Neither the researches of the learned judge who delivered the opinion of the Supreme Court, nor those of the very diligent counsel who argued the case here, have produced a case decided in England or in any State of this Union abiding by the common law, where in a conveyance by deed the word children has been held to be equivalent to heirs. That this has been determined in regard to wills is freely conceded, but that does not answer the requisition. The reasoning of the Supreme Court is, to my mind, entirely unsatisfactory. In the administration of the law of real estate, I prefer to stand super antiquas vias, stare decisis; to maintain the great rules of property, to adopt no new dogma, however convenient it may seem to be. The refined course of reasoning adopted in the face of so great a weight of authority rather shows what the law might have been than what it is. I am utterly unprepared to overturn the common law, as understood by Littleton, Coke, Shepherd, Cruise, Blackstone, Kent, and all the judges who have administered it for three centuries, and to adopt the dogma, that intention, not expression, is hereafter to be the guide in the construction of deeds. That would be as unwarrantable as dangerous. -Per Whelpley, J., in Adams v. Ross (1860).

54 N. H. REP., 242. It is said to be a rule of the common law that without the word "heirs" a fee simple in land cannot pass by deed; and that this rule is so absolute and unyielding, that, no matter how clearly the intention of the grantor to convey a fee may be stated in the deed, such intention can be of no avail without that word. Washb. R. P., Bk. I., Chap. III., sec. 53, and authorities in notes. A priori we should expect to find a rule which in its practical appliIcation brings about results so anomalous and absurd, but which is, nevertheless, enforced with such remorseless rigor by the courts, upheld by reasons very plain and very imperative. Naturally we should also expect that the books, which are full of cases where its application has produced palpable injustice, more or less aggravated according to circum

stances, would also be filled with strong and conclusive reasons in its support. On the contrary, what does appear? I venture to affirm that since the revolution by which the house of Stuart was finally excluded from the British throne, when most of the shackles which feudalism had riveted upon the tenure of lands throughout the kingdom were removed, not a reason, nor the semblance of a reason, growing out of the condition and wants of society, the progress of civilization, the exigencies of trade, or the analogies of the law can be found in its support in any country or State where the common law has been used.

To comprehend fully the reasons which gave birth to this rule, we ought to recall not only the nature of the feudal tenures of land in England, but the history of the origin and development of the system itself, which before the close of the eleventh century had succeeded, mainly by conquest and force, in vesting the ultimate ownership of nearly all the lands in England, as well as on the continent of Europe, in the feudal lords, and parcelling them out among a few military chieftains or leaders of bands of predatory barbarians.

These extracts are enough to show that the word "heirs," when first introduced into charters and feoffments, was a word of very great importance. It enlarged the right of the vassal from one held either at the will of the lord, or for his own life, to a permanent and hereditary interest. It signified an undertaking by the lord that he would accept the heir as his vassal, and that all the rights and obligations growing out of that relation should be extended to him. It was, in effect, simply a stipulation for a renewal of the lease upon the same terms with the heir of the first lessee. They also show to some extent the nature of the institutions and conditions of society in which the rule we are speaking of originated and to which it was applicable, and strongly present the contrast between those institutions and our

tenure of lands in England fell off, every reason on which this rule had rested fell with them. Why should the rule itself be retained? Lord Coke says: "Cessante ratione legis, cessat ipsa lex." Coke, Litt., 70, b. And that has come to be-indeed, it was then-one of the most familiar maxims of the law.

In the nature of things the word [heirs] is no more necessary to the valid conveyance of land than to the valid conveyance of a horse. Its use was necessary in the scheme of a semi-barbarous institution, a vast engine of slavery and oppression, an instrument of violence and disorder, which had no better security for its continued existence than superiority of brute force, and which was swept away upon the dawn of a better civilization more than five hundred years ago. Why is its use still required in one class of instruments and not in the other, when both have the same object in view, namely, the conveyance of land?

I have not found any answer to this inquiry. The legal signification and effect of the word as used in our deeds of bargain and sale are purely technical. Strictly speaking, there is no one in existence at the time of the grant to answer the description. Nemo est haeres viventis. Those who may become the heirs of the grantee take not the slightest present interest by virtue of the word. The conveyance. vests the absolute and unlimited ownership in the grantee; the word imposes no restraint on his power of alienation. Nevertheless it has a settled and well-understood meaning as thus used, and, as a legal term, is very convenient and useful to show that the estate granted is a fee. It could not now be safely omitted without using some other form of expression showing with legal accuracy the intention and contract of the parties.

Of course it will not be omitted by any conveyancer or other person who knows the significance it has acquired. But when a case arises where the intention of the grantor to convey a fee-simple is clearly shown by other words in the deed, we think the court have no power to say a fee shall

not pass because he has not, in addition, inserted this technical word, using it in a sense entirely distinct and different from its usual and common import. Our conclusion is that the rule, which would defeat the obvious intention and destroy the plainly expressed contract of the parties in the present case, is not adapted to our institutions or the condition of things in this State; that it never became part of the law of the State, and, therefore, that this instrument conveys to the lessees a perpetual right to take and use the water upon the terms and conditions specified, which right may pass to their heirs and assigns as a fee.-Per Ladd, J., in Cole v. Lake Co. (1874).

FINCH, CASES, PROP. IN LAND, 489. 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 note.

N. Y. REAL PROP. LAW, § 205. Every instrument creating, transferring, assigning, or surrendering an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law.

§ 210. A grant or devise of real property passes all the estate or interest of the grantor or testator unless the intent to pass a less estate or interest appears by the express terms of such grant or devise or by necessary implication therefrom.

CHAPTER III.

ESTATES IN FEE TAIL.

(a) Conditional Fee.

BRACTON, 17. Likewise as the class of heirs may be enlarged, so can it be restricted by the limitations expressed in the gift, and in that case the heirs general do not succeed. For the limitations fix the legal effect of the gift, and the limitations of the gift must be abided by contrary to common right, and contrary to the general law, because such limitations, when agreed on, override the general law, as if the words are, "I give such a one so much land with the appurtenances in N. to have and to hold to him and his heirs whom he may have begotten of his body by his wedded wife.". In which case,

since a restricted class of heirs is mentioned in the gift, it may be seen that the descent is only to the common heirs of husband and wife according to the limitations expressed in the gift, all other heirs of the husband being altogether excluded from the succession, because such was the intention of the donor. Hence it is that if heirs of this kind have been begotten, they alone are called to the succession, and if one who is enfeoffed in this manner has proceeded to enfeoff any one else of the land, this feoffment holds good, and the heirs of the feoffer are bound to warranty, since they can claim nothing except by succession and descent from their ancestors, although some think that the heirs themselves have been enfeoffed together with their parents, which is not true. But if a feoffee to himself and the heirs of his body have no such heirs, the land will revert to the donor by an implied condition, even if there be no mention in the