who dies leaving a son, the grandson in this case cannot inherit the estate-tail; [* 220] for he cannot deduce his descent wholly by heirs male (y). And as the heir male must convey his descent wholly by males, so must the heir female wholly by females. And therefore, if a man has two estates-tail, the one in tail male, the other in tail female; and he has issue a daughter, which daughter has issue a son; this grandson can succeed to neither of the estates; for he cannot trace his descent wholly either in the male or female line (z). Words neces fee tail. As the word heirs is necessary to create a fee, so in further limitation of the strictness of the feudal donation, the word body, or some other words of procreation, are necessary to make it a fee tail, and ascertain to what sary to create a heirs in particular the fee is limited. If, therefore, either the words of inheritance or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an estate-tail. As, if the grant be to a man and the issue of his body, to a man and his seed, to a man and the children, or offspring; all these are only estates for life, there wanting the words of inheritance, his heirs (a). So, on the other hand, a gift by deed to a man, and his heirs, male or female, is an estate in fee simple, and not in fee tail; for there are no words to ascertain the body out of which they shall issue (b). But in last wills and testaments, wherein greater indulgence is allowed, an estate-tail may be created by a devise to a man and his seed, or to a man and his heirs male; or by other irregular modes of expression (c). There is still another species of entailed estates, now indeed grown out of use, yet still capable of subsisting in law; which are estates in libero maritagio, or * frankmarriage. These are defined (d) to be, where Estate in frank- [* 221] tenements are given by one man to another, together with a wife (e), who is the daughter or cousin of the donor, to hold in frankmarriage. Now, by such gift, though nothing but the word frankmarriage is expressed, the donees shall have the tenements to them, and the heirs of their two bodies begotten; that is, they are tenants in special tail. For this one word, frankmarriage, does ex vi termini not only create an inheritance, like the word frankalmoign, but likewise limits that inheritance; supplying not only words of descent, but of procreation also. Such donees in frankmarriage are liable to no service but fealty; for a rent reserved thereon is void, until the fourth degree of consanguinity be past between the issues of the donor and donee (ƒ). marriage. (y) Litt. s. 24. (2) Co. Litt. 25. (a) Co. Litt. 20; 2 W. Bl. 728. (b) Litt. s. 31; Co. Litt. 27. (c) Co. Litt. 9, 27. Or to a man and his children, if he has no children at the time of the devise (6 Co. 17); or to a man and his posterity (1 H. Bl. 447); or by any other words, which show an intention to restrain the inheritance to the descendants of the devisee. See 2 Jarman on Wills, 232 et seq. (d) Litt. s. 17. (e) But it seems the gift may be as well af. ter marriage as before. Dy. 147; Co. Litt. 21 b. (f) Litt. ss. 19, 20. "And the degrees in frankmarriage shall be accounted in this manner, viz., from the donor to the donees in frankmarriage the first degree, because the wife that is one of the donees ought to be daughter, sister, or other cousin to the donor; and from the donees unto their issue shall be accounted the second degree, and so forth." Litt. s. 20. And the reason is, that after the fourth degree the issues of the donor and donee may intermarry, b.; but the rule is inflexible, though sometimes the issues may intermarry before the fourth degree is past. Harg. Co. Litt. 22 a. A conditional estate at common law reverted to the In order fully to understand the nature of these estates-tail, which we have been describing, we must refer to their history. Our ancestors held, that a gift to a man and the heirs of his body was a gift subject to the provision that it should revert to the donor, if the donee had no heirs of his body; but, if he had, it should then remain to the donee. They therefore called it a fee-simple, on condition that he had issue. So that as soon as the grantee had any issue born, his estate was supposed to become absolute, by the performance of the condition; at least for these three purposes: 1. To enable the tenant to donor, if donee no heirs. Condition, how evaded. * aliene the land, and thereby to bar not only his own issue, but also [* 222] the donor of his interest in the reversion (g). 2. To subject him to forfeit it for treason, which he could not do, till issue born, longer than for his own life; lest thereby the inheritance of the issue, and reversion of the donor, might have been defeated (h). 3. To empower him to charge the land with rents, commons, and various other incumbrances, so as to bind his issue (i). And this was thought the more reasonable, because, by the birth of issue, the possibility of the donor's reversion was rendered more distant and precarious: and his interest seems to have been the only one which the law, as it then stood, was solicitous to protect; little regard being had to the right of succession intended to be vested in the issue. However, if the tenant did not in fact deal with the land, no effect was produced on the legal character of his estate; for if the issue had afterwards died, and then the tenant, or original grantee, had died, without making any alienation; the land, by the terms of the donation, could descend to none but the heirs of his body, and therefore, in default of them, must have reverted to the donor; moreover, after the death of the issue, the donee could not aliene unless other issue were born (k). For which reason, in order to subject the lands to the ordinary course of descent, to collaterals in default of descendants, the donees of these conditional fee simples took care to aliene as soon as they had issue; and afterwards repurchased the lands, which gave them a fee simple absolute, that would descend to the heirs general, according to the course of the common law. And thus stood the old law with regard to fees of this character: which things, says sir Edward Coke (1), "though they seem ancient, are yet necessary to be known; as well for the knowledge of the common law as for annuities, and such like inheritances, as cannot be entailed within the said statute (de donis), and therefore* remain at the common law," one of the most important of which, we may add, is copyhold land in a manor where there is no custom to entail. [* 223 ] The inconveniences which attended these limited and fettered inheritances, were probably what induced the judges to give way to this subtle finesse of construction (for such it undoubtedly was), in order to shorten the duration of these conditional estates. But, on the other hand, the nobility, who were willing to perpetuate their possessions in their own families, to put a stop to this practice, procured the statute of Westminster 2 (m) (commonly called the Statute de donis statute de donis conditionalibus) to be made; which paid a greater conditionalibus. regard to the private will and intentions of the donor, than to Co. Litt. 19; 2 Inst. 233. VOL. I.-70 (k) 7 Rep. 62; Plowd. 235. (4) 1 Inst. 19. (m) 13 Ed. I., c. 1, A. D. 1295. the propriety of such intentions, or any public considerations whatsoever. This statute revived in some sort the ancient feudal restraints which were originally laid on alienations, by enacting, that from thenceforth the will of the donor be observed; and that the tenements so given (to a man and the heirs of his body) should at all events go to the issue, if there were any; or, if none, should revert to the donor (n). statute. Upon the construction of this act of parliament, the judges determined that the donee had no longer a conditional fee simple, which became absolute Construction of and at his own disposal, the instant any issue was born; but they divided the estate into two parts, leaving in the donee a *new kind of particular estate, which they denominated a fee-tail, and vesting in the donor the ultimate fee-simple of the land, expectant on the failure of issue; which expectant estate is what we now call a reversion (o). And hence it is that Littleton tells us (p), that tenant in fee-tail is by virtue of the statute of Westminster 2. [* 224 ] Such was the origin of estates-tail; the next question, therefore, is, what things may, or may not, be entailed under the statute de donis. Tenements is All hereditaments which savour of the realty may be entailed. But mere the only word used in the statute: and this sir Edward Coke (q) expounds as comprehending all corporeal hereditaments whatsoever; and also all incorporeal hereditaments, which savour of the realty, that is, which issue out of corporeal ones, or which concern, or are annexed to, or may be exercised within the same; as rents, estovers, commons, and the like. Also officers and dignities which concern lands, or have relation to fixed and certain places, may be entailed (r). Personal chat- personal chattels, which savour not at all of the realty, cannot be entailed. Neither can an office, which merely relates to such personal chattels; nor an annuity, which charges only the person, and not the lands of the grantor. But in these last, if granted to a man and the heirs of his body, the grantee has either an absolute interest at once, or at least a fee conditional such as at common law existed before the statute; and by his alienation (in the latter case after issue born) may bar the claim of every person whether heir or reversioner (s). An *estate to a man and his heirs for another's life cannot be entailed (†): for tels not. Estate for life of [* 225 ] another, not, (n) The words are, "That the will of the donor according to the form in his deed of gift manifestly expressed should be observed, so that they to whom a tenement was so given upon condition, should not have power of alienating the tenement so given, whereby it might not remain after their death to their issue, or to the heir of the donor if the issue should fail, whether by the want of any issue at all, or by death and failure of heirs of what issue there might have been." It will be observed that the statute does not absolutely annul every alienation the tenant in tail may make, but merely provides that no alienation shall prevent the title of the issue in tail, and of the donor's heirs; and this distinction will be found to be important. (0) 2 Inst. 335. (p) Sect. 13. (g) 1 Inst. 19, 20. (r) 7 Rep. 33. (8) Co. Litt. 19, 20. If an annuity is granted out of personal property to a man and the heirs of his body, it is a fee conditional at common law, and there can be no remainder or further limitation of it; and when the grantee has issue, he has the full power of alienation, and of barring the possibility of its reverting to the grantor by the extinction of his issue. Stafford v. Buckley, 2 Ves. S. 170; 1 Bro. 325. But out of the term for years, or any personal chattel, except in the instance of an annuity, neither a fee-conditional nor an estate tail can be created; for if they are granted or devised by such words as would convey an estate tail in real property, the grantee or devisee has the entire and absolute interest without having issue; and as soon as such an interest is vested in any one, all subsequent limitations of necessity become null and void. (1 Bro. 274; Harg. Co. Litt. 20; Fearne, 345, 3rd ed.) See post, c. 9; 1 J. B. Moore, 346; 12 Ves. 225. (t) 2 Vern. 225. nor copyholds, this is strictly no estate of inheritance (as will appear hereafter), and therefore not within the statute de donis (u). Neither can a copyhold except by cus- estate be entailed by virtue of the statute; for that would tend to encroach upon and restrain the will of the lord (x); but by the special custom of the manor, a copyhold may be limited to the heirs of the body (y); for here the custom ascertains and interprets the lord's will (z). tom of manor. *The incidents to a tenancy in tail under the statute of West- [*226] minster 2 are principally these (a): a tenant in tail may commit waste on the entailed land, by felling timber, pulling down houses, or the like, without being impeached or called to account for the same by the issue in tail (b). Next, the widow of the tenant in tail shall have her dower, or life interest, in a third of the tenement, in like manner as the widow of tenant in fee simple; the right to which we shall hereafter more fully explain. Lastly, an estate-tail, may notwithstanding the apparently adverse declaration of the statute, be barred or converted into an ordinary estate in fee simple by the tenant in tail. This now can only be done in the special manner and subject to certain restrictions pointed out by a modern enactment; previously to which, however, it could be effected by certain fictitious legal processes called common recoveries and fines, the nature of which, though now obsolete, it may be well shortly to examine. These ancient as well as the present methods of depriving the issue of a tenant in tail of the benefit of the gift which the law had declared should remain to them, we shall, therefore, in a subsequent chapter explain. Thus much for the nature of estates-tail: the establishment of which family law (as it is properly styled by Pigott (c)), occasioned infinite difficulties and Inconveniences disputes (d). Children grew disobedient when they knew they of settlements. could not be set aside: farmers were ousted of their leases made by tenants in tail; for, if such leases had been valid, then, under colour of long leases, the issue might have been virtually disinherited: creditors were de (u) See post, c. 8. (x) Doe v. Clark, 5 B. & Al. 458. "Where an act of parliament doth alter the service, tenure, or interest of the land or other thing, in prejudice of the lord or of the custom of the manor, or in prejudice of the tenant, there the general words of such act of parliament shall not extend to copyholds; but where an act of parliament is generally made for the good of the weal public, and no prejudice can accrue by reason of alteration of any interest, service, tenure, or custom of the manor, there many times copyhold and customary estates are within the general purview of such acts." Heydon's Case, 3 Rep. 8. For an example of copyholds being held to be included in a statute, under the general description of lands, tenements and hereditaments, where no prejudice could ensue to the lord, see Doe v. Bottriell, 5 B. & Ad. 131. (y) 3 Rep. 8. (2) "It is not a sufficient proof that lands have been granted in tail; for albeit lands have anciently and usually been granted by copy to many men, and to the heirs of their bodies, that may be a fee simple conditional, as it was at the common law. But if a remainder have been limited over of such estates and enjoyed, or if the issues in tail have avoided the alienation of the ancestor, or if they have recovered the same in writs of formedon in the descender, these and such like be proofs of an estate tail." Co. Litt. 60 b; see 3 Dougl. 306. In some places (as in the forest of Knaresborough), there is an express custom prohibiting entails; and even without such prohibition, copyhold lands cannot be entailed, unless there be a special custom for the purpose; and in manors where there is no such custom, a limitation to A. and the heirs of his body confers a fee simple conditional as at common law. 5 Scott, 787. An entail in lands subject to the custom of Borough English goes to the youngest son (2 W. Bl. 1228); and so of other customary descents. 2 B. & Ad. 95; Trash v. Wood, 4 Myl. & Cr. 324. (a) Co. Litt. 224. (b) A.-G. v. Duke of Marlborough, 3 Mod 532; Saveil's Case, Ca. t. Talb. 16. (c) Com. Recov. 5. (d) 1 Rep. 131. common re frauded of their debts; for, if tenant in tail could have charged his estate with [* 227] their payment, he might also have defeated his issue * by mortgaging it for as much as it was worth; innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; of suits in consequence of which our ancient books are full: and treasons were encouraged; as estates tail were not liable to forfeiture, longer than for the tenant's life. So that they were justly branded, as the source of new contentions and mischiefs unknown to the common law; and almost universally considered as the common grievance of the realm (e). But as the nobility were always fond of this statute, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature, and therefore, by the connivance of an active and politic prince, a method was devised to evade it. About two hundred years intervened between the making of the statute de donis, and the application of common recoveries to this intent, in the twelfth year of Edward IV.: which were then openly declared by the Adoption of judges to be a sufficient bar of an estate-tail (ƒ). For though coveries. the courts had, so long before as the reign of Edward III., very frequently hinted their opinion that a bar might be effected upon these principles (g), yet it never was carried into execution, till Edward IV., observing (h) (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had on families, whose estates were protected by the sanctuary of entails, gave his countenance to this proceeding, and suffered Taltarum's case to be brought before the court (i): wherein, in consequence of the principles then laid down, it was in effect determined, that a common recovery suffered by a tenant in tail should be an effectual destruction thereof (k). Common recoveries thenceforward were * adopted as ordinary [* 228] assurances, and continued to be so until, as we shall see, they were abolished to make way for a more simple mode of effecting the same object in manner suited to modern ideas and wishes. Whilst, however, they existed they were looked upon as the legal mode of conveyance, by which a tenant in tail might dispose of his lands and tenements: so that no court would suffer them to be shaken or reflected on, and even acts of parliament (1) by a sidewind countenanced and established them. Estates tail forfeited for This expedient having greatly abridged estates-tail with regard to their duration, others were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treason. For, notwithstanding the large advances made by retreason. coveries, in the compass of about threescore years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them frequently resettled in a similar manner, to suit the convenience of families, had address enough to procure a statute (m), whereby all estates of inheritance (under which general words (e) Co. Litt. 19; Moor, 156; 10 Rep. 38. (f)1 Rep. 131; 6 Rep. 40. (g) 13 Rep. 37, 38. (h) Pigott, 8, (i) Year Book, 12 Ed. 4, 14, 19; Fitzh. Abr. tit. Faux Recov. 20; Bro. Abr. 1b. 30, tit. Recov. in value, 19; tit. Taile, 36. (k) In Taltarum's Case the court decided, that, under the circumstances, the entail had not been destroyed; but they founded their argument upon the assumption that a recovery properly suffered would have destroyed it. (2) 11 Hen. 7, c. 20; 7 Hen. 8, c. 4; 34 & 35 Hen. 8, c. 20; 14 Eliz. c. 8; 4 & 5 Ann. c. 16; 14 Geo. 2, c. 20. (m) 26 Hen. 8, c. 13. |