Giving and withholding being incompatible acts, a testator can not devise an estate in fee simple and withhold from the devisee any of the rights, privileges and powers, incident and essential to the estate devised. Since those rights are incident to a fee simple, when a testator devises such an estate, the devisee obtains those rights, not under the will but as incident to the estate devised. : a fee that is freely inheritable and alienable without any limitations or restrictions on transfers and that is of indefinite duration NOTE: A fee simple absolute is conveyed by language granting the estate to the grantee and his or her heirs, to the grantee, his heirs and assigns, or to the grantee. The word fee means an estate of inheritance.
Among those essential rights were the right of possession, the right to alienate by deed, or devise by will, or to have the estate descend to the heir at law. Blacks Law Dictionary defines freehold interest as an estate in land held in fee simple, fee tail or for term of life. The rights and privileges incident to an estate in fee simple constituted the estate-they were all essential, they were its bone, sinew and blood, and in the absence of any one of them the estate was regarded as less than a fee simple.
Under the common law one who held an estate in lands in fee simple absolute was the sole owner of such lands, and his right to enjoy the estate and exercise all the powers and privileges incident thereto could not be restricted by the devisor or grantor.
