Estates

• Pages: 83-119

ESTATES

Land could not be owned at common law. It could only be held in return

for a promise to perform certain services. The services are described as

tenure. The period of time within which the land can be so held is called an

“estate”. Atenant therefore has an estate in land, i.e., an interest in land

which is quantified in terms of time; the time within which the land can be

possessed, enjoyed, controlled or managed and alienated. It describes the

duration of a grant from a superior lord within the feudal hierarchy.

The period of time within which one can hold land varies. The estate

can be for the lives of the tenant and any of his heirs, both collateral and

lineal; so long as any of his descendants or collateral heirs is alive, the

estate endures (fee simple). The estate can be for the life of the tenant and

his descendants only. In this instance, the class of potential heirs is

restricted to the direct descendants of the tenant (fee tail). It can also be

granted for the life of the tenant; in this case, on the death of the tenant the

estate determines (life estate).

FEE SIMPLE ESTATE

The fee simple is the largest estate recognised by the common law. It is

potentially of an infinite duration. It can be inherited, disposed of inter

vivos or by will; the tenant of a fee simple estate has the right of use and

abuse, i.e., subject to the general law, he can put it to any use he desires.

(A) Inheritance

Afee simple estate can be enjoyed through inheritance by successive

generations. The prefix “fee” denotes an estate that can be inherited; and

the suffix “simple” shows its quality of general transmissibility, i.e., the

incident of transmissibility is not in any way restricted to heirs of a par-

ticular line of descent. The class of potential heirs is extensive and

unlimited. If the line of lineal heirs runs out, collateral heirs are eligible

to succeed to the estate. This right of inheritance extends, therefore, to

ascendants and descendants, i.e., all collaterals. In consequence, it is

capable of perpetual or eternal existence.

The notion of transmissibility makes the estate indeterminate. But

human beings are mortal and it is possible to conceive of a situation where

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the tenant in fee and all his heirs will die: he dies without leaving any heir

lineal or collateral. In that sense, it can be said that the duration of a fee

simple estate is determinate. The distinguishing feature of a fee simple

estate, however, is that the estate is not certain to determine at any definite

time in the future or on the occurrence of some event which is certain to

occur on a predetermined date.

The right of the heir to inherit the fee simple estate was considered as

a qualification on the estate of a tenant in fee. The words used to confer a

fee simple estate are “to T and his heirs”. This is suggestive of the fact that

after the death of the tenant the estate should go to his heir, who could

recover the estate from any person to whom the deceased ancestor had

conveyed it. To forestall this possibility, it was necessary for any alienation

to be effected with the concurrence of as many near relatives as the grantor

could lay hands on.

Furthermore, since the property was granted to the tenant “and his

heirs”, a subsequent grant by the tenant would endure so long as the

original grantor and his heirs lineal and collateral were alive. But these

notions changed with time and the fetters on the tenant’s right of alien-

ation of his real estate were removed in 1306, when it was settled that on an

alienation of land by a fee simple tenant, the fee simple subsisted as long

as the heirs of the grantee were alive, notwithstanding the failure of the

grantor’s heirs. The tenant could after 1306 defeat the interest of his heirs

by conveying his property to a third person without the concurrence of his

relations. The heirs ceased to have the right to interfere with a disposition

made by their ancestor to a third party, whose interest was no longer

dependent on the existence of the heirs of the original grantor.

(B) Right of alienation – inter vivos

The heir’s right to inherit ceased to give him any definite or cognisable

interest in the property as soon as land became devisable, as discussed

below, or alienable inter vivos without the concurrence of the relations of

the tenant. The importance of the words in a grant of fee simple “and his

heirs” consequently became artificial; for the property could be given

away so as to defeat all the expectations of the “heirs”, who then had no

claim whatsoever to the property if it had been granted out of the lineage.

The tenant’s right to dispose of his land outright during his lifetime

and thereby defeat the rights of the heir to his estate was recognised by the

year 1200. But it was not until the year 1306 that the title of the current

tenant in fee ceased to depend on the existence of the heirs of his grantor.

So long as the heirs of the current tenant lasted, the fee simple continued

in the lineage of the current tenant, even if the heirs of the original grantor

were all dead. The heir’s interest was thus reduced to a mere hope of

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succession, spes successionis; the heir had a mere expectation of succeeding

to the estate, if the ancestor failed to dispose of the estate during his life-

time or by means of a will.

(C) Right of alienation – testamentary

Between the thirteenth and fifteenth centuries it was not possible for a

tenant to dispose of his estate in land so as to take effect after his death.

Land could not be willed. It was, however, possible to achieve the same

object of disposing of estate to take effect after death through the institu-

tion of “uses”, the concept from which the institution of trust originated.1

The tenant of a fee simple estate could circumvent the common law pro-

hibition against testamentary disposition of land by means of a “use”, by

transferring the estate to a trustee upon trust for himself, reserving the

right as to how the trustee should ultimately dispose of the estate after his

death. In his will he would indicate how the trustee should dispose of

the property. The trustee would then carry out the instructions inter vivos.

In 1540, the Statute of Wills made real estate devisable.

(D) Right of use and abuse

Austin classified ownership as the right of indefinite user, the right of

unrestricted disposition, and the right of enjoyment unlimited in duration.

It therefore involves

the right to make physical use of a thing, the right to the income from it, in

money, in kind or in services and the proper management, including that

of alienation.2

Atenant in fee simple can therefore put his land to any use he thinks fit. He

can use and abuse it, and he does not normally incur any liability for

neglecting it.3Atenant in fee simple therefore has the right to manage the

land in any way he thinks fit and receive the income thereof.

Exceptions

The liberty the tenant enjoys in the use of the property is limited in some

respects:

1See post Chapter 6, p. 154 et seq.

22Jurisprudence, 477, ed. Goodhart, Essays in Jurisprudence and Common Law (1930),

p. 41.

3Lawson, Law of Property, p. 8

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