So a gift in frankmarriage cannot be by devise: for there is no tenure created. Co. L. 21. b.

(B 7.) Issue in tail; how he takes.

The issue in tail does not take by descent only; but by the st. de donis, as well as by descent, and is in per formam doni.

(B 8.) He takes per formam doni, though he be not heir.

So, if land be given to B. and the heirs female of his body, (g) who has a son and a daughter, the daughter shall inherit per formam doni, though the son be heir. Co. L. 24. b.

But, regularly, such special heir shall not take by purchase, where he is not also heir general: As, if there be a lease for life, remainder to the heirs female of the body of B. who has issue a son and a daughter, the daughter shall not take: for she ought to be heir, as well as heir female. Co. L. 24. b. Hob. 31. (h)

So, if a remainder be to the heirs male of the body of B. who has two sons, and the eldest has issue a daughter, and dies; the youngest son cannot have the remainder. 1 Co. 95. b. 103.

So a devise in tail, remainder to the right heirs of males of him and of his name; his brother shall not take, if there be a daughter who was heir general. R. Hob. 31. 2 Rol. 416. 1. 30.

Yet sometimes, where there is a particular description, or designation, of the person to whom the remainder is limited, such special heir shall take, though there be another heir general: as, where a man takes notice by his will, that he has daughters, yet devises land to his heir male; the son of his brother shall take. Cited 1 Vent. 381.

So a devise to his eldest son and the heirs male of his body, remain

(g) The Annotator in n. (1) to Inst. 25. a. says, that it is very usual to create an estate in tail female, and that he has seen an argument in which it was attempted to be proved, that the law of England will not allow of a descent through females only, even in the case of estates tail; but that other authors as well as Littleton and Coke, mention such descents, nor, adds he, did I ever hear any authority cited to support the contrary doctrine. Vide Plowd. Quær. 87. 133.

(h) 1. Upon this passage, the Annotator cites, in the first instance, the following case: A. hath issue a son and a daughter; the daughter marries B., and has issue two daughters; A. devises to his son, but if he die without issue my land shall go to my right heirs of my name and posterity, and dies; the son dies without issue; and ruled that the land shall not go the uncle, for though of his name he is not heir, for the daughter of the daughter is heir. H. 11 Jac. C. B. Counder v. Clerke, Mo. 863., and Hob. 29. Hal. MSS. See the same case in 1 Brownl. 129.-2. He then observes, that this case of Counder and Clerke is apparently cited by Lord Hale in confirmation of Lord Coke's position, as to the necessity of being heir as well as female, in order to take by purchase under a limitation to the heir female; and it is observable, that there is not one word in Lord Hale's note intimating the least disapprobation of the doctrine. However it so happens, that in more modern times the propriety of this doctrine has been questioned by very respectable persons, who have treated it as equally unsupported by reason and authorities of law. But, perhaps, this censure of Lord Coke may have been too hasty; and it may be doubted whether there is a passage in all his works, more capable of standing the severest test of modern criticism. He then employs the remainder of his note in defence of Lord Coke's doctrine, and in explaining the qualifications with which it ought to be understood; and for this purpose he examines it, first as a reasonable rule of construction, and, secondly, by the authorities and determined cases.

der

der to the heir male of the devisor, and his heirs of his body: a son of the devisor by a second venter shall take the remainder. R. Cro. Car. 24.

A devise to the heir male of the body of his great-grandfather; the person who is his issue male shall take, though there be a daughter who is heir general. Per Cowper, 11 Feb. 3 Geo. in Chanc. inter Newcomen and Berkham. But this was in execution of a trust. Eq. Ca. 117. (Vide 2 Ver. 729.)

So, where a purchase is by deed: as, if B. covenants to stand seised to the use of his heirs male upon the body of A. his wife begotten; a son by A. his second wife shall take the remainder, though there be an heir by the first venter. R. per Hale and Wyld, 1 Vent. 381., Pibus and Mitford.

(B 9.) Must convey his descent wholly through males, &c.

But an estate tail to a man and the heirs male of his body shall descend to him, who can convey his descent wholly through heirs male: As, if he has issue a daughter, who has issue a Son; the son shall not inherit by force of the entail. Lit. S. 24.

So, if tenant in tail to him and the heirs female of his body, has issue a son who has issue a daughter; the daughter shall not inherit. Co. L. 25. a. 2 Ver. 409.

So, if B. has an estate to him and the heirs male of his body, remainder to him and the heirs female of his body, and he has issue a son who has issue a daughter, who has issue a son; the son of the daughter shall not inherit to either entail. Co. L. 25. b.

So, if an estate tail be by devise; for that does not alter the nature of the descent. Co. L. 25. a.

(B 10.) What shall be a Reversion.

In every gift in tail, the reversion of the fee simple, without saying more, is in the donor. Lit. S. 19. (i) Vide Copyhold, (C 12.)

The reversion is the residue of the estate continuing in him, who made the particular estate. Co. L. 22. b.

Upon a gift in tail, by operation of the st. W. 2. 1. de donis, the possibility of reverter is turned to a reversion in the donor. Co. L. 22. a. 2 Inst. 335.

So, upon a lease for life or years, the lessor has the reversion continuing in him. Co. L. 22. b.

So, upon an extent by statute-merchant, staple, recognizance, or elegit, a reversion is left in the conusor. Co. L. 22. b. Vide Statute Staple, (C.)

So, since the st. 27 H. 8. 10. If a man makes a feoffment to the use of B. for life or in tail, and afterwards to the right heirs of the feoffor; the reversion is in him: for the use was continuing in him,

(1) 1. And if tenant in tail die without issue, the donor or his heirs may enter as in their reversion. Lit. s. 18.-2. The following case is quoted, ibid. in notis, from Hal. MSS.: the issue in tail attainted in vitá patris; after the death of the father the donor cannot enter, but the issue if pardoned may enter, and hold as special occupant, subject to the charges of the father. 29 Ass. 61. C 4

and

and the statute executes the possession to the use. Co. L. 22. b. Vide Discent, (A). (k)

Or, to the use of himself for life or years, and afterwards to B. for life, and afterwards to his right heirs: the feoffor has the reversion in him. Co. L. 22. b. R. 3 Lev. 406. R. Sal. 591.

So, if husband and wife levy a fine to the use of the husband for life, remainder to A. for life, remainder to the right heirs of the husband; the husband and A. die in the life of the wife; she shall have it, and not the heir of the husband: for it was a reversion, and not a remainder. Cont. per 3 J. but Ch. J. Dy. and Ch. B. acc. Dy. 237. b. But if a man leases land for years, there is not any reversion till the lessee enters, or the lessor waives the possession. Co. L. 46. b.

So, if a feoffment be to the use of the feoffor in tail, and afterwards to the feoffee and his heirs; the feoffee has not a reversion, but a remainder. Co. L. 22. b.

So, if a grant be of a prebend, donative, hospital, &c. no reversion remains for the prebendary, &c. has the whole estate, though upon his death it remains in the patron. R. Ca. Ch. 214.

(B 11.) Of what Account.

A reversion upon an estate tail is of no great account, for it may be docked by a common recovery.

If a man grants the reversion of his land, that is sufficient to pass his

reversion.

So, if he grants the land itself, the reversion passes; for when he grants the land, it cannot be intended that he would not grant his reversion. R. 10 Co. 107. a. D. Vau. 83. Pl. Com. 433. b.

By a grant of a reversion, fealty passes as incident; for it cannot be severed. Co. L. 143. a.

So a rent passes; if it be not excepted, for it may be severed. Co. L. 143. a. Vide Rent, (C 5.)

But if A. reciting a lease by his father (which is void as to him) grants his reversion of the same land after the end of the former lease. to another for years, his grant is void; for he had not the reversion.

R. Jon. 355.

(k) 1. To which the Annotator subjoins from Hal. MSS. vide 5 & 4 P. & M. Dy. 134. contra. And adds, but see the case cited by lord Hale in the next note, and also ante, 12 b. and note 2. there. 2. That case is subjoined to the next position in the text, and is as follows. Casus Com. Bedford, M. 34, 35 Eliz. Poph. n. 8. Feoffment to the use of the feoffor for forty years, remainder to B. in tail, remainder to the right heirs of the feoffor. It is the old reversion, and the feoffor may devise it; for the use returned to the feoffor for want of consideration to retain it in the feoffee till the death of the feoffor. Hai. MSS.- 3. See the earl of Bedford's case, in Poph. 3. Vide 27 E. 3. 8. 4 H. 6. 20. 42 Ass. 2. 3 E. 3. 14. 10 E. 3. 48. Lands granted by A. by fine for the life of A., remainder to A.'s right heirs. It is a reversion in A. and he may grant it. Hal. MSS.-4. Dy. 237. Fine to husband as that which he and his wife have of his gift, with render to the conusor for life, remainder to the right heir of the husband. It is a void remainder, and the wife survivor shall shall have it for life. Hal. MSS.

So,

So, by the grant of a reversion, land in possession does not pass. R. 10 Co. 107. b. R. Cro. Car. 400. D. Vau. 83.

Nor, by the grant of a reversion and other the premises; for that cannot be understood of the same premises, of which the reversion was mentioned before. R. Cro. Car. 400.

Nor, by the grant of a reversion, habendum the land; for the habendum does not enlarge it. Pl. Com. 150. Cro. Car. 400.

(B13.) A Remainder, what shall be a good one.

So, by construction upon the st. W. 2. 1. de donis, a remainder (1) may be limited upon an estate tail. Vide Copyhold, (C 11.)

A remainder is the remnant (m) of an estate in land, (n) depending upon a particular estate, and created with it. (0) Co. L. 49. a. 143. a. (p)

As

(1) Lord C. B. Gilbert says, that the word remainder is no term of art; nor is it required to the creation of a remainder, since any words sufficient to show the intent of the party will create it; because such estates take their denomination of remainders more from the nature and manner of their existence, after they are limited, than from any previous quality inherent in the word remainder to make them such. And therefore that if a man gives lands to A. for life, and that after his death the land shall revert and descend to B. for life, &c. this is a good remainder. Bac. Abr. Re

mainder, B.

(m) 1. When a general power of alienation was allowed, it was understood that the tenant might alien either the whole fee, or a partial estate or interest carved out of it. An estate or interest thus carved out of the fee, if it did not amount to an estate of inheritance, was called a particular estate. Butler's Fearne, 3. n. — 2. At the common law, two particular estates only could be created by the act of the party, an estate for life, and an estate for years. The statute de donis authorised him to create an estate tail. And so the law has continued. Ibid.-3. The statute of uses introduced conditional limitations, which were unknown to the common law; but those limitations are not remainders, and the previous estates upon which those limitations depend, are not in respect to them, particular estates, in the sense in which those words are used in reference to remainders. Ibid.

(2) 1. Lord Coke's expression is "lands or tenements." 2 It may exist in lands held for an estate of inheritance, and in lands held for an estate of freehold only. Therefore if A. be seised of land in fee simple, and convey it to B. for life, and after his decease to C. and his heirs; C. has a legal estate in fee simple in remainder expectant, and to take effect in possession upon the decease of B. And if A. be seised of land for the lives of three persons, and the lives and life of the survivors and survivor of them and convey the land to B. during the joint lives of B. and all the three cestui que vies, and if B. die in the lifetime of all the three cestui que vies then to C. and his heirs during the lives of the three cestui que vies, and the lives and life of the survivors and survivor of them, C. has a legal estate of freehold descendible to him and his heirs, in remainder expectant on the contingency of the decease of B. in the life time of all the three cestui que vies. Butler's Fearne, 4. n. -3. As to chattels real and chattels personal; a remainder, in the legal sense of that word, cannot be limited in them after a disposition of them to one for life, or otherwise. It was once considered that they were incapable of any limitation over, after a previous limitation of a partial interest; but now it is established that they are susceptible of such limitations over. Ibid.

(0) 1.Created together with the same at one time.'” - 2. This imports that the remainder must commence, or pass out of the grantor, at the time of the creation of the particular estate. Thus where an estate is conveyed to A. for life, remainder to B. in fee; B.'s remainder in fee passes from the grantor at the same time as A.'s life estate in possession. Butler's Fearne, 4.

1

(p) 1. And therefore, wherever the whole fee is first limited, there can be no remainder

As, if a man makes a gift in tail, remainder to another in tail, or in fee.

Or makes a lease for life, or years, remainder to another for life, in tail, or in fee.

And such remainder shall be good without deed; for it passes by the livery made for the particular estate; for the remainder and the particular estate make but one estate to many intents. Co. L. 143. a.

So he may give an estate to A. for life, remainder to B. in tail, and if B. dies without issue, to another for years, &c. this estate for years shall be good after the death without issue. R. 1 Sid. 102.

So there may be a remainder for years after a prior term for years. Ray. 142.

be a remainder of a rent created de novo.

So there may
Montagu, Pl. Com. 35. a.
Ca. 112. R. 1 Sid. 285.

Cont. per

Adm. acc. Dy. 311. a. 4 Mod. 280. Mod. R. Sal. 577. R. Mo. 30.

And it is sufficient, that the remainder vests during the particular estate, or eo instante that the particular estate determines: As, if there be a lease for life, remainder to the right heirs of B. or the first son of B. &c. if B. dies or has a son in the life of the lessee, the remainder will be good. Pl. Com. 29.

So, if a rent be granted to B. for the life of C. remainder to the right heirs of C. it shall be good; for it vests eo instante that the estate of B. determines. Co. L. 298. a.

So, if an estate be granted to A. for life, and if such a condition be performed, that B. shall have it; if the condition be performed in the life of A. the remainder will be good. Pl. Com. 27. 29.

So, if a remainder be limited to a person incapable, as a monk, &c. if he becomes capable before the particular estate determines, it is sufficient. Pl. Com. 27. b.

So if the particular estate be to a non compos, who makes a surrender; for his surrender is void. R. Sal. 577. (Vide Comyns's Rep. 45.)

So it is sufficient, if the remainder vests during the continuance of the particular estate, though there be an alteration of the estate if it be not totally merged or destroyed: As, if lessee for life grants over his estate before the remainder happens; for the estate of the grantee supports the contingent remainder. Per Windh. Ray. 30. Pol. 90.

So, if lessee for life, remainder to A. for life, remainder to the first issue of A. Remainder to B. in tail, leases for years to A. who joins with B. in a fine and feoffment; the contingent remainder to the first issue stands good: for the estate of the lessee for life supports it. 2 Rol. 794. l. 5.

mainder in the strict sense of that word; for the whole being first disposed of, no remnant exists to limit over. Thus if lands are limited to a person and his heirs, and if he dies without heirs, that they shall remain over to another, the last limitation is void. Eq. Abr. 186.-2. And where a person devised lands in London to the prior and convent of St. Bartholomew and their successors, so as they paid annually sixteen marks to the dean and chapter of St. Paul; if they should fail of payment, that their estate should cease, and the dean and chapter should have it; it was held that the remainder was void, because the first devise carrying a fee, nothing remained to be disposed of. Dyer, 33. a. 3. And in the case of a qualified or base fee, no remainder can be limited upon it. Thus Lord Coke says, if lands be given to A. and his heirs, so long as B. has heirs of his body, remainder over in fee, the remainder is void. 1 Inst. 18. a. 10 Rep. 97. b. Vaugh. 269. contra. Plowd. 235.