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Co. Lit. 19 a. Before which statute of Donis conditionalibus, if land had been given to a man, and to the heirs males of his body, the having of an issue female had been no performance of the condition ; but if he had issue male, and died, and the issue male had inherited, yet he had not had a fee simple absolute; for if he had died without issue male, the donor should have entered as in his reverter. By having of issue, the condition was performed for three purposes : First, to alien; Secondly, to forfeit; Thirdly, to charge with rent, common, or the like. But the course of descent was not altered by having issue : for if the donee had issue and died, and the land had descended to his issue, yet if that issue had died (without any alienation made) without issue, his collateral heir should not have inherited, because he was not within the form of the gift, viz., heir of the body of the donee. Lands were given before the statute in frank-marriage, and the donees had issue and died, and after the issue died without issue ; it was adjudged, that his collateral issue shall not inherit, but the donor shall re-enter. So note, that the heir in tail had no fee simple absolute at the common law, though there were divers descents.

If lands had been given to a man and to his heirs males of his body, and he had issue two sons, and the eldest had issue a daughter, the daughter was not inheritable to the fee simple, but the younger son per formam doni. And so if land had been given at the common law to a man and the heirs females of his body, and he had issue a son and a daughter, and died, the daughter should have inherited this fee simple at the common law; for the statute of Donis conditionalibus createth no estate tail, but of such an estate as was fee simple at the common law, and is descendible in such form as it was at the common law. If the donee in tail had issue before the statute, and the issue had died without issue, the alienation of the donee at the common law, having no issue at that time, had not barred the donor.

If donee in tail at the common law had aliened before any issue had, and after had issue, this alienation had barred the issue, because he claimed a fee simple ; yet if that issue had died without issue, the donor might re-enter, for that he aliened before any issue, at what time he had no power to alien to bar the possibility of the donor.?

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i See Barksdale v. Gamage, 3 Rich. Eq. 271.

ANONYMOUS.
CORNISH ITER. 1302.

(Reported Pitz. Ab. Formedon, 65.] FORMEDON in reverter because the donee died without issue. Asseby. The donee alienated before the statute and had issue. Heyham. He had no issue when he made the alienation. Asseby. It may be that he had no issue when he aliened, but that he had issue afterwards, and then is the alienation good. Heyham. No. Asseby. He had had issue. THE JUSTICES. It is nothing to the point, if he had had issue alive when he aliened, for there might have been issue, and the issue might have died before the alienation ; by that alienation will not the plaintiff be barred. Asseby. He had issue alive when he made alienation; and the others contra.'

had no issue wheation good: nothing to the

ANONYMOUS.
CORNISH ITER. 1302.

[Reported Fitz. Ab. Formedon, 66.] FORMEDON in reverter, and he counted that he made the gift to one C. with his daughter in frank marriage, and that they are dead without issue. Hunt. The tenements were given before the Statute to the said C. and A., and after the death of C. the tenant that now is took the said A. to wife and had issue, which is alive, and so he holds by the law of England. Middleton. The said A. died after the Statute, wherefore we pray judgment if he can claim by the courtesy. BRUMPTON. It is found that the tenements were given before the Statute to C. and A and that the tenant that now is, is the second husband of A., and be the Statute in such case the second husband will hold by the 1. England; and this appears by the Statute which has restrained says nec secundus vir, &c. ; wherefore this court adjudges thr hold these tenements for his life, and after his death the shall have them.”

1 Barksdale v. Gamage, 3 Rich. Eq. 271, contra.

2 “And at the common law there was no estate of inheritanc ple. But these estates in fee simple were of two sorts, the on conditional, as hath been said. And the fee simple condi' given to a man to the heirs of his body begotten, and herein ti rather than before issue had. For before issue had if he had alien bound the issues had afterwards, nor the donor if there had beei. issue had the donee had no power to alien, though he had after issue.

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CONDITIOupon conan and his man and his ma and his wife

1, the land so where one giv unexed, though

that if the hustten, the land so where one giveth seemed very hard their will being exserved. In all the tween them, to whom Tore such feoffees had

rit their issue of the ontrary to the form exle of such feoffee is failiver or his heir by form C, if any were, had died ; whom land was so given een barred of their reverectly repugnant to the form crceiving how necessary and v in the aforesaid cases, hatlı ling to the form in the deed of

henceforth observed, so that ľ such condition shall have no liat it shall reinain unto the issue eir death, or shall revert unto the by reason that there is no issue at th, the heir of such issue failing.

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ly, they took it that he could not lawfully 1 he did alien, the donor (although he could

the donee, if he had no issue, might have a ing to one and to the heirs of his body, they until he had heirs of his body, for when it was heir of his body or not, they did not take him to ore the law was taken in such case, that if the gift

heirs of their two bodies begotten, and the hus. ind the wife had taken a second husband, and had could not be tenant by the curtesy, nor should their died, the second wife of the husband should not be

the donor had appointed was begotten, they took it consummate in him." Per BROWN, J., in Willion v.

+ a, 35 6; Co. Lit. 19 a, Hargrave's note.

ANONYMOUS.
CORNISH ITER. 1302.

(Reported Pitz. Ab. Formedon, 65.] FORMEDON in reverter because the donee died without issue. Asseby. The donee alienated before the statute and had issue. Heyhan. He had no issue when he made the alienation. Asseby. It may be that he had no issue when he aliened, but that he had issue afterwards, and then is the alienation good. Heyham. No. Asseby. He had had issue. THE JUSTICES. It is nothing to the point, if he had had issue alive when he aliened, for there might have been issue, and the issue might have died before the alienation ; by that alienation will not the plaintiff be barred. Asseby. He had issue alive when he made alienation; and the others contra.'

ANONYMOUS.
CORNISH ITER. 1302.

(Reported Fitz. Ab. Formedon, 66.] FORMEDON in reverter, and he counted that he made the gift to one C. with his daughter in frank marriage, and that they are dead without issue. Hunt. The tenements were given before the Statute to the said C. and A., and after the death of C. the tenant that now is took the said A. to wife and had issue, which is alive, and so he holds by the law of England. Middleton. The said A. died after the Statute, wherefore we pray judgment if he can claim by the courtesy. BRUMPTON. It is found that the tenements were given before the Statute to C. and A., and that the tenant that now is, is the second husband of A., and before the Statute in such case the second husband will hold by the law of England ; and this appears by the Statute which has restrained this and says nec secundus vir, &c. ; wherefore this court adjudges that he shall hold these tenements for his life, and after his death the demandant shall have them.

1 Barksdale v. Gamage, 3 Rich. Eq. 271, contra.

2 “ And at the common law there was no estate of inheritance but what was fee sim. ple. But these estates in fee simple were of two sorts, the one absolute, and the other conditional, as hath been said. And the fee simple conditional was, where land was given to a man to the heirs of his body begotten, and herein the abuse was after issue had · rather than before issue had. For before issue had if he had aliened, this should not have bound the issues had afterwards, nor the donor if there had been no issue, for until issue had the donee had no power to alien, though he had after issue. For when the

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