estate, in a third person, there the charge is not merged. Chester v. 51. A term of 500 years was vested in trustees Thonias v. Keymish, to secure a daughter's portion, payable at eighteen 2 Vern. 348. or marriage; the fee descended to the daughter, Powell v. Morgan, who afterwards died an infant about eighteen, having Id. 90. made a nuncupative will, and thereby devised all in her power to her mother. It was decreed by Lord Amb. 246. Somers, and affirmed by the House of Lords, that this portion was not merged, but should go to the mother. Willes, 52. The law has annexed to every estate and Incidents interest in lands, tenements, and hereditaments, cer- to a Fee. tain peculiar incidents, rights, and privileges, which in general are so inseparably attached to those estates, that they cannot be restrained by any proviso or condition whatever. 53. Of the several incidents inseparably annexed Alienable. to an estate in fee simple, the first is an unlimited power of alienation. Any restriction therefore of this power, annexed to the creation of an estate in fee simple, would be absolutely void. 54. This unlimited power of alienation comprises in itself all inferior powers; so that a tenant in fee simple may create any inferior estate or interest out of his own. Therefore a custom that a tenant in Salford's fee simple cannot demise his lands for more than Case, Dyer, 357 6. years, is void; because it is contrary to the freedom of the estate of one who hath a fee simple. six to Heirs General. 55. An estate in fee simple will descend to the Descendible heirs general of the person who was last seised thereof, whether male or female, lineal or collateral. Tit. 29.c.3. It is for this reason that the word simple is added to the word fee, importing an absolute inheritance, clear of any condition, limitation, or restriction, to par ticular heirs; in contradistinction to another class of estates of inheritance, which are only descendible to some particular heirs; of which an account will be given in the next title. 56. Estates in fee simple are subject to curtesy and dower, which will be noticed under these respective titles. 57. Estates in fee simple are liable to the payment of all debts contracted by the tenant, for which he has acknowledged any security on record; or has bound himself and his heirs by any deed or instrument under his seal; which latter are called debts by specialty, and his heir is bound to satisfy those debts, as far as the land descended to him from such ancestor will extend; which sufficient lands are called, in law, assets by descent. 58. By the common law, if the heir had aliened the assets, before an action was brought against him for the recovery of a debt due by his ancestor, the creditor was without any remedy. But now by the statute 3 Will. & Mary, c. 14. § 5. it is enacted, "That in all cases where any heir at law shall be liable to pay the debts of his ancestor, in regard to any lands, tenements, or hereditaments descended to him, and shall alien or make over the same, before any action brought or process sued out against him ; that such heir at law shall be answerable for such debt or debts, in an action or actions for debt, to the value of the said land so by him sold, aliened, or made over; in which case creditors shall be preferred, as in actions against executors or administrators. And such execution shall be taken out upon any judgement or judgements so obtained against such heir, to the value of the same land, as if the same were his own proper debt or debts: saving that the lands, tene ments, and hereditaments, bona fide aliened, before the action brought, shall not be liable to such execution." 59. Estates in fee simple are not in general liable to the payment of simple contract debts-a doctrine not very consonant to natural justice. But by the statute 13 Eliz. c. 7., when a man is declared a bankrupt, the commissioners have a full power to dispose of all his lands and tenements for payment of all his debts. of 60. Where a trader died before he was declared a bankrupt, his real estate was not liable to his simple contract debts. But now, by the statute 47 Geo. III. sess. 2. c. 74., it is enacted, "that when any person, being at the time of his death a trader within the bankrupt laws, shall die seised of, or entitled to, any real estate, which he shall not by his last will have charged with the payment of his debts; and which would have been assets for the payment his debts due on any specialty, in which the heirs were bound; the same shall be assets, to be administered in courts of equity for the payment of all the just debts of such person, as well debts due on simple contract as on specialty: provided that all creditors by specialty shall be paid the full amount of their debts before any creditors by simple contract, or by specialty, in which the heirs are not bound, shall be paid any part of their demands.” میر Ancaster Knowlton, 3 Ves. 107. v. Mayer, 61. The personal estate is however the first and 1 Bro.R.454. immediate fund for the payment of debts. And Burton v. though a person charge his real estate, by his will, with the payment of all his debts, yet that does not exempt the personal estate from being first applied for that purpose; unless the testator expressly ex- 185. onerate it. Brummell 1 Cox's R. Noke v. Darby, 1 Bro. Parl. Ca. 506. Of Crown 2 Inst. 19. Dyer, 67 b. Att. Gen. v. Resby, Hard. 378. 2 Inst. 19. 4 Term R. 408. Favel's Case, Dyer, 160 a. 224 6. 62. Even a testamentary disposition of the personal estate will not exempt it from being applied in payment of debts: for a court of equity will suppose the intention of the testator to have been, that only the residue of his personal estate, after payment of debts, should go to the legatees; unless a contrary intention evidently appears. 63. Lord Coke says that, at common law, the king was entitled to have execution of the body, goods, and lands of his debtor, by virtue of his royal prerogative. By the 8th chapter of Magna Charta, it was stipulated that the king's bailiffs should not seize any lands or rent for debt, as long as the goods and chattels of the debtor sufficed. Nos vero nec ballivi nostri non sesiemus terram aliquam vel redditum pro debito aliquo, quamdiu catalla debitoris præsentia sufficiunt; et ipse debitor paratus est satisfacere. Lord Coke observes that this was an act of grace, restraining the power which the king had before. 64. Where the goods and chattels of the debtor are not sufficient, his real estates become liable. Where the debt is of record, or by specialty, the process is by writ of extent, or extendi facias, returnable in the court of exchequer, by which the sheriff is directed to inquire, by the oaths of lawful men, what lands and tenements the debtor had at the time of the debt contracted. Where the debt arises on simple contract, the practice of the exchequer is, on affidavit of the debt, to direct a commission to inquire of it; and, on inquisition returned, the debt is recorded; and an extent issues. 65. Where the king's debtor dies, the crown may notwithstanding seize his lands and goods. And it is Anon. Saville, said by Fanshawe, remembrancer of the queen, that after the death of any debtor to the crown, process 53. shall issue against the executors, the heir and the terretenants, all together. chener, 66. In a modern case the court of exchequer said, Rex v. Mitthat whenever an extent might have issued in a man's Bunb. 118. lifetime, a writ of diem clausit extremum may issue against the estate of a simple contract debtor, where such debt was found by inquisition; though the person was not the king's debtor by record at the time of his death. tracted. Plowd. 321. 67. It is not necessary there should be any contract How conwith the king, to make a person a crown debtor. For it was resolved in 2 Eliz. that if any money, goods, or chattels of the king come to the hands of any subject, by matter of record, or by matter in fait, the land of such subject is charged therewith. Cro. Eliz. 68. Sir Walter Mildmay had received annually out Doddingof the exchequer £50, as a fee for his diet, for ton's Case, 30 years together; which was paid by the command 545. of the lord treasurer, who had authority by privy seal to make allowance and payment of all fees and dues ; but in truth this was not any fee. The question was, whether Sir Walter's executor should be charged with these sums, so received. It was adjudged that he should be charged; for this payment, by the appointment of the lord treasurer, was not allowable; the privy seal not being an authority to dispose of the queen's treasure, unless where it was due. And he disposing of it otherwise, was out of his authority; therefore the money so paid was a debt due to the crown. 69. The Earl of Devon being master of the ord- Earl of Devon'sCase, nance, obtained of King James I. a privy seal, autho- 11 Rep. 89. rizing him to take and sell broken and unserviceable iron ordnance; the same having theretofore been |