CHAPTER XI.

THE LIMITATION OF THE - TAE HABENDUM .

, its - $ . $ 128. The habendum func 137 When the word heirs is not , tion . essential to create a fee of . 129 . Effect of contradictions be irrespective statute

tween premises and ha - 138 . Use of the word assigns in . bendum limiting estates . . is 130 Where habendum not re - 139 . The and the fee ,

it may explain pugnant simple conditional .

and qualify the premises . 140 . The statute De donis con — . of in 131 Effect habendum en ditionalibus Estates . larging the premises . tail

132 . The conveyance to be read 141 . Kinds of estates tail — What

as a . necessary and construed whole terms are to . . 133 Naming the grantee in ha create

bendum - Effect of nam 142 . Estates tail in the United

ing . other or different per States . sons 143 . Estates tail in the United — 134 . Trusts may be declared in States The states classi . the habendum fied .

135 . Use of the word " heirs ” at 144 . Reversions — Remainders . ' s .

in Shelley . common in limiting 145 The rule Case , . . a an estate in fee 146 Not rule of construction - of 136 . Effect of statutes on the but one law When

rule requiring the word does not apply . " . " heirs 147 . The rule in the United

States . ,

$ 128 . The habendum its function . — " The office of the

habendum is to limit the estate . ” 1

The word “ limit ” is here used not in its sense of “ to , , restrict ” but as meaning to mark out or to define . The premises having properly designated the parties , and the thing granted the habendum then declares or ,

* Buckler ' s Case 2 Rep . Coke( ) 55 .

( 157 ) 158 THE LAW OF . § 129 defines the estate of the grantee in the thing granted whether it is for life , in fee , etc . It will have been noticed that in most of the statutory short forms of there is no habendum ; and, irre spective of such statutes, it is not an essential part of a , if the estate is otherwise limited or defined . Yet, as most of the deeds in actual use have the habendum , the general principles applicable to it require notice .

§ 129 . Effect of contradictions between premises and habendum . — Where each part of the deed is so drawn as , to perform its office there can almost no question arise

as to the operation of the deed as a whole .

But it is not unusual to find discrepancies between , different parts of the deed especially between the premises

and the habendum . Among the most common discrepancies may be men

tioned the following :

( a ) An estate of one kind having been limited in the , premises a different estate is limited in the habendum .

( b ) Different persons are named as grantees in the

premises and in the habendum .

It is not necessary that the premises should con ; tain any mention of the estate to be granted and there , , is indeed authority for the view that it is not only un

necessary but improper for the estate to be there men

tioned . Nevertheless it is very common for the estate

granted to be named after the designation of the grantee

in the premises . And an instance of the first kind of

discrepancy would be where the lands conveyed are stated , in the premises to be granted “ to A and his heirs ” while

the habendum is “ to have and to hold to said A for the , term of his natural life . ” In such a case applying , , technical rules of construction the habendum is void as by it is irreconcilable with the premises which an estate

* Shep . Touch . 75 . § 130 THE LIMITATION OF THE ESTATE . 159 has been already vested . It is, therefore , a general rule. that where the estate is expressly set forth in the prem ises it cannot be defeated by repugnant words in the ha bendum . The habendum is void, and the estate as given in the premises stands. But to have this effect the repug , nancy must be clear , for if it is not so effect may be given , to the habendum as will appear from cases cited in the

three following sections . , $ . is it 130 Where habendum not repugnant may ex is plain and qualify the premises . — Where the habendum

not repugnant to the premises in respect to the estate , , granted it may serve to lessen enlarge explain or qual by ify the estate which would otherwise be granted the , premises standing alone . For example a fee simple and , a fee tail are both estates of and if a grant be , made “ to A and his heirs to have and to hold to the , said A and the heirs of his body " the grantee would

take a fee tail . 4

These estates being both estates of inheritance - though

not identical - there is no such incompatibility between

the premises and the habendum as to make them irrecon

cilably repugnant — as there is in the case of a fee granted , ; in the premises with a in the habendum

hence the habendum may modify and to some extent

lessen the estate as named in the premises . by So if the estate given in the premises is a fee impli , , cation and is not expressly stated to be such the haben dum may abridge the estate that would arise by the impli

cation alone . , For example were the conveyance substantially : “ A , conveys and warrants to B ( certain described ) , to have and to hold the same for life ” - here there being , , no express grant in fee in the premises though standing , , ; ; 3 See Smith v . Smith 71 Mich . 633 640 40 N . W . 21 Pynchon v . . , , Stearns 11 Met . ( Mass . ) 312 316 . , , * Tyler v . Moore 42 Pa . St . 374 386 . 160 THE LAW OF CONVEYANCING . § 131 alone, “ convey and warrant ” would amount to it in many states, the habendum may properly be given effect

" controlling , ” as is sometimes said , the premises .6 And , where by virtue of statutes , which exist in most of the states , dispensing with the word “ heirs ” to create an estate in fee , a fee would be created by the premises alone which merely described the and the grantee , the same result, as noted in these last cases , would follow from the use of an habendum expressly modifying the estate arising by legal implication from the premises . ? Such cases are sometimes spoken of as instances of re pugnancy between the premises and the habendum , and the habendum is said to “ control ” the premises ; but it is evident , when the deed is read as a whole , that there

is no contradiction or repugnancy , for the habendum , simply expresses what is unexpressed in the premises

and does away with the necessity for resorting to legal

implication to learn the intention of the parties . There , ,

is in fact no estate in the premises to be “ controlled " by the habendum , but the habendum for the first time

mentions and defines the estate intended to be granted .

§ 131 . Effect of habendum in enlarging the premises .

It is very generally stated that the habendum may ,

" enlarge ” or extend the estate granted and Coke is cited

as authority for the proposition that if land be granted to , , ” to to one for life “ to have and hold him and his heirs

the grantee will take an estate in fee . Where the grant , ing clause is in general terms and from the whole deed ,

read in the light of surrounding circumstances it appears , that it did not express the grantor ' s intention the practi , , $ 30 . of 6 By virtue statutes see ante , , ; ; , 6 v . . 35 N . E . Doren Gillum 1893 136 Ind 134 1101 Welch v . Welch , ;

1899 183 III . 237 55 N . E . 694 . , , , ; ; ? Riggin v . Love 72 Ill . 553 Rupert v . Penner 1892 35 Neb . 587 , ; . . 41 v . W . 53 N . 598 Montgomery Sturdivant Cal 290 , & Co . Litt . 299a . § 132 THE LIMITATION OF THE ESTATE . 161

cal effect of the habendum may be to enlarge the premises : as, if the granting clause is to a woman “ and her children and assigns, " " To have and to hold to her and her heirs

and assigns,” it would convey to her a fee , the ha bendum explaining and enlarging the estate granted in

the premises .9 But while this may be truewhen the state ment in the premises is in general terms, the habendum can not be allowed to enlarge the estate named in the premises when the premises specifically and expressly define and limit it. For example, one conveyed land to his daughter and her husband , “ their heirs and assigns ,” and after the description of the land , there followed in

the premises : “ It is expressly understood by all parties , hereto that if the said husband and wife should have a ,

child or children of their two bodies begotten and born

then the land herein conveyed shall vest in the said

husband and wife and their heirs forever . But should

this event not happen , then the said husband and wife , , or the survivor of either of them shall have and enjoy a

life estate in the said land ” - and it was provided that if

no issue were born the land should be sold and the pro

ceeds divided among certain persons . The habendum

clause followed : “ To have and to hold the said lands , . . . . unto the said parties of the second part their , heirs and assigns to and for the only proper use of the , , said parties of the second part their heirs and assigns , forever . ” The wife having died before her husband , never having had a child it was held that the husband

took but a life estate in the land — because the interest , ,

granted was “ so fully circumstantially and precisely

defined and limited ” in the premises . 10 § . 132 conveyance to be The read and construed as a

whole . — In construing conveyances where there is a seem , ; 9 Rines v . Mansfield 96 Mo . 394 9 S . W . 798 . , , ; 10 v .

Hoy Pa . 25 Karchner 1892 151 383 Atl . 20 .

11 - Brews . Cox . 162 THE LAW OF CONVEYANCING . § 132

ing repugnancy , the entire conveyance should be read , in order to get at the intention from the language of the whole instrument . " In the exposition of deeds, the construction must be upon the view and comparison of the whole instrument , and with an endeavor to give every part of it meaning and effect. ” 11 Practically , the court will reconcile , if possible , the contradictory clauses , without special regard to what par ticular parts of the instrument they occur in ; and effect is given in many cases to the habendum , if it appears clearly to have been the grantor 's intention that the terms used

therein should control ; for example , in Martin v . Jones 12

there was a grant “ to A J and his children after him ,

* * * to have and to hold said premises to said A J and his heirs forever .” After A J 's death , when his administrator desired to sell the land for the purpose of

paying A J 's debts , his children claimed he had but a life estate with to them , and that therefore the administrator could not sell ; but the court held that the premises and the habendum are not irreconcilably repug

nant, and that A J took an estate in fee . So a grant expressed in the premises to be to one, “ her

heirs and assigns, " with an habendum , “ to have and to hold for and during the natural life,only , of [the grantee ) , , with the remainder in fee simple ” to others was held to , , , grant a life estate only to the grantee and not a fee be

cause such was clearly the grantor ' s intention when the , whole conveyance was read . 13 Of course no lawyer would draw conveyances containing such contradictory

statements as the deeds passed on in several of the fore , , 11 Ch . J . Kent in Jackson v . Myers 3 Johns . 388 395 . , ; 12 1900 62 Ohio St . 519 57 N . E . 238 . ; ; , ,

. Leg . N . W . 8 . 73 89

v . Terry 13 Wilson 1902 130 Mich 566 Det ; , , , . 45 Pa . St

Lodge v . News 1151 . And see Bedford Lentz 1900 194 399 ; , , ; Atl . 378 Barnett v . Barnett 1894 104 Cal . 300 37 Pac . 1049 . ESTATE $ 133 THE LIMITATION OF THE 163

going cases contain ,when it is so simple a matter , with a little care , to avoid doing so .

§ 133 . Naming the grantee in habendum - Effect of

naming other or different persons. — Where the haben dum is used the grantee should be named or clearly des ignated there , as well as in the premises . If the persons named in the two parts are different , confusion and un certainty result .

If no grantee be named in the premises , but one is named in the habendum , he will take the estate ,14 for there is no repugnancy in such a case : the habendum simply supplies what should have been in the premises . If, however , different persons are named in the prem ises and in the habendum as grantees , there is such a re pugnancy as to make the habendum ineffective , and the person named in the premises is the grantee . If one is named as grantee in the premises and also in the habendum with other persons , these others cannot ,

according to the general rule , take an immediate estate , 15 though one not named in the premises may take an estate in remainder , by being named for the first time in the habendum . 16

§ 134 . Trusts may be declared in the habendum . - In

conveyances creating a trust , and in assignments for the benefit of creditors , etc., the habendum may appropriately

14 Irwin v . Longworth , 20 Ohio 581, 603 ; Lawe v . Hyde , 39 Wis . 345 . 15 Samme 's Case, 13 Coke 54 . 16Downing v . Birney , 1897 , 112 Mich . 474 ; 70 N . W . 1006 ; 4 Det . Leg . News 21 ; McCullock v . Holmes , 1892 , 111 Mo.445 ; 19 S. W . 1096 ; Blair v . Osborne, 84 N . C . 417 . But in McLeod v . Tarrant , 1892 , 39 S . C . 271 ; 17 S . E . 773 ; 20 L . R . A . 846 , husband and wife — the latter being first mentioned in the habendum - were held to have taken the estate , though the grant in the premises was to the husband alone : and the wife having survived her husband took the whole , “ tenancy by entire ties ” being recognized in South Carolina . 164 THE LAW OF CONVEYANCING . $ 135 declare the trusts on which the property is to be held . 17 For example :

" This indenture, made the — day , etc ., between , , , , , , , of, etc . and — of etc . as trustee Witnesseth That , the said party of the first part ( granting clause descrip , , , tion etc . as in an ordinary deed ) To have and to hold , , the above granted premises etc . unto the said party of , , the second part as trustee his successors and assigns for , , , ever upon the trusts and to and for the uses interests and purposes , hereinafter limited , described and declared , , — that is to say upon trust to receive the issues rents and , profits of the said premises and apply the same to the use , of X Y during the term of his natural life and after the , death of the said X Y to convey the same by deed to C

D in fee . , “ In witness whereof etc . ”

$ 135 . Use of the word " heirs ” at in lim

iting an estate in fee . - At common law it was necessary

in a limitation to a natural person in fee simple to use the

word “ heirs ” in connection with the name or other desig

nation of the grantee . The general rule was that no , other words in a deed though clearly indicating an intent ,

to create a fee could do so if the technical word “ heirs " , , were omitted . So that in England before 1882 a limita , tion to a natural person " in fee simple ” to him “ and his , , seed ” to him and his issue generally ” to him “ and his

successors ' ' - gave him in each case an estate for his own

life only . 18 , In this country while it has sometimes been consid , , ered irrespective of a statute on the subject that the

strict rule of the common law should not be applied be

cause it was based on principles of feudal policy not , adapted to our institutions and often defeated the plain , , , 17 Nightingale v . Hidden 7 R . I . 115 118 133 . ; , 18 2 Bl . Com . 107 Shep . Touchstone 106 . By the Conveyancing Act , , , , 1881 44 - 45 Vict . ch . 41 s . 51 an estate in fee simple may now be cre by ated the words " in fee simple . ” § 136 THE LIMITATION OF THE ESTATE . 165

intent of the parties , 19 it has nevertheless been generally enforced unless modified by statute . Consequently , conveyances , for example, to one " and his generation , to endure as long as the waters of the

Delaware should run ; " 20 to one “ his executors , adminis trators and assigns; ' : 21 to several " and their representa tives ;' 22 to them and “ assigns forever ; " 23 have been held to convey life estates only to the respective grantees .24

$ 136 . Effect of statutes on the rule requiring the word " heirs " in limiting an estate in fee . — Statutes ex

pressly providing short forms for deeds 25 usually make one of the effects of the operative words prescribed by the statute to be the passing of an estate in fee , and where such a conveyance is permissible and is used , of course the common law rule as to the use of the word “ heirs ” is inapplicable . Moreover , in most of the states statutes either expressly enact that the word “ heirs ” need not be used in a deed to create an estate in fee , or in effect dispense with it by

providing that every conveyance shall pass all the estate

of the grantor unless a contrary intent is expressed in the by conveyance or appears necessary implication from its

terms . 26 , , , 19 See the discussion in Cole v . The Lake Co . 1874 54 N . H . 242

279 . , 20 Foster v . Joice 3 Wash . C . C . 498 . , , ; 21 Hofsass v . Mann 1891 74 Md . 400 22 Atl . 65 . , , y . 16 . Pa . St . 22 Brown Mattocks 1883 103 , , ; 23 McMichael v . McMichael 1897 51 S . C . 555 29 S . E . 403 . , , 24 as to

necessity of " " to a See the heirs make reservation in fee , , . 125 ante $ $ 119 ,

95 See ante $ 30 .

26 The states which seem to have provided neither short forms of , , deeds having the effect noticed above nor general statutes directly or

indirectly dispensing in deeds with the word " heirs ” for the creation , , , , , , of a fee are : Connecticut Florida , , , , ; New Jersey Ohio Pennsylvania South Carolina and Vermont in

Rhode Island there may be used either “ heirs ” or the words “ in fee , , p simple ” without " heirs ” : Gen . L . 1896 . 661 . 166 THE LAW OF CONVEYANCING . $ 137

But as these statutes , altering the common law rule , are in many instances recent, and as they do not affect conveyances taking effect before their enactment, the rule cannot be ignored in investigating titles , even in states where such statutes exist . 27

§ 137 . When the word heirs is not essential to create a fee, irrespective of statute . - The word " heirs " is not necessary in the following cases :

( a ) Where an estate is given in trust and it is neces

sary for the purposes of the trust that the trustee shall , have the legal estate in fee a fee simple will be held to ,

pass though words of inheritance are lacking . 28

( b ) In conveyances to aggregate the word , " heirs ” is inappropriate and unnecessary nor need the , , , word " successors ” though usual and proper be used as

the being deemed to have perpetual exist , . 29 in fee is a grant to it ence a grant for life

( c ) The common law rule does not apply to executory

for the sale of land enforceable in equity as a , conveyance where it is clear that an estate in fee was in

tended . 30

( d ) Words in a will showing an intention to devise an ,

estate in fee simple are enough for this purpose though

words of inheritance are lacking . 31

$ 138 . Use of the word “ assigns ” in limiting estates . , The word " assigns " so commonly associated with “ heirs ” , in the premises and habendum is unnecessary . It was , , ; ; 87 Allen v . Baskerville 1898 123 N . C . 126 31 S . E . 383 Hofsass v . , , ; Mann 1891 74 MD . 400 22 Atl . 65 . , ; , ; 28 Angell v . Rosenbury 12 Mich . 241 West v . Fitz 109 Ill . 425 Ew , , ; ing v . Shannahan 1892 113 Mo . 188 20 S . W . 1065 . ; , , 19 . Pa . St . . . - v . 29 Wilkes Barre Wyoming Hist Soc 1890 134 616 Atl , ; ; 809 Congregational Soc . v . Stark 34 Vt . 243 Delhi School District v . , ; . 17 N . W . . “ " is Everett 52 Mich 314 926 Successors necessary in a . . 2 Bl . : grant to a corporation sole Comm 109 ; , . . St . 76 13 . v . 80 Phillips Swank 120 Pa Atl 712 , ; 31 2 Bl . Comm . 108 Lincoln v . Lincoln 107 Mass . 590 . $ 139 THE LIMITATION OF THE ESTATE . 167

once considered necessary in order to give the quality of alienability , any to lands 82 but such necessity for its use

- if it ever really existed - has long since ceased to exist . 33

§ 139 . The fee simple and the fee simple conditional , , ,

- If therefore at common law " heirs ” were not named , the taker had no interest beyond his own life 34 and he

power of alienation depended on the terms of the grant to

him . , , ,

If however “ heirs ” were named the interest con

ferred on the grantee ( or donee ) was the greatest interest

that a subject was deemed capable of having in lands

the " estate in fee simple . ” And it came to be the law

finally that he could alienate this estate whenever he , , , chose and speaking generally either entirely or par , , tially and on such terms as he chose and for any length

of time . 35 , , If however instead of naming the donee ' s " heirs ”

( i . e . in general ) terms were used in the grant restricting

the generality of this expression to heirs of a certain kind , ,

- as for example " to A and the heirs of his body ” or

" the heirs male of his body ' ' — the donee could not alien

ate until some one of the specially designated class was in

existence capable of succeeding him . The donee ' s inter

est in such a case was not a complete or absolute fee sim , ple until the condition was fulfilled and an heir of the

named class came into existence . His estate was there , ; , 37 Poll . & Mait . Hist . Eng . L . II 14 Williams R . P . 17th ed . 77 . , , ; , Pa . v . R . I . 36

v . 8 Brasington 13 Grant Carpenter Hanson 1892 149 ; , , 289 24 Atl . 344 . As to the necessity or desirability of the use of “ as , , , in

a as example parts of signs ” in other deed for connection with , , , covenants see post $ $ 197 224 . , , 34 See supra § 135 . , by 86 This power of alienation came gradually it was not created any , , , , by ; in one statute it was however confirmed statute 1290 the statute , , of “ Quia Emptores ” 18 Edward I c . 1 . See Digby Hist . Law Real , , pp

Prop . ( 5th . ed . ) . 157 – 161 234 – 239 . 168 THE LAW OF CONVEYANCING . § 140 fore called a " fee simple conditional. ” When the condi tion was fulfilled the particular course of descent ap pointed by the form of the grant was not affected so long as the donee (or tenant ) held the land . But it was claimed that in such cases the donee might , immediately on the coming into existence of an heir of the kind named in the grant, that is on the fulfillment of the condition , treat his estate as an absolute fee simple , and alienate it as he might have done had it been made a fee simple absolute by the terms of the grant ; and this claim was made even though in the grant there was an express condition that if the donee should die without heirs of the kind named the land should revert to the donor or his heirs . These broad rights claimed on behalf of donees of such " fees simple conditional ” being admitted , the result was that the donee , after having issue of the class named in the grant, actually alienated his estate to another person in fee simple in whose hands it would be an ordinary es , , by tate in fee simple descending if not alienated him ; according to the general rules of law or it might be re , conveyed to the original donee who would hold it him

self in fee simple .

Thus the estate was no longer confined to the particular , course of succession originally designated nor could the

landowner who had created the “ fee simple conditional ” by claim the estate on the failure of the specially

named heirs of the original donee .

§ 140 . The statute De donis conditionalibus — Estates

tail . This liberal construction placed upon grants limited

in their terms was unpopular with the great landowners

whose chances of reversions were thus lessened . There , fore in 1285 they procured the passing of the celebrated , , statute De donis conditionalibus the object of which was

to protect and to lessen the danger of the

lord ' s right of escheat being defeated or indefinitely post § 141 THE LIMITATION OF THE ESTATE . 169 poned by the alienation of the tenant, and which , in effect , provided that the donee of such an estate could not alienate it as against either his issue or the donor ; but that, on his decease his issue , and upon failure of these the donor or the donor 's heir , should take the land per formam doni, in spite of any attempted alienation by the donee . Thereafter the tenant who would have had , before the statute De donis , a fee simple conditional , had only a lim ited and inalienable estate ; which as being cut down from the freedom of alienation incident to a fee simple , was regarded as a new kind of estate — a “ fee tail ” (feodum talliatum , taillé ) . So that if, after the statute De donis , land was granted , for example , " to A , and the heirs of his body, " while A

had the rights of a tenant in fee simple as to the use of , the land he could not grant it away for any time beyond his own life ; and his lineal heirs succceding under the

grant were in the same position . He and they were “ ten

ants in tail ” - tenants in fee with limited powers .

For some time the restriction placed by the statute De

donis upon the alienation of estates tail seems to have , been effectual but before two centuries had elapsed it was

wholly evaded . Judges and lawyers administering the

law reflected the popular dislike for inalienable estates ,

and the form of proceeding known as the Common Recov ery became established as a regular means of “ barring " , or destroying an entail and converting the estate tail into ,

an estate in fee simple and the “ fine ” was afterward

used for the same purpose . By various later acts of parliament restrictions on , alienation have been removed and the English tenant in , , tail has generally speaking complete powers of dealing

with the land .

§ 141 . Kinds of estates tail - What terms are neces , sary to create . - The kinds of estates tail are chiefly four

namely : 170 THE LAW OF CONVEYANCING . $ 142

( a ) The estate in tail general, which arises where the limitation is to one and the heirs of his body ; the estate , being descendible to all issue of the donee but not to col

lateral heirs .

( b ) The estate in tail male ( or female ) general : the ,

limitation being in the same form as the last with the , added qualification of sex - for example " to A and the

heirs male of his body ' ' : the estate being descendible to , , all the issue of the donee being of the specified sex ac

cording to the canons of descent . , ( c ) The estate in tail special which arises where the

limitation is to one and the heirs of his body by a certain , by wife or to one and the heirs of her body a certain hus ; band it may arise by a to two persons married and , by the heirs of their bodies or a gift to two persons of , different sexes and capable of lawful marriage and the

heirs of their bodies . Only the issue of the two persons

named can inherit . ,

( d ) The estate in tail male ( or female ) special being

like the last named except that the inheritance is re , ; stricted to the issue of a specified sex for example a lim , , by itation to “ A and the heirs male of his body his " . wife M , And in all these cases as the word " heirs ” was neces , sary at common law to create a fee simple in a deed so it ; is necessary to create a fee tail 36 but the particular for , mula “ of his body ” though themost appropriate expres ,

sion is not indispensable where there are other words of

procreation which restrict the meaning of “ heirs ” to the

lineal descendants of the grantee . 37

§ 142 . Estates tail in the . — In this coun

try estates tail were early recognized in most of the origi , nal states as part of the common law taken from England , 36 Adams v . Ross 30 N . J . L . 505 . , , ; ; , 87 Reed v . Lane 1894 122 Mo . 311 26 S . W . 957 Atherton v . Roche , ; ; , p 1901 192 Ill . 252 61 N . E . 357 Challis Real Prop . . 236 . § 143 THE LIMITATION OF THE ESTATE . 171

and in some, at least, the common recovery was the means of barring them .38 But by statutes (some of them early ) in many states estates tail have been abolished , or have been changed into estates of another character . The modification of the law , as it stood at the time of the of this country , has not, however , been

uniform , so that now expressions in a deed or will cre ating what would have been ( after the statute De donis )

an estate tail , create in one state , by virtue of its statute,

an estate in fee simple , while in another they create a life

estate only for the donee in tail — the first tenant in tail , , with estates in fee simple for his issue in some states or , by in others for those who take the estate after him the

course of the common law . , , Moreover in several states while no statutes exist di ,

rectly bearing on the matter it has been held that the

statute De donis the( effect of which was to change the

" fee simple conditional ” into the “ fee tail " ) is not in

force as part of the common law of those states .

$ 143 . Estates tail in the United States — The states , , classified . - Grouping the states therefore we find : ( 1 )

States having statutes which provide in effect that every

estate which would be ( but for such statute ) considered

a fee tail is an estate in fee simple .

Among such states are , Alabama , California , Florida ,

Georgia , Indiana , Kentucky , Michigan , Minnesota , Mis

sissippi , Montana , , North Carolina , North Da

kota , Pennsylvania , South Dakota , Tennessee , Virginia , , West Virginia Wisconsin . 39 , ; ; 88 Hawley v . Northampton 8 Mass . 3 5 Am . Dec . 66 Croxall v . , , ; , Shererd 5 Wall . 268 283 Lyle v . Richards 9 Serg . & R . 322 . , , ; , , ; , 39 Ala . Civ . Co . 1896 § 1021 Cal . Civ . Co . 1901 $ 763 Fla . R . S . , , , , ; ; ; 1892 $ 1818 Ga . Co . 1895 $ 3085 Ind . Burns ' R . S . 1901 $ 3378 Ky . , , , , , , ; ; ; St . 1899 $ 2343 Mich . C . L . 1897 § 8785 Minn . G . S . 1894 § 4364 , , , , ; ; Miss . Ann . Co . 1892 $ 2436 Mon . Civ . Co . 1895 $ 1212 N . Y . R . S . , , , ; , ; , , p ( 1903 Birdseye ) . 3017 $ 22 N . C . Co . $ 1325 N . D . Civ . Co . 1899 , , , , , , ; ; p $ 3327 Pa . Bright . Purd . Dig . 1894 . 810 $ 8 act of April 27 1855 172 THE LAW OF CONVEYANCING . § 143

The statutory provisions are not identical in the fore going states , but the general effect of them is to give the grantee in tail full power to alienate the estate , as if it were an estate in fee in him . In California , Indiana , Michigan , New York , North and South Dakota there may be a remainder taking effect upon the death of the first grantee without issue, the stat utes providing that an estate in fee tail is an estate in fee simple, and “ if no valid remainder be limited thereon it is a fee simple absolute ; and while these statutes in terms declare that “ estates tail are abolished , ” the estate tail is only abolished by being changed into an estate in fee simple , which , if no valid remainder is limited thereon , 40 ; is a fee simple absolute so that a grant to one " and to , , the heirs of her body ” without more vests in the grantee

an absolute fee . 41 by ( 2 ) A smaller number of states in which statute

what would have been an estate tail before the statute is , , , declared to be an estate in fee simple not however as ,

in the states just mentioned a fee in the first taker .

( a ) In several states of this class a life estate only is , expressly given to the first taker but a fee simple abso

lute is given to the person to whom the estate would first , , by pass after his death according to common law virtue

of the conveyance . , , ; , , ; S . D . Ann . St . 1901 $ 3648 Tenn . Co . ( Shannon ) 1896 § 3673 Va . , , , , , , , , ; ; Co . 1887 § 2421 W . Va . Co . 1899 ch 71 § 9 Wis . St . 1898 $ 2027 . , , , , g The statutes of several of these states e . . California Indiana North , and South Dakota provide that every estate “ which would be at com , mon law adjudged a fee tail is a fee simple ” : such statutes refer to the , , , of effect the statute De donis for at common law strictly speaking there

was no estate tail . , , , 49 Harriot v . Harriot 1898 25 App . Div . ( N . Y . ) 245 248 . See McIl , , ; ; hinny v . McIlhinny 1894 137 Ind . 411 37 N . E . 147 45 Am . St . R . ;

186 24 L . R . A . 489 . , , ; y 11 Lane . Utz 1891 130 Ind . 235 29 N . E . 772 . § 143 THE LIMITATION OF THE ESTATE . 173

Such states are Arkansas , Colorado , Illinois , Missouri and Vermont . 42

(b ) In other states of this class a fee simple estate is given to the "'issue of the first taker , though the nature of the first taker 's estate is not expressly defined as a life estate : Connecticut and Ohio have statutes of this charac

ter . 43 In all these states the estate of the donee in tail

the first taker - is such that he cannot convey a valid by in fee to the land acquired him under a deed or will

attempting to make him and his specified heirs tenants . 44 in tail

( 3 ) In several states statutes in effect provide simply , that a tenant in tail may convey the land of which he is , , by seised in that capacity an ordinary deed as if he were ; seised in fee simple the statutes not in terms converting , the estate tail into an estate in fee simple but authorizing by by the grantee to do so a deed instead of fine or com , mon recovery . Maine Maryland and Massachusetts , , , have statutes of this kind 45 and in them therefore any

deed which will convey the land will bar the entail . 46

( 4 ) A number of states appear to have no statutes on , , , the subject of estates tail namely : Iowa Kansas Ne braska , New Hampshire , Oregon , South Carolina , Texas , ; Utah and Washington but in some of these the statute , ; , ; , " Ark . Sand & H . Dig . $ 700 Colo . Mills Stat . $ 432 Ill . R . S . ch . , ; , ; , 30 $ 6 Mo . R . S . 1899 $ 4592 Vt . Stat . 1894 $ 2201 . , , ; Conn . Gen . St . Rev( . 1902 ) § 4027 Ohio R . S . $ 4200 . , , ; ; Wilmans v . Robinson 1900 67 Ark . 517 55 S . W . 950 Lehndorf , , ; , ; , v . 13 N . E . . v . Cope 1887 122 III 317 505 Atherton Roche 1901 192 , , ; ; ; III . 252 61 N . E . 357 55 L . R . A . 591 Rozier v . Graham 1898 146 Mo . , , ; ; ; ; 352 48 S . W . 470 Horton v . Upham 1899 72 Conn . 29 43 Atl . 492 , , , ; ; Chesebro v . Palmer 1896 68 Conn . 207 36 Atl . 42 Pollock v . Speidel ; , 27 St . 86 v .

Thompson . Ohio Carl 51 Vt 408 . , , ; , , ; * Maine R . S . 1883 ch . 73 § 4 Md . Pub . G . L . 1888 art . 21 $ 24 , , 24 . . $ . ch Mass . R . L 1902 127 ; ; , , . 16

80 250 v . 585 46 Richardson Richardson 1888 Maine Atl Colla , , ; more v . Collamore 1893 158 Mass . 74 32 N . E . 1034 . 174 THE LAW OF CONVEYANCING . § 144

De donis has been held to be not in force , irrespective of express statute . 47

§ 144. Reversions — Remainders. — The writer ' s inten , tion is to confine himself, as far as possible to the con , of of in sideration the transfer estates fee in , , with the incidents of such transfer . It is not therefore , within the scope of this work to discuss estates in general

nor to treat of those “ incorporeal hereditaments ” known

at common law as reversions and remainders — future in terests , which , though not now conferring possession , will , do so in the future and which are thus estates in futuro . 48 , , Owing however to the effect still often given to an an , cient rule of law affecting the limitation of estates known , as the rule in Shelley ' s Case the general characteristics

of these estates should be noted . by A “ reyersion " arises when one in

whom an estate is vested conveys out of it a “ particu

lar ” — a smaller - estate in the same land which carries

seisin . 49 There remains in the grantor of this particular , , estate and his heirs an estate which will confer posses , sion upon the determination of the particular estate and

this estate is the . , But a remainder arises by act of the parties as when a , by particular estate is limited and the same instrument

another estate is limited to come into possession after the , determination of the particular estate . For example if , , A tenant in fee simple conveys to B for life and from

and after the determination of B ' s estate to C and the , heirs of his body " C is said to have an estate tail in re , mainder expectant on the death of B . , , ; ; 47 Pierson v . Lane 60 Iowa 60 14 N . W . 90 Jewell v . Warner 35 N . ; , ; , H . 176 Rowland v . Warren 10 Ore . 129 Burnett v . Burnett 17 S . C .

545 . , , , ; 48 Williams Real Prop . 17th ed . part II ch . 1 Leake Dig . Law , p Prop . in Land . 312 . , 19 Co . Litt . 22 b . § 145 THE LIMITATION OF THE ESTATE . 175

When a remainder is so created that from its com

mencement to its close the seisin could vest instantly in

the remainder man- in case the particular estate be deter , , mined it is a vested remainder . Thus a limitation “ to , , A for life remainder to B and his heirs " confers a vested , remainder on B because his interest will come into pos

session the moment A ' s estate determines : should A sur , , vive B B ' s interest will pass to his heir devisee or . , alienee without losing its characteristics . , , When however a remainder is so created that the par

ticular estate can be determined before the seisin of the , remainder is able to vest in the remainder man- it is a

contingent remainder : this is the case when the re , mainder is limited to a person not in being or to one not ,

at present capable of taking the estate or when it is made , dependent on a future and uncertain event . Thus in a , limitation “ to A for life and after his decease to the eld , , , est son of B living at A ' s decease and his heirs ” the , remainder is contingent : it may not come into possession , , , for B may not have sons or if he have sons they may , die in A ' s life or none of them may be born till after A ' s

death .

$ 145 . The rule in Shelley ' s Case . — Limitations in the

form of remainders to the heirs or to the heirs of the , body which taken alone would create a contingent re , mainder in the persons designated are affected by the

rule of law known as the rule in Shelley ' s Case . 50

The rule may be stated as follows : , Where an estate of is limited to a person and

by the same instrument an estate is limited in the form , of a remainder whether immediately expectant on the , former estate or after other estates interposed to his is . It is . ( ) 93 ( ) 50 1 Rep Coke 1581 sometimes said that the rule erro ; ' s to Shelley neously named because it was not applicable Case but that , ,

Prop . of the case was a decision in favor the rule see Challis Real - pp . 125 132 176 THE LAW OF CONVEYANCING . § 146

“ heirs ” in fee or tail, the word “ heirs ” is a word of limitation of an estate of inheritance in the ancestor , and is not a word of purchase .51 That is, in such a case the limitation to the “ heirs ” entitles the ancestor to the whole estate , and the heir must take his interest (if he should take any ) by descent from his ancestor , for he is notmade , by the words of the instrument , a “ purchaser ": of any separate estate for himself .

§ 146 . Not a rule of construction but one of law When does not apply . — While the rule is sometimes said

to be a rule of construction , 52 and that therefore it should give way to an intention disclosed by the instrument that

it should not operate , especially when the instrument is a will, 53 it has generally been considered a fixed rule of law to be given effect regardless of the intention of the donor.54

But the word “ heirs ” may be used in a context or with

a further description , rendering it incapable of being re

garded as a word of limitation , and it must then be taken as a word of purchase , giving a remainder to the person , so designated - as, for example if the expression were the ; “ '

living in heir now and the chief difficulty regard to , , in in the application of the rule particular cases consists of determining whether the remainder is to the heirs the , , ; p

Dig . L . . in . ed . . 404 Prop 61 See Williams Real Prop 17th Leake , p . is . in Land 342 The rule well discussed “ The Modern Law of Real , , , T .

Property ” Tiffany is page by Herbert and there stated 308 in the , : “ If a to a of an following terms after limitation person estate of free , , by , hold there be limited the same instrument an estate in the form , , , of a remainder to his heirs or the heirs of his body he will at common , , law take an estate in remainder in fee or in tail according to the class , to him of heirs specified and the freehold estate previously limited

will merge therein , unless there be another estate interposed which ” will prevent merger . , , ; 55 S . W . . . 52 See Wilmans v . Robinson 1900 67 Ark 517 950 , , ; , 63

Vaughn v . U . S . De Hutchinson 1897 165 566 Wescott v . Binford ; , ; . 1898 104 Iowa 645 74 N . W . 18 65 Am . St . R . 530 , , ; ; 54 v .

Sturgeon 198 Ill . . E . 64 N Davis 1902 520 1016 Shapley v . , , ; ; , , St . Pa . 53 . Diehl 1902 203 566 Atl 374 Trumbull v . Trumbull 1889 ; . 21 E . 149 Mass 200 N . 366 . § 147 THE LIMITATION OF THE ESTATE . 177

person to whom the first estate is given , or is to his " chil dren ” or certain other persons, in which cases the ' rule ” would not apply . In deciding this question , which is one of construction, the principle that the rule in Shelley 's case is one of law does not preclude a construction of the words used which will accomplish the donor 's intention .55

§ 147. The rule in the United States . — While it is

probable that the origin of the rule — as to which there has been much speculation — " is to be found in the policy

of ,' 156 it survived the passing of feudalism be by cause it facilitated alienation " the inheritance

in the ancestor and making it alienable a generation ; sooner than it otherwise would be ' ' 57 and it has there

fore been justified as a rule of property in harmony with ,

the genius of our institutions and “ with the liberal and

commercial spirit of the age . ” 58

It is still preserved as a rule of law applicable to both , , deeds and wills in several states — unless that is very

recent statutes have altered the policy of these states . , , , Such states are : Arkansas Illinois Indiana North Caro , , lina Pennsylvania and perhaps others . 59

But in states where it is thus recognized it is affected , , by statutes if any exist in them regarding estates tail . , by For example in Illinois where statute an estate , , ; ; y 55 Simonton . White 1899 93 Texas 50 53 S . W . 339 77 Am . St . R . ; ; , , ; , ; N . E . 80 44 N . E . 46 95 824 Granger v . Granger 1897 147 Ind 189 , , , ; Daniel v . Whartenby 17 Wall . 639 McCann v . McCann 1901 197 Pa . ; ; . . . St . R . 80 47 St . 452 Atl 743 Am 846 , 56 p .

Prop . Challis Real 135 . , ; 57 Hileman v . Boüs ' aügh 13 Pa . St . 344 53 Am . Dec . 474 . , ; 58 See last case cited and Polk v . Faris 9 Yerg . ( Tenn . ) 209 30 Am . . — it is in Dec 400 now abolished Tennessee . , , 69 in to See addition cases cited above from these states Leathers v . , , ; ; ;

Gray 1888 101 N . C . 162 7 S . E . 657 9 Am . St . R . 30 Edgerton v . , , , , ; ;

Aycock 1898 123 N . C . 134 31 S E . 382 McIlhinny v . McIlhinny 1894 ; ; ; 137 Ind . 411 24 L . R . A . 489 45 Am . St . R . 186 Carpenter v . Van - ' , , ; ; Olinder 1889 127 Ill . 42 19 N . E . 868 11 Am . St . R . 92 .

12 — BREWS . Con . 178 THE LAW OF CONVEYANCING . § 147

tail is made a life estate only in the first taker , the rule in Shelley 's Case , in so far as it would apply to estates

tail, is abolished ; 60 while in Pennsylvania and North Carolina , where estates tail are made estates in fee simple , a remainder in tail creates a fee simple in the first taker

and not an estate tail .61 In most of the states, however , statutes have in effect abolished the rule by reversing it and providing that the “ heirs " or " of the life tenant shall take as purchasers by virtue of the remainder limited to them . 62 But such statutes are inapplicable to wills and con

veyances taking effect before their enactment,63 and , as many of these statutes are of recent date , the rule may still affect titles even in these states where it has been abolished .

In a few states — Kansas , New Hampshire , Ohio , Ore

gon — it is abolished by statute only so far as devises are

concerned . 64 , ; ; 60Griswold v . Hicks , 1890 , 132 Ill . 494 501 24 N . E . 63 Butler v . , Huestis 68 Ill . 594 . , , ; ; 61 Sheeley v . Neidhammer 1897 182 Pa . St . 163 37 Atl . 939 Cham , , ; blee v . Broughton 1897 120 N . C . 170 27 S . E . 111 . , , ; , , ; , , 62 . . $ . . Co . $ . G Ala Co 1896 1025 Cal Civ 1901 779 Conn . 8 . 1902 , , , , , , ; ; ; § 4028 Ga . Co . 1895 $ $ 3083 3084 3085 Idaho R . S . 1887 § 2855 , , , ; , , , ; , L . 73 $ 6 . R . R . S . ch . $ Ky . St . 1899 2345 Maine 1883 Mass 1902 , , , , , ; ; ; ch . 134 § 4 Mich . C . L . 1897 § 8810 Minn . G . S . 1894 § 4389 Miss . , , ; , , ; , , . Co . § . R . S . § . . Ann 1892 2446 Mo 1899 4594 Mont Civ Co . 1895 ; , , ; , , § 1228 New Mexico C . L . 1897 $ 2045 N . Y . R . S . ( Birdseye 1901 ) , , , , , ; ; ; p . 3021 § 44 N . D . R . Co . 1899 § 3343 Okl . St . 1893 § 3716 R . I . , , , , ; ; G . L . 1896 ch . 201 $ 6 S . D . Ann . St . 1901 § 3664 Tenn . Co . Shan( , , ; , , ; , , , non ) 1896 § 3674 Va . Co . 1887 § 2423 W . Va . Co . 1899 ch . 71 , , ; . $ . St . $ 11 Wis 1898 2052 , , ; ; , 63 Wilson v . Alston 1898 122 Ala . 630 25 So . 225 Harris v . McCann , ; ; , , , ; 75 . 23 So . v . 1898 Miss 805 631 Hurst Wilson 1890 89 Tenn 270 14 , ; S . W . 778 Spader v . Powers 56 Hun ( N . Y . ) 153 . , ; , ; 64 Kan . Gen . Stat . 1901 $ 7990 Ohio R . S . $ 5968 N . H . Pub . Stat . , , , ; 1901 ch . 186 § 8 Ore . Ann . St . 1892 $ 3093 .