The Principal Laws of England, Treatise · Part 11
Fee simple.
FEe simple is (as I sayd) the most ample & large inheritaunce that can be in this realme diuised or excogi…ate, as that whiche a man hath to hym and to his heyres simply without any further limitacion, for whether they be of his owne bodye begot ten or not, so that they be the next of his kinne, and wythin the degrees it suffiseth.
So then tenaunte in fee simple is he that hath landes or tenementes (whether it be by purchase or by discent) to him & to his heires for euer. For if a man will purchase landes in fee simple, he must nedes hauehave these wordes, his heyres, in his purchase, for these be the onlye wordes that make an estate of inheritaunce. Therfore yf landes be gyuen to a man for euer & no mencion be made of his heyres: he hath an estate but for terme of his lyfe, bycause these wordes (his heyres) do lacke.
Yet neuertheles, if a mā by his testament doth deuise landes to an other in suche where the custome wyl serue so to do, though he maketh no mencion of heyres, but saythe that he bequethethe to suche a personne such… landes, to hauehave & to hold to him and to his assignes for euermore: here a state of inheritaūce doth passe, for in testamentes the wil and intent of the testaour is to be pondred, & not the formal & prescripte wordes of y• law.
Also these termes in the lawe, franke mariage, and franke almo…e that is to saye, free mariage and free almose do include in them wordes of inheritaunce. And therfore if I giuegive landes to a man wyth my daughter in franke mariage wythout further addicion or mēcion of heires, this is an estate of inheritaunce, as we shal hereafter declare more plentiouslye. In likewyse it is of landes giuen to an house ecclesiastical in pure & frāk almes. Moreouer if landes be giuen to a mā & to his blode, or to him & to his seed, he hath in both cases a state of inheritaūce for in y• one he hath a fee taile, & in thother a fe simple. For this word seed, and bloud, and suche lyke do implye wordes of inheritāce.
But nowe it is to be sene who be sayde a mannes heyres in the lawe. Ye shall therfore knowe, that my brother or syster by the halfe bloude, that is to wytte, by the fathers syde, and not by the mothers, or contrary wyse by the mothers and not by the fathers, shall neuer be myne heyre, nor none that come of them.
Neither my bastarde can be myne heyre, nor myne owne naturall father ne mother, nor grandefather ne grandmother can be myne heyre.
For it is a principle and grounde in the lawe, that inheritaunce may linially descend, but ascende it may not. And therfore if I hauehave landes in fee simple and dye wythout issue of my bodye, my father can not be myne heire, but my fathers brother or syster shal, and then if my vncle or aunt dye seased wythout issue, my father shal hauehave the landes as heir to myne vncle or to my aunte, but heyre to me he can not be. But it maye go from me to myne vncle or aunte well ynoughe, for that is not called a linial ascension but a collatrall.
And ye shal note, that by the commō lawe of this realme, my eldest sonne shall hauehave the hole inheritaunce, and after hym if he hathe no issue, the seconde sonne, and so forth. And if I hauehave no sonnes but daughters, than shal al the daughters togither inherite, if I hauehave no issue at all, neither son…es ne daughters, than shall my eldest brother in heritage succede me but if I hauehave no brother, than my systers if I hauehave any, if not my vncle by my fathers syde, if the landes be of myne owne purchase. And to be shorte if there be none in lyfe of my fathers syde, it shall goo to my mothers syde, and if there can be found no heyre neither by fathers syde ne yet by mothers, then shall it reuerte and eschete (as they call it) to the lord of whome it was holden, for euerye lande must nedes be holden of some lorde, as shall be here after shewed. But if landes descende vntounto me by my mothers syde, than if I fayle of issue, the landes shall descende onelyonly to my heyres of my mothers syde, & neuer to myne heyres of my fathers syde: as on the contrarye syde, yf I hauehave landes or any hereditamentes by discēt frō my father or his blode, they shal neuer descend to my heires by my mothers syde.
Thus ye se a greate difference in this behalfe, bitwene purchased landes and landes which descende from my auncestoure.
Yf there be thre sonnes, and the myddell sonne purchaseth landes & dye wythout issue, the heldeste shall hauehave the lādes and not the yongest.
Also it is a principle in oure law, that none can be myne heyre of landꝭ that I holde in fee simple, onles he be myne heyre by the hole blode that is to say, both by father and mother, for if a man hathe issue two or thre sonnes by sondry wyues, and the eldest purchaseth landes in fee and dyeth wythout issue, his halfe brethren I meane those yt be not his brethren bothe by the fathers syde & mothers syde shall not hauehave the lande, but it shall go to his vncle. Lykewyse if a man hath by his fyrste wyfe a sonne and a daughter, and by his seconde wyfe an other sonne, and the sonne by the fyrst wyfe purchaseth landes in fee, and dyethe wythout issue: the syster german shall hauehave the landes by discēt as heyre to her brother, and not to the yōger brother. Otherwise it is of landes or other hereditamētꝭ entailed as shalbe herafter specified.
Also if a man be seised of landes in fee simple, and hathe issue a sonne and daughter by one wyfe, and afterwarde a sonne by an other, and dyeth, and the eldest sonne entreth in to the landes, and after dyeth wythout lawfull issue of his body, the daughter shall hauehave the landes and not the yongest sonne, and yet the yongest sonne is heyre to his father, but he is not so to his brother. But if in thys case the eldeste sonne had not entred after the death of his father but had died before any entre made by hym, than shal not the syster germaine entre but the yonger brother is heire to his father, bicause the eldest brother was neuer in actuall possessiō, which is requisyte to yt personne that claymeth to be heyre collaterallye. But to the lyniall heyres, it suffiseth that the auncestour shuld hauehave bene heyr yf he had liued, I meane as thus. A man is seased of landes and hath issue, a sonne & daughter by one wyfe, and afterwarde a sonne by an other, he dyethe, the eldeste sonne entrethe not, but dyeth wythout issue before he can make any actuall entree, hys syster shall not hauehave the landes as heyre to her brother, bycause her brother was neuer actually possessed, but y• yōger brother shall hauehave them as heyre to his father. Yet if theldest sonne in that case had lefte behynde him issue of his body, whether it had bene sōne or daughter, this issue not wythstandyng that the father of the issue was neuer possessed either actually, or in ye law, shal hauehave the lādes, and shal conuey his discent from his father, for the sonne or daughter is linial heyre, where as the brother, sister, vncle, aunt. &c. be heyres collaterall, and so obserue a dyuersitie.
I call an actuall possession, whan a man entreth in dede in to landes to him descēded, but a possessiō in lawe, is called when landes be descended to a persone, ann he hath not yet real ly and actually ētred in to them. For notwythstandydge that he is not in actuall possession yet he is possessed in the lawe, that is to say, in the eye & consyderation of the law, for asmuch as he is tenaunt to eueryevery mans action that wyll sue for the sayd landes, for els there shulde insue an intollerable inconuenience, as we shal more copyously open in an other place.
Ye shall vnderstande that thys worde inheritaunce is not onelye to be accommodate and applied to that whyche commeth by discente from a mannes auncestours: but also to eueryevery purchase in fee simple, or fee taile.