We have looked at life estates. Now we turn to the other two types of freehold estates, estates in fee simple and estates in fee tail. The word “fee” indicates that the estate is an estate of inheritance.
This chapter also introduces the concept of parsing grants or devises and the terms used in parsing. These are the building blocks for analyzing grants and devises.
It is important to remember that estates in land have been transferred for hundreds of years, and the rules and tricks of transfers in 1200 are still respected today; otherwise, estate holders could be challenged. Certainty in the holding of estates in land is desirable for our society to continue to function
The word fee indicates that this is an estate of inheritance. The word simple indicates that this form of property is capable of being inherited by any type of heir.(1) At common law there was only one way to describe an estate in fee simple in a grant or devise.(2) Assume the following Crown grant;
---> To A and his heirs
As a result of this grant A holds an estate in fee simple. The words "To A" are words of purchase. Words of purchase identify the person to whom the property in land in to be transferred. The words "and his heirs" are words of limitation. The words of limitation describe the form of property in land that is being transferred. It is important not to confuse these words. As a result of this grant the future heirs of A acquire no property. The words "and his heirs" are the only way that the common law allowed an estate in fee simple to be acquired. Consider the following grant;
---> To A in fee simple
It would seem clear that the grantor in this case wished A to hold an estate in fee simple. But, as a result of this grant, A only acquired a life estate. No matter how clearly the intention of the grantor was expressed in the grant, if the words "and his heirs" were not used, only a life estate is acquired.
That the words "and his heirs" were used accurately is of paramount importance. Consider the following grant.
--->To A and his heir.
As a result of this grant A acquired only a life estate. Leaving out the "s" in the word heirs had serious implications. The reason for this is that "his heir" must refer to the person that will be the heir of A at the time of A’s death. As of the time of the grant, there are two possibilities with respect to A. A is either alive or dead.
If A is alive, then "his heir" refers to no person. A person does not have heirs.
If A is a dead former person then "his heir" would be words of purchase not words of limitation. This being the case, there are no words of limitation. Where there are no words of limitation in a grant, and a contrary intention does not appear, only a life estate is transferred.
Consider the effect of these grants.
(a)--à To the heir of A or (b) -àTo the heirs of A
As a result of grant (a) the heir of A acquires a life estate if A died before the grant. As above, the "heir of A" must refer to a specific person or to no persons.(3) Consequently, there are no words of limitation in the grant and only a life estate is created or transferred. In grant (b) the heir of A acquires an estate in fee simple if A died before the grant.(4) The addition of the "s" makes the interpretation of this grant "to the heir of A and his heirs". This grant contains the necessary words of purchase and words of limitation to transfer an estate in fee simple. If, at the time of the grant, A is alive, no one can be proved to be the heir of A, so the grant fails.
The requirement of the use of the words "and his heirs" in order to transfer an estate in fee simple at common law has been modified by statute. In Ontario the Conveyancing and Law of Property Act(5) provides that;
5(1) In a conveyance, it is not necessary, in the limitation of an estate in fee simple, to use the word "heirs."
(2) For the purpose of such limitation, it is sufficient in a conveyance to use the words "in fee simple" or any other words sufficiently indicating the limitation intended.
(3) Where no words of limitation are used, the conveyance passes all the estate, right, title, interest, claim and demand that the conveyancing parties have in, to, or on the property conveyed, or expressed or intended so to be, or that they have power to convey in, to, or on the same.(6)
(4) Subsection (3) applies only if and as far as a contrary intention does not appear from the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained.
(5) This section applies only to conveyances made after the 1st day of July, 1886.
Consider the following grant, made in Ontario, on 14 June 1935:
---> To A in fee simple.
As a result of this grant A acquired an estate in fee simple by application of s. 5(2) of the Act. The words "and his heirs" are no longer required so long as the intention is clear and a contrary intention does not appear in the grant Hence, words such as "forever" would suffice to transfer or create an estate in fee simple. In fact, words of limitation are no longer required to transfer an estate in fee simple.(7) Where there are no words of limitation the entire estate that was held by the grantor is transferred to the grantee.(8)
1) At Common Law
The discussion until this point has assumed that an estate in fee simple was being transferred by deed of grant. The rule is the same for grants and devises. The difference is whether EVIDENCE other than the words of the grant or devise can be introduced: for grant, no; for devise, yes, some evidence can be introduced (but only a narrow category). Historically it has been the case that the intention, as expressed in the devise, of the devisor is to be given effect. Consider the following devise:
--->To A in fee simple
As a result of this devise A acquires an estate in fee simple. Had this been a grant,(9) A would have acquired only a life estate.(10) It is important to note that the burden, at common law, would have been on A to prove that the devisor intended that A should acquire an estate in fee simple. The previous grant seems clear on this point, but that may not always be the case. Where there is any doubt, the devisee must prove that is was the devisor’s intention to transfer an estate in fee simple to A or only a life estate will be acquired by A as a result of the devise.
2) As modified by Statute
In Ontario, the Succession Law Reform Act(11) provides that:
26. Except when a contrary intention appears by the will, where real property is devised to a person without words of limitation, the devisee passes the fee simple or the whole of any other estate or interest that the testator had power to dispose of by will in the real property.
This section of the statute could in some cases have the effect of reversing the burden of proving the intention of the devisor. Assume a devise "to A my land". Prior to this statute the burden of proving that "my land" referred to an estate in fee simple would have been up to A. If A failed A would only acquire a life estate as a result of this devise. As a result of this Act it would be up to any person that opposes A's acquiring an estate in fee simple (12) from the devisor to prove that it was the intention of the devisor(13) that "my land" not refer to the estate in fee simple. In other words, the conclusion is that the devisor intended to pass the entire estate in that land unless the devise provides otherwise.
There is no such form of property at common law. At common law, words that would have created an estate in fee tail post-1258 might create a condition and thus a form of property dealt with in Chapter 8.
The Statute De Donis Conditionalibis (1258) created a form of property in land known as an estate in fee tail. The primary feature of an estate in fee tail was that it could only be inherited by a specific type of heir. Assume the following grant made 7 April 1835;
--->To A and the heirs of his body
As a result of this grant and the Statute De Donis Conditionalibis A acquires an estate in fee tail. The only persons that could inherit this form of property were those persons who trace a direct lineal descent from A. Assume A dies. Assume further that A had two children. These two children could inherit the property from A. If each of these two children of A gave birth to a child, these children could inherit the property from A or the child of A who had inherited the property from A. A held no property to devise since child of A or orphan child of child of A inherited the estate in fee tail when A died. This would continue so long as there were any persons who could trace a lineal decent from A.(14).
It is important to note that neither A nor any heirs of A who held this form of property were at liberty to transfer the estate in fee tail. A could make a transferee the holder of a life estate for the life of A, but that would of course cease to exist when A died and child of A or orphan child of child of A would then hold an estate in fee tail
It was the intent and effect of an estate in fee tail to insure that the property be held by a descendant of A in perpetuity(15)
An estate in fee tail may be limited to different types of heirs. Assume the following grant made 7 June 1886;
--->To A and the male heirs of his body
As a result of this grant A acquires an estate in fee tail male. Only a direct male descendant of A who can trace his descent through male descendants of A could inherit the estate. A male descendant of A who is the son of a daughter of A could not inherit this form of property. The descendant, in this example, must be a male descendant of a male descendant of A to inherit this form of property. An estate in fee tail limited to the female heirs would result in the same analysis with the exception that it would be the female heir that could acquire the property, so long as that female heir could trace her decent through female heirs of A.
The estate in fee tail has been abolished in the Province of Ontario. Section 4 of the Conveyancing and Law of Property Act(16) provides that:
A limitation in a conveyance or will that before the 27th of May, 1956, would have created an estate in fee tail shall be construed as an estate in fee simple or the greatest estate that the grantor or testator had in the land.
When one suspects that the grant or devise creates an estate in fee tail, look to the date. If the grant or devise was made after 26 May, 1956, the grantee or devisee acquired an estate in fee simple, or the greatest estate that the grantor or devisor held. If before 27 May 1956, the result was an estate in fee tail
An estate in remainder is not an estate. Think of it as one word.
An estate in remainder is a form of property in land which will evolve into an estate.
__--àTo B for life
Immediately following the grant, B holds a life estate, and the grantor holds an estate in remainder in fee simple, sometimes spoken of as an estate in remainder by way of reversion. When B dies, the grantor or the heir of the grantor will hold an estate in fee simple.
--àTo B for life, remainder to C
Immediately after the time of the grant, B holds a life estate and C holds an estate in remainder in fee simple. There is no need for the words “and his heirs” because of the Conveyancing and Law of Property Act s 5(3)(17)
Provided that X is alive immediately after the time of the devise, X holds a life estate, and the heir of the devisor holds an estate in remainder in fee simple. Immediately after the death of X, the heir of the devisor holds an estate in fee simple by way of reversion.
The following three sentences describe a common law rule known as the rule in Shelley’s case.
1. An attempt to grant a freehold estate to A and in the same grant a remainder in fee simple to the heirs of A will fail.
2. The reference to the heirs of A will be construed as words of limitation.
3. This will be so whether the attempted grant to the heirs of A follows immediately the grant to A or mediately (ie there are other forms of property granted between the two).
Subject to the force given to the intent of the devisor, the Rule applies also to devises.
Assume the following grant;
---> To A for life, remainder to the heirs of A(19)
By application of the rule in Shelley's Case A holds a life estate and an estate in remainder in fee simple.(20) The words "heirs of A" are words of limitation. Thus they describe a form of property. So A [named in the words of purchase] acquires a life estate. Because the words of limitation “heirs of A” are words that describe an estate in fee simple, A also acquires an estate in remainder in fee simple. The two add up to an estate in fee simple..
What would the result be if there was a second life estate after A's life estate in the previous example? Consider the following grant;
---> To A for life, remainder to B for life, remainder to the heirs of A.
As a result of this grant A holds a life estate and an estate in remainder in fee simple. B holds an estate in remainder for life. The difference in this case is that the estate in remainder in fee simple does not become an estate in fee simple until both A and B die. Consequently, at the death of A, B holds a life estate, with a remainder in fee simple being held by the heirs of A.(21)
There are different considerations to applying the rule in Shelley's Case to a devise. When a devise is interpreted, effect is given to the devisor’s intention. Therefore, when considering whether the rule in Shelley's Case applies one must come to a conclusion about what the devisor intended by the use of the word “heirs”. If evidence could be produced that showed that the devisor spoke of his brothers children as his brother’s heirs, then the rule might not be applied.
This does not change the rule in Shelley's Case.. The issue here is what the devisor intended. Consider the following devise;
---> To A for life, remainder to the heirs of A
If the devisor intended that the word “heirs” be descriptive of the entire class of people that will become heirs of A when A dies, the rule applies. If the word “heirs” was used by the devisor to describe a specific person, such as a child of A, the rule does not apply.(22) The rule will apply even in a case where the application of the rule results in an outcome that the devisor did not intend. For example, in the previous devise, if the devisor intended that the entire line of future heirs of A hold an estate in fee simple at the death of A, this attempt would be thwarted. This is so, even given the fact that it would run contrary to the devisor’s intention. The evidence of the devisor’s intention is only relevant insofar as it shows what the devisor intended when using the word heirs. The result of the devise would be the same provided A did not grant or devise the estate to other than his heirs but the devise has the effect of leaving this decision to A.
1. The word heir refers to a person who
has inherited a form of property from a dead former person.
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2. The distinction between creating and transferring an
estate in fee simple is important. After the statute Quia Emptores
was passed in 1290 it became impossible for a person other than Her Majesty
to create an estate in fee simple. After that date, if the grantor is the
Crown it would be correct to describe the grant as creating an estate in fee
simple. If the grantor was a person other than Her Majesty it would be incorrect
to describe the process as a creation of an estate in fee simple. All that
such a person may do is transfer an estate in fee simple.
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3. Keep in mind that a person has no heirs. If an heir of
A exists we know that A has already died.
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4. This is assuming that A is a dead former person. If A
was alive as of the time of the grant the alleged words of purchase would
not refer to any person. There are no heirs of A if A is still alive.
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6. Query? What form of property would a person hold who
acquired that property as a result of a Crown grant that contained no words
of limitation? It is possible that this section might change what you were
told at the beginning of this section?
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7. So long as s. 5(3) of the Conveyancing and Law of
Property Act applies to the grant.
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8. Again, this would be subject to there being no other
words in the grant that would indicate that the grantor did not wish the grantee
to acquire the entire estate that was held by the grantor.
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9. And s. 5 of the Conveyancing and Law of Property
Act did not apply.
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10. Unless s. 5 Conveyancing and Law of Property Act
applied to the grant.
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11. R.S.O. 1990, c. S.26.
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12. This is of course assuming that the devisor held an estate
in fee simple. If the devisor, for example, only held a leasehold interest
in the land A could not acquire an estate in fee simple no matter what the
intention of the devisor was.
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13. As that intention is expressed in the words of the devise.
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14. The grantor holds an estate in remainder as a result
of this grant. If all the descendants of A were killed as a result of an unfortunate
incident of soccer violence, the grantor, or his heirs, would hold an estate
in fee simple because his estate in remainder would evolve by way of reversion.
More on estate in remainder below
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15. There were two ways, at common law, to convert an estate
in fee tail into an estate in fee simple. They are known as (a) a common recovery,
and (b) levy of a fine. The primary feature of both of these methods was to
get a bunch of friends, go to court, and lie. The details are unimportant
as these methods have been modified by statute.
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17. Supra, note 5.
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18. (1581), 1 Co.Rep. 93b, 76 E.R. 206.
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19. It is likely that the grantor intended that A acquire
a life estate in that land, and on A's death those persons that could then
be identified as the heirs of A would acquire an estate in fee simple in that
land. But for the rule in Shelley's Case A would have acquired a
life estate and the heirs of A would have acquired a contingent remainder
in fee simple.
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20. Arithmetic tells use that this is the equivalent to an
estate in fee simple.
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21. This would be so only if nothing interesting happens
from as of the time of the grant to as of the time of A's death. Keep in mind
that A is at liberty to transfer either form of property that he acquired
as a result of this grant.
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22. As a further example, if the devisor in this example,
with the proper legal advice, had written "To A for life, remainder
to the first child of A", and evidence could be presented to show
that this was his intent when using the word heirs, the rule would
not apply. As a further example, if the devisor had written “ to
A for life, remainder to heirs of A” and it could be proved
that the devisor had intended that A’s children would benefit, the rule
would not apply. What sort of evidence do you think would suffice?
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