—it was evaded by fictitious transfers and recoveries,[1] and in 1285 was passed the famous Statute of Westminster the Second[2]—more often called the Statute De Donis Conditionalibus, or "Concerning Conditional Gifts"; a statute which is said to have caused more discussion than any other on the Statute Book. Its effects were tremendous, and remain to this day. Before it, all inheritances in land were fee-simple[3]—which meant that the holder could leave his land to his heirs. It had always been the law of England, even in Saxon times, that on failure of the heirs specified in the original grant of the land, the land must revert to its original proprietor—called the "donor." But this was only as long as the donee had no child; the birth of a child gave him the power of "alienating" the land, and then he could repurchase it in "fee-simple absolute." He could do this, even if the child died before him, or if he wished to disinherit the child. The "condition" was held to have been fulfilled by the birth of an "heir," though that heir might never inherit; and as a fee-simple absolute, the land could descend to the holder's heirs in general, or to legatees, in accordance with the Common Law. Until the birth of a child to the donee, the donor was said to be invested with the "fee-simple expectant," and the expectant estate was called the "reversion."
If the tenant did not "aliene" the land, the course of descent was not altered by the birth of issue, for if the issue afterwards died, and then the tenant died, without making any alienation, the land, by the terms of the grant,
- ↑ "A feigned recovery was a device invented to break an English entail."—Chalmers' Encyclopædia.
- ↑ Statues were often named from the place where Parliament sat.
- ↑ "Tenant in fee simple is he which hath lands or tenements to hold to him and his heirs for ever."—Littleton. "'To have and to hold' meant to have an estate of inheritance, and to hold it of some superior lord."— Coke. "Land holden was distinguished from land allodial."—Notes to " Coke upon Littleton."
Blackstone says: "Tenant in fee-simple is he that hath lands, etc., to hold to him and his heirs for ever; generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law."
That is, a fee-simple is land which can be left, as money can be left, according to the wishes of a testator, and fee-tail is land which the testator cannot leave as he wishes. It is therefore often spoken of as "tied-up."
