SECTION 17. ESTATES OF INHERITANCE. Estates of inheritance are those estates which upon the death of the holder, still continue and descend to his heirs. Estates of inheritance are divided into estates in fee-simple and estates in fee-tail. SECTION 18. FEE-SIMPLE. The ancient and the modern character of the estate in fee-simple are described in the following two quotations, one from a seventeenth and the other from a twentieth century legal writer. "FEE cometh of the French fief, (i. e.), praedium beneficiarium, and legally signifieth inheritance, as our author himself expoundeth it. And simple is added, for that it is descendible to his heirs generally, that is, simply, without restraint to the heirs of his body, or the like. Feodum est quod quis tenet ex quacunque causa, sive sit tenementum sive redditus, etc. In Domesday it is called feodum. Of fee-simple, it is commonly holden, that there be three kinds, viz., fee-simple absolute, fee-simple conditional, and feesimple qualified, or a base fee. But the more genuine and apt division were to divide fee, that is, inheritance, into three parts, viz., simple or absolute conditional, and qualified or base. For this word (simple) properly excludeth both conditions and limitations, that defeat or abridge the fee. Hereby it appeareth that fee, in our legal understanding, signifieth, that the land belongs to us and our heirs, in respect whereof the owner is said to be seised in fee; and in this sense the king is said to be seised in fee." " "As used in the United States the term signifies an absolute estate of inheritance, free from any restrictions • Coke's Institutes, Vol. I, p. 490. to particular heirs, and is the largest estate and most general interest that can be enjoyed in land, being the entire property therein. It carries with it the most ample right to the use of the land and confers an unlimited power of alienation. In point of duration it may continue forever. Every other species of estate is formed out of it and is ultimately absorbed into it." Formerly an estate in fee-simple could only be created by the use of the word "heirs." This rule was so absolute that even such a grant as "A, his descendants or assigns forever," would only create a life estate. "For if a man would purchase lands and tenements in fee-simple, it behooveth him to have these words in his purchase, To have and to hold to him and his heirs. ("To have and to hold:' These two words do in this place prove a double signification, viz., to have, to have an estate of inheritance of lands descendible to his heirs, and to hold, to hold the same of some superior lord). For these words (his heirs) make the estate of inheritance. For if a man purchase lands by the words, To have and to hold to him and his assigns forever; (assignee cometh of the verb assigno; and note, there be assigns in deed and assigns in law; whereof see more in the Chapter of Warranty, Section 733), in these two cases he hath but an estate for term of life, for that there lack these words, (his heirs), which words only make an estate of inheritance in all feoffments and grants." 5 "And it is to be observed, that every word of Littleton is worthy of observation. First, heirs in the plural number; for, if a man give land to a man and to his heir in the singular number, he hath but an estate • Warvelle on Real Property, p. 70. 6 Littleton, Sec. 1. for life, for his heir cannot take a fee-simple by descent, because he is but one, and therefore in that case his heirs shall take nothing. Also observable is this conjunctive (et). For if a man give lands to one, To have and to hold to him or his heirs, he hath but an estate for life, for the uncertainty. (His, suis). If a man give land unto two, To have and to hold them two et haeredibus, omitting suis, they have but an estate for life, for the uncertainty; whereof more hereafter in this section. But it is said, if land be given to one man et haeredibus, omitting suis, that notwithstanding a fee-simple passeth; but it is safe to follow Littleton."" SECTION 19. ESTATES IN FEE-TAIL. Estates in fee-tail "are the second class of estates of inheritance. An estate in fee-tail differed from an estate in fee-simple in that while the latter was a grant to a person and his heirs generally, the former was a grant to a person and the heirs of his body; i. e., his direct descendants. Upon the death of a person holding an estate in fee-tail the property could only go to those relations of his (otherwise qualified), who were lineal descendants of the first holder of the estate tail. If there were no persons with these requirements the land reverted to the original grantor or his heirs. The estate of fee-tail was created to enable land to be kept in the same family, and to prevent its alienation. The Statute which created the estate (and at the same time abolished the fee conditional) was known as the Statute of DeDonis, and was the thirteenth chapter of the Statutes of Westminster II, 12. Edward I (1285).8 • Coke's Institutes, Vol. I, p. 494. "The statute of W. 2." This statute was made in 13 E., 1, and is called West. 2, because the Parliament was holden at Westminster, and hath the Estates in fee-tail are divided into those in fee-tail general and fee-tail special. The former were those estates limited to all the descendants of the grantee, and the latter those limited to the descendants of the grantee by a particular person. Thus a grant to "A and the heirs of his body" created a fee-tail general, while a grant to "A and the heirs of his body by his wife B" created a fee-tail special. Estates in fee-tail could also be limited either to the male or to the female heirs of the grantee. Such estates were called estates in fee-tail, male or fee-tail female. Estates in fee-tail have been abolished in nearly all the States of this country. They still exist in a few states in a modified form. Thus in Illinois an estate in fee-tail may still be created but in such a case, while the grantee takes only a life estate, his children take an estate in fee-simple. The remainder of this section is composed of extracts from Coke on Littleton." "In gifts in tail these words (heirs) are as necessary as in feoffments and grants; for seeing every estate tail was a fee-simple at the common law, and at the common law no fee-simple could be in feoffments and grants without these words, (heirs) and that an estate in fee name of the second, because statute, Sir William Herle, Chief Justice of the Court of Common Pleas, in 5 E., 3, 14, saith, that King E. I, was the wisest king that ever was; and the cause of the making of this statute, was to preserve the inheritance in the blood of them to whom the gift was made. And in 9 E., 3, 22, he saith, that they were sage men that made this statute. See more of this in the Chapter of Warranties, Sec. 746. Coke's Institutes. • See Section 5. tail is but a cut or restrained fee, it followeth, that in gifts in a man's life-time no estate can be created without these words, (heirs) unless it be in case of frankmarriage, as hereafter shall be shown. And where Littleton saith, (heirs) yet (heir) in the singular number in a special case may create an estate tail, as it appeareth by 39 Ass. p. 20, hereafter mentioned. And yet if a man give lands to A. et haeredibus de corpore suo, the remainder to B. in forma praedicta, this is a good estate tail to B., for that in forma praedicta do include the other. If a man letteth lands to A. for life, the remainder to B in tail, the remainder to C. in forma praedicta, this remainder is void for the uncertainty. But if the remainder had been, the remainder to C. in eadem forma, this had been a good estate tail; for idem semper proximo antecedenti refertur. If a man give lands and tenements to a man et semini suo, or exitibus vel prolibus de corpore suo, to a man and to his seed, or to the issue or children of his body, he hath an estate for life; for albeit that the statute provideth, that voluntas donatoris secundum formam in charta doni sui manifeste expressam de caetero observetur, yet that will and intent must agree with the rules of law. And of this opinion was our author himself, as it appeared in his learned reading afore-mentioned upon this statute, where he holdeth if a man giveth land to a man et exitibus de corpore suo legitime procreatis, or semini suo, he hath but an estate for life, for that there wanteth words of inheritance. "These words, 'of his body,' are not so strictly required but that they may be expressed by words that amount to as much: for the example that the statute of W. 2, putteth hath not these words, (de corpore) but these words (haeredibus) viz., Cumaliquis dat terram |