PART VI.

OF THE LAW CONCERNING REAL PROPERTY.

(CONTINUED FROM THE Third volume.)

LECTURE LIV.

OF ESTATES IN FEE.

THE perusal of the former volumes of these Commentaries has prepared the student to enter upon the doctrine of real estates, which is by far the most artificial and complex branch of our municipal law. We commenced with a general view of the international law of modern civilized nations, and endeavoured to ascertain and assert those great elementary maxims of universal justice, and those broad principles of national policy and conventional regulation, which constitute the code of public law. The government of the United States next engaged our attention; and we were led to examine and explain the nature and reason of its powers, as distributed in departments, and the constitutional limits of its sphere of action, as well as the restrictions imposed upon the original sovereignty of the several members of the VOL. IV.

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Union. We then passed to the sources of the municipal law of the state governments, and treated of personal rights, and the domestic relations which *are naturally the objects of our earliest sympathies, and most permanent attachments. Our studies were next directed to the laws of personal property, and of commercial contracts, which fill a wide space in all civil institutions; for they are of constant application in the extended intercourse and complicated business of mankind. In all the topics of discussion, we have been, and must continue to be, confined to an elementary view and sweeping outline of the subject; for the plan of these essays will not permit me to descend to that variety and minuteness of detail, which would be oppressive to the general reader, though very proper to guide the practical lawyer through the endless distinctions which accompany and qualify the general principles of law.

In treating of the doctrine of real estates, it will be most convenient, as well as most intelligible, to employ the established technical language to which we are accustomed, and which appertains to the science. Though the law in some of the United States discriminates between an estate in free and pure allodium, and an estate in fee-simple absolute, these estates mean essentially the same thing; and the terms may be used indiscriminately, to describe the most ample and perfect interest which can be owned in land. The words seisin and fee, have always been so used in New-York, whether the subject was lands granted before or since the revolution; though by the act of 1787, the former were declared to be held by the tenure of free and common socage, and the latter in free and pure allodium. In Connecticut and Virginia, the terms seisin and fee are also applied to all estates of

See the Reports passim, and particularly 18 Johns. Rep. 74, and 20

ibid. 548. 653.

inheritance, though the lands in those states are declared to be allodial, and free from every vestige of feudal tenure. The statute of New-York, to which I have alluded, made an unnecessary distinction in legal phraseology as applied to estates; and the distinction lay

*dormant in the statute, and was utterly lost and *3 confounded in practice. The technical language

of the common law was too deeply rooted in our usages and institutions, to be materially affected by legislative enactments. The New-York Revised Statutes have now abolished the distinction, by declaring, that all lands within the states are allodial, and the entire and absolute property vested in the owners, according to the nature of their respective estates. All feudal tenures of every description, with their incidents, are abolished, subject, nevertheless, to the liability of escheat, and to any rents. or services certain, which had been, or might be, created or reserved. And to avoid the inconvenience and absurdity of attempting a change in the technical language of the law, it was further declared, that every estate of inheritance, notwithstanding the abolition of tenure, should continue to be termed a fee-simple, or fee; and that every such estate, when not defeasible or conditional, should be termed a fee-simple absolute, or an absolute fee. It was undoubtedly proper that the tenure of lands should be uniform, and that estates should not in one part of the country be of the denomination of

6 Conn. Rep. 373. 386. 500. 4 Mumf. 205. Notes to 2 Blacks. Com. 44. 47. 77. 104, by Dr. Tucker. In Michigan by act of 1821, all persons seized in fee-tail were declared to be seized of an allodial estate. So, also, in Pennsylvania. In Connecticut, by statute in 1793, every proprietor of land in fee-simple was declared to have an absolute and direct dominion and property in the same.

This is also the language of the Revised Constitution of New-York, of 1846, Art. 1. § 12, 13.

N. Y. Revised Statutes, vol. i. 718. sec. 3, 4; p. 722. sec. 2. N. Y. R. S. 3d edit. vol. ii. p. 9.

socage tenures, and in another part allodial; but it may be doubted, whether there was any wisdom or expediency in the original statute provision, declaring the lands in New-York to be allodial, and abolishing the tenure of free and common socage, since nothing is gained in effect, and nothing is gained even in legal language, by the alteration. The people of the state, in their right of sovereignty, are still declared to possess the original and ultimate property in and to all lands; and the right of escheat, and the rents and services already in use though incident to the tenure of free and common socage, are reserved.a

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ever.

A fee, in the sense now used in this country, is an estate of an inheritance in law, belonging to the owner, and transmissible to his heirs. No estate is deemed a fee, unless it may continue for An estate, whose duration is circumscribed by the period of one or more lives in being, is merely a freehold, and not a fee. Though the limitation be to a man and his heirs during the life or widowhood of B., it is not an inheritance or fee, because the event must necessarily take place within the period of a life. It is merely a freehold, with a descendible or transmissible quality; and the heir takes the land as a descendible. freehold.c

N. Y. Revised Statutes, vol. i. 718. sec. 1. 3, 4. Why should we assume the allodial theory, if we must preserve the language of the socage tenure? With the mutato nomine, it is still de te fabula narratur.

Spelman says, that feodum signi

The word feudum imports not only beneficium, but beneficium and hæreditatem. It is an inheritable estate. Feudum idem est quod hæreditas. Litt. sec. 1. Wright on Tenures, 148. fies puram hæreditatem, maximum jus possidendi, et perpetuum rei immobilis dominium. Gloss. voce Feodum. Dr. Webster, the lexicographer, says that fee when applied to land was a contraction of the Latin word fides, and the name originated with the Lombards, and it was a grant or loan of land in trust for future services, and not a reward for past services.

1 Co. 140. b. 10 Co. 98. b. Vaughan's Rep. 201. 2 Blacks. Com. 259. Preston on Estates, vol. i. 480. According to Lord Ch. J. Vaughan, (though Sir William Blackstone and Mr. Preston do not follow his opinion,) the heir takes in the character and title of heir, and not of special occupant..