The most simple division of estates of inheritance is that mentioned by Sir William Blackstone,a into inheritances absolute or in fee-simple, and inheritances limited; and these limited fees he subdivides into qualified and -conditional fees. This was according to Lord Coke's division, and he deemed it to be the most genuine and apt division of a fee. Mr. Preston, in his Treatise on Estates, has, however, gone into more complex divisions, and he classes fees into fees simple, fees determinable, fees qualified, fees conditional, and fees tail. The subject is full of perplexity, under the distinctions which he has attempted to preserve between fees determinable and fees qualified; for he admits that every qualified fee is also a determinable fee. I shall, for the sake of brevity and perspicuity, follow the more comprehensive division of Lord Coke, and divide the subject into fees simple, fees qualified, fees conditional, and fees tail.

*5

(1.) Fee-simple is a pure inheritance, clear of any qualification or condition, and it gives a right of succession to all the heirs generally, under the restriction that they must be of the blood of the first purchaser, and of the blood of the person last seised. It is an estate of perpetuity, and confers an unlimited power of alienation, and no person is capable of having a greater estate or interest in land. Every restraint upon alienation is inconsistent with the nature of a fee-simple, and if a partial restraint be annexed to a fee, as a condition not to

■ Com. vol. ii. 104. 109.

Co. Litt. 1. b. 10 Co. 97. b. 2 Inst. 333. The Judges, in Plowden, 241. b. 245. b. and Lord Ch. J. Lee, in Martin v. Strachan, 5 Term Rep. 107, in notis, are still more large in the division of inheritances at common law. They make but two kinds, fees simple absolute, and fees simple, conditional, or qualified.

e Vol. i. 419.

Litt. sec. 1. 11. Co. Litt. 1. b. Fleta, lib. 3. c. 8. Plowd. 557. a. But the above restriction has been essentially changed in this country, as we shall see hereafter, when we come to treat of the law of descent.

alien for a limited time, or not to a particular person, it ceases to be a fee-simple, and becomes a fee subject to a condition.

The word heirs is, at common law, necessary to be used, if the estate is to be created by deed. The limitation to the heirs must be made in direct terms, or by immediate reference, and no substituted words of perpetuity, except in special cases, will be allowed to sup

ply their place, or make an estate of inheritance in *6 feoffments and grants. The location of the word

in any particular part of the grant is not essential; for a grant of a rent to A., and that he and his heirs should distrain for it, will pass a fee. The general rule is applicable to all conveyances governed by the rules of the common law; for though prior to the statute of uses, the fee, in the view of a Court of Chancery, passed

a A grant to a man and his right heirs is the same as a grant to a man and his heirs. Co. Litt. 22. b ; but Lord Coke, in Co. Litt. 8. b, says, that a grant to a man and his heir, in the singular number, conveys only an estate for life, because the heir is but one. This is a strange reason to be given, under a system of law which prefers males to females in the course of descent, and in which the right of primogeniture among the males is unrelentingly enforced. Mr. Hargrave, note 45, to Co. Litt. 8. b, and note 11, to Co. Litt. 494, questions the doctrine, and he says there are authorities to show that the word heir, in a deed, as well as in a will, may be taken for nomen collectivum, and stand for heirs in general. The doctrine of Coke was very vigorously attacked by Lord Ch. J. Eyre, near a century ago, in Dubber v. Trollope, Amb. 453; and Lord Coke himself showed in Co. Litt. 22. a, that an estate tail, with the word heir in the singular number, was created and allowed in 39 Ass. pl. 20. See also Richards v. Lady Bergavenny, 2 Vern. 324. Pansey v. Lowball, Styles, 249. Whiting v. Wilkins, 1 Bulst. 219. Blackburne v. Stables, 2 Ves. & Bea. 371. Notwithstanding all this authority in opposition to the rule as stated by Lord Coke, and the unintelligible reason assigned for it, Mr. Preston states the rule as still the existing law. Treatise on Estates, vol. ii. 8. In the case of King's Heirs v. King's Adm. 12 Ohio, 472, a case distinguished for the most learned and elaborate discussion, the court held that the word heir in the singular number in a will, was to be construed the same as the word heirs.

Litt. sec. 1.

• Lord Coke, in 3 Bulst. 128.

by reason of the consideration, in a bargain and sale, or covenant to stand seised to uses, without any express limitation to the heirs; yet, when uses were by statute transferred into possession, and became legal estates, they were subjected to the scrupulous and technical rules of the courts of law. The example at law was followed by the courts of equity, and the same legal construction applied by them to a conveyance to uses." If a man purchases lands to himself for ever, or to him and to his assigns for ever, he takes but an estate for life. Though the intent of the parties be ever so clearly expressed in the deed, a fee cannot pass without the word heirs. The rule was founded originally on principles of feudal policy, which no longer exist, and it has now become entirely technical. A feudal grant was, stricti juris, made in consideration of the personal abilities of the feudatory, and his competency to render military service; and it was consequently confined to the life of the donee, unless there was an express provision that it should go to his heirs.

But the rule has for a long time been controlled by a more liberal policy, and it is counteracted in practice by other rules, equally artificial in their nature, and technical in their application. It does not apply to conveyances by fine, when the fine is in the nature of an action, as the fine sur conuzance de droit, on account of the efficacy and solemnity of the conveyance, *7 and because a prior feoffment in fee is implied. Nor does the rule apply to a common recovery, which is in legal contemplation a real action; for the recoverer takes a fee by fiction of law, according to the extent of

⚫ 1 Co. 87. b. 100. b. Gilbert on Uses and Trusts, by Sugden, 29. 143. Tapner v. Merlot, Willes' Rep. 177. Van Horn v. Harrison, 1 Dal. Rep. 137.

Holt, Ch. J., 6 Mod. Rep. 109.

e 2 Blacks. Com. 107, 108.

Co. Litt. 9. b. Preston on Estates, vol. ii. 51, 52.

his former estate, of which he is supposed to be disseised. It does not apply to a release by way of extinguishment, as of a common of pasture; nor to a partition between joint-tenants, coparceners, and tenants in common; nor to releases of right to land by way of discharge or passing the right, by one joint-tenant or coparcener to another. In taking a distinct interest in his separate part of the land, the release takes the like estate in quantity which he had before in common. Grants to corporations aggregate pass the fee without the words heirs or successors, because in judgment of law a corporation never dies, and is immortal by means of perpetual succession. In wills, a fee will also pass without the word heirs, if the intention to pass a fee can be clearly ascertained from the will, or a fee be necessary to sustain the charge or trust created by the will. It is likewise understood, that a court of equity will supply the omission of words of inheritance; and in contracts to convey, it will sustain the right of the party to call for a conveyance in fee, when it appears to have been the intention of the contract to convey a fee.1

Thus stands the law of the land, without the aid of legislative provision. But in this country, the statute law of some of the states has abolished the inflexible rule of the common law, which had long survived the reason

of its introduction, and has rendered the insertion of *8 the word *heirs no longer necessary. In Virginia, Kentucky, Mississippi, Missouri, Alabama, and

a Preston on Estates, vol. ii. 51, 52. 2 Blacks. Com. 357.

b Co. Litt. 280 a.

c Co. Litt. 9. b. 273. b. Preston, supra, 5. 55-59.

d Co. Litt. 9. b.

• Ibid. Holdfast v. Marten, 1 Term Rep. 411. Fletcher v. Smiton, 2 ibid. 656. Newkirk v. Newkirk, 2 Caines' Rep. 345. Dane's Abr. vol. iv. c. 128.

f Comyns' Dig. tit. Chancery, 2. T. 1. Defraunce v. Brooks, 8 Watts & Serg. 67.

New-York, the word heirs, or other words of inheritance, are no longer requisite, to create or convey an estate in fee; and every grant or devise of real estate made subsequent to the statute, passes all the interest of the grantor or testator, unless the intent to pass a less estate or interest appears in express terms or by necessary implication. The statute of New-York also adds, for greater caution, a declaratory provision, that in the construction of every instrument creating or conveying any estate or interest in land, it shall be the duty of the courts to carry into effect the intention of the parties, so far as such intention can be collected from the whole instrument, and is consistent with the rules of law. Some of the other states, as New-Jersey, North Carolina, and Tennessee, have confined the provision to wills, and left deeds to stand upon the settled rules and construction of the common law. They have declared by statute, that a devise of lands shall be construed to convey a feesimple, unless it appears, by express words or manifest intent, that a lesser estate was intended.c

Statute of Virginia, December 13th, 1792. Statute of Kentucky, December 19th, 1797. Statute of Alabama, 1812. New-York Revised Statutes, vol. i. 748. sec. 1, 2. Griffith's Law Register. R. C. of Mississippi, 1824. R. S. of Missouri, 1835.

In Illinois words of perpetuity or inheritance are still essential to create a fee, and the same general rule is implied to a devise. Jones v. Bramblet, 1 Scammon's Rep. 276.

R. S. N. J. 1847, p. 342. Mr. Humphreys, in his Essay on Real Property, and Outlines of a Code, 235, first edition, has proposed the same reform, of rendering the word heirs no longer necessary in conveyances in fee; and the American lawyer cannot but be forcibly struck, on the perusal of that work, equally remarkable for profound knowledge and condensed thought, with the analogy between his proposed improvements and the actual condition of the jurisprudence of this country. But I think it very probable that the abolition of the rule requiring the word heirs, to pass a fee by deed, will engender litigation. There was none under the operation of the rule. The intention of the grantor was never defeated by the application of it. He always used it when he intended a fee. Technical and artificial rules of long standing, and hoary with age, conduce exceedingly to certainty and fixedness in the law, and are infinitely preferable on that account, to rules