[n] 1 Co. 100. Shellye's case. 42 E. 3. 7. 19 H. 6. 17. 22. b. Pl. Com. 248. b. ca. Tenant in guino suo, that is a fee simple; but if it be semini suo, it is an estate taile (3). [n] Secondly, that it extendeth not to a fine sur conusans de droit come ceo que il ad de son done, by which a fee also may passe without this word (heires) in respect of the height of that fine, and that thereby is implyed that there was a precedent gift in fee. Thirdly, nor to certain releases, and that three manner of waies. [o] Litt. lib. 2. [o] First, when an estate of inheritance passeth and continueth; as if there be three coparceners or joyntenants, and one of them release to the other two, or to one of them generally without this word (heirs), by Littleton's own opinion they have a fee simple, as appeareth hereafter. 2. By release [p], when an estate of inhe ritance passeth and continueth not, but is extinguished; as where the lord releaseth to the tenant, or the grantee of a rent, &c. release to the tenant of the land generally all his right, &c. hereby the seigniory, rent, &c. are extinguished for ever, without these words (heires). 3. [q] When a bare right is released, as when the disseisee release to the disseisor all his right, he need not (saith our author in another place) speake of his heires. But of all these, and the like cases, more shall be treated in their proper places, 4. Nor to a recovery. A. seised of land suffereth B. to recover the land against him by a common recovery, where the judgment is, quòd prædictus B. recuperet versus præd. A. tenementa prædicta cum pertin'; yet B. recovereth a fee simple without this word (heires); for regularly every recoverer recovereth a fee simple. 5. Nor to a creation of nobilitie by writ; for when a man is called to the upper house of parliament by writ, he is a baron and hath inheritance therein without the word (heires). (4) Yet may the king limit the generall state of inheritance created by the law and custome of the realme to the heires males, or generall, of his body by the writ; as he did to Bromflete, who in 27 H. 6, was called to parliament by the name of the lord Vescye, &c. with the limitation in the writ to him and the heires males of his bodie. But if he be created by patent, he must of necessitie have these words (his heires) or the heires males of his bodie, or the heires of his body, &c. otherwise he hath no inheritance. The first creation of a baron by patent that I find was of John Beauchampe of Holte, created baron by patent in 11 R. 2 (5), for barons before that time were called by writ. And it is to be observed, that of ancient times earles, &c. were created by girding them with a sword, and nominating him earle, &c. of such a countie or place; and this, with a calling of him to parliament by writ by that name, was a sufficient creation of inheritance. (27 H. 6. Lo. Vescic's case, (7 Co. 33. b.) [r] 39 Ass. 12. 41 E. 3. tit. Feoffments & Faits, 254. But out of this rule of our author the law doth make divers ex-. ceptions (et exceptio probat regulam); for sometime by a feoffment a fee simple shall passe without these words (his heires). For example, first, [r] if the father infeoffe the sonne, to have and to hold to him and to his heires, and the sonne infeoffeth the father 14 H. 4. 13. 34 E. 3. Avowry, 258. as (3) As to the passing of an estate of inheritance in last wills, without the word heirs, see the title Derise, in the several Abridgments of Law and Equity, and Gilb. Law of Devises. (4) See as to this, mr. serj. Rolle's argument in Coll. Proc. on Claims of Baronies, 209 221. (5) Acc. post. 16.b. Seld. Jan. Angl. b. 2. c. 15, and Seld. Tit. Hon. 2d ed. p. 747, which latter book contains the form of the letters patent to lord Beauchamp. as fully as the father infeoffed him, by this the father hath a fee simple (6), quia verba relata hoc maximè operantur per referentiam [t] 8 E. 3. 27. 11 H. 7. 12. ut in esse videntur. [s] Secondlie, in respect of the consideration, [s] Vide Sect. a fee simple had passed at the common law without this word 17. 12 H. 4. 19. (heires), and at this day an estate of inheritance [in] tayle. As if in Formedon. a man had given land to a man with his daughter in frankmarriage generally, a fee simple had passed without this word (heires); for there is no consideration so much respected in law as the consideration of marriage, in respect of alliance and posteritie. [t] Thirdly, if a feoffment or grant be made by deed to a mayor and commonaltie, or any other corporation aggregate of manie persons capable, they have a fee simple without the word (successors); (7) because in judgment of the law they never dye. [u] Fourthly, in case of a sole corporation a fee simple shall sometime passe without this word (successors). As if a feoffment in fee be made of land to a bishop, to have and to hold to him in liberá eleemosiná, a fee simple doth passe without this word (successors). [w] And so if a man give lands to the king by deede inrolled, a fee simple doth passe without these words (successors or heires); because in judgment of law the king never dieth. Fifthly, in grants sometimes an inheritance shall passe without this word heires. [x] As if partition be made betweene coparceners of lands in fee simple, and for owelty of partition the one grant a rent to the other generally, the grantee shall have a fee simple without this word (heires) (1); because the grantor hath a fee simple, in consideration whereof he granted the rent: Ipsa etenim leges cupiunt ut jure regantur. Sixthly, by the forrest law if an assart be granted by the king at a justice seat (which may be done without charter) to another, habendum et tenendum sibi in perpetuum, he hath a fee simple without this word (heires) [y]; for there is a speciall law of the forest, as there is a law marshall for wars, and a marine law for the seas[z]. [10.] [w] Pl. Com. Lo. Berkleye's case. [1] 29 Ass. 23. 21 E. 3. 1. [y] 40 H. 7. 7. And this rule of our author extendeth to the passing of estates of inheritances in exchanges, releases, or confirmations that enure by way of enlargement of estates, warranties, bargaine and sales Bustard's case, by deed indented and inrolled, and the like, in which this word Vide Sect. 465. (heires) is also necessary; for they do tantamount to a feoffment 469. 610. or grant, or stand upon the same reason that a feoffment or grant 19 H. 6. 17. 22. doth; for like reason doth make like law, ubi eadem ratio, ibi idem 19 E. 2, garr. 85. jus (2). And this is to be observed throughout all these three books, that where other cases fall within the same reason, our author doth put his case but for example; for so our author him selfe in another place explaineth it, saying, and memorandum, Sect. 301. that (6) Adj. contra 39. lib. Ass. pl. 12, but Rolle abridges the case with a quære. See 1 Ro. Abr. 833. pl. 7. (7) Acc. post. 94, b. But according to some authorities it is otherwise, if only the head of the corporation is capable, and the body is dead in law, as in the case of an abbot and convent. Post. 94, b. See, however, contra 1 Ro. Abr. 832. pl. 1.-[Note 51.] (1) Acc. Plowd. 134. b. (2) For other instances in which a fee will pass by deed or grant without the word heirs, see Vin. Abr. Estate, K. 2, and L. To the cases in Viner, add 8 H. 4. 4. 16. b. 19 H. 6. 17. 20 H. 6. 36. 27 H. 8. 8. b. Dy. 169, which I do not see cited by him. See also Ash. Repertor, tit. Estate. (Post. 10. b. Dy. 133. b. Hob. 31. 1 Co. 101. 103.) that in all other [such] like cases, although it be not here expressly moved or specified, if they be in like reason, they are in the like law. And here our author is to be understood to speak of heires when they are inheritable by descent, for they are capable of land also by purchase, and then the course of descent is sometimes altered. As if lands of the nature of gavelkind be given to B. and his heires, having issue divers sons, all his sons after his decease shall inherit (3); but if a lease for life be made, the remainder to the right heires of B. and B. dieth, his eldest son only shall inherite, for he only to take by purchase is right heire by the common law (4). So note a diversity betweene a purchase and a descent. But where the remainder is limited to the right heires of B. it need not be said, and to their heires; for being plurally limited (3) Here heirs being a word of limitation, none can take under it but by descent; and the land being gavelkind, the descent is to all the sons, who are as much heirs to such land, as the eldest son is heir to land descending according to the common law. The custom of gavelkind extends to estates tail; and so irresistible is the customary descent both of gavelkind and borough-english land, according to some authorities, that even in the case of estates tail, it cannot be changed by express words directing a descent secundum cursum communis legis. Dy. 179. b. pl. 45. See Robins. Gavelk. 94. Mr. Robinson's book on Gavelkind is a very excellent law-treatise, and generally comprehends every thing relative to his subject; but in this part of it he is rather short in his explanation; for though he takes notice of the custom's applying to estates tail, yet he neither mentions the case from Dyer, nor hints whether express words are as insufficient to exclude the custom from estates tail, as they certainly are to control the descent of estates in fee. Perhaps the author's silence might proceed from his doubts on the subject. See further the case of tanistry, Dav. 31. a. & 36. b. In that case it was resolved, that the customary descent was interrupted by the grant of an estate tail; but then the judges proceeded on a principle quite consistent with the general doctrine in Dyer. They held, first, that the custom of tanistry only applied to lands going with the chiefry or seigniory, from which the lands in question had been severed by the grant of the estate tail; and secondly, that the custom of tanistry was not inherent in the land, like the customs of gavelkind and borough-english, but merely personal to the eldest and most worthy, and therefore became extinguished for ever, when the land was conveyed to another person, that is, the heir at common law. -[Note 52.] (4) Acc. Rob. Gavelk. 117, 118, and the authorities there cited. The. reason seems to be, that though the subject of the gift is customary land, the heir at common law is presumed to be meant, unless words are added to describe the customary heir. But if such special words are used, the presumption fails; and then it is said, that though the subject of the gift is common-law land, yet the customary heir shall be preferred. On this principle, lord ch. Cowper, in a case before him, declared, that if one, having borough-english land and also lands at common law, devises the latter to his heir by the custom of boroughenglish, this will be a sufficient description of the youngest son, though not heir at common law, and though the devise is not of the customary, but of the common-law land; and that a like devise to gavelkind heirs would entitle all the sons. 2 Vern. 732, and Prec. in Ch. 464. But see further on this latter subject, post. 24. b. where lord Coke writes, that to take by purchase under a limitation to the heirs female, the person claiming must be both heir and female. See also the note, in which it is attempted to justify lord Coke for that doctrine, and to explain the qualifications with which it ought to be understood. [Note 53.] limited it includeth a fee simple, and yet it resteth but in one by purchase. Out of that which hath beene said it is to be observed, that a man may purchase lands to him and his heires by ten manner of conveyances (for I speake not here of estoppells). First, by feoffment. Secondly, by grant (of which two our author here speaketh). Thirdly, by fine, which is a feoffment of record. Fourthly, by common recovery, which is a common conveyance, and is in nature of a feoffment of record. Fifthly, by exchange, which is in nature of a grant. Sixthly, by release to a particular tenant. Seventhly, by confirmation to a particular tenant, both which are in nature of grants. Eighthly, by grant of a reversion or remainder with attornment of the particular tenant, of all which our author speaketh hereafter. Ninthly, by bargaine and sale by deede indented and inrolled, ordained by statute since Littleton wrote. Tenthly, by devise by custome of some particular place, as he sheweth hereafter, and since he wrote, by will in writing, generally by authority of parliament. What words are apt words for a feoffment or grant vide Sect. 531. Our author speaketh of feoffiments and grants, whereby is implyed lawfull conveyances; and therefore this rule extendeth not to disseisins, abatements, or intrusions into lands or tenements, or to usurpations to advowsons, &c. in which cases estates in fee simple are gained by the act and wrong of the disseisors, abators, intruders, and usurpers (5); and if a disseisin, abatement, or intrusion be made to the use of another, if cestui que uso agreeth thereunto in pays, by this bare agreement he gaineth a fee simple without any livery of seisin or other ceremony. Sect. 2. AND if a man purchase land in fee simple and die without issue, he which is his next cousin collaterall of the whole blood, how farre so ever he be from him in degree, (de quel pluis long degree qu'il soit (6) ), may inherite and have the land as heire to him. LITTLETON showeth here who shall be heire to lands in (Plowd. 444.) fee simple; for he intendeth not this case of an estate taile, for that he speaketh of an heire of the whole blood, for that extendeth not to estates in taile, as shall be said hereafter in this Chapter, Section 6. "Next cousin collaterall." Neither excludeth he brethren or sisters, because he hath a speciall case concerning them in this Chapter, Sect. 5, and in his Chapter of Parceners; but this is intended where a man purchaseth lands and dieth without issue, and having neither brother nor sister, then his next cousin collaterall shall inherite (1). So as here is implyed a division of heires, viz. lineall (whoever [10.] shall (5) See ante 3. b, and post. 18. b. (6) de lui, L. and M. Roh. Red. (1) In the preceding page, lord Coke begins his comment on that part of Littleton which describes the course of descent by the common law of England; and ca. 3, 4. Bract. lib. 2. c. 30, fo. 65. Britton, c. 119. Fleta, lib. 6. cap. 1 & 2. (Plowd. 444.) Bract. lib. 2, cap. 30, fo. 64. Fleta, lib. 5, Glanvill. lib. 7. shall first inherite) and collaterall (who are to inherite for default of lineall). For in descents it is a maxime in law, quòd linea recta semper præfertur transversali. Lineall descent is conveyed downward in a right line; as from the grandfather to the father, from the father to the sonne, &c. Collaterall descent is derived from the side of the lineall; as grandfather's brother, father's brother, &c. Next cousin collaterall shall inherite doth give a certain direction to the next cousin to the sonne, and therefore the father's brother and his posterity shall inherite before the grandfather's cap. 5, & lib. 6. brother and his posterity. Et sic de cæteris; for propinquior excludit propinquum, et propinquus remotum, et remotus remo tiorem. cap. 1 & 2. Britton, c. 119. 19 R. 2. tit. Garr, 100. (2 Inst. 7.) 30 Ass. p. 47. Upon this word (next) I put this case. One hath issue two sonnes, A. and B. and dieth; B. hath two sonnes, C. and D. and dieth. C. the eldest sonne hath issue and dieth. A. purchaseth lands in fee simple, and dieth without issue. D. is the next cousin, and yet shall not inherite, but the issue of C.; for he that is inheritable is accounted in law next of blood. And therefore here is understood a division of next, viz. next jure repræsentationis, and next jure propinquitatis; that is, by right of representation and by right of propinquity. And Littleton meaneth of the right of representation, for legally in course of descents he is next of blood inheritable. And the issue of C. doth represent the person of C.; and if C. had lived, he had been legally the next of blood. And whensoever the father, if he had lived, should have inherited, his lineall heire by right of representation shall inherite before any other, though another be jure propinquitatis, neerer of blood. And therefore Littleton intendeth his case of next cousin of blood immediately inheritable. So as this produceth another division of next blood, viz. immediately inheritable, as the issue of C.; and mediately inheritable, as D. if the issue of C. die without issue; for the issue of C. and all that line, be they never so remote, shall inherit before D. or his line; and therefore Littleton saith well, how farre so ever he be from him in degree. And here ariseth a diversity in law between next of blood inheritable by descent, and next of blood capable by purchase. And therefore in the case before mentioned, if a lease for life were made to A. the remainder to his next of blood in fee; in this case, as hath been said, D. shall and this seems to be a proper place for referring the student to some valuable writings published since lord Coke's time on the same subject. See Hal. Hist. C. L. c. 11. Wright's Ten. 174. Gilb. Ten. 2. Dalrymp. Feud. Prop. 4th ed. c. 5. p. 159, and Blackst. Law of Descents. To the first and last of these books it is that we principally call the attention of the student; though it must be confessed, that in all of them, the history of the law is so learnedly and critically traced, and the feudal principles, on which it chiefly depends, are so clearly unfolded, that a subject in itself dry and abstruse, becomes not only plain and intelligible, but even agreeable and interesting. Mr. R. Robinson's Discourse concerning the Law of Inheritances in Fee simple is another treatise on the same subject, which should not be passed over without notice. Many parts of it are ingeniously written: but unfortunately the author has chiefly exerted his talents in inventing a new kalendar of consanguinity, the explanation of which employs a very considerable part of the work; and by always referring to this, and by introducing a number of arbitrary terms, which are only intelligible as he explains them, he involves his subject, before too much embarrassed with difficulties, in still greater perplexity.-[Note 54.1 |