ing by descent and not by purchase. If limited to the heirs of his body generally, it is designated as general; if to particular heirs of his body only, it is special; if to male heirs of his body, it is male; and if to female heirs of his body, it is female. It is a life estate to the first taker, enlarging to a fee in the heirs designated upon their coming into existence and surviving the tenant in tail, but shrinking to a life estate upon the possibility of heirs becoming extinct. The grantor holds the fee simple expectant on the failure of the described heirs of the body of the grantee.1

§ 938. The Same Subject: As to Personalty.

Estates tail do not pertain to personalty or chattel interests. Where personal property or any interest in real property less than a freehold is bequeathed by words which at common law, if applied to lands, would create an estate tail, an absolute interest passes to the first

1 Wilmans v. Robinson, 67 Ark. 517, 55 S. W. 950; Den v. Pierson, 16 N. J. L. 181.

An estate tail is one of inheritance descendible to some particular heirs of the devisee or grantee and not to his heirs generally. Its character is not changed by its descent through any number of generations. It is particularly distinguished as being measured by the continuance of issue of the body of the donee and its existence de

termined only on the failure of such issue, and its descent to lineal and not collateral heirs.-Conover v. Cade, (Ind.) 112 N. E. 7.

An estate in fee tail is a "feodum talliatum," that is a fee from which the general heirs are "taille"-cut off.-Paterson v. Ellis' Exrs., 11 Wend. (N. Y.) 259, 277.

2 2 Blackstone Com. *113; Paterson V. Ellis' Exrs., 11 Wend. (N. Y.) 259.

taker. Any construction which seems to give an estate tail in personal property should be avoided.*

8939. Effect of the Statute De Donis on Conditional Fees.

At a very early date it became the custom in England to limit estates to one and some particular class of his heirs, as the heirs of the body of the grantee, or the heirs male of his body, other heirs being excluded. If the first taker died without leaving an heir of the class to which the estate was limited, the estate reverted to the grantor. But if heirs of the kind specified came into being during the lifetime of the first taker, the con

3 Ex parte Wynch, 1 Sm. & G. 427; Crawford v. Trotter, 4 Madd. 361, 20 Rev. Rep. 312; Williamson v. Daniel, 12 Wheat. (U. S.) 568, 6 L. Ed. 731; Machen v. Machen, 15 Ala. 373; Bethea's Exr. v. Smith, 40 Ala. 415; Moody v. Walker, 3 Ark. 147; Jones v. Sothoron, 10 Gill & J. (Md.) 187; Hall V. Priest, 6 Gray (72 Mass.) 18; Albee v. Carpenter, 12 Cush. (66 Mass.) 382; Chism's Admr. v. Williams, 29 Mo. 288; Fairchild v. Crane, 13 N. J. Eq. 105; Paterson v. Ellis' Exrs., 11 Wend. (N. Y.) 259; Moffatt's Exrs. v. Strong, 10 Johns. (N. Y.) 12; Jackson v. Bull, 10 Johns. (N. Y.) 19; Matthews v. Daniel, 3 N. C. 346; King v. Beck, 12 Ohio 390; In re Smith's Appeal, 23 Pa. St. 9; Cox v. Marks, 27 N. C. 361; Dunlap v. Garlington, 17 S. C. 567; Duncan v. Martin, 7 Yerg. (Tenn.) 519, 27 Am. Dec. 525; Clark v. Clark, 2 Head (39 Tenn.) 336; White v. White, 21 Vt. 250; Doty v. Chaplin, 54 Vt. 361;

Deane v. Hansford, 9 Leigh (Va.) 253; Williamson v. Ledbeeter, 2 Munf. (Va.) 521.

Compare: Knight v. Ellis, 2 Bro. C. C. 570; Heather v. Winder, 3 L. J. Ch. N. S. 41; Ex parte Wynch, 1 Sm. & G. 427.

In Smith's Appeal, 23 Pa. St. 9, it is said: "How can it be otherwise? Chattels can not be inherited. They pass to one set of representatives and land to another. The personal representatives can not take land by descent, nor the real representatives, chattels."

4 Fulton v. Fulton, 2 Grant Cas. (Pa.) 28.

But see, Talbot v. Snodgrass, 124 Iowa 681, 100 N. W. 500, wherein the court said: "It is no doubt true that personal property may be bequeathed in fee tail or on condition, but such a construction should not be put on the provisions of a will giving a legacy unless the language clearly and explicitly requires it."

dition of the estate was fulfilled and the grantee could pass the title in fee simple to another, the subsequent death of the particular heir or heirs not affecting the title alienated." If no such transfer was made by the first taker during the life of the particular heirs, their deaths before that of the first taker would, at the latter's death, cause the estate to revert as if such heirs had never come into existence.

To prevent such alienation by the grantee, the statute de donis conditionalibus was enacted. Under this statute the right of alienation was taken away although heirs of the particular class were in being, the estate being limited to such heirs at the death of the first taker, and in default of such heirs the title reverted to the grantor. This conditional fee was then called an estate tail. It had all the characteristics of an estate in fee simple except the tenant in tail could not alienate the fee; he was not, however, chargeable with waste.

§ 940. Converting Estates Tail to Fees Simple by Fine or Common Recovery.

Although the statute de donis precluded the tenant in tail from cutting off the particular heirs by a conveyance of the property during their lifetime, yet this restraint on alienation became so burdensome that a means was devised to overcome it. This was effected by a fine or common recovery. Common recovery was a fictitious suit

5 Coke, Litt. 19a; 2 Bl. Com. *111; Nevil's Case, 7 Coke, 33a, 34b.

6 Known also as Statute of Westminster 2, 13 Edw. 1, ch. 1 (A. D. 1285).

7 2 Bl. Com. **112-116.

8 Coke, Litt. 224a; 2 Bl. Com. *115; Jervis v. Bruton, 2 Vern. 251.

The tenant in tail could not encumber the inheritance or charge it with his debts. Wharton v.

Wharton, 2 Vern. 3.

brought by an intending purchaser and not resisted, by
the tenant in tail. This became the common method by
which the tenant in tail might pass title in fee simple and
thus bar the heirs." Estates tail therefore were reduced
to almost the same state, even before the heirs of the
particular class came into being, as were conditional es-
tates at common law after the condition was performed by
birth of such heirs.1
10

8941. Estates Tail in the United States: Statutory Regulations.

Estates tail were introduced in America with other parts of English jurisprudence, and the heirs could likewise be cut off by a fine or common recovery. Such actions, however, though once recognized, are now practically abolished.11

Estates tail are not generally recognized in the various jurisdictions in these United States. In many of the states they have been absolutely abolished and converted into estates in fee simple.12 Accordingly in these states

91 Washburn, Real Prop. **70, 71; 4 Kent. Com. *13; 2 Bl. Com. **116, 117.

10 2 Bl. Com. *119; 4 Kent Com. *13.

114 Kent Com. **14, 15; 1 Washburn, Real Prop. *83; Croxall v. Shererd, 5 Wall. (U. S.) 268, 18 L. Ed. 572; Gilkie v. Marsh, 186 Mass. 336, 71 N. E. 703; McGregor v. Comstock, 17 N. Y. 162.

Never recognized in Missouri, see Moreau v. Detchemendy, 18 Mo. 522, 527.

Recognized in Pennsylvania, see Lyle v. Richards, 9 Serg. & R.

(Pa.) 322; Taylor v. Taylor, 63 Pa.
St. 481, 485, 3 Am. Rep. 565.

12 Ala.-Clay's Dig., 1812, p. 157,
§ 37; Wallace v. Hodges, 160 Ala.
276, 49 So. 312; Terry v. Hood, 172
Ala. 40, 55 So. 423.

Ga. Act of Dec. 21, 1821; Hertz v. Abrahams, 110 Ga. 707, 50 Am. St. Rep. 361, 36 S. E. 409.

Ind.-Burns' Ann. St., § 3994; Teal v. Richardson, 160 Ind. 119, 66 N. E. 435; Conover v. Cade, (Ind.) 112 N. E. 7.

Ky. Ky. Stats., § 2343; Wright v. Curry, 163 Ky. 683, 174 S. W. 1.

Mich.-3 Comp. Laws, § 8785;

a grant or devise in terms which at common law would create a fee tail, now operates to confer a fee simple.13