Fee, a law term, derived probably from Sax. feh, or more accurately feoh, compensation or payment. As landed estates were given by the northern conquerors of the Roman provinces to their nobles and soldiers as compensation or wages for military service, fee came to mean the estate itself. It was Latinized into feudum or feodum, from which the word feudal arose, because it was this tenure of land which characterized what is called the feudal system. The derivation and original meaning of this word are not certainly known, but what we have given is, we think, supported by the best reasons. In law, estate does not mean the land, but the title which a man has in the land; so the word fee is now used to signify, not the land, but the kind of estate or tenure by which it is held. The word fee alone means an estate without qualification or limitation; hence the phrase fee simple means the highest estate held of any superior or lord, or by any tenure or service, or strictly speaking, by any tenure whatever; and the word simple means only that nothing is added to limit or condition the word fee. Hence an estate in fee and an estate in fee simple are the same thing. This is an absolute estate of inheritance; or an estate which a man holds, descendible to his heirs for ever.
There is no event by which it must be terminated or defeated, and no limitation or restriction by force of which it must descend to a certain heir or heirs, in exclusion of the rest. A fee simple may be acquired by descent or by purchase. In law, purchase' means every mode of acquiring land except descent; hence if land be given to a man, or devised to him, and he takes by gift or by devise, still he is said in law to take by purchase. The essential words in any instrument by which a man should take land in fee, whether by will or deed, are, to the grantee, or devisee, and his heirs." For if land be given to a man without the word "heirs," he takes only an estate for his own life, and at his death (if there be no remainder over) it reverts to the grantor or his heirs; and at common law there are no words which could supply the want of these "words of inheritance," as they are called, where there could be heirs. Thus, if land were conveyed or devised to a man "and his successors," he took only an estate for life; but if these words were used in a deed or devise to a corporation, they were the proper words to create a fee simple, because a corporation should have perpetual succession, but cannot have heirs.
If land be granted or devised to A, B, and C, as trustees, then also the word successors would in general carry a fee. The ancient severity of the rule requiring words of inheritance is now relaxed somewhat in England, and more in the United States (in some of the states by statute), especially in respect to wills and trusts. In wills, any words distinctly indicating the purpose of the testator to devise all his estate and interest in a piece of land, are always held now to carry a fee simple; and in trusts, if one has land given to him with power to sell, this is held to be a power to convey in fee simple. In deeds it is always better to add the words of inheritance, but the word assigns is not necessary to give the power of transfer, although usually added. There may be a fee simple not only in lands, but in franchises and liberties; and in England, in dignities and the rights and privileges attached to them; and even in personal property, as in an annuity.-Fees may be less than fee simple, and they are so whenever not simple; that is, whenever the fee is in any way restrained or diminished.
A qualified fee, technically so called, is one in which, by an original limitation, the land goes to a man and his heirs general, and yet is not confined to the issue of his own body; as if it be given him and to his heirs on the part of his father or a certain ancestor. A determinable fee is a fee which may continue for ever, but which may be determined by the happening of some event which is uncertain. Instances usually given of this are lands conveyed or devised to a man and his heirs until an infant shall attain a certain age, or until such a person shall be married, or shall have children. A conditional fee means either a fee to which at its origin some condition was annexed, which being performed will defeat the estate, or the performance of which is necessary to preserve the estate, or the performance or occurrence of which is necessary to vest estate. But these three phrases are not definable with exact accuracy, and are sometimes used one for the other. Fee tail is a law term of more precise meaning.
It is derived from the Norman French word tattler, to cut, because it is a lesser estate of inheritance cut or carved out of the fee simple; and it exists where a conveyance or devise is made to a person named and the heirs of his body or some specified class of the heirs of his body, as for instance the heirs male or heirs female of his body, or the heirs of his body begotten of his then wife. The difference between this and a fee simple is at once perceived, for while the latter on the owner's death will pass by descent to his heirs general, who may be collateral relatives, the former will descend only in the line indicated by the instrument creating the estate. Formerly the understanding was that the grantee of an estate tail had only a life interest, and could convey no more; but afterward means were devised by which he might convey a fee, and this in the hands of his grantee would necessarily be a fee simple. The usual mode of doing this was the process of suffering a common recovery, but by statute 3 and 4 William IV., c. 74, the same result may be accomplished by an ordinary deed of conveyance duly enrolled. Legislation of a similar nature has also been adopted for Ireland and Scotland. In the United States estates tail have had no practical existence since the revolution.
In some of the states they are wholly unknown. In others they become at once, by force of statutory provisions, estates in fee simple. In others a tenant in fee tail bars the entail by a simple conveyance in fee simple. In yet others, and they are numerous, they are simply abolished by statute, without any reservation whatever.