Hello Reader, this time Tabir Hukum will discuss about fee simple estates.
The fee simple is an estate of inheritance which can be transferred inter vivos or by will or n intestacy. In the elaborate langguage of Walsingham's Case (1573), 75 E.R. 805 at 816-17, "he who has a fee simple in land has a time in the land without end, or the land for a time without end... "subject always to the ultimate ownership of the Crown, the owner of a fee simple estate owns all of the rights and obligations that make up land ownership, as these are defined by the law of the time.
Under the feudal method of conveyance of a fee simple, the law required that the grantee be given the land for himself "and his heirs". We think today of O's heirs as those who will inherit the property - people who, on the of the word as used in determining property rights in feudal times. Originally, the words "to his heirs" meant that the grantee was to receive the property and to keep it in his family until his line of heirs ran out, when it would go back to the lord, the grantor. That is, "heirs" meant the whole line of succession, not particular individuals who would inherit.
But, you might well ask, if the owner in fee simple granted an estate to, let's say, "A and his heirs", knowing that the eldest son would be accepted by the lord as his new tenant on the death of the grantee (A in this case), does not the use of the plural "heirs" mean each eldest son in succession ?. Did not the grantor intend that both A and his heirs were to share some common interest in the land ?. No, because if the grantor gave A a fee simple estate, the greatest estate possible at common law, then the grantor gave A all of the rights and obligations that make up ownership, with nothing left over to share. So, with recognition of A's right to transfer estates outside the family, the words "and his heirs" in a conveyance meant simply that the grantee received a fee simple estate.
Hence, there are two distinct parts to the phrase "To A and his heirs", each with a separate function. The words describing the grantee - "To A" in this case, but they could be "to my children" or "to my first daughter to bear a son" or "to all of my grandchildren living at my death" - identify the person (or persons) receiving the estate. This person is called the "purchaser", regardless of whether the conveyance is by sale, gift inter vivos, or in a will. Thus, the words identifying the grantee are called "words of purchase". The rest of the words in the conveyance - here, "and his heirs" - are called "words of limitation". They set limits to the size of the estate; and size, remember, is determined by time. So the words of limitation define the potential duration of the grantee's rights and obligations. "To A and s heirs" thus gave A a fee simple estate - an estate with the potential to last forever, without recourse to the lord.
For many centuries in the common law world, the only words of limitation that would convey a fee simple estate in an inter vivos grant were "and his heirs". For reasons that we need not go into here, when the courts were required to interpret testamentary dispositions after the Statute of Wills, they recognized grants of fee simple estates without the magic words if they could find a clear intention to grant a fee simple estate. But for inter vivos grants, the only acceptable variations on "and his heirs" were "and her heirs" or "and their heirs", or "and heirs". A grant of a fee simple to a corporation, however, was valid without words of limitation, because a corporation enjoyed perpetual succession; in theory the corporation could not die. At common law, failure to use the magic words, in the absence of any other words of limitation, conveyed a life estate.
In the last couple of centuries, most common law jurisdictions have enacted legislation recognizing the validity of the phrase "in fee simple" as alternative words of limitation for creating a fee simple in an inter vivos conveyance. More recently, some jurisdictions have enacted further amendments to the common law so that an inter vivos conveyance without words of limitation will be interpreted as a grant of all the estate and interest in land that the grantor held. It is important to check the date and content of relevant legislation in the jurisdiction that concerns you, so that you will be able to determine the validity of conveyances that do not use the magic words "and heirs" as words of limitation.
Once itwas established that the words "and heirs" in a grant were words of limitation, describing the size of the estate granted, it did not matter whether A or any successors in title failed to produce heirs : the heirs had no rights under the grant anyway. That did not mean, of course, that they could never have rights; after passage of Quia Emptores and the Statute of Wills, A could give them rights in an inter vivos grant or by will.
Umpteen posts of tabir hukum about fee simple estates, hopefully the writing of tabir hukum about fee simple estates can be beneficial.
Books : In Writing Tabir Hukum :
Alan M. Sinclair and Margaret E. McCallum, 2005. An Introduction to Real Property Law (Fifth Edition). LexisNexis : Canada.
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| Figure Property Law : Freehold Estates - Fee Simple Estates |
