the common law, or a fee-tail by the ftatute; importing an abfolute inheritance, clear of any condition, limitation, or reftrictions to particular heirs, but defcendible to the heirs general, whether male or female, li neal or collateral. And in no other fense than this is the king faid to be seised in fee, he being the feudatory of no man TAKING therefore fee for the future, unless where otherwise explained, in this it's secondary sense, as a state of inheritance, it is applicable to, and may be had in, any kind of heredita k Co. Litt. 1. 1 of ten. 148, Co. Litt. I. ments ments either corporeal or incorporeal ". But there is this diftinction between the two fpecies of hereditaments; that, of a corporeal inheritance a man fhall be faid to be feifed in his demefne, as of fee; of an incorporeal one, he fhall only be faid to be feised as of fee, and not in his demefne . For, as incorporeal hereditaments are in their nature collateral to, and iffue out of, lands and houses P, their owner hath no property, dominicum, or demefne, in the thing itself, but hath only fomething derived out of it; refembling the fervitutes, or services, of the civil law. The dominicum or property is frequently [107] in one man, while the appendage or fervice is in another. Thus Gaius may be feifed as of fee of a way leading over the land, of which Titius is feifed in his demefne as of fee. THE fee-fimple or inheritance of lands and tenements is generally vefted and refides in fome perfon or other; though divers inferior eftates may be carved out of it. As if one grants a leafe for twenty-one years, or for one or two lives, the fee-fimple remains vested in him and his heirs; and after the determination of thofe years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee-fimple. Yet fometimes the fee may be in abeyance, that is (as the word fignifies) in expectation, remembrance, and contemplation in law; there being no person in esse, in whom it can veft and abide: though the law confiders it as always potentially exifting, and ready to veft whenever a proper owner appears. 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 veft in the heirs of Richard till his death, nam nemo eft haeres viventis : it remains therefore in waiting or abeyance, during the life of Richard (2). This is likewife always the cafe of a parfon of n Feodum eft quod quis tenet fibi et hae- P See page 20. Servitus eft jus, quo res mea alterius rei vel perfonae fervit. Ff. 8, 1. 1. r Co. Litt. 342. (2) The inheritance or remainder in fuch a cafe has been faid to be in abeyance, or in nubibus, or in gremio legis; but Mr. Fearne, with great ability and learning, has expofed the futility of thefe expreffions, IQ a church, who hath only an estate therein for the term of his life; and the inheritance remains in abeyance. And not `only the fee, but the freehold also, may be in abeyance; as, when a parfon dies, the freehold of his glebe is in abeyance, until a fucceffor be named, and then it vefts in the fucceffor (3) THE word, heirs, is neceffary in the grant or donation, in order to make a fee, or inheritance. For if land be given • Litt. § 646. • Ibid. § 647. expreffions, and the erroneous ideas which have been conveyed by them. Mr. Fearne produces authorities, which prove beyond controverfy," that where a remainder of inheritance is 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 teftator, until the contin"gency happens to take it out of them." Fearne, Cont. Rem. 513. 4th edition. But although, as Mr. Fearne obferves, "different opinions have "prevailed in respect to the admiffion of this doctrine in convey"ances at common law," (ib. 526.) yet he adduces arguments and authorities, which render the doctrine as unquestionable in this cafe as in the two former of uses and devifes. If therefore in the inftance put by the learned Judge, John fhould 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 circumstances. the remainder never could veft in the heirs of Richard; in that cafe, the grantor or his heir may enter and resume the estate. (3) Mr. Fearne having attacked with fo much fuccefs the doctrine of abeyance, the Editor may venture to observe, with respec to the two laft inftances, though they are collected from the text of Littleton, that there hardly feems any neceffity to refort to abeyance, or to the clouds, to explain the refidence of the inheritance, or of the freehold. In the firft cafe, the whole fee-fimple is conIveyed to a fole corporation, the parfon and his fucceffors; but if any intereft is not conveyed, it ftill remains, as in the former note, in the grantor and his heirs, to whom, upon the diffolution of the corporation, the estate will revert. See 1 vol. 484. And in the second cafe, the freehold feems, in fact, from the moment of the death of the parfon, to rest and abide in the fucceffor, who is brought into view and notice by the inftitution and induction; for after induction he can recover all the rights of the church, which accrued from the death of the predeceffor. I to W to a man for ever, or to him and his affigns for ever, this vefts in him but an estate for life". This very great nicety about the infertion of the word "heirs" in all feoffments and grants, in order to veft a fee, is plainly a relic of the feodal [108] ftrictness: by which we may remember it was required that the form of the donation should be punctually pursued; or that, as Crag* expreffes it in the words of Baldus, "do"nationes fint ftricti juris, ne quis plus donaffe praefumatur quam "in donatione exprefferit." And therefore, as the perfonal abilities of the donee were originally fuppofed to be the only inducements to the gift, the donee's eftate in the land extended only to his own person, and subsisted no longer than his life; unless the donor, by an exprefs provision in the grant, gave it a longer continuance, and extended it alfo to his heirs. Bat this rule is now foftened by many exceptions y FOR, 1. It does not extend to devifes by will; in which, as they were introduced at the time when the feodal rigour was apace wearing out, a more liberal conftruction is allowed; and therefore by a devise to man for ever, or to one and his affigns for ever, or to one in fee-fimple, the devisee hath an estate of inheritance; for the intention of the devifor is fufficiently plain from the words of perpetuity annexed, though he hath omitted the legal words of inheritance. But if the devife be to a man and his affigns, without annexing words of perpetuity, there the devisee shall take only an estate for life; for it does not appear that the devifor intended any more (4). 2. Neither does this rule extend to fines or recovex 1. 1. 8. 9. § 17. y Co. Litt. 9, 10. Ibid. § 1. (4) But it is not neceffary to use any words of perpetuity in a devife, in order to give a fee-fimple, where it appears to be the intention of the teftator to difpofe of all his intereft in an eftate, and that is implied from the word eftate alone; as if a teftator gives to Richard his eftate or eftates in or at Dale, though neither heirs, affigns, or any other word is annexed to Richard's name, yet he takes an eftate in fee-fimple. 1 T. R. 411. 2T. R. 656. Sq སྙ*. alfo |