ate limitation should be added to the grant; and they are properly, and when omitted in the former part of the deed necessarily, inserted in this clause. Of course to pass a fee, the word "heirs," and to pass an estate tail the words "heirs of the body," with words of procreation as "to be begotten," or the like equivalent expressions, and with such other additional words as are proper to designate heirs of a particular description when heirs of that description are intended to take, must be inserted. And when a mere estate of freehold, pur autre vie, is to pass, the limitation may be to the heirs or to the executors of the grantor, according to the intention of the parties. Sometimes the limitation has been to the heirs, executors, administrators and assigns. In such case it has been determined, that the heir shall take as special occupant in preference to the executor (p). But it should seem that all of an estate, pur autre vie would pass by a mere grant to the person, without extending the gift in terms either to the heirs or to the executors or administrators.

In creating an annuity in fee there is the peculiarity that the grantor must grant for

(p) Atkinson v. Baker, 4 Durnf. and East, 299.

himself and his heirs (q), to the grantee and his heirs, in order to make the annuity perpetual; for there cannot be an annuity in fee unless the heirs of the grantor are charged by the grant. These observations apply to an annuity in fee as distinguished from a rent charge in fee.

In limiting estates, pur autre vie, it is the more eligible way, if circumstances and the intention will admit, to limit the estate to and to the use of the grantee, his heirs, &c. rather than to make the limitation and the declaration of the use in distinct clauses. The like observation is applicable when several persons are grantees and to be tenants in common. The habendum may at once be to and to the use of the grantees, their heirs, &c. instead of a grant to them as joint-tenants by the rules of the common law, with a clause declaring the use to them as tenants in common.

de

Observe also, that all estates of freehold granted by a common law conveyance must, except in the instances of things created novo, be granted to take effect immediately. A grant either of lands or of the reversion of lands, or of rents already created, for an estate to begin from a day to come,

(g) Co. Litt. 144. b.

1 Roll. Abr. 226.

or on an event, and which would place the freehold in abeyance, is void (r).

Fourthly. When there are several grantees, and they are to be tenants in common, then to controul the construction of law, upon the grant, words of modification for severing the tenancy must be added.

In common law conveyances, and consequently in this assurance by release, which is one of them, the words "to hold, &c. as tenants in common,' "either with or without words negativing the joint-tenancy must. be used; but in conveyances to uses as far as respects the limitation of the use, and in wills, words of modification of less definitive import, as equally to be divided, &c.” will suffice (s).

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Under this head it may with propriety be noticed, that a person who has the fee has the utmost extent of interest of which he is capable; and his estate doth not admit of any increase or enlargement. It may be determinable or defeasible, and these qualities may be discharged by a release. Such release operates by way of extinguishment of right or title, and not a release in en

(r) Essay on Est. Chap. " Freehold."

(s) Fisher v. Wigg, 1 Peere Will. 14.

Rigden v. Vallier, 2 Ves. 252. but see Cases and Opinions, Vol. 2. 279.

Willes, 180, 2 Bro. C. C. 233. 3 T. Rep. 765.

largement of a prior estate. When an instrument operates as a release by way of enlargement, it transfers an estate; it passes a seisin in short, it is a conveyance; and hence the practice that uses may be and are continually declared of a seisin transferred by this assurance; but no use can be declared on a release of right or title, or of a possibility; and of this description is a release of the determinable or defeasible quality of an estate in fee. There is one species of fee, however, which, as already noticed, admits (of enlargement. This is the particular case of an estate tail converted into a base or determinable fee. In this instance, the base or determinable fee may be in one person, and an actual estate may be in another person; and on principle, this fee or particular estate may be enlarged by the accession of the remainder, or reversion in fee, which confers the ulterior interest: for there is an estate to be added, and that estate is in legal denomination larger than this base or determinable fee; and by the union of the two interests, the ownership under the determinable fee may merge in the absolute fee. This case is an exception to a general rule, that one fee cannot be dependant or expectant on another fee. That rule is universally true, when understood with the qualification, that one fee cannot, by the grant of the

party be expectant on another fee. The conversion of an estate tail into a base fee, is merely a consequence or conclusion of law. The material difference is where a man grants an estate to another and his heirs, determinable in any manner, he retains merely a possibility of reverter. This possibility may be released to the person who has the determinable fee, but it does not admit of being granted: on the othe: hand, an actual reversion or remainder, though expectant on a base fee, derived from an estate tail, confers an interest, which may be granted from one person to another; and for that reason may be released to the person who has the prior estate in fee. No doubt is entertained, that even when there is a determinable fee, an instrument in the form of a lease and release would operate by way of release of the possibility. The case is noticed only for the sake of a distinction, and to illustrate the general principles which govern the assurance by lease and release, as a conveyance admitting of uses to be executed into estate, under the statute for transferring uses into possession.

Of the Declaration of Use.

As this species of assurance passes an estate at the common law, it admits of a declaration of use, and the use should al