[donation, in order to make a fee or inheritance; for if the land was given to a man for ever, or to him and his assigns for ever, this vested in him but an estate for life (n). This very great nicety about the insertion of the word "heirs" in all feoffments and grants was a relic of the feudal strictness, by which it was required that the form of the donation should be punctiliously pursued (0). And, therefore, as the personal abilities of the donee were originally supposed to be the only inducements to 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 now, by the Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 51, it is no longer necessary to use the word "heirs" in any deed; but it is sufficient to say that the conveyance is "in fee simple." And long before the date. of that statute the rigor of the rule had been modified by several exceptions, of which the two following were the most important.

In grants of land to corporations sole and their successors, the word "successors" supplied the place of "heirs"; for, as heirs take from the ancestor, so doth the successor from the predecessor. But, even in a grant to a bishop, or other sole spiritual corporation, in frankalmoign, the word "frankalmoign" supplied the place of both "heirs" and "successors"; and, in such a case a fee simple vested in such sole corporation. And, in a grant of lands to a corporation aggregate, the word "successors" is not necessary, though usually inserted; for, as the corporation never dies, such estate is perpetual or equivalent to a fee simple; and therefore the law allows it to be one (p).

And the old feudal rule never extended to dispositions. by will, in which, as they were introduced at a time

(n) Litt. s. 1.

(0) Craig, Jus Feudale, L. 1,

t. 10, s. 7.

(p) Co. Litt. 9 b, 94 b.

[when the feudal rigour was fast wearing out, a more liberal construction has always been allowed. And therefore, by a devise to a man for ever," or to one "and his assigns for ever," or to one "in fee simple," the devisee has always been construed to have an estate of inheritance, because the intention of the devisor was sufficiently plain from the words of perpetuity annexed, though he had omitted the legal words of inheritance. If, however, the devise were simply to a man "and his assigns," without annexing any words of perpetuity, the devisee was, at one time, held to take only an estate for life;] but now, by the Wills Act, 1837 (7 Will. IV. & 1 Vict. c. 26), s. 28, where any real estate shall be devised without words of limitation, the devise will pass the whole interest of the testator, unless a contrary intention appears by the will.

[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 this we may divide into two kinds: 1. 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.

1. A base, or qualified, fee is such a one as has a qualification subjoined thereto, and 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; here, whenever A. or the heirs of A. cease to be tenants of that manor, the grant is entirely defeated. So, when Henry the Sixth granted to John Talbot, lord of the manor of Kingston-Lisle in Berks, that he and his heirs, lords of the said manor, should be peers of the realm, by the title of barons of Lisle; here John Talbot had a base or qualified fee in that dignity, and the instant he or his heirs quitted the seignory of this manor the dignity was at an end (q). This estate is a fee, because by (7) Co. Litt. 27 a.

[possibility it may endure for ever 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 (r).

2. A conditional fee at the common law was a fee restrained to some particular heirs, exclusive of others (8); as to the heirs of a man's body, by which only his lineal descendants were admitted, in exclusion of collateral heirs; or, to the heirs male of his body, in exclusion both of collaterals and of lineal females also. Now 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 (t). They therefore called it a fee simple on condition that the donee had issue. So that, as soon as the donee had any issue born, his estate was supposed to become absolute by the performance of the condition (u) ; at least for these three purposes: 1. To enable the donee to aliene the land, and thereby to bar not only his own issue, but the donee of his interest in the reversion (x); 2. To subject the donee to forfeit his estate for treason, which till issue born he was not able to do, except for the period of his own life; for otherwise the inheritance of the issue, and the reversion of the donor, might have been defeated (y); 3. To empower the donee to charge the land with rents, commons, and other incumbrances, so as to bind his issue (2). And this was thought the more reasonable, because, by the birth of issue, the possibility

(2) The term base fee has also a more restricted application, as denoting that species of qualified fee which is created where tenant in tail conveys his estate tail by a conveyance which bars the issue, but not the remaindermen; and in the Fines and Recoveries Act, 3 & 4 Will. IV. (1833) c. 74, the meaning of the phrase base fee is, but only for the purpose of the Act, so restricted.

(s) Flet. L. 3, ch. 3, s. 5.

(t) Willion v. Berkley, (1562) Plowd. 241.

(u) Necil's Case, (1604) 7 Rep. 34 b.

(c) Co. Litt. 19 a; 2 Inst. 333; Doe v. Clark, (1822) 5 B. & Ald. 461.

(y) Co. Litt. ubi sup. ; 2 Inst. 334.

(2) Co. Litt. ubi sup.

[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 donee 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, the land by force of the condition reverted to the donor. For which reason, in order to subject the land 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 land, which gave them a fee simple absolute, that would descend to the heirs general, according to the course of the common law. And thus stood the old law with regard to conditional fees; which things, says Sir Edward Coke, though they seem antient, are yet necessary to be known; as well for the declaring how the common law stood in such cases, as for the sake of annuities, and such-like inheritances, which are not within the statutes of entail, and therefore remain as at the common law (a).

The inconvenience, which attended these limited and fettered inheritances, was probably what induced the judges to give way to this subtle finesse (for such it undoubtedly was), in order to shorten the duration of these conditional estates. But the nobility put a stop to this construction of the limitation, by procuring the Statute of Westminster the Second (commonly called the statute De donis conditionalibus) to be made (b); by which statute it was enacted, that thenceforth the will of the donor should be observed secundùm formam doni, so that, where lands were given to a man and the heirs

(a) Co. Litt. 20 a; Moore v. Lord Plymouth, (1817) 7 Taunt. 614. [This case did not, in fact,

decide that the alleged entail of a profit à prendre was valid.-E. J.]

(b) 13 Edw. I. (A.D. 1285), c. 1.

[of his body, they should, notwithstanding any alienation by the donee, go to his issue, if there were any, and if issue failed, should revert to the donor. And the judges soon afterwards determined that, under such a limitation, and upon the true construction of the Act, the donee had no longer a conditional fee simple, but a fee-tail (c), leaving in the donor the ultimate fee simple (d). And hence it is that Littleton tells us (e) that tenant in fee-tail is by virtue of the Statute of Westminster the Second.

Having thus shewn the original of estates-tail, we 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 (f) expounds to comprehend all corporeal hereditaments whatsoever, and also all incorporeal hereditaments which savour of the realty, that is, which come 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 them, if granted to a man and the heirs of his body, the grantee hath still a fee conditional at the common law, as before the statute; and by his alienation may bar the heir or reversioner (g).

Next, as to the several species of estates-tail, and how they are respectively created.

(c) The expression fee-tail, or feodum talliatum, was borrowed from the feudists; among whom it signified any mutilated or truncated inheritance, being derived from the barbarous verb talliare, to cut.Spelm. Gloss. ad verb. Feodum ;

Craig, Jus Feudale, L. 1, t. 10, ss. 21, 25.

(d) 2 Inst. 335.
(e) S.-13.

(f) Co. Litt. 19 b, 20 a.
(g) Ibid. 20 a.