Sec. 49. The Fee Simple Defined

"Tenant in fee simple (or as he is frequently styled, tenant in fee) is he that hath lands, tenements or hereditaments to hold to him and his heirs forever, generally, absolutely and simply, without mentioning what heirs, but referring that to his own pleasure, or the disposition of the law."

The above definition is that of Blackstone (Book II, Ch. 7, p. 104). A fee simple estate is an estate unlimited in time, that is to say, an estate which one holds absolutely, to do with as he pleases (within the law) and which being undisposed of by him at his death goes to his heirs generally, as named by the law. We say that A owns a lot in Chicago; we mean thereby that he owns it in fee simple; that he is not merely a lessee; that he is not merely an owner for life, the real ownership being in another ; but that it is his forever, and that he may sell the entire interest in the land or dispose of it by will. We say that he holds it to himself and his heirs, meaning that no other person except his heirs may claim it if he dies having not disposed of it by deed, will or otherwise; that B cannot claim as remainderman; that C cannot claim it as reversioner, but that X, Y, and Z, A's heirs, can claim it because it was real estate that belonged to A, whom they succeed. The fee to all privately owned land, must be in some one - the party to whom or to whose heirs it must ultimately come. Thus the lot owned by A, may be rented to B, or C may have a life estate therein, but A owns the fee. As owner of the fee he may sell it to M, who then becomes the owner of the fee, subject to the briefer estates that may be held therein.

Sec. 50. History Of The Estate In Fee Simple

The fee simple estate was originally the estate which was enfeoffed under the feudal system, in return for service or rent to the lord who allotted it, and was distinguished from lands held allodially, that is, without superior.

The term "fee" comes to us from feudalism, meaning the same as feud or fief, which we have heretofore described, being that estate which one had of a superior, and for which he was bound in fealty and must render a service or a rent, which land as we have seen, came ultimately to pass to the feoffee's heirs. But now we simply mean land held absolutely, that land in which one has the highest estate possible in the law - the ultimate ownership.

Sec. 51. Words Necessary To Create Fee

At common law the word heirs was necessary to create a fee but this has been changed by statute in many states.

By the common law in the creation of a fee simple it was necessary to use the word "heirs." Thus a fee was created by conveying to "A and his heirs," for if one conveyed simply to A, A took a life estate with reversion of the fee to the grantor. By statute this has generally been changed so that a deed to A by one owning the fee vests the ownership of fee in A and the word heirs is not necessary and frequently not used.

Sec. 52. The Rule In Shelley's Case

The rule in Shelley's case was a rule of the common law, still in force in many states, and abolished in others, that if, in any gift or conveyance, a freehold estate was disposed of to a person with remainder to his heirs in fee or in tail, the word "heirs" was used not to give the heirs any estate therein, but to describe the first taker's estate as one in fee or in fee tail as the case might be.

One of the most famous cases in judicial history is that of Shelley's Case,58 which set forth a rule to be henceforth called by the name of that case ("the Rule in Shelley's Case"), although it had been the rule prior to that time. Suppose that A, by will or deed, gives or transfers property to B with remainder to B's "heirs." Now if A had transferred "to B for life with remainder to B's son C," B would take a life estate and C would take the balance of the fee, i. e., C would be the owner of the fee subject to B's life estate. But if the phraseology was to B for life with remainder to B's heirs, B would (by the Rule in Shelley's Case) take the entire fee. There are a number of explanations given for this. We have already considered that an estate given to B and his heirs, created a fee simple in B, and the heirs could claim nothing after B's death by virtue of this language, if A in his life time had divested himself by deed or will, or been divested, of the fee. The word "heirs" in that case described, and was necessary to describe, B's estate. Now, if the language is to B, for life, with remainder to B's heirs, the effect, by the operation of the rule in Shelley's Case is to make the legal result the same as though the conveyance or gift had been simply to B and his heirs. B gets the entire estate and the heirs get nothing, save as they may take as B's heirs. B, owning the fee may transfer it and the heirs cannot complain.

58. 1 Coke, Rep. 93.

The rule is said to be a "rule of property," that being meant to indicate that it will operate even if it defeats the grantor's intention, even if he should say in the instrument that he intended the rule not to operate.

A reason frequently given for the rule is that it is "to obviate the mischief of too frequently putting the inheritance in abeyance or suspense and that it is founded somewhat upon a desire to facilitate the alienation of land, and to throw it into the track of commerce one generation sooner, by vesting the inheritance in the "ancestor [the first taker] than if he continued as a tenant for life [only]."

A case setting forth, at considerable length, the history of, and reasons for the rule, and adopting it, and containing a dissenting opinion which is in favor of getting rid of the rule in Shelley's Case "and other debris from past ages and primitive conditions," is that of Doyle v. Andis, 127 la. 36, 102 N. W. 177, 69 L. R. A. 953, to which the reader is referred for extensive discussion. In that case Robert Andis conveyed the land in question to Samuel S. Andis "during his natural life, and then to his heirs." Now this language to one unacquainted with this rule would naturally mean that Samuel Andis got a life estate only. But Samuel Andis, believing that he had the entire fee, purported to convey the same by deed. After Samuel Andis death, the heirs of Samuel Andis claimed the land asserting that Samuel did not have the fee to convey, but only a life estate, and the deed was therefore inoperative to convey the fee, and that they took under the deed from Robert. But the court held the Rule in Shelley's case gave Samuel the entire fee and that the heirs had no case.

The rule applies both to legal and equitable estates, and whether the transfer was by will or deed.

The rule does not apply unless the word "heirs" is used, at least some synonym therewith. Generally, a conveyance to B for life with remainder to his children, would give B a life estate and the children the remainder, which B could not by deed, will, or otherwise, deprive them of, for they have the estate from A and not from B, but merely subject to B's life estate.

By statute in many states (at least twenty-seven) the rule has been abolished, but is in force in many in all its ancient strictness.