should belong to the testator, the will directed the capital to be laid out and secured, and the interest made good to testator's daughter for life, and to her lawful heirs for ever. But in case of her and their failure, the same should go to his nephews moietively. Lord Hardwicke observed, "As to the annuity, (being an annuity in fee,) I think it will fall under a different consideration from the rest of the personal estate. If estates of a different nature are comprised in this clause, Forth v. Chapman is an express authority for me that the words shall receive a different construction, according to the nature of these estates. Supposing, therefore, land was comprised in the direction of the trust, and the will so executed as to have. affected lands, the Court could not possibly have directed any other settlement of the land, but to the daughter in tail. Undoubtedly so, if it had stood on the first words, to intail on her, &c. How is it explained by the subsequent clause, wherein the testator has declared his own intent, and made the construction himself? There it would have been a direction, the settlement should be on her for life; but saying her lawful heirs for ever, will be construed by the preceding word issue, which will make an estate-tail in her. So it would be as to land. The question then arises as to this particular instance of annuity, which is not real, but an inheritance of a personal thing descendible to the heir. The proper kind of limitation that is

capable of it, is distinct from mere personal goods and chattels. The testator having purchased it, was seised in fee of it at the time of making the will, and might direct it to be settled, as far as by law allowed to be so, not by way of strict intail, because not within the statute de donis, according to Lord Coke. No writ of entry could be brought of it, nor is it real estate; and the very statute itself shows it in the beginning of it, nothing being included therein but lands and tenements, and what partakes of their nature. And Co. Litt. 20, says, in all these cases, grantee has a fee conditional, as before the statute. The settlement then to be made of it, supposing the first question, that it is included in this power in the will, is in this manner, to the daughter for life, and the heirs of her body, which is in her a fee-simple conditional. The executors then clearly could not carry it over in remainder to the nephews, for no remainder could be created of any estate not within the statute de donis; for before it was a possibility of reverter, out of which a remainder could not be, upon this notion, that being but a possibility, it could not be grantable over; and if before the statute de donis, a man had granted lands to another and the heirs of his body, and said, in default of such issue, over to B and his heirs, that grant over had had been void (v); and on the having issue, the condition had been performed, and the grantee (v) Quare this point; and see Ch, on Conditional Fees.;

himself might have aliened, so as to have barred the possibility of reverter. So here, as this annuity is not within the statute de donis, if settled according to this will, to her for life, and the heirs of her body, if carried over, in default of such issue to the nephews, that would have been void: as soon as issue had, the condition is performed; she might have aliened, and barred the possibility of reverter to the donor. Here issue has been had, and consequently an absolute fee must be, if a settlement is made according to this will. This I take to be the legal construction of this devise, according to the different nature of these estates." And yet, strange as it may appear, Lord Hardwicke decided that the daughter had a mere life interest in the personalty; and as to the annuity, it would be difficult to support Lord Hardwicke's reasoning or conclusion.

NOTES.

Exparte Sterne (a) shows the application of the rule to leases for lives, &c.

Suppose the owner of the equitable estate to have the equity of the freehold in one degree, and the equity of the limitation to his heirs in another degree, will the limitations unite?

The case may stand thus: A has the legal estate, B the equitable estate, and B limits the land to C, for the life of D, in trust for D, and (x) 6 Ves. 156.

after the death of D, in trust for D's right heirs, it is apprehended that the limitations would unite; but this point is not clear.

Again, suppose a person to be tenant for his life, by the rules of the common law, with a limitation to the heirs of his body, by way of use, it is doubtful whether the interests would unite; since, before the statute, they, as being of different qualities, would not have united.

A devise to A for life, and the heirs of her body, if any, is an intail in A (y).

Devise to A for life, and after her death to the heir male of her body, living at her death, is an estate-tail in A (z).

CHAP. IV.

On Estates in Fee.

A FEE is an estate which may continue for

ever.

The word fee is explained to signify, that the land, or other subject of property, belongs to its owner, and is transmissible, in case of an individual, to those whom the law appoints to succeed him, under the appellation of heirs; and, in case of corporate bodies, to those who are to take on themselves the corporate

(y) Elton v. Eason, 19 Ves. 73.

(2) Richards v. Bergavenny, 2 Vern. 324,

function, and, from the manner in which the body is to be continued, are denominated successors (a).

Estates in fee are of several sorts, and have different denominations, according to their several natures and respective qualities. They may, with propriety, be divided into

1. Fees-simple,

2. Fees-determinable,
3. Fees-qualified,

4. Fees-conditional,
5. Fees-tail.

The consideration of fees-conditional, and fees-tail, will be reserved for the next chapter.

A fee-simple is an interest which, in reference to the ownership of individuals, is not restrained to any heirs in particular, nor subject to any condition or collateral determination, except the laws of escheat and the canons of descent, by which may be qualified, abridged, or defeated (b).

it

It gives the right of succession to all the heirs generally, without any other restriction than that they must be of the blood of the first purchaser, and of the whole blood of the person last seised (c); and it confers an unlimited power of alienation (d).

(a) Litt. § 1; 1 Inst. 1 b; Butler, 1 Inst. 271 b; Wright's Ten. 147. 150; Spelman of Feuds, C. 1; Fleta, lib. 5. c. 5. § 27; 2 Bl. Com. 104. 106; Hale's Analysis, 74; Bracton, lib. 4. 263 b.

(b) 1 Inst. 1 b; Plowd. 557; 2 Bl. Com. 104. 106; 10 Rep. 97b; Wright, Ten. 148; Fleta, lib. 3. c. 8.

(c) 2 Bl. Com. Ch. Descent.

(d) 1 Inst. 223.