Words of Limitation

• Pages: 121-146

WORDS OF LIMITATION

Words of limitation are words in a disposition, a devise or a grant, which

limit the duration of the estate granted. They are words which mark out or

define the extent or the limits in terms of time of the interest given to the

grantee or devisee. In a grant “to Lfor life” or “to F and his heirs” or “to

T and the heirs of his body”, the words “for life”, “and his heirs”, “and

the heirs of his body” are words of limitation, i.e., they measure out the

quantity of estate1granted to the grantee, L, F and T. They are words which

indicate when the estate will come to an end. They show whether the estate

is for life, or for the life of the grantee and his lineal heirs, or for the life of

the grantee and all his lineal and collateral heirs.

Words of limitation differ from “words of purchase”. Wo rds of pur-

chase designate or describe the person or persons to whom the disposition,

devise or grant, is made. In a grant “to Afor life”, the words “to A” will be

the “words of purchase”. Words of purchase denote the grantee or devisee

of the estate, i.e., who takes the estate; the words of limitation delimit the

estate and specify for how long the grantee or devisee is allowed to enjoy

the estate. The word “purchase” is not used in the commercial sense of a

purchaser, i.e, a person who gives consideration for a grant. It refers

generally to a person who takes land by grant (gift or sale) or devise as

distinct from a person who acquires the property by operation of law, such

as under the laws of intestacy.

The word “heirs” can be used in both senses, as a word of purchase as

well as a word of limitation in the same context. For example, a grant may

be made “to P’s heirs”. If Pis dead at the time of the disposition, the person

who succeeds “P” takes a fee simple estate. The word “heir” in the grant is

used as a word of purchase and at the same time as a word of limitation.

The expression “heir” in the disposition “to P’s heirs” sets a limitation

on the duration of the estate. In the same way if the grant is made “to the

heirs of P”, it is construed to mean “to the heir of Pand his heirs”,2thus

performing the dual function of words of limitation and words of

purchase.

It is impossible to have an heir of a living person. Until death, a

living person can only have an heir apparent or heir presumptive. An heir

apparent is a person who will succeed to the estate if he survives his

ancestor. An heir presumptiveis the person who will succeed if he survives

1Goodright v. Wright (1717) P. Wins. 397, per Parker, C.J.

2Marshall v. Peascod (1861) 2J. & H. 73.

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his ancestor and if in the meantime no-one is born with a better claim to

succeed, e.g., a daughter. Agrant or devise which takes immediate effect

with an expression “to the heir of Pand his heirs” or “to the heirs of P” will

be ineffective if Pis alive, for it is impossible to determine the heir of a

living person. The result in that situation is that there would be an

abeyance in the seisin and the grant will fail in limine.

Adevise or grant “to Pand his heirs” gives Pa fee simple estate with

power to dispose of the estate inter vivos or by will to any person of his

choice. Such a devise or grant cannot be questioned by his heir apparent

or heir presumptive. His heir presumptive or apparent has a mere hope

of qualifying as heir if he survives him in the circumstances outlined

above, and cannot therefore have any claim to the estate except by way of

inheritance. If at the death of Pthe estate is not disposed of either by will

or inter vivos then it devolves on him. The interest of the heir is described

as spes successionis, i.e., a hope of succeeding to the estate. The expression

“heirs” is only used to show the duration of the estate and not to confer

any interest on the heir apparent or presumptive, if any.

FEE SIMPLE INTER VIVOS

The fee simple is an estate of inheritance. It is the largest estate recognised

by the common law. It can, therefore, be created by words which can

give it a quality of general inheritance. The words “and his heirs” are

the appropriate words for creating an estate of inheritance; the right of

inheritance created by these words “and his heirs” is general. The estate

created is transmissible to all heirs, both lineal and collateral, of the

deceased person. In Jackman v. Edwards3Archer P. considered these words

as “language of the greatest amplitude”. The succession is not restricted to

lineal heirs as in a fee tail. The class of potential heirs is not in any way

qualified.

The common law insisted uncompromisingly on the use of the words

“and his heirs” for the creation of a fee simple estate in an inter vivos

disposition. Where these magic words were not used after the words of

purchase, i.e., after the name of the grantee, no fee simple was passed at

common law; at best the grantee could only get a life estate.4

Grants of land in the early days of the common law were personal

to the parties. The feudal lord of the fee had the right to accept or refuse to

accept the heir of his deceased tenant as a successor. The presumption was

3(1965) 8 W.I.R. 330, 331.

4Lucas v. Brandreth, 28 Breav.274; Symes v. Symes [1896] 1 Ch. 272, 276; Re Irwin [1904] 2 Ch.

752.

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