It is not in the power of any person, by his own act, to entitle another to take as his heir, by descent, unless the law has imposed that character on him; and for this reason, a limitation of land to a man and his heirs, peers of the realm, though it will exclude all his heirs who are not invested with this dignity, will not entitle peers, or give continuance to the estate, unless they also are the general heirs.

For in the instant that the character of heir, and the dignity of the peerage shall be separated and fulfilled in distinct persons, the estate will cease, and absolutely determine, because the who is first in the line of succession, is person, not a peer of the realm; and because the person, who is more remotely related, and further back in the line of succession, and is a peer of the realm, is not the person whom the laws have designated to be the heir.

This consequence of law flows from the rules, first, that estates in lands, or other corporeal hereditaments, or incorporeal hereditaments already created, are not, as has been shown in the second chapter, allowed to be desultory; so that they may be suspended at intervals or different periods; and, secondly, that the line of succession cannot be varied by the party.

It is to property of this sort alone, that the observations respecting desultory estates apply, immediately, and in their fullest extent. Incorporeal hereditaments, on a grant of the same originally, and in the first instance, are not, as

already shown, within the same reason, and therefore not influenced by the same principle.

Under a similar limitation of incorporeal hereditaments, on the first creation of the estate, the estate would not cease or determine, merely because the person first in the line of succession is not a peer. It would be suspended only, till the character of heir, and the dignity of peerage, unite in the same person.

This seems to be the result of the cases introduced by Chief Baron Comyns into his Digest (a); in which he says, in the patronage of an hospital, or other thing created de novo, in which there was no precedent estate, a man may have the fee to him and his heirs, qualified in a particular manner; as if a queen consort institutes an hospital, and reserves the patronage, sibi et Reginis Angliæ succedentibus (b).

But in estates already in esse, such desultory inheritances, as the Dutchy of Cornwall, limited to the Prince et ipsius et hæredum, &c. Angliæ primogenitis, shall not be good, except when limited by act of parliament (c). So a limitation of an advowson to the queen, and the queens her successors, shall not be good, without an act of parliament (d).

The reason for this difference, may be collected from the chapter treating of the doctrine of the freehold.

It proceeds on the grounds that the freehold

(a) Com. Dig. Estates, A. 1.

(c) 8 Rep. 16; Com. Dig. Roy, G.

(b) Cas. Ch. 214.

(d) Cas. Ch. 214.

might be in abeyance, and that there would not be any person, against whom a demand of the freehold might be made.

These observations belong to those subjects only of property, which are regulated by the general laws; and not to those which, from their local situation, are governed by provincial usages, as Gavelkind, Borough-English, and Customary lands; for as to property of this kind, it would be as fruitless in any owner, to attempt to reduce the succession to the standard of the general rules of the common law, as it is to attempt to vary the order of succession to property, not exempt from these rules. The rule is, lex loci est observanda (e). And the common law is the law of every place in which no particular usages have been allowed and sanctioned.

In respect of customary lands, attempts have been made to vary the order of succession by means of trusts. No doubt, the common law heir may, by a trust, as he might by a legal limitation, properly framed, be substituted for the customary heir, by making the common law heir a purchaser. This can only be in the gift, and to the extent within which, by the rule against perpetuities, the designation of a purchaser would be effectual.

Let a descent attach, and the customary heir must be preferred. The order of descent cannot be changed in reference to the trust, any more than it can be in reference to the legal estate (f.) (e) 1 Inst. 27. (f) Pullen v. Lord Middleton, 9 Mod. 483.

The like observation is applicable to attempts, to intail the trust of copyhold or customary lands, when the legal estate cannot be intailed.

A qualified fee is an interest, given on its first limitation, to a man and to certain of his heirs, and not extended to all of them generally, nor confined to the issue of his body (g).

A limitation to a man and his heirs on the part of his father, affords an example of this species of estate (h).

It may be questioned, whether a limitation to a man and his heirs, within a certain degree in the direct descending line, without any express appointment, that these heirs should be of his body, though necessarily they must be his issue, will be deemed an estate of this quality (i).

The only doubt arising on a limitation in this form is, whether it does not create an intail.

No decision has occurred, on a limitation in these terms.

That the limitation would be good, is indisputably clear.

The single question to be raised on the limitation is, the construction it shall receive; and the object of that question would be, to ascertain the quality, extent, and degree of the interest which is conveyed.

A limitation in these words, is confined so strictly, that it may be argued, with some

(g) Fleta, lib. 3, c. 3.

(h) Litt. § 354; 1 Inst. 27 a, 280. (i) Bl. Com. 222.

semblance of reason, that it gives an estate-tail. These arguments, however, do not apply to a limitation to a man and his heirs on the part of his father; for the grant is not restrained to the lineal descendants of the person, to whom the limitation is made.

It extends to his heirs in the ascending line; and though, as a necessary consequence of the rules of law, it is confined to the heirs of the body of some person, no intail is created, because the limitation is not restrained to the issue of that person, by whose heirs the degree of interest, imported by the limitation to the heirs, is described; nor is the gift to the heirs as purchasers, as in the instance of a gift to A, and the heirs of the body of B (k). The law might as well determine a limitation to a man and his heirs generally, as a limitation to a man and his heirs on the part of his father, to be an estate-tail. Indeed, Lord Coke (1) has stated the law to be, that a limitation to a man and his heirs of the body of his father, gives an estate in fee, and not an estate-tail.

The same author has also asserted (m), that a gift to a man and the heirs of the body of his father, does, as to the words which name the heirs, pass an estate-tail; while, as already noticed, a limitation to a man and his heirs of the body of his father (n), does not create an intail within the

(1) Mandeville's case, 1 Inst. 26 b; supra, ch. 3.

(n) Ibid.