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not legally pay at their will to the first creditor who makes a demand. 3rdly, That where the trust is for general management and economical arrangement, or for family distribution or settlement, the trustees are entitled, as the granter himself would have been, to pay to the creditor first demanding payment, primo venienti, where such payment is made bonâ fide. (a) 4thly, That where the trustees are judicially called on by a creditor to pay his demand, they cannot in preference pay another without having ample funds for the payment of the creditor bringing his action. (b) And 5thly, That even where the call of creditors is extrajudicial, but such as plainly to indicate a deficiency in the funds, the trustees will probably be held bound to suspend their payments, till in a multiple poinding the order and safety of the course of payment be judicially settled. (c)

In those trusts which are intended for the investment of money in land, either to be entailed or settled on particular persons, the words and plain intendment of the deed give the law of the trust. (d)

(a) Ranken v. Gairdner, Nov. 24th, 1741, Kilk. 581.

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SECTION V.

MODIFICATIONS OF, OR ESTATES AND INTERESTS IN REAL PROPERTY, UNDER THE law of enGLAND.

I. Division of estates.-Estates in possession and expectancy.-Of freehold.-Less than freehold.—Of inheritance.-Fee simple.-Manner of creating it by deed.-Incidents.

II. Qualified or base fees.

III. Conditional fees.-Statute de donis.

IV. Estates tail.-General and special.-Rule in Shelley's case.

V. Estate in frank-marriage. Incidents to estates tail.-Former mode of barring them.-Fines and recoveries.-Abolition of fines and recoveries by statute 3 and 4 W. 4, c. 74.-Provisions as to entailed money.

VI. Estates for life.

VII. Tenant in tail after the possibility of issue extinct.

VIII. Estates less than freehold or chattels real.-Term to attend the

inheritance.

IX. Estates in joint tenancy, coparcenary and tenancy in common.

X. Reversions.

XI. Remainders vested and contingent.

XII. Cross remainders.

XIII. Statute of uses.

XIV. Executory devises.

XV. Rule against perpetuities.

XVI. Trustees to preserve contingent remainders.

XVII. Trusts.-Cestui que trusts and trustees.-Their respective interests.

IN giving such a general view of the modifications of estates in real property by the law of England, as will be adapted to the purposes of this work, it is to be observed, that the first distinction which it makes is that of estates in possession and estates in expectancy.

Its next division of estates is that of estates of freehold, and estates less than freehold.

Another division is that of estates of inheritance and estates not of inheritance.

Estates of inheritance are again divided into those which are absolute or fee simple, qualified or base, fee conditional or fee tail.

I. Tenant in fee simple (or, as he is frequently called, tenant in fee,) is he who hath lands, tenements, or hereditaments to hold to him and his heirs for ever, generally, absolutely, and simply, without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. (a)

The term fee, feodum, feud, or fief, is taken in contradistinction to allodium, which latter is defined to be every man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree, and the owner thereof hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is held of some superior, on condition of rendering him service, in which superior the ultimate property of the land resides. And, therefore, Sir Henry Spelman (b) defines a feud, or fee, to be the right which the vassal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services, the mere allodial property of the soil always remaining in the lord. This allodial property no subject in England has, (c) 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 absolutum et directum dominium; (d) but all subjects' lands are in the nature of feodum, or fee, whether derived to them by descent from their ancestors, or purchased for a valuable consideration. A subject, therefore, strictly speaking, hath not the absolute property of the soil; or, as Sir Edward Coke expresses it, (e) he hath dominium utile, but not dominium directum. And hence it is, that in the most solemn acts of law the

(a) Litt. § 1. Co. Litt. 1 b. (d) Ib.

(b) Of Feuds, c. 1.
(e) Co. Litt. 1.

(c) Co. Litt. 1.

strongest and highest estate that any subject can have is expressed 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 for ever; 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.

But in general a fee 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 a 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. (a)

In order to create a fee, words of inheritance are necessary in a deed, for if land be given by deed to a man for ever, or to him and his assigns for ever, he acquires by such gift only an estate for life. (b) This very great strictness in respect of the insertion of words of inheritance in all feoffments and grants, in order to vest a fee, originates in feudal principles. (c) As the personal abilities of the donee were originally supposed to be the only inducements for the gift, the donee's estate in the land extended only to his own person, and subsisted no longer than his life unless, the donor, by an express provision in the grant, gave it a longer continuance, and extended it also to his heirs. But this rule has been mitigated by many exceptions, (d) for it does not extend to devises by will, which were introduced at the time when the feodal rigour was on its

(a) Co. Litt. 1. 2 Bl. Com. 106. (c) Craig, 1. 1, t. 9, § 17.

(b) Litt. § 1.
(d) Co. Litt. 9, 10.

decline. In a devise, therefore, to a man for ever, or to one and his assigns for ever, or to one in fee simple, the devisee takes 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. (a)

But express words of inheritance are not always necessary even in a deed, for sometimes words of direct and immediate reference are sufficient, as where one to whom lands have been granted in fee grants the same to another as fully as they were granted to him. (b)

There can be no restraint of alienation whatever annexed to an estate in fee simple. It may be disposed of by its owner either by act inter vivos, or by testament, either absolutely, or by the creation of some partial interest, or by imposing certain limits and restrictions on the power of alienating such interest. If the owner does not himself make any disposition, it descends to the heir charged with those eventual life interests in favour of a husband or wife surviving, which have been already noticed. It is liable, unless charged with or devised subject to the payment of any particular debts, to all the owner's debts, as well debts due on simple contract, as on specialty, (c) and is disposable for their payment, priority, however, being given to specialty creditors. (d) It is forfeitable to the state for treason; and finally, under the system of tenure, it escheats or reverts to the lord of the fee for default of heirs. (e)

II. Estates in fee, when limited, may be divided into qualified or base fees, and fees conditional.

A base or qualified fee is that which has a qualification annexed to it, and which must be determined whenever that qualification is at an end. As in the case of a grant to A. and his heirs, tenants of the manor of Dale, in this

(a) 2 Bl. Com. 108.

(b) Shep. Touch. 101. Com. Dig. Estate, a. 2. Co. Litt. 9 b. (c) 3 and 4 Wm. 4, c. 104.

(d) Ib.

(e) Humph. p. 30.

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