one; and consequently the limitations over had been rendered incapable of effect, as legal estates by executory devise; yet it seems, that the persons entitled under these limitations over would have been the beneficial owners, under the limitation to the trustees and their heirs.

It is evident, that Lord Hardwicke treated the estate of the trustees as a determinable fee. It therefore follows, that their estate must have become absolute on the death of Sir Henry Nelthorpe under the age of twenty-one years; for, if the true construction of the limitation to the trustees and their heirs had been, that their estate should cease, either when Sir Henry should attain twenty-one, or on his death during his minority, the conclusion necessarily arising from this circumstance would have been, that the trustees had a mere estate of freehold for the life of Sir Henry, determinable either on his death during his minority, or on his attaining the age of twenty-one years; and then all the limitations over might, with great propriety, have been considered as vested remainders, even before the event of the death of the daughter without issue living at that time, was ascertained.

But in Goodtitle v. Whitby (k), although the devise was to trustees and their heirs, or rather to them and the survivor and his heirs and assigns, in trust, to educate children during their minorities, and when and as soon as they should respectively attain their respective ages of twenty-one years, then to the use, &c. of (k) 1 Burr. 228.

the children; it is reported, that Lord Mansfield, applying the observation to the estate of the trustees, said, this is only a chattel interest, which cannot last twenty-one years.

The like view and solution of the case of Lethulier v. Tracy, would, except so far as it would have made the heirs, instead of the executors, the trustees, have been more consistent with our system of tenures. It would have avoided the solecism, and apparent inconsistency of a fee with an ulterior vested interest, while that fee was capable of effect.

There is one instance, however, in which, by the acknowledged rules of law, a fee may, by Will, be limited in contingency, and yet the fee may be vested under another gift. The gift of a fee in contingency, with a gift of the fee by a residuary clause (kk), is an example of this state of title. The residuary devisee is substituted in the place of the heir, who would take in default of a gift. An express and specific devise would produce the like effect. So would a proper limitation of an use.

In effect and sound construction, the vested fee governs the seisin, and the contingent fee becomes a species of charge, or interest, to arise alternately when it can vest.

The case of Wealthy v. Bosville (1), affords a principle which must govern cases of this description.

And if the estate of the trustees be, by

(kk) Rogers v. Gibson, 1 Ves. sen. 485; Duke of Bridgewater v. Egerton, 2 Ves. sen. 122. (1) Rep. temp. Hard. 258.

construction, determinable at the death of any person, then the estate is merely for life, and the case is free from the difficulties which arise from considering their interest as a determinable fee.

And there may at the same time be in the same lands several estates-tail (m), and a remainder or reversion in fee, by the grant of the party. This is a result of the statute de Donis, since that statute made the estate-tail a particular estate (n).

A fine with proclamations will bar the intail, and take away the privilege of the issue under this statute; and the estate, which originally was an intail, will, unless there be a discontinuance (o), become a base or determinable fee; and by these means there may be a base or determinable fee and a fee-simple, in the same land, at the same time (p). Also, if a gift in tail had been made to a villein, when villeinage prevailed, and the lord had entered, he would have had a base fee, and the fee-simple would still have remained in the donor, remainder-man, or reversioner (q).

Whether the fee may be in abeyance as to all mankind, is a point much agitated, and still remains in doubt (r). It is clear, that an

(m) 1 Inst. 22 a; 1 Roll. Abr. 609, f. 2.

(n) 1 Inst. 18; Lord Raym. 779; "Litt. § 19, 22 a.

(o) See infra, ch. Tail.

(p) Simmonds v. Cudmore, 4 Mod. 1; Muchel v. Clarke, 2 Ld. Raym. 778; 3 Abstr. 228; 1 Abstr. 357.

(q) 1 Inst. 18 a, 117 a.

(r) Butler on 1 Inst. 342 b; 2 Abstr. 101; 3 Abstr. 254.

interest in fee may be contingent, as well as an interest for any given space of time. The only question which can be raised is, whether the fee must not in all cases be vested in some one, though it may be in contingency as to another person; and therefore the question which suggests the doubt, is stated in those terms which show the point in debate.

It is universally allowed, that in all cases (rr) of limitations of use, and devises by will, the fee, though limited in contingency as to the object of the assurance, will, unless otherwise disposed of, be vested, in the case of a will, in the testator's heir at law; and in the case of a limitation to uses, in the person out of whose estate the uses are raised. And there And there may be a gift of this ultimate and reversionary interest.

In wills, this undisposed interest may pass, and frequently does pass, under a residuary clause; and à fortiori, it may pass by a specific devise.

It is then to limitations of the fee to take effect merely by the rules of the common law, that the doubt is applicable. The question does not arise from express determinations, but rather from the absence of authorities on the very point. The authorities, as far as they go, seem uniform in establishing the position, that the fee may, as to all mankind, be in abeyance or contingency. The objection adduced is, that this conclusion is founded on wrong notions, and on a mistake of first principles; and that there (rr) Quære, as to Copyholds.

are not any determinations conclusive on the point; and to those who maintain this opinion, it seems that the fee must remain a vested interest in the former proprietor, till it shall become a vested interest in the person to whom the limitation of this estate is made (s).

It is also decided, that the same person may have in the same lands a fee, and eventually and by descent an interest by executory devise, which may divest the fee, and vest it in the former owner (t). But by the rules of the common law, the same person cannot have the fee and a power over the fee (u); in short, at the common law, no power could exist in the owner distinct from the seisin; but even at the common law, under the learning of devises, and now under the statute of Wills, one person may have the fee, either by devise or descent (x), with an authority to another over the fee, or any part of it; and under that authority he may sell and divest the fee given by the will, or descended to the heir and in conveyances and wills, to uses, one and the same person may have the fee, and also a power over the fee. This point is fully established (a). But the same person cannot have the legal fee as a grantee to uses, and also the fee as cestui que

(s) See Fearne, 526.

(t) Goodtitle ex. dem. Vincent v. White, 15 East 174.

(u) Goodill v. Brigham, 1 Bos. & Pull. 192; 3 Conv. 265.494. (x) 1 Inst. 113.

(y) Sir Edw. Clere's case, 6 Rep. 18; Maundrell v. Maundr ell Ves. jun. 567; 10 Ves. jun. 246.