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1. See the Reports passim, and particularly 18 Johns. Rep. 74 and 20. id. 548, 553.
2. 6 Conn. Rep. 373. 386. 500. 4 Munf. 205. Notes to .2 Blacks. Com. 44, 47, 77, 104, by Dr. Tucker.
3. N.Y. Revised Statutes, vol. i. 718. sect. 3 and 4. — p. 722. sect. 2.
4. Ibid. p. 718. sect. 1. 3, 4. — Why should we assume the allodial theory, if we must preserve the language of the socage tenure? with the mutato nomine, it is still de te fabula narratur.
5. The word feudum imports not only Beneficium, but Beneficium and haereditatem. It is an inheritable estate. Feudum idem est quod haereditas. Litt. sec. 1. Wright on Tenures, 148.
6. 1 Co. 140. b. 10 Co. 98. b. Vaughan's Rep. 201. 2 Blacks. Com. 259. Preston on Estates, Vol. i. 480. According to Lord Ch. J. Vaughan, (though Sir William Blackstone and Mr. Preston do not follow his opinion,) the heir takes in the character and title of heir, and not of special occupant.
7. Com. Vol. ii. 104, 109.
8. Co. Litt. 1. b. - 10 Co. 97. b. 2 Inst. 333. The Judges, in Plowden, 241. b, 245. b, and Lord Ch. J. Lee, in Martin v. Strachan, 5 Term Rep. 107, in notis, are still more large in the division of inheritances at common law. They make but two kinds, fees simple absolute, and fees simple conditional or qualified.
9. Vol i. 419.
10. Litt. sect. 1. and 11. Co. Litt. 1. b. Fleta, lib. iii. c. 8. Plowd. 557. a. — But the above restriction has been essentially changed in this country, as we shall see hereafter, when we come to treat of the law of descent.
11. Lord Coke, in Co. Litt. 8. b. says, that a grant to a man and his heir in the singular number, conveys only an estate for life, because the heir is but one. This is a strange reason to be given, under a system of law which prefers males to females in the course of descent, and in which the right of primogeniture among the males is unrelentingly enforced. Mr. Hargrave, note 45. to Co. Litt. 8. b. questions the doctrine, and he says there are authorities to show that the word heir, in a deed as well as in a will, may be taken for nomen collectivum, and stand for heirs in general. The doctrine of Coke was very vigorously attacked by Lord Ch. J. Eyre, near a century ago, in Dubber v. Trollope, Amb. 453.; and Lord Coke himself showed, in Co. Litt. 22. a, that an estate tail, with the word heir in the singular number, was created and allowed in 39 Ass. pl. 20. Notwithstanding all this authority in opposition to the rule as stated by Lord Coke, and the unintelligible reason assigned for it, Mr. Preston states the rule as still the existing law. Treatise on Estates, vol. ii. P.8
12. Litt. sec. 1.
13. Lord Coke, in 3 Bulst.128.
14. 1 Co. 87. b. 100. b. Gilbert on Uses and Trusts, by Sugden, 29. 143. Tapner v. Merlot, Willes' Rep. 177. Van Horn v. Harrison, 1 Dal. Rep. 137.
15. Holt, Ch. J., 6. Mod. Rep. 109.
16. 2 Blacks. Com 107, 108.
17. Co. Litt. 9. b. Preston on Estates, vol. ii. 51, 52.
18. Ibid. 2 Blacks. Com. 357.
19. Co. Litt. 280. a.
20. Co. Litt. 9. b. 273. b. Preston, ub sup. 5. 55-59.
21. Co. Litt. 9. b.
22. Ibid. Holdfast v. Marten, 1 Term Rep. 411. Fletcher v. Smiton, 2 ibid. 656. Newkirk v. Newkirk, 2 Caines' Rep. 345. Dane's Abr. vol. iv. ch. 128.
23. Comyn's Dig. tit. Chancery, 2. T. 1.
24. Statute of Virginia, December 13, 1792. Statute of Kentucky, December 19, 1796. New York Revised Statutes, vol. i. 748. sect. 1, 2. Griffith's Law Register.
25. Mr. Humphreys, in his Essay on Real Property, and Outlines of a Code, p. 235. 1st edit. has proposed the same reform, of rendering the word heirs no longer necessary in conveyances in fee; and the American lawyer cannot but be forcibly struck, on the perusal of that work, equally remarkable for profound knowledge and condensed thought, with the analogy between his proposed improvements and the actual condition of the jurisprudence of to country. But I think it very probable that the abolition of the rule requiring the word heirs, to pass a fee by deed, will engender litigation. There was none under the operation of the rule. The intention of the grantor was never defeated by the application of it. He always used it when he intended a fee. Technical and artificial rules of long standing and hoary with age, conduce exceedingly to certainty and fixedness in the law, and are infinitely preferable on that account to rules subject to be bent every day by loose latitudinary reasoning. A lawyer always speaks with confidence on questions of right under a deed, and generally circumspectly as to questions of right under a will
26. Plowd. 557. a. 10 Co. 97. b. 11 Co. 49. a. 1 Ld. Raym. 326. Powell, J. in Idle v. Cooke. 2 Ld. Raym. 1148. 2 Black. Com. 109. Preston on Estates, vol. i. 431, 432, 433, 441-481, 483.
27. Goodwright v. Searle, 2 Wils. Rep. 29.
28. Machell v. Clarke, 2 Ld. Raym. 778. The apprentice of the Middle Temple, in the course of his learned and successful argument in Walsingham's case, (Plowden, 547. 557.) stated the distinction which has been followed by Mr. Preston, between a determinable and a basic fee, and he gives the following obscure explanation of the latter "A. has a good and absolute estate in fee simple, and B. has another estate of fee in the same land, which shall descend from heir to heir, but which is base in respect of the fee of A., and not of absolute perpetuity, as the fee of A. is." He then gives the following example, by way of illustration: "If a man makes a gift in tail, and the donee be attainted of treason, the king shall have the land as long as there are any heirs of the body of the donee; and in that case, there are two flan, for the donor has his ancient fee simple, and the crown another fee in the same land, which is but a base fee, for it is younger in time than the fee of the donor, and if the heirs of the body of the donee fail, the fee is gone, whereas the fee of the donor never perishes; it is pure and perpetual, while the other is but base and transitory." Mr. Preston, in his Treatise on Estates, vol. i. 460, 468, defines a qualified fee to be an interest given to a man and to certain of his heirs only, as to a man and his heirs on the part of his father; but this is termed in .Plowden, 241. b. a fee simple conditional.
29. 10 Co. 97. b. Preston on Estates, vol. i. 484. According to Lord Ch. J. Vaughan, the reverter in this case is a quasi reversion, and he did not see why a remainder might not be granted out of such a qualified fee. Gardner v. Shelden, Vaughan, 269. But the rule is probably otherwise, and on a fee simple conditional at common law, a remainder could not be created, for the fee was the whole estate. There was only a possibility, or right of reverter left in the donor, and that was not an actual estate; (Lee, Ch. J. in Martin v. Strachan, 5 Term Rep. 107. note;) and yet Mr. Preston (on Estates, vol. ii. 353.) concludes that limitations of remainders, after qualified or limited estates of remittance were in use at common law
30. Fleta, lib. 3. ch. 3. sect. 5. 2 Blacks. Com. 110.
31. Bracton, lib. 2. ch. 6. 17. b. Co. Litt. 19. on 2 Inst. 333.
32. F. N. B. 219.
33. Sir Martin Wright (Int. to Tenures, 189.) observes, that the statute de donis, did not create any new fee, aut re aut nomine. It only severed the limitation from the condition of the gift, according to the manifest intent of it, and restored the effect of the limitation to the issue, and the reversion, as the proper effect of the condition, to the donor. The fee simple conditional at common law, was declared, in the case of Willion v. Berkley, Plowd. 239, to be the same as the estate tail under the statute de donis.
34. Lord Bacon on the use of the law. Co. Litt. 19. b. 6 Co. 40.
35. Co. Litt. 19. b. Mildmay's case, 6 Co. 40. Mary Portington's case, 10 Co. 35.
36. Martin v. Strachan, 5 Term Rep. 107. note. This case was affirmed in the House of Lords, Willes's Rep. 444.
37. 10 Co. 3.
38. Act of Virginia, of 7th October, 1776. Laws of N.Y. sess. 6. ch. 2.-sess. 9. ch. 12. N.Y. Revised Statutes, vol. i. 722. sec. 3.
39. Act of North Carolina, 1784. Act of Kentucky, 1796. Griffith's Reg. under the appropriate heads, No. 8.
40. In New Hampshire, estates tail are said to be retained, but I should infer from statutes passed in 1789, 1791, and 1792, respecting conveyances by deed and by will, and the course of descents, that estates tail were essentially abolished. In Alabama and Mississippi, a man may convey or devise land to a succession of donees then living, and to the heirs of the remainder-man. In Connecticut, by statute, (Kirby's Rep. 118. 176, 177. Swift's Dig. vol. i. 79.) and in Ohio and Missouri, if an estate tail be created, the first donee takes a life estate, and a fee simple vests in the heirs, or person having the remainder after the life estate of the grantee. This is also the case in New Jersey, by the act of 1820, though difficulty has been suggested to exist if the grantee has no children, or their issue. (Griffith's Reg.) The tenant in tail in those states, is in reality but a tenant for life, without the power to do any act to defeat or encumber the estate in the hands of the heir or person in remainder. In Rhode Island, estates tail may be created by deed, but not by will, longer than to the children of the devisee, and they may be barred by deed or will. Estates tail exist in Maine, Massachusetts, Delaware, and Pennsylvania, subject nevertheless to be barred by deed, and in two of these states by will, and they are chargeable with the debts of the tenant. (Dane's Abr. vol. iv. 621. Lithgow v. Kavenagh, 9Mass. Rep. 167. 170. 173. Statute of .A1ass. 1791. c. 60. Jackson on Real Actions, 299.) A fee simple passes on a judicial sale to satisfy a charge. This is so decided in one of those states, and the same consequence must follow in all of them when the land is chargeable with debt. (Gause v. Wiley, 4 Serg. & Rawle, 509.) In Maryland, estates tail general, created since the act of 1786, are now understood to be virtually abolished, since they descend, and can be conveyed, and are devisable, and chargeable with debts, ill the same manner as estates in fee simple. It is equally understood that estates tail special, are not affected by the act of 1786, and therefore the decisions prior to Newton v. Griffith, (1 Harris if Gill, 111.) would seem to apply to that species of estates tail. Such estates may be barred by deed as well as by common recovery; and they are chargeable with debts by mortgage, and not otherwise; and they are not devisable; and if the tenant dies seized, they go to the issue, but not to collaterals. (Statutes of 1782 and 1799. 3 Harris & McHenry, 244. 1 Harris & Johns. 244, 465. 2 Ibid. 69, 281. 314. 3 Ibid. 302.)
41. Kirby's Rep. 118. 176. 3 Day, 339. Swift's Digest, vol. L 79.
42. Laws N.Y. sess. 10. ch. 36.
43. Laws N.Y. sess. 36. ch. 23.
44. N.Y. Revised Statutes, vol. i. 719. sec. 10.
45. Litt. sec. 13. Co. Litt. 19. a.
46. 2 Bay, 397. 1 McCord's Ch. Rep. 91. 2 ibid. 324. 326. 328.
47. In Benjough v. Edridge, 1 Simons, 173, 267, a limitation was made to depend on an absolute term of twenty-one years after twenty eight lives in being at the testator's death!
48. 3 Cases in Chancery, 1.
49. Duke of Marlborough v. Earl Godolphin, 1 Eden's Rep. 404. Long v. Blackall, 7 Term Rep. 100.
50. N.Y. Revised Statutes, vol. i. 723, 724. sec. 17. 19.
51. Moseley, 224. Cases temp. Talbot, 16.
52. Amesbury v. Brown, 1 Vesey, 447. Earl of Buckinghamshire v. Hobart, 3 Swanston, 186.
53. Lord Talbot, in Chaplin v. Chaplin, 2 P. Wms. 235. Amesbury v. Brown, 1 Vesey, 477. Earl of Buckinghamshire v. Hobart, 3 Swanston, 186.
54. Jenkins v. Keymes, 1 Lev. 237.
55. Ch. J. Crew, of the K. B., in the great case concerning the Earldom of Oxford, in which that house, under the name of De Vere, was traced up through a regular course of descent to the time of William the Conqueror, observed, that "there was no man that has any apprehension of gentry or nobleness, but his affection stands to the continuance of so noble a name and house, and would take hold of a twig or twine thread to uphold it." (Sir Wm. Jones' Rep. 101. 1 Charles I.) But the luster of families, and the entailments of property, are, like man himself, perishable and fleeting; and the Ch. Justice, in that very case, stays for a moment the course of his argument, and moralizes on such a theme with great energy and pathos. "There must be," he observes, "an end of names and dignities, and whatsoever is terrene. Where is Mowbray? Where is Mortimer? Nay, which is more and most of all, where is Plantagenet? They are entombed in the urns and sepulchres of mortality."
56. Smith's Wealth of Nations, vol. i. 383, 384. Edin. Review, vol. xl. 359. Miller's Inquiry into the Present State of the Civil Law of England, 407. Bell's Comm. on the Laws of Scotland, vol. i. 44.
57. Novel, 159. Ch. 2.
58. Browne's View of the Civil Law, vol. i. 189. Wood's Inst. of the Civil Law, 189. Domat's Civil Law, b. 5. tit. 3. Proeme. But Pothier, very loosely, and without any reference to authority, says, that the Roman law allowed entails to an indefinite extent. Traité des Substitutions, sec. 7. art. 4.
59. Hist. Vol. Viii. 80.
60. Pothier Traité des Substitutions, sec. 7. art. 4. Touillier, tom. 5. p. 27. 29. Repertoire de jurisprudence, tit. Substitution fidei commissaire, sec. 9. art. 2.
61. Code Napoleon, art. 896. In monarchical governments, like those of France and England, which require the establishment and maintenance of hereditary orders in power and dignity, it may be very questionable whether the entire abolition of entails be wise or politic. As they are applied to family settlements, in England, and modified according to circumstances, they are found, according to a very able and experienced lawyer, Mr. Park, to be extremely convenient, and to operate by way of mutual check. Thus, if the father, being tenant for life, wishes to charge the estate beyond his own life, to meet the wants of the junior branches of the family, and provide for their education, and marriage, and settlement in life, and his eldest son, being the tenant in tail, stands in need, on arriving to majority, of some independent income, they can do nothing without mutual consent. It is, therefore, a matter of daily occurrence, in respect to estates among the principal families belonging to the landed aristocracy, to open the entail, and resettle it, by the joint act of the father and the son, to their mutual accommodation. New arrangements are repeated at intervals, as new exigencies arise, and all improvident charges and alienations are checked by these limitations of estates of inheritance, by way of particular estate in the father for life, with a vested remainder in the son in tail; for the father cannot charge beyond his life, nor the son convey the remainder during the father's life, without mutual consent. That consent is never obtained, but for useful or salutary family purposes; and by this contrivance estates are made to subserve such purposes, while their entirety is permanently preserved.