inferior and fubordinate Estate in Fee-simple than the other two afore-mentioned, for upon this a Reversion or Remainder may be expectant; and yet he who has any such Estate of Inheritance may plead that he is seised of the Land in his Demesne as of Fee, without shewing the Beginning of his Estate, as well where he hath a Fee-simple, derived out of an Estate-tail, as a Fee-simple conditional or limited. 10 Rep. 97, 98.

Judge Vaughan says, that Lord Coke's Cafe, If Land be given to H. and his Heirs, as long as B. hath Heirs of his Body, with Remainder over in Fee, the Remainder is void, being a Remainder after a Fee-fimple, tho that Fee-fimple determines when no Heirs are left of the Body of B. he doubts whether this be Law or not, in regard that when fuch a base Fee shall determine for want of Ifsue of the Body of B. the Land returns to the Grantor and his Heirs, as a kind of Reversion, and if there can be a Reversion of such Estate, there is no Reafon why a Remainder may not be granted of it. Vaugh. 269.

'Tis true, a Remainder cannot depend upon an absolute or pure Fee-fimple by necessary Reafon; for when all a Man hath of Estate is given or gone away, nothing remains but the abfolute Fee simple. A Fee fimple Estate determinable upon a Contingent, is a Fee-simple to all Intents, but not so durable as absolute Fee: And all Fee-simples are unequally durable, for one will Escheat fooner than another by the Failure of Heirs. An Estate of Feefimple determines in a Bastard with his Life, if he want Issue: But an Estate to a Man and his Heirs as long as J. S. has any Heir, which is no abfolute Fee fimple, is doubtless as durable as the Estate in Fee that J. S. hath to him and his Heirs, which is an absolute Fee-simple. Ibid. 269, 273.

Where

Where a Man gives and devises Lands to his younger Son, paying such a Sum of Money unto another Person, the Devisee hath a Fee-simple; but if he do not pay the Money accordingly, his Estate shall determine, by the same Limitation, and shall go to the Heir without any other Limitation, and the Quantity of the Money, be it great or small, is not material. And it was here said, that upon one Fee-simple, another Fee-simple cannot be limited; tho' by common Experience it is evident, that on a Fee simple determinable, another Fee-simple may be limited. But two Fee-simples that may stand in several Persons distinct, when they meet in one Perfon cannot do so, for the greater and absolute Fee doth swallow up the base and limited Fee. 2 Leon. 114. Hob. 323.

By the Law of England, no Person can regularly take to himself an Inheritance in Fee-simple by Deed, without the Word Heirs, as I have already mentioned: Though in Cases where the Word Heirs is wanting, it has been held, that if there are other Words equivalent, an Estate in Fee will pass; but this must be understood where the Interest passeth by the Confideration only, without any other Ceremony in the Law, and not where the Confideration together with another Ceremony directs the Estate; as for Instance, a Bargain and Sale of Lands to a Man for ever, in Confideration of Money and natural Affection, there the Confideration alone directs the Estate, and Conscience faith, that the Bargainee hath as great an Estate in the Land as the Bargainor could convey, which must be an Estate in Fee, there being no farther Ceremony to compleat it; (for where natural Affection is Part of the Confideration, the Deed is good without Inrolment.) But where a Man in Confideration of Money, makes a Feoffment of the Lands to another for ever, there the Confideration only doth not direct the Estate, but another Ceremony is required to perfect it, and that is Livery and Seifin, therefore the Feoffee shall have but an Estate for Life. Dyer 167. 2 Nelf. Abr. 928.

The Word Inheritance is not only intended where a Man hath Lands or Tenements by Discent of Inheritance, but every Fee-simple or Tail which a Person has by his Purchase may be said to be

an

Inheritance, because his Heirs may inherit him: And in a Writ of Right that a Man brings of Lands, that was of his own Purchase, the Writ shall say, which he claims to be his Right and Inheritance; and so it is in divers other Writs, as appears by the Register. But there are some Perfons who have Inheritance, that have it neither by Discent, nor properly by Purchase, but by Creation; as when the King doth create any Person an Earl, or Baron, to him and his Heirs, or to the Heirs Male of his Body, &c. he hath an Inheritance by Creation. And if a Man be created a Baron by Writ, whereby he is called to Parliament, he hath a Fee-simple in the Barony without any Words of Inheritance; but if he be created by I etters Patent, the Estate of Inheritance must be limited by apt Words, or it will be void. Lit. Seft. 9. 1 Inst. 16.

When a Rent or Annuity is granted to one and his Heirs, it is a Fee Personal: And of such Things whereof a Man may have a manual Occupation, Poffeffion or Receipt, as of Lands, Tenements, Rents, and such like, there a Man shall say in his Count and Plea, that such a one was seised in his Demesne as of Fee; but of those Things which do not lie in manual Occupation, &c. as of the Advowson of a Church, or any such like Thing, there

2

there he must say, that he was seised as of Fee, and not in his Demesne: And the Latin is in one Case, Quod talis feifitus fuit in Dominico fuo ut de feodo; and in the other Cafe, Quod feifitus fuit ut de feodo, &c. Lit. Sect. 10. See Salk. 237.

Here the Word Dominicum, that is Demesne, is that Inheritance, wherein a Man hath proper Dominion or Ownership, as it is diftinguished from the Lands which another doth hold of him in Service; and also that which is manually occupied, manured, and possessed for the neceffary Sustentation, Maintenance and Supportation of the Lord and his Houshold, and savoureth de domo, of the House, either for his or their Board and Sustenance, or received in Rents, &c. for bearing and discharging all necessary Charges. Of an Advowson, wherein a Person hath as absolute Ownership and Property as he hath in Lands or Rents, he shall not say he is seised in Dominico fuo ut feodo, because that Inheritance, savouring not de Domo, cannot serve for sustaining of him and his Household, nor can any Thing be receiv'd for the same, for defraying of Charges. I Inft. 17.

As to Heirs to Fee-simple Estates, a Child born, tho' he lives but an Hour, has the Fee of Lands vested in him as Heir. And there is a lineal Heir, as the Son of a Person; and a collateral Heir, as Brother, Oc. Yet a Man can have no right Heir, to take Lands during his Life: An eldest Son shall not take by the Name of Heir in the Life-time of his Father. And a Man cannot raise a Fee-simple Estate to his right Heirs, by the Name of Heirs, as a Purchase by Conveyance or otherwise; but in such Case the Heir shall be in by Discent. Dyer 99. 2 Leon. 70. Hob. 30.

There

There are some Persons that may not be Heirs by our Law; as a Bastard, born out of lawful Wedlock; an Alien, who is born out of the King's Allegiance, tho' in Wedlock; a Man attainted of Treason or Felony, whose Blood is corrupted: And not only an Alien, but if one be made Denizen by Letters Patent, he cannot be Heir; tho' 'tis otherwise of a Person naturalized by Act of Parliament. If an Alien Christian or Infidel purchase Houses or Lands to him and his Heirs, altho' he can have no Heirs, yet he is of Capacity to take a Fee-simple, but not to hold; for upon an Office found, the King shall have it by his Prerogative. A Bastard, by Continuance, may be Heir against a Stranger; and having gotten a Name by Reputation, may purchase by his reputed or known Name to him and his Heirs, tho he can have no Heir but of his Body: An Hermaphrodite may be Heir, and take according to that Sex which is most prevalent; but a Monfter, that hath not human Shape cannot be Heir, altho' a Person deformed may. Ideots and Lunaticks, Persons excommunicate, attainted in Pramunire, Outlaws in Debt, Oc. may be Heirs. I Inft. 7. 8. 2. 2 Danu. Abr. 552,553.

The eldest Son, after the Death of his Father, is his Heir, &c. And if there be Grandfather, Father and Son, and the Father dies before the Grandfather, and after the Grandfather dieth seised; the Land shall go to such Son of the Father, and not to any other Children of the Grandfather: And this Heir is called Hares jure RepraSentationis; but if the Father die without any Child, the next eldest Brother shall have the Land in Fee-simple as Heir, and for Want of a Brother, it belongs to the Sifters of the Father. Bro. Abr. 303.