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and finally ceased, when thus used, to designate the person or persons to take in place of the original grantee, but was regarded as merely indicating that such grantee took an estate which would pass to his heirs, or the heirs of any one to whom he aliened it; that is, it ceased to be a word of purchase, and became one of limitation. The original rule, however, requiring the word "heirs" to be used in order that an estate descending to his heirs should pass to the grantee, though thus originating in reasons connected with the feuda! system, has survived to the present day, and is generally in force when not changed by statute. Accordingly, conveyances to a man by name, without more, or to him "forever," or to him "and his assigns forever," have been held to give him but a life estate; and the same effect has been given to conveyances to one and "his children," "his executors and assigns," or "his successors and assigns," or "in fee simple.""

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The word "heirs" may, however, be incorporated in the deed by reference to another instrument, and a court of equity will reform the deed by inserting the word "heirs,"

$2 Bl. Comm. 55, 107; 1 Leake, 32; Cole v. Lake Co., 54 N. H. 242, 279, Finch's Cas. 489.

Litt. 1; Co. Litt. 8b; 2 Bl. Comm. 107; Curtis v. Gardner 13 Metc. (Mass.) 457.

1 Clearwater v. Rose, 1 Blackf. (Ind.) 137; Adams v. Ross, 30 N. J. Law, 505, Finch's Cas. 483; Miles' Lessee v. Fisher, 10 Ohio, 1; Taylor v. Cleary, 29 Grat. (Va.) 448.

It is said by Coke that a conveyance to a man "or his heirs" is insufficient to convey a fee (Co. Litt. 8b), but it has since been held otherwise (White v. Crawford, 10 Mass. 183). See Wright v. Wright, 1 Ves. Sr. 409, per Lord Hardwicke.

The use of the word "heir" instead of “heirs" is sufficient. 4 Kent, Comm. 5, note a; Co. Litt. 8b, Hargrave's note 45; King v. King's Adm'r, 12 Ohio, 390, 472. But see Challis, Real Prop. 170. Co. Litt. 9b; 4 Kent, Comm. 5; 1 Leake, 156; Challis, Real Prop. 171; Lemon v. Graham, 131 Pa. St. 447, Finch's Cas. 499, 6 L. R. A. 663; Mercier v. Missouri River, Ft. S. & G. R. Co., 54 Mo. 506; Evans v. Brady, 79 Md. 142.

It is suficient if the word "heirs" appear in the habendum.

if this word is omitted by mistake, under the same circumstances as will justify a reformation of an instrument in other cases, but not, of course, as against bona pde purchasers."

Exceptions to general rule,

There are certain exceptions to the general rule recognized at common law, among which are cases in which one joint tenant or coparcener releases to the other, or where one cotenant grants a rent to another, in order to equalize a partition.10 Likewise, the rule does not apply to an exception in a deed in favor of the grantor. Also in grants of land to corporations aggregate, the word "heirs" is unnecessary, as is also the word 'successors," since, in judgment of law, the corporation never dies, and accordingly a grant for its life is in effect a grant of an estate forever.'

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Lancaster Bank v. Myley, 13 Pa. St. 544; Havens v. Sea Shore Land Co., 47 N. J. Eq. 365. See post, § 382.

The insertion of the word "heirs" in the warranty clause is insufficient, it being a well-settled rule of the common law that a covenant or warranty cannot enlarge an estate. Co. Litt. 385b; Adams v Ross, 30 N. J Law. 505, Finch's Cas. 483; Jordan v. Neece, 36 S. C. 295, 31 Am. St. Rep. 869; Rawle, Covenants for Title, p. 391. But see Anderson v. Logan, 105 N. C. 266.

Chamberlain v. Thompson, 10 Conn. 243, 26 Am. Dec. 390; Nicholson v Caress 59 Ind. 39; McMillan v. Fish, 29 N. J. Eq. 610; Vickers v. Leigh, 104 N. C. 248; Leitensdorfer v. Delphy, 15 Mo. 161, 55 Am. Dec 137.

10 Co. Litt, 9b; 4 Kent, Comm. 7; Challis, Real Prop. 171. See Rector v. Waugh, 17 Mo. 13. Finch's Cas. 511, 57 Am. Dec. 261.

11 Engel v. Ayer 85 Me. 448; Wood v. Boyd, 145 Mass. 176; Emerson v. Mooney, 50 N. H. 315, 3 Gray's Cas. 579. As to the necessity of the use of the word "heirs" in reservations, see post, 383.

12 Co. Litt. 9b; 2 Bl. Comm. 109, 4 Kent, Comm. 7; Wilcox v. Wheeler, 47 N. H. 488; Congregational Society of Halifax v. Stark, 34 Vt. 243, Finch's Cas. 509; Wilkesbarre v. Wyoming Historical Society, 134 Pa. St. 616. The word "successors" is, however, gen erally used, and it is necessary in case of a grant to a corpora

In this country, the requirement of the word "heirs" has never been applied to conveyances to trustees, the rule being that, if a fee-simple estate in a trustee be necessary in order to enable the trustee to carry out the purposes of the trust, he will be given such an estate, though the conveyance is otherwise insufficient to pass such an estate; and, conversely, if a less estate than a fee simple in the trustee be necessary, his estate will be so limited, in spite of the language of the instrument.13 Accordingly, a trustee has a fee-simple estate, without the use of the word "heirs," when he is given a power of sale; while he may have merely a chattel interest, though the word "heirs" is used, if he is merely to hold the estate for a short time to pay debts and legacies.15 The word "heirs" is, however, as necessary in the case of a conveyance of an equitable estate in fee as in the case of a conveyance at common law to one other than a trustee.16

tion sole. Co. Litt. 9b; 2 Bl. Comm. 109; Overseers of Poor v. Sears, 22 Pick. (Mass.) 126.

181 Perry, Trusts, §§ 312-320; Wilcox v. Wheeler, 47 N. H. 488, Finch's Cas. 502; Newhall v. Wheeler, 7 Mass. 189, 3 Gray's Cas. 396; Doe v. Considine, 6 Wall. (U. S.) 458; West v. Fitz, 109 Ill. 425; Gould v. Lamb, 11 Metc. (Mass.) 84, 45 Am. Dec. 187; North ▼. Philbrook, 34 Me. 532; Hawkins v. Chapman, 36 Md. 83; Bennett v. Garlock, 79 N. Y. 302, 35 Am. Rep. 517.

14 Neilson v. Lagow, 12 How. (U. S.) 98; Angell v. Rosenbury, 12 Mich. 241, 266.

151 Perry, Trusts, § 316.

In England, in deeds, as distinguished from wills, the presence or absence of the word "heirs" has generally the same effect in case of a conveyance to trustees as when made to others. 1 Perry, Trusts, § 319; Lewis v. Rees, 3 Kay & J. 132, 3 Gray's Cas. 389.

10 Lewin, Trusts (9th Ed.) 114, and cases cited; Lucas v. Brandreth, 28 Beav. 274; McElroy v. McElroy, 113 Mass. 509; Nelson v. Davis, 35 Ind. 474.

In Fisher v. Fields, 10 Johns. (N. Y.) 495, Kent, C. J., stated that the word "heirs" was not necessary to create an equitable fee simple. The authorities cited by him in support of this view were cases either of devise, or of decisions as to the estate of the trustee, not of the cestui que trust. The actual decision was,

--Statutory changes of rule.

In this country, the necessity of the use of the word “heirs" to create a fee simple by deed has beeu generally recognized, in the absence of any statutory provision to the contrary.17 But in many of the states the rule has been abolished by statutes dispensing with the necessity of the word, or providing in effect that a deed shall be presumed to convey a fee simple, or whatever estate the grantor has, unless a contrary intention plainly appear;18 and in England it is now provided that the use of the words "in fee simple" without the word "heirs" shall be sufficient to convey a fee-simple estate. 19

however, merely that a soldier's bounty-land warrant could be assigned so as to vest an absolute interest in the assignee, without the use of the word "heirs," which seems to be unquestionably correct. Of course, the word "heirs" is not necessary in the creation of an implied, as distinguished from an express, trust. 11 Foster v. Joice, 3 Wash. C. C. 498, Fed. Cas. No. 4,974; Edwardsville R. Co. v Sawyer. 92 Ill. 377; Hoffsass v. Mann, 74 Md. 400; Reaume v. Chambers, 22 Mo. 36; Buffum v. Hutchinson, 1 Allen (Mass.) 58; Claflin v. Boston & Albany R. Co., 157 Mass. 489; Melick v. Pidcock, 44 N. J. Eq. 525, 540, 6 Am. St. Rep. 901: Anderson v. Logan, 105 N. C. 266; Mattocks v. Brown, 103 Pa. St. 16; Jordan v. Neece, 36 S. C. 295, 31 Am. St. Rep. 869.

Contra in New Hampshire.

Finch's Cas. 489.

Cole v. Lake Co., 54 N. H. 242, 279,

18 2 Sharswood & B. Lead. Cas. Real Prop. 56; 1 Stimson's Am. St. Law, 1474.

"It would seem that technical words of limitation are still required to pass a fee in Maine, Vermont, Massachusetts. Rhode Island, Connecticut, Pennsylvania, New Jersey. Delaware, South Carolina, Florida, Ohio, and Wyoming." Finch's Cas. 489.

The statutory abolition of the rule does not, of course, affect deeds made before the passage of the statute, and consequently, even where it is abolished, there is still frequent occasion for its application in the examination of titles extending back of the date of the particular statute.

19 44 & 45 Vict. c. 41 (Conveyancing Act 1881) § 51. See Challis. Real Prop. 171.

(b) In will.

In the case of a devise of land, it has always been held that, even in the absence of the word "heirs," other words in the will showing an intention to devise a fee simple are sufficient to pass such an estate. 20 It has accordingly been held that, unless a contrary intention appear, a devise of one's "estate" located at a certain place,21 or of "all" his "estate,"22 or of his "property," with reference to particular land or to the testator's possessions generally,23 though without the word "heirs" or other words of limitation, will vest a fee simple in the devisee; such expressions being regarded as descriptive of the quantity of interest intended to be conveyed. The same effect is given to a devise to a person "in fee simple," or "forever,"24 or to a devise without words of limitation, with an absolute power of disposition in the devisee,25 and to such a devise with merely a charge or duty imposed on the devisee personally in regard to the payment of money, to enable him to discharge which an estate for life might not be sufficient, though not if the charge is imposed on the land alone.26

20 Co. Litt. 9b; 2 Bl. Comm. 108; Wright v. Denn, 10 Wheat. (U. S.) 204; Robinson v. Randolph, 21 Fla. 629.

21 Lambert's Lessee v. Paine, 3 Cranch (U. S.) 97; Leland v. Adams, 9 Gray (Mass.) 171; Robinson v. Randolph, 21 Fla. 629.

22 Godfrey v. Humphrey, 18 Pick. (Mass.) 537; Jackson v. Mer rill, 6 Johns. (N. Y.) 185; Forsaith v. Clark, 21 N. H. 409.

28 Lincoln v. Lincoln, 107 Mass. 590; Fogg v. Clark, 1 N. H. 163; Foster v. Stewart, 18 Pa. St. 23; Arnold v. Lincoln, 8 R. I. 384.

So in the case of a devise of all his "real and personal property." Morrison v. Semple, 6 Bin. (Pa.) 94, Finch's Cas. 514.

24 Co. Litt. 9b; 2 Bl. Comm. 108.

25 2 Jarman, Wills, 1131, American notes; 4 Kent, Comm. 319; Terry v. Wiggins, 47 N. Y. 512; Markillie v. Ragland, 77 Ill. 98; Burbank v. Whitney, 24 Pick. (Mass.) 146; Kelley v. Meins, 135 Mass. 231; Second Reformed Presbyterian Church v. Disbrow, 52 Pa, St. 219.

266 Cruise's Dig. tit. 38, c. 13, §§ 26-34; 2 Jarman, Wills, 1131;

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