(a)
Words of limitation
The different estates and interests may be created or conveyed by using appropriate words to describe and define what is intended. The technical expression for such words is ‘words of limitation’, and the contrast is between words of limitation on the one hand, and words of purchase on the other. Words of limitation are words of definition; words of purchase are words of gift.
So, for example, if there is a grant of land ‘to Adam in fee simple’, then, obviously, ‘to Adam’ are words of purchase, identifying the taker of the interest, and ‘in fee simple’ are words of limitation, defining what it is that he is given. Less obvious, but equally definite, is the case of a grant ‘to Adam and his heirs’. It has been settled since medieval times that the words ‘and his heirs’ are always to be construed as words of limitation. ‘To Adam’ are words of purchase, identifying Adam as the taker; ‘and his heirs’ are words of limitation, defining the nature of the interest Adam takes – in this case, the fee simple, for reasons explained below. Other cases are less clear. In a grant ‘to Adam and his children forever’, the words ‘to Adam’ are clearly words of purchase, and the words ‘forever’ are clearly words of limitation importing a fee simple. But ‘and his children’ could be either. The grantor might intend that Adam and his children take the fee simple jointly (using ‘and his children’ as words of purchase), or he might have been using ‘children’ in a loose sense as meaning ‘future generations’ so that ‘and his children forever’ are words of limitation indicating that Adam is to have the fee simple exclusively. It is a question of construing objectively the words used in the context in which they are used.
When the words of limitation have been segregated, they are to be interpreted according to the following principles.
First, the law now leans in favour of generosity. If a grantor conveys land, or if a testator devises land, without any words of limitation at all, then the inference is that he gives away the largest estate he can, and that usually means the fee simple. The inference is displaced if the document discloses a contrary intention.
FREEHOLDS
(b)
Fee simple
It follows, therefore, that, in order to transfer a fee simple, it is not strictly
necessary to use any words of limitation, and, indeed, on the transfer of a registered freehold, none are used. The relevant form says simply that the
transferor transfers to the transferee ‘the land comprised in the title above mentioned’ – but the title itself will identify the land as freehold (fee simple) or leasehold (term of years) so that there is no ambiguity.
In the case of an unregistered freehold, again it is not strictly necessary to use words of limitation, but they are desirable if only to make the intention plain and unambiguous. Any expression may be used which implies perpetual ownership (‘forever’, ‘absolutely’ and so on), but there are three traditional phrases which leave no room for doubt:
•to Adam in fee simple is the expression almost invariably used today; •to Adam and his heirs used to be the standard expression in days when
the fee simple was an estate inheritable by the heirs general; it is still effective today to convey the fee simple, but it should be shunned as an anachronism;
•to the Archbishop of Canterbury and his successors is the correct expression to use in the case of a corporation sole, a concept which needs brief explanation.
A corporation is an artificial person, a legal entity separate and distinct from the human beings it represents. A corporation may exist at common law (for example, the Crown), be created by charter under the Crown prerogative (for example, the University of Birmingham), or be created by or under statute (for example, limited companies under the Companies Acts). A corporation which represents several human beings, such as the ordinary limited company, is called a corporation aggregate. A corporation which represents just one human being, such as a bishopric, is called a
corporation sole.
A grant of freehold land to a corporation aggregate cannot but be in fee simple. It is not alive, and so cannot take a life interest (save, to be pedantic,
pur autre vie). It has no heirs, and so could never take an entail. The choice
is fee simple or lease. In principle, the same is true of a corporation sole; but there is a potential ambiguity in this case. Take a grant ‘to the Archbishop of Canterbury, George Carey’. Does that give a fee simple to the See of Canterbury, or to His Grace in his personal capacity? The correct words of limitation to ensure that a gift goes to the office and not the man are ‘to the Archbishop of Canterbury and his successors’.
92
(c)
Entail
No entail may be created after 1996. Any attempt to create an entail today takes effect as a declaration of trust for the grantee in fee simple. But entails created before 1997 may continue to exist, and it is necessary to be able to recognise an entail in the event that you encounter one.
In order to create an entail, it was vital to use words of limitation – and special words at that. One of two formulae had to be used. Nothing else would do. Other wording might create a fee simple or a life estate, but not an entail. The two magic formulae were:
• in tail; and
•the word heirs, followed by words of procreation.
The first formula needs no explanation, except to say that words could be added to make it a restricted entail: in tail male, in tail female.
As for the second formula, the word heirs was indispensable. ‘Words of procreation’ are words which indicate that the grant was limited to the
lineal heirs of the grantee. ‘Of his body’ was the usual expression, but any
suitable words of procreation might be used. Thus these are entails: ‘to Adam and the heirs by him begotten’, ‘to Beth and the heirs female by her born’, ‘to Colin and the heirs of his body to him born by Dilys’. But ‘to Frank and the issue of his body’ did not create an entail (because heirs was not used), and created a fee simple instead.
(d)
Life interest
In order to create a life interest some words of limitation must be used, otherwise the gift will be assumed to be in fee simple; but no special words of limitation are necessary as long as the meaning is plain: ‘to Adam for life,’ ‘to Beth as long as she may live.’