Page images
PDF
EPUB
[ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

CHAPTER II.

ESTATES.1

SECTION I.

FEE-SIMPLE.

LIT. §§ 1, 2. Tenant in fee simple is he which hath lands or tenements to hold to him and his heirs for ever. And it is called in Latin feodum simplex, for feodum is the same that inheritance is, and simplex is as much as to say, lawful, or pure. And so feodum simplex signifies a lawful or pure inheritance. Quia feodum idem est quo hæreditas, et simplex idem est quod legitimum vel purum. Et sic feodum simplex idem est quod hæreditas legitima, vel hæreditas pura. For if a man would purchase lands or tenements in fee-simple, it behooveth him to have these words in his purchase, To have and to hold to him and to his heirs for these words (his heirs) make the estate of inheritance. For if a man purchase lands by these words, To have and to hold to him for ever; or by these words, To have and to hold to him and his assigns for ever 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.

And if a man purchase land in fee simple and die without issue, he which is his next cousin collateral of the whole blood, how far soever he be from him in degree (de quel pluis long degree qu'il soit), may inherit and have the land as heir to him.2

1 "It is to be known that a freehold is that which one holds to himself and his heirs in fee and inheritance, or in fee only to himself and his heirs. So also it is a freehold if one holds for life only or in the same way for an indeterminate time, without any certain limit of time; to wit, until something is done or not done, as if it is said, I give to such a one until I shall provide for him. But that cannot be called a freehold which one holds for a certain number of years, months, or days, although for a term of a hundred years which exceeds the lives of men. So that cannot be called a freehold which one holds at the will of his lords, which can be seasonably and unseasonably revoked, as from year to year, and from day to day." Bract. lib. 4, c. 28, fol. 207.

2"In the most ancient time [the feud] was so entirely in the power of the lords that when they wished they could take away a thing given by them as a feud. But afterwards they came to be good for a year only. Then it was determined that it should be continued for the life of the vassal; but since this by right of succession did not belong to sons, it was so extended that it did pass to sons; to whom [in quem], to wit,

the lord was willing to give this benefice. Which to-day is so established, that it comes equally to all. But when Conrad was starting for Rome, the vassals who were in his service, prayed that by a law promulgated by him, he would deign to extend this from son to grandsons, and that a brother might succeed to a brother who had died without lawful heir in a benefice which was their fathers'. But if one of two brothers has received a feud from his lord, upon his death without lawful heir his brother does not succeed to the feud, because although they have received in common [quod etsi communiter acceperint], one does not succeed the other, unless it has been expressly so said, to wit, that upon the death of one without lawful heir, the other shall succeed; but if there is an heir, the other brother shall not take. . . . This also should be known that a benefice does not pass by succession to collateral relations beyond first cousins, according to the practice established by the ancient sages, although in modern times it has been carried to the seventh generation, which in male descendants is extended by the new law indefinitely." Lib. Feud. lib. 1, tit. 1, §§ 1, 2, 4.

"When feuds first began to be hereditary, it was made a necessary qualification of the heir who would succeed to a feud, that he should be of the blood of, that is, lineally descended from, the first feudatory or purchaser. In consequence whereof, if a vassal died seised of a feud of his own acquiring, or feudum novum, it could not descend to any but his own offspring; no, not even to his brother, because he was not descended, nor derived his blood, from the first acquirer. But if it was feudum antiquum, that is, one descended to the vassal from his ancestors, then his brother, or such other collateral relation as was descended and derived his blood from the first feudatory, might succeed to such inheritance. . .

...

"However, in process of time, when the feodal rigor was in part abated, a method was invented to let in the collateral relations of the grantee to the inheritance, by granting him a feudum novum to hold ut feudum antiquum; that is, with all the qualities annexed of a feud derived from his ancestors, and then the collateral relations were admitted to succeed even in infinitum, because they might have been of the blood of, that is, descended from, the first imaginary purchaser. For since it is not ascer tained in such general grants, whether this feud shall be held ut feudum paternum or feudum avitum, but ut feudum antiquum merely; as a feud of indefinite antiquity: that is, since it is not ascertained from which of the ancestors of the grantee this feud shall be supposed to have descended; the law will not ascertain it, but will suppose any of his ancestors, pro re nata, to have been the first purchaser and therefore it admits any of his collateral kindred (who have the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors.

"Of this nature are all the grants of fee-simple estates of this kingdom; for there is now in the law of England no such thing as a grant of a feudum novum, to be held ut novum : unless in the case of a fee-tail, and there we see that this rule is strictly observed, and none but the lineal descendants of the first donee (or purchaser) are admitted; but every grant of lands in fee-simple is with us a feudum novum to be held ut antiquum, as a feud whose antiquity is indefinite: and therefore the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might have possibly been purchased, are capable of being called to the inheritance." 2 Bl. Com. 221, 222.

[ocr errors][merged small][ocr errors][ocr errors][merged small][ocr errors][merged small]
[merged small][merged small][ocr errors][merged small][merged small][merged small]

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.1

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

༤༨.、.༼

411

ANONYMOUS.

CORNISH ITER. 1302.

[Reported Fitz. 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.1

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 bef 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 the hold these tenements for his life, and after his death the shall have them.2

1 Barksdale v. Gamage, 3 Rich. Eq. 271, contra. 2And 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 t rather than before issue had. For before issue had if he had alien bound the issues had afterwards, nor the donor if there had been. issue had the donee had no power to alien, though he had after issue.

[merged small][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][subsumed][ocr errors][subsumed][subsumed][subsumed][merged small][merged small][ocr errors]

Less than

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]
[subsumed][subsumed][ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

413

CONDITIO

upon conan and his man and his

and his wife , the land so where one giv Annexed, though

that if the hustten, the land so o where one giveth seemed very hard their will being exserved. In all the ween them, to whom fore such feoffees had erit their issue of the ontrary to the form ex

of such feoffee is failiver or his heir by form e, if any were, had died; whom land was so given een barred of their reverectly repugnant to the form erceiving how necessary and y in the aforesaid cases, hath ling to the form in the deed of henceforth observed, so that such condition shall have no hat it shall remain unto the issue eir death, or shall revert unto the by reason that there is no issue at ath, the heir of such issue failing.

[graphic]

ly, they took it that he could not lawfully he did alien, the donor (although he could the donee, if he had no issue, might have a eing to one and to the heirs of his body, they until he had heirs of his body, for when it was neir of his body or not, they did not take him to ore the law was taken in such case, that if the gift e heirs of their two bodies begotten, and the husand the wife had taken a second husband, and had hould 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, 35b; Co. Lit. 19 a, Hargrave's note.

« PreviousContinue »