a trust estate (either when expressly declared or resulting by such implication) as equivalent to the legal ownership, governed by the same rules of property, and liable to every charge in equity, which the other is subject to in law and, by a long series of uniform determinations, for now near a century past, with some assistance from the legislature, they have raised a new system of rational jurisprudence, by which trusts are made to answer in general all the beneficial ends of uses, without their incon-venience or frauds. The trustee is considered as merely the instrument of conveyance, and can in no shape affect the estate, unless by alienation for a valuable consider on to a purchaser without notice; which, as cestuy que use is generally in possession of the land, is a thing that can rarely happen. The trust will descend, may be aliened, is liable to debts, to executions on judgments, statutes, and recognizances, (by the express provision of the Statute of Frauds) to forfeiture, to leases and other incumbrances, nay even to the curtesy of the husband, as if it was an estate at law; and it has recently been subjected to dower. It hath also been held not liable to escheat to the lord, in consequence of attainder or want of heirs because the trust could never be intended for his benefit. But let us now return to the Statute of Uses. statute. [ 338 ] The only service, as was before observed, to which Use of the this statute is now consigned, is in giving efficacy to certain species of conveyances; introduced in order to render transactions of this sort as private as possible, and to save the trouble of making livery of seisin, the only ancient conveyance of corporeal freeholds. These conveyances as we have already observed, are now principally adopted in the transfer of real property; and have nearly superseded the ancient mode of conveyance at common law, as will be more fully seen in the Fourth Book of this work. j 2 Freem. 43. * See post, Book III. Chap. 2. 1 Hadr. 494, Burgess and Wheat, 1 Eden, 186; H. Bla. 121. BOOK THE THIRD. OF ESTATES IN REAL PROPERTY. [103] Estate, what it is. To be considered in a three-fold light. First as to the quantity of interest. CHAPTER THE FIRST. OF FREEHOLD ESTATES, OF INHERITANCE. The next objects of our disquisitions are the nature and properties of estates. An estate in lands, tenements and hereditaments, signifies such interest as the tenant hath therein; so that if a man grant all his estate in Dale to A. and his heirs, every thing that he can possibly grant shall pass thereby." It is called in Latin status; it signifying the condition, or circumstance in which the owner stands with regard to his property. And to ascertain this with proper precision and accuracy, estates may be considered in a threefold view; first, with regard to the quantity of interest which the tenant has in the tenement; secondly, with regard to the time at which that quantity of interest is to be enjoyed; and, thirdly, with regard to the number and connections of the tenants. First, with regard to the quantity of interest which the tenant has in the tenement, this is measured by its duration and extent. Thus, either his right of possession is to subsist for an uncertain period during his own life, or the life of another man; to determine at his own decease, or to remain to his descendants after him; or it is circumscribed within a certain number of years, months, or days; or, lastly, it is infinite and unlimited, being vested in him and his representatives for ever. And this occa m Co. Litt. 345. But see Derby v. Taylor, 1 East, 502,as to the effect of the common clause of"all the estate," for which see Appendix, No. 1. p. ii. sions the primary division of estates, into such as are Estates dividfreehold, and such as are less than freehold. ed into freehold and less than freehold. Estates of freehold are either estates of inheritance or estates not of inheritance Estates of in heritance are either inheri tances in feesimple or fee simple. be tween feudal property. Estates of freehold are either estates of inheritance, or [104] estates not of inheritance. The former are again divided into inheritances absolute or fee-simple; and inheritances limited, one species of which we usually call fee-tail. 1. Tenant in fee-simple (or, as he is frequently stiled, tenant in fee), is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever;" gene- limited fees. rally, absolutely, and simply; without mentioning what. Tenant in heirs, but referring that to his own pleasure, or to the disposition of the law. The true meaning of the word fee (feodum), is the same with that of feud or fief, and in its original sense it is taken in contradistinction to allodium; [105] which latter the writers on this subject define to be every man's own land, which he possesseth merely in his own Defence right, without owing any rent or service to any superior. and allodial This is property in its highest degree; and the owner thereof hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is held of some superior, on condition of rendering him service; in which superior, the ultimate property of the land resides. And therefore Sir Henry Spelmano defines a feud or fee to be the right which the vassal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services; the mere allodial propriety of the soil always remaining in the lord. This allodial property no subject in England has ;P it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king. The king therefore only hath absolutum et directum dominium ; but all subjects' lands are in the nature of feodum or fee; whether derived to them by descent from their ancestors, or purchased for a valuable consideration; for they cannot come to any man by either of those ways, unless accompanied with those feodal clogs, which were laid n Litt. s. 1. • Of Feuds, c. 1. P Co. Litt. 1. Praedium domini regis est directum dominium, cujus nullus est author nisi Deus. Ibid. See ante, p. 22. upon the first feudatory when it was originally granted. A subject therefore, hath only the usufruct, and not the absolute property of the soil; or, as Sir Edward Coke expresses it,' he hath dominium utile, but not dominium directum. And hence it is that, in the most solemn acts of law, we express the strongest and highest estate that any subject can have, by the words; "he is seised thereof in his demesne, as of fee." It is a man's demesne, dominicum, or property, since it belongs to him and his heirs for ever; yet this dominicum, property, or demesne, is strictly not absolute or allodial, but qualified or feodal ; it is his demesne, as of fee; that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides. [106] This is the primary sense and acceptation of the word Fee-simple. fee. But (as Sir Martin Wright very justly observes) the doctrine, that "all lands are holden," having been for so many ages a fixed and undeniable axiom, our English lawyers do very rarely (of late years especially) use the word fee in this, its primary original sense, in contradistinction to allodium or absolute property, with which they have no concern; but generally use it to express the continuance or quantity of estate. A fee therefore, in general signifies an estate of inheritance; being the highest and most extensive interest that a man can have in a feud: and, when the term is used simply, without any other adjunct, or has the adjunct of simple annexed to it, (as a fee, or a fee simple) it is used in contradistinction to a fee conditional at the common law, or a fee-tail by the statute; importing an absolute inheritance, clear of any condition, limitation, or restrictions to particular heirs, but descendible to the heirs general, whether male or female, lineal or collateral. And in no other sense than this is the king said to be seised in fee, he being the feudatory of no man.t Taking therefore fee for the future, unless where otherwise explained, in this its secondary sense, as a state of inheritance, it is applicable to, and may be had in, any kind of hereditaments either corporeal or incorporeal." sides. be in abey The fee-simple or inheritance of lands and tenements [107] is generally vested and resides in some person or other; where it rethough divers inferior estates may be carved out of it. As if one grants a lease for twenty-one years, or for one or two lives, the fee-simple remains vested in him and his heirs; and after the determination of those years or lives, the land reverts to the grantor orhis heirs, who shall hold it again in fee-simple. Yet sometimes the fee has been But is somesaid to be in abeyance, that is, (as the word signifies) in times said to expectation, remembrance, and contemplation in law; there ance. being no person in esse, in whom it can vest and abide: though the law considers it as always potentially existing, and ready to vest whenever a proper owner appears. Thus in a grant to John for life, and afterwards to the heirs of Richard, the inheritance is plainly neither granted to John nor Richard, nor can it vest in the heirs of Richard till his death, nam nemo est haeres viventis: it is said therefore to remain in waiting or abeyance, during the life of Richard. This is likewise always the case of a parson of a church, who hath only an estate therein for the term of his life; and the inheritance remains in abeyance." u Feodum est quod quis tenet sibi et haeredibus suis, sive sit tenementum, sive reditus, &c. Flet. l. 5, c. 5, s. 7. v Litt. s. 10. w See page 4. * Servitus est jus, quo res mea alte- |