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 feodal: it is his demesne, 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 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 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.

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. 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. For, as incorporeal hereditaments are in their nature collateral to, and issue out of, lands and houses, their owner hath no property, dominicum, or demesne, in the thing itself, but hath only something derived out of it.

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. 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 haeres viventis; it remains therefore in waiting, or abeyance, during the life of Richard. The Word "Heirs" Necessary.

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.

Exceptions.

1. It does not extend to devises by will; in which, as they were introduced at the time when the feodal rigour was apace wearing out, a more liberal construction is allowed; and therefore by 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 perpetuity, 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 reason, by certain other methods of conveyance, which have relation to a former grant or estate, wherein the word "heirs" was expressed. 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. But in a grant of lands to a corporation aggregate, the word "successor" 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. 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. But the general rule is, that the word "heirs" is necessary to create an estate of inheritance.

Limited Fees.

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: I, Qualified or base fees; and, 2, Fees conditional, so called at the common law; and afterwards fees-tail, in consequence of the statute de donis.

Base Fees.

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. 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, the grant is entirely defeated. This estate is a fee because by possibility it may endure forever in a man and his heirs; 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.

Conditional Fees.

2. A conditional fee, at the common law, was a fee restrained to some particular heirs, exclusive of others; as to the heirs of a man's body, by which only his lineal descendar ts were admitted, in exclusion of collateral heirs; or to the heirs male of his body, in exclusion both of collaterals, and Tineal females also. 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. 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.

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. They therefore called it a fee-simple, on condition that he had issue. Now, we must observe that when any condition is performed, it is thenceforth entirely gone; and the thing to which it was before annexed becomes absolute, and wholly unconditional. So that, as soon as the grantee had any issue born, his estate was supposed to become absolute, by the performance of the condition; at least, for these three purposes: 1. To enable the tenant to aliene the land, and thereby to bar not only his own issue, but also the donor of his interest in the reversion. 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. 3. To empower him to charge the land with rents, commons, and certain other encumbrances, so as to bind his issue. 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 fee-simple absolute, that would descend to the heirs in general, according to the course of the common law.

The nobility, who were willing to perpetuate their possessions in their own families, to put a stop to this practice, procured the statute of Westminster the second (commonly called the statute de donis conditionalibus) to be made; which paid a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever. This statute revived in some sort the ancient feodal restraints which were originally laid on alienations, by enacting, that from thenceforth the will of the donor be observed; and that the tenements so given (to a man and the heirs of his body) should at all events go to the issue, if there were any; or, if none, should revert to the donor.

Estates-Tail.

Upon the construction of this act of parliament, the judges determined that the donee had no longer a conditional fee-simple, which became absolute and at his own disposal the instant any issue was born; but they divided the estate into two parts, leaving in the donee a new kind of particular estate, which they denominated a fee-tail; and investing in the donor the ultimate fee-simple of the land, expectant on the failure of the issue; which expectant estate is what we now call a reversion.

Having thus shown the original of estates-tail, I now proceed to consider what things may, or may not, be entailed under the statute de donis. Tenements is the only word used in the statute; and this Sir Edward Coke expounds to comprehend all

corporeal hereditaments whatsoever; and also all incorporeal hereditaments which savour of the realty, that is, which issue out of corporeal ones, or which concern or are annexed to, or may be exercised within the same; as rents, estovers, commons, and the like. Also offices and dignities, which concern lands, or have relation to fixed and certain places, may be entailed. But mere personal chattels, which savour not at all of the realty, cannot be entailed. Neither can an office, which merely relates to such personal chattels ; nor an annuity, which charges only the person, and not the lands, of the grantor. But in these last, if granted to a man and the heirs of his body, the grantee hath still a fee conditional at common law, as before the statute; and by his alienation (after issue born) may bar the heir or reversioner. An estate to a man and his heirs for another's life cannot be entailed: for this is strictly no estate of inheritance (as will appear hereafter), and therefore not within the statute de donis. Neither can a copyhold estate be entailed by virtue of the statute; for that would tend to encroach upon and restrain the will of the lord; but, by the special custom of the manor, a copyhold may be limited to the heirs of the body; for here the custom ascertains and interprets the lord's will.

Estates-Tail. General and Special.

Next, as to the several species of estates-tail, and how they are respectively created. Estates-tail are either general or special. Tailgeneral is where lands and tenements are given to one, and the heirs of his body begotten; which is called tail-general, because, how often soever such donee in tail be married, his issue in general by all and every such marriage is, in sucressive order, capable of inheriting the estate-tail per formam doni Tenant in tail-special is where the gift is restrained to certain heirs of the donee's body, and does not go to all of them in general. And this may happen several ways. I shall instance in only one; as where lands and tenements are given to a man and the heirs of his body, on Mary his now wife to be begotten: here no issue can inherit but such special issue as is engendered between them two; not such as the husband may have by another wife; and therefore it is called special tail. And here we may observe, that the words of inheritance (to him and his heirs) give him an estate in fee; but they being heirs to be by him begotten, this makes it a fee-tail; and the person being also limited, on whom such heirs shall be begotten (viz., Mary his present wife), this makes it a fee-tail special.

Estates in general and special tail, are further diversified by the distinction of sexes in such entails; for both of them may either be in tail male or tail female. As if lands be given to a man and his heirs male of his body begotten, this is an estate in tail male general; but if to a man and the heirs female of his body on