and this is more singular, since no one was better acquainted with its application, or had a more correct knowledge of its precise meaning. This will be evident from those passages to which reference is already made.

Besides, Lord Coke (bb) has in so many words taken notice, that of fee-simple, it is commonly holden that there be three kinds; viz. feesimple absolute, fee-simple conditional, and fee-simple qualified, or a base fee; and has observed, that the more genuine and apt division, were to divide fee, that is, inheritance, into three parts; viz. simple, absolute, conditional and qualified, or base; for this word, simple, properly excludeth both conditions and limitations that defeat or abridge the fee. By this passage, he clearly shows there is a distinction between fees simple, and qualified or determinable fees.

A determinable fee is also an interest which may continue for ever (c). It is a quality of this estate, while it falls under this denomination, that it is liable to be determined by some act or event, expressed on its limitation, to circumscribe its continuance, or inferred by the law as bounding its extent (d). Limitations to a man and his heirs.

1. Peers of the realm (e);
2. Kings of Scotland (ƒ);

(bb) 1 Inst. 1 b.

(d) 2 Bl. Com. 109.
(f) 1 Cruise's Digest, 24.

(c) Plow. 557; Shep. Touch. 97. (e) 2 Bl. Com. 109; 1 Inst. 27.

3. Lords of the manor of D(g);
4. Tenants of the manor of Dale (h);
5. During the time while a particular tree,
a tree in any wood, or any tree in a
certain wood, &c. shall stand (i);
6. Whilst a man (or woman not being the
donee) shall have heirs of his body,
or issue of his body (j);

7. Till the marriage of a person shall take
place (k);

8. Till a person at Rome shall return from Rome (1); or till a person shall go

to Rome (m).

9. Till debts shall be paid (n);

10. Till default shall be made in payment of his debts (o) ;

11. As long as A [add, and his heirs] shall pay 201. annually to B (p);

12. So long as St. Paul's shall stand (q); 13. Until a sum, (that is, a sum incertain) shall be paid by a particular person (r);

(g) 1 Inst. 27 a.

(h) 2 Bl. Com. 109; 1 Inst. 27; and Lord Hale's Notes, 4 Com. Dig. 5.

(i) Kitch. 301; 27 H. VI. 29; 11 Rep. 49; 1 Lord Raym. 326.

(j) Plowd. 557; 1 Inst. 18; 10 Rep. 97 b; Shep. Touch. 46. 103.402; 3 Leon. 117.

(k) Cro. Jac. 593; 10 Vin. Abr. 233:

(1) Fearne, 8.

(n) Fearne, 187.

(m) Shep. Touch. 122.

(0) Leon. 33. 2 Woodd. 733.

(p) Plow. Com. 557; 11 Rep. 49 a.

(q) Plow. Com. 349. 557.

(r) Cocket v. Sheldon, Moor, 15.

14. Until an act shall be done (s);

15. Until a minor shall attain his age of twenty-one years (t);

16. Until legacies shall be paid (u);

17. Until they shall have made a lease (x); 18. Until he otherwise should dispose of the same (y);

are instances of this species of estate; and these are examples of fees determinable by express limitation. Some of these examples

have the same construction in deeds and wills, and in some instances of wills, though there be not any limitation to the heirs.

Let it be remembered, that a gift by will to A and his heirs, if he have issue of his body, is an estate-tail in him (z). And there may be a fee by deed or will, determinable under the learning of executory devises or springing uses, although the original gift be to a person generally and his heirs for ever. There is scarcely any event (being a lawful event), and to happen within the rule prescribed against perpetuities, which may not be made the cause of the determination of this fee; as death, with

(s) Dyer, 300 b; and see Blagrave and others v. Clun, for observations on the equity; 2 Vern. 523. 578; Thomasin v. Mackworth, Carter 75, 107; and Buworth's case there cited.

(t) Tracey v. Lethulier, 3 Atk. 74; Ambl. 204; Fearne, 342; 9 Mod. 28; Spenser v. Chase, 16 Vin. Abr. 203.

(u) 3 Atk. 560. 562.

(x) Lusher v. Panbery, Dyer, 290 a.

(y) Carter, 96, Earl of Bath's case.

(z) Shep. Touch. 103.

out having had, or without leaving, issue, or without having aliened, &c. &c. (a): and these are some only of an infinite number of examples to be found in the books.

In wills, limitations for indefinite periods, give chattel interests, when the limitation is not to the heirs, and when there are not any circumstances which afford an inference that the inheritance is to pass to the trustees (b).

Even in wills, a devise to a man and his heirs, till debts are paid, passes the fee, and not a chattel interest (c), except under special cir

cumstances.

Chattel interests pass only when the devise is without any limitation to the heirs, so that the trustees have an incertain interest; or, in other words, an interest without any definite time; and the quantity of interest, or period of enjoyment, is expressed by the clause, till debts are paid; or when the context requires that the fee should be in the beneficial devisees. In those instances in which the interest is certain, the limitation being to the trustees and their heirs, the Court cannot, except

(a) Beachcroft v. Brown, 4 Term Rep. 441. (b) See 1 Burr. 234; 5 East, 170.

(e) Wright and Pearson, Ambl.358; Fearne, 187; Bagshaw and Spenser, 2 Atk. 246; Jones v. Say and Sele, 8 Vin. Abr. 262; 2 Bro. P. Cas. 1; Goodtitle v. Whitby, 1 Burr. 228; Trodd v. Downes, 2 Atk. 204; see also Cowp. 833, in Doe v. Fyldes; Strong and Teat, 2 Burr. 910; Wellington and Wellington, 4 Burr. 2165; 1 Black. Rep. 645; Gibson v. Rogers, Ambl. 97; Lethulier v. Tracey, 3 Atk. 74.

from a context, declare such interest to be a chattel, or any other estate than a fee; which, by the words of devise, it purports to be. As Lord Keeper Henley very justly observed (d), "to adopt a different rule of construction, is to change the trustees contrary to the intention of the testator; as the personal representatives might become trustees, instead of the heirs at law."

All or some of the cases cited in the margin will be introduced, and more minutely examined, in the chapter on Estates for Years, and Interests of a Chattel quality; and some of the cases, treating the trustees as having chattel interests, under circumstances and expressions which import a gift in fee (e), are in particular deserving of notice.

An estate with a determinable quality, by construction of law, properly falls under the denomination of a determinable fee, although no qualification be expressed, to ascertain the time of continuance.

Suppose the owner of a determinable fee to convey that estate to a man and his heirs generally, and without any restriction; the construction of law on this conveyance would be, that the determinable quality annexed to the estate, while in the tenancy of the person by whom it is conveyed, shall follow the same into the hands of the person to whom the transfer is made.

(d) Doe v. Simpson, 5 East, 162.
(e) Goodtitle v. Whitby, 1 Burr. 228.