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[001] of others. A donor1 may always make any provision he wishes with respect to the
[002] thing given, since it is his completely, unless his charter specially provides that he
[003] may not.>2 Just as the class ‘heirs’ may be enlarged, as was said above, so it may be
[004] restricted by the modus of the gift, so that all heirs generally are not called to the
[005] succession, [For the modus imposes a law on a gift; the modus must be observed even
[006] if contrary to common right and to what the law would provide, for modus and
[007] agreement defeat law.]3 as where it is said, ‘I give to such a one so much land with
[008] the appurtenances in such a vill to have and to hold to him and his heirs born of
[009] his body and that of his wedded wife’ or ‘I give to such a one and to such a one
[010] his wife (or ‘[to such a one] with such a one, my daughter’) to have and to hold to him
[011] and his heirs of the body of such wife (or ‘[and the heirs] issuing from (or ‘born and
[012] to be born to’) such daughter’). Then, since certain heirs are specified in the gift,
[013] it is evident that the descent is4 only to them, their common heirs, all others being
[014] wholly excluded from the succession by the modus placed in the gift, because that
[015] was the donor's intention. Thus if such heirs are born they alone are called to the
[016] succession; [and if those so enfeoffed [then] enfeoff over, the feoffment is good and
[017] their heirs bound to warrant, since they can claim nothing except by succession
[018] and descent from their parents, though some think that they are enfeoffed with
[019] their parents, which is not true.]5 if they have no such heirs the land will revert
[020] to the donor by tacit condition,6 as where7 that it revert is not expressed in the gift,
[021] or by express condition, where the gift so provides, and so if heirs once come into
[022] being and fail. But in the first case, where no heir is born, the thing given the
[023] donee will always be a free tenement and not a fee;8 in the second, it will be a
[024] free tenement until there begin to be heirs, when they come into being the free
[025] tenement begins to be a fee,9 and when they fail it ceases to be a fee, once again
[026] becoming a free tenement, and thus there will never be an exaction of dower,
[027] [unless the gift is absolute, no express mention made of a reversion.]10 11Suppose
[028] this is said in a gift, ‘I give to such a one so much land with the appurtenances
[029] etc. to have and to hold to him and his heirs if he has heirs born of his body.’ If
[030] such heirs are born, though they subsequently fail, all [heirs] are to be called
[031] generally, ad infinitum, because the condition is satisfied.12 But if no such heir is
[032] born the thing given



Notes

1. ‘donator’

2. Infra 141, 142-3

3. Glanvill, x, 14; infra 106, 143

4. ‘sit’

5. Supra 66; this portion belongs infra at n. 9

6. Inst. 2.7.3: ‘tacitam in se conditionem habet’

7. ‘ut si’

8. Infra 76, 267; cf. 144

9. Supra n. 5

10. Reading: ‘expresse,’ as infra 82: ‘nisi cum sit pure donatio et non condicionalis nec modalis, ita quod expresse revocetur.’; infra 76, 82, 144, 267

11. New paragraph

12. Infra 144


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