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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 Iquod 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 descend. ants is extended by the new law indefinitely." Lib. Feud. lib. 1, tit. 1, $S 1, 2, 4.
“When fends 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 fend 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, ono 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 qual. ities 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 fcudum paternum or feudum a vitum, 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 role 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 B1. Com. 221, 222.
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
donor might re-enter, for that he aliened before any issue, at what time
1 See Barksdale v. Gamage, 3 Rich. Eq. 271.
(Reported Fitz. Ab. Formcdon, 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.'
(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
St. 13 Edw. I. ; ST. OF WESTM. II. (1285) c. 1; De Donis ConditioNALIBUS. First, concerning lands that many times are given upon condition, that is, to wit, where any giveth his land to any man and his wife, and to the heirs begotten of the bodies of the same man and his wife, with such condition expressed that if the same man and his wife die without heir of their bodies between them begotten, the land so given shall revert to the giver or his heir; in case also where one giv eth lands in free marriage, which gift hath a condition annexed, though it be not expressed in the deed of gift, which is this, that if the husband and wife die without heir of their bodies begotten, the land so given shall revert to the giver or bis heir ; in case also where one giveth land to another and the heirs of his body issuing, it seemed very hard and yet seemeth to the givers and their heirs, that their will being expressed in the gift was not heretofore nor yet is observed. In all the cases aforesaid after issue begotten and born between them, to whom the lands were given under such condition, heretofore such feoffees had power to aliene the land so given, and to disinherit their issue of the land, contrary to the minds of the givers, and contrary to the form expressed in the gift: and further, when the issue of such feoffee is failing, the land so given ought to return to the giver or his heir by form of gift expressed in the deed, though the issue, if any were, had died ; yet by the deed and feoffment of them, to whom land was so given upon condition, the donors have heretofore been barred of their reversion of the same tenements which was directly repugnant to the form of the gift : wherefore our lord the king, perceiving how necessary and expedient it should be to provide remedy in the aforesaid cases, hath ordained, that the will of the giver according to the form in the deed of gift manifestly expressed shall be from henceforth observed, so that they to whom the land was given under such condition shall have no power to aliene the land so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert unto the giver or his heirs if issue fail, either by reason that there is no issue at all, or if any issue be, it fail by death, the heir of such issue failing.
gift was to one and to the heirs of his body, they took it that he could not lawfully alien until he had such heirs, and that if he did alien, the donor (although he could not enter presently) after the death of the donee, if he had no issue, might have a formeron in reverter. For the gift being to one and to the heirs of his body, they adjudged it not to be a full fee-simple until he had heirs of his body, for when it was incertain whether he should have an heir of his body or not, they did not take him to hare a full inheritance. And therefore the law was taken in such case, that if the gist was to husband and wife, and to the heirs of their two bodies begotten, and the husband had died before issue had, and the wife had taken a second husband, and had issue, there the second husband should not be tenant by the curtesy, nor should their issue inherit, and if the wife had died, the second wife of the husband should not be endowed ; for until such heir as the donor had appointed was begotten, they took it that the inheritance was not consummate in him." Per Brown, J., in Willion v. Berkley, Plowd. 223, 245, 246.
See Paine's Case, 8 Co., 34 a, 35 b; Co. Lit. 19 a, Hargrave's note.
Neither shall the second husband of any such woman from henceforth have anything in the land so given upon condition after the death of his wife, by the law of England, nor the issue of the second husband and wife shall succeed in the inheritance, but immediately after the death of the husband and wife, to whom the land was so given, it shall come to their issue or return unto the giver or his heir as before is said. And forasmuch as in a new case new remedy must be provided, this manner of writ shall be granted to the party that will purchase it : “ Command A. that justly, &c., he reniler to B. the manor of F. with its appurtenances, which C. gave to such a man, and such a woman, and to the heirs of the said man and woman issuing ;” or, " which C. gave to such a man in free marriage with such a woman, and which, after the death of the aforesaid man and woman, to the aforesaid B., son of the aforesaid man und woman, ought to descend, by the form of the gift aforesaid, as he saith ;” or, " which C. gave to such a one and the heirs of his body issuing, and which after the death of the said such a one, to the aforesaid B., son of the aforesaid such a one, ought to descend, by the form, &c.” The writ whereby the giver shall recover when issue faileth is common enough in the Chancery. And it is to wit that this statute shall hold place touching alienation of land contrary to the form of gift hereafter to be made, and shall not extend to gifts made before. And if a fine he levied hereafter upon such lands it shall be void in the law, neither shall the heirs or such as the reversion belongeth unto, though they be of full age, within England, and out of prison, need to make their claim.
Lit. $$ 13–19, 21–24. Tenant in fee tail is by force of the statute of W[estm). II. c. 1, for before the said statute all inheritances were fee simple; for all the gifts which be specified in that statute were fee simple conditional at the common law, as appeareth by the rehearsal of the same statute. And now by this statute tenant in tail is in two manpers, – that is to say, tenant in tail general, and tenant in tail special.
Tenant in tail general is, where lands or tenements are given to a man and to his heirs of his body begotten. In this case it is said general tail, because whatsoever woman that such tenant taketh to wife (if he hath many wives, and by every of them hath issue), yet every one of these issues by possibility may inherit the tenements by force of the gift; because that every such issue is of his body engendered.
In the same manner it is where lands or tenements are given to a woman and to the heirs of her body; albeit that she hath divers husbands, yet the issue which she may have by every husband may inherit as issue in tail by force of this gift; and therefore such gifts are called general tails.
Tenant in tail special is, where lands or tenements are given to a man and to his wife and to the heirs of their two bodies begotten. In this case none shall inherit by force of this gift but those that be engendered between them two. And it is called especial tail, because if the wife die, and he taketh another wife and have issue, the issue of the