This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
On the death of a tenant in fee simple without having disposed of the land by will, it passes to his heir or heirs according to the rules of descent, ordinarily his issue, and if he leaves no issue, his parents or collateral relations.34 The rules of descent cannot be changed by the terms of the instrument creating an estate in fee simple, so as to cause it to pass to persons other than those named by the rules,35 nor can the owner, by his will, prevent the property passing to his heirs as determined by these rules, otherwise than by actually devising the property to another or others.36
- Alienation. One of the most important qualities of an estate in fee simple is the approximately absolute freedom of alienation enjoyed by the owner, a power which has been of somewhat gradual growth. The power of alienation by conveyance inter vivos was secured to all owners of the fee by the statute of Quia Emptores, the purpose and operation of which has been previously explained;37 and that of alienation by devise or will was secured by various statutes, of which the Statute of Wills, passed in the reign of Henry VIII., effected the most important and far-reaching change in this connection.38 This power of alienation is con32. Jarman, Wills, 1135, 1 Stim-son's Am. St. Law, Sec. 2808; 2 Sharswood & B. Lead Cas. Real Prop. 70.
33. 4 Kent. Comm. 537, 538, and notes. See McConnel v. Smith, 23 111. 611; Baldwin v. Bean, 59 Me. 481; Shirey v. Pos-tlewaite, 72 Pa. St. 39.
Such is the effect of the English statute of wills, passed in 1837 (1 Vict. c. 26). 2 Jarman, Wills, 1135.
34. Post Sec.Sec. 487-492.
35. See. post Sec. 32 note 37.
36. Post Sec. 499.
37. Ante Sec. 11 .
38. Post Sec. 466.
Sidered as such an essential characteristic of an estate in fee simple that any attempted restriction of an absolute character upon the power is null and void.39
Since an estate in fee simple comprises the entire interest and property in the land, it follows that one who grants or devises a fee simple estate thereby grants away his whole interest.40 But a tenant in fee simple may, without disposing of his estate in fee simple, create any inferior estate or interest in favor of another.41
- Rights of user. Even a tenant in fee simple cannot, as will hereafter appear,43 so use his property as to create what is called a "nuisance," but otherwise he may, provided he has the right of possession, ordinarily make any use whatever of the land, and may cut timber, open and work mines, and injure or destroy any parts of the property, as he may please.44
- Eminent domain and escheat. An estate in fee simple, like all others, is subject to the exercise of the power of eminent domain; that is, it may be taken for public or quasi public purposes under authority of the state,45 and it is liable to escheat to the state in certain cases, as when the tenant dies intestate and without heirs.46
I (B) Estate in Fee Tail.