They who brought the general body of the common law with them to this region might well have omitted to bring the feudal rule, not because it was fabricated in a barbaric age, but because it was designed and fitted to perpetuate a barbaric condition; not because it originated in a foreign land, but because it was not suited to the commonwealth which our foreign ancestors came to this country to organize; not because, as a part of the military system of Europe, it was less necessary in feudal times than other compulsory methods of filling armies and navies in other times, but because the general feudal relation of lord and vassal not being an incident of New Hampshire civilization, and the particular debt of personal service due from the vassal to the lord (which the heirs of the vassal might be incompetent to perform) not being a universal consideration of the conveyance of New Hampshire real estate, the feudal rule (requiring the word " heirs " as evidence of the lord's intention to assume the risk of his vassal's heirs being incapable of the stipulated service), was inapplicable to the situation and circumstances of the emigrants, and implied a servitude inconsistent with the principles of personal freedom and equality which pervaded their social and political plan, hostile to the general object of their emigration, and particularly subversive of that absolute ownership of the soil which they specially sought in the new world.
It appears that in Massachusetts, prior to 1651, the word "heir" was "oftentimes omitted when an estate of inheritance is intended to be passed by the parties; " and in that year a statute was passed by the general court introducing the feudal rule, which has been maintained in that state by statute ever since. Sedgwick v. Laflin, 10 Allen, 430. When the union which at the time existed between Massachusetts and New Hampshire was dissolved, the people of the latter province, 1660, adopted a code made up mainly by copying such of the Massachusetts statutes as they thought adapted to their wants. In that code this act was omitted, and no statute on the subject has ever existed here. The word must have been omitted as often proportionally here as in Massachusetts; and when the attention of our people had been directed to the subject by a statute under which they lived for twenty-eight years, the omission could hardly have been accidental. They were for several generations engaged in vigorously resisting Mason's claims to a proprietorship, which if maintained would have given him a substantial baronial dominion over the whole province, with the title of lord-protector, which he assumed. Belk. Hist. N. H. 94 (ed. 1831); and see 1 N. H. Prov. Pap. 433-582. There was nothing in their history in this, any more than in the old country, calculated to impress them with the expediency of introducing the mediaeval rule, either by statute, or by consent and general understanding without a statute. We know of no reason why they should have desired or intended to do so.
The effect of the Massachusetts statute in Sedgwick v. Laflin, illustrates the difficulties and injustice occasioned by importing a rule so incompatible with American institutions as to be capable, upon legal principles, of being introduced by nothing short of express legislation. Like many other arbitrary rules that might be made, it would prevent some litigation that would be necessary for ascertaining the intention of the parties upon rules of construction calculated to discover their intention. Put the evils of such litigation cannot be compared with the gross injustice that would be perpetrated by such a rule, arbitrarily and summarily defeating the intention of the parties, where the evidence happened not to be sufficient (as it would be likely to be now that the parties can testify) to induce them to resort to litigation to have their deeds reformed and their intentions carried out in suits in chancery. * * *
The rule was not applied at common law in England to the construction of wills - Coke, Litt. 322 b.; Com. Dig., Devise, (N. 4); Chitty's Note 2 Bl. Com. 108 - nor in this state, irrespective of the statute of 1822 - Fogg v. Clark, 1 N. H. 163; M'Afee v. Gil-man, 4 N. H. 391; Forsaith v. Clark, 21 N. H. 409 - where, although the decision was after the statute, the will was proved very-long before.
In Loveacres v. Blight, Cowp. 352, Lord Mansfield said: " I really believe that almost every case determined by this rule, as applied to a devise of lands in a will, has defeated the real intention of the testator; for common people, and even others who have some knowledge of the law, do not distinguish between a bequest of personalty, and a devise of real estate. But, as they know when they give a man a horse, they give it to him forever; so they think if they give a house or land, it will continue to be the sole property of the person to whom they have left it. Notwithstanding this, where there are no words of limitation, the court must determine in the case of a devise affecting real estate, that the devisee has only an estate for life; because the principle is fully settled and established, and no conjecture of a private imagination can shake a rule of law.
' But as this rule of law has the effect I have just mentioned, of defeating the intention of the testator in almost every case that occurs, the court has laid hold of the generality of other expressions in a will, where any such can be found, to take the devise out of this rule. ... In general, wherever there are words and expressions, either general or particular, or clauses in a will, which the court can lay hold of to enlarge the estate of a devise, they will do so to effectuate the intention." He did not explain by what authority the court has laid hold of the generality of other expressions in a will to take the devise out of this rule, or how it would be possible in that way to give effect to the intention of the testator without shaking a rule of law by the conjecture of a private imagination, provided it is a rule of law that the word " heirs " is indispensable to the passing of a fee. Nor did he do what would have been more useful still, that is to say, point out the reason for a distinction in this respect between the construction of a will and a deed. The reason for not applying the rule to wills is sensible and easily understood. It is, as Lord Coke expresses it, quod ultima voluntas testatoris est primplenda secundum veram intentionem suam. Coke, Litt., 322 b. But this shows no reason for the distinction. It does not show why the intention of the maker of the instrument is any more sacred in one case than in the other, nor by what right the court can abrogate the rule in favor of one class of donees, if it must be rigidly enforced against the other. If for any reason, however mysterious, a fee in land could not pass without the use of this potent word, all efforts of the court to bring about such a result where the word was wanting, whether in a will or deed, must have failed. But in the case of wills those efforts did not fail. What, then, became of the feudal rule? It yielded to reason. It was swept away by the monstrous absurdity and injustice which its application must involve. It could not stand, because no enlightened court could uphold it, and in so doing defeat the manifest intention of the donor, without feeling that they were ministers of arbitrary oppression and wrong rather than of law. For obvious reasons the same question as to defeating the intention of the grantor in a deed seldom comes up. But when it does arise, how can that intention be defeated without involving a violation of common right and common sense, equally glaring and flagrant? Where is the reason for upholding the rule as to deeds, and rescinding it as to wills? By what right can the courts say that the intention of a testator plainly written in his will shall govern, but the intention of a grantor as plainly written in a deed of bargain and sale shall be set at naught, the consideration of the sale be disregarded, and the property be thrust back upon the grantor or his heirs, on the death of the grantee, for the want of this fuedal word inheritance?