[Estates-tail are either general or special. Tail-general is where lands and tenements are given to one and the heirs of his body begotten; which is called tail-general, because, how often soever such donee in tail be married, his issue in general by all and every such marriage is, in successive order, capable of inheriting the estate tail per formam doni (h). Tenant in tail special, is where the gift is restrained to certain heirs of the donee's body by a particular person; as where lands and tenements are given to a man and the heirs of his body, on Mary his now wife to be begotten. Here no issue can inherit but such special issue as is engendered between them two; not such as the husband may have by another wife. And therefore it is called special tail (i). Estates in general and special tail are further diversified. by the distinction of sexes in such entails; for both of them may either be in tail male or in tail female. As if lands be given to a man and the heirs male of his body begotten, this is an estate in tail male general; but if to a man and the heirs female of his body on his present wife begotten, this is an estate in tail female special. And in case of an entail male, the heirs female shall never inherit, nor any derived from them; nor è converso the heirs male, in case of the gift in tail female (). Thus, if the donce in tail male hath a daughter who dies leaving a son, such grandson in this case cannot inherit. the estate tail; for he cannot deduce his descent wholly by heirs male (). And, therefore, if a man hath two estates-tail, the one in tail male the other in tail female, and he hath issue a daughter, which daughter hath issue a son; this grandson can succeed to neither of the For he cannot convey his descent wholly either in the male or in the female line (m). estates. As the word heirs used to be necessary, in a deed, to (h) Litt. ss. 14, 15. (i) Ibid. s. 16. (k) Ibid. ss. 21, 22. (1) Ibid. s. 24; Co. Litt. 25 b. (m) Ibid. [create a fee, so the word body (or some other words of procreation) (n) used to be necessary to make it a fee-tail. If, therefore, either the words of inheritance. or the words of procreation were omitted, albeit the others were inserted in the grant, this would not make an estate-tail. For example, if the grant were to a man and the issue of his body, to a man and his seed, to a man and his children or offspring; all these would be but estates for life, there wanting the words of inheritance, "his heirs" (o). So, on the other hand, a gift to a man and his heirs male, or heirs female, was an estate in fee-simple, and not in fee-tail; there being no words to ascertain the body out of which they should issue (p). Indeed, in last wills and testaments, wherein greater indulgence is allowed, an estate tail could always (when devises were allowed at all) 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 (q).] And now, by the Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 51, it is no longer necessary, for the creation of an estate tail by deed, to use the words "heirs of the body"; but it suffices to say "in fee tail," with or without the word male or female, as may be required. [Save in the power of alienation, the tenant in tail had all the rights, and his estate was subject to most of the incidents of an estate in fee simple. Thus, the tenant in-tail might, with impunity, commit waste of the land. His widow was entitled to dower; and the husband of a deceased tenant in-tail to curtesy. To this rule there was but one exception, in the case of the tenant in tail after possibility of issue extinct, to be hereafter explained. But it was not until the reign of Henry VIII. that the estate (n) Beresford's Case, (1607) 7 Rep. 40. (0) Co. Litt. 20 b. (p) Litt. s. 31; Co. Litt. 27 a; Abraham v. Twigg, (1596) Cro. [tail was rendered liable to forfeiture for treason, and it was never forfeitable for the felony of the tenant-in-tail (»). Estates tail proved to be the occasion of infinite difficulties and disputes (s). Children grew disobedient when they knew they could not be disinherited. Farmers were ousted of their leases made by tenants in tail; for, if such leases had been valid, they would have virtually disinherited the issue. Creditors were defrauded of their debts; for, if tenant in tail could have charged his estate with their payment, he might 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. Treasons also were encouraged, as estates tail were not at first liable to forfeiture longer than the tenant's life. In fact, entails were justly branded as a source of new contentions, unknown to the common law, and were almost universally considered as a common grievance of the realm (t). But as the nobility were always fond of the statute De Donis, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature. And, therefore, it was necessary, as the statute could not be repealed, to devise a method. of evading it. The method resorted to was the decision of the judges in Taltarum's Case (u), wherein it was (in effect) admitted, that a common recovery suffered by tenant in tail would convert his estate into a fee simple absolute, and bar all persons claiming the estate tail, or any estate ulterior thereto; and in consequence of that declaration, a common recovery came to be looked upon as the legal mode of conveyance by which a tenant in tail might effectually (r) Litt. s. 747. (s) Chudleigh's Case, (1589) 1 Rep. 131 b. (t) Co. Litt. 19 b; Mary Port ington's Case, (1613) 10 Rep. 38. (u) Year Book, 12 Edw. IV., (1472) Mich. pl. 16 and 25, fo. 14 and 19. [dispose of the fee simple of his lands and tenements. What common recoveries were, and why they were allowed to be a bar to the estate tail, must be reserved to a subsequent enquiry. At present we shall only say, that they were fictitious proceedings, introduced by a kind of pia fraus; and that these recoveries, however clandestinely begun, at length became, by long use and acquiescence, a most common assurance of lands.] And, although the cumbrous forms of the common recovery have been abolished by a statute of the year 1833 (x); the rules of law established by the use of them and the kindred conveyance, known as a fine, are carefully preserved, and, in fact, govern the alienation of estates tail at the present day. [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 forfeitures for treason. This privilege was destroyed by a statute of the year 1534 (26 Hen. VIII. c. 13), whereby all estates of inheritance (under which general words estates-tail were covertly included) were declared to be forfeited to the king for any conviction of high treason. The next attack which they suffered, in order of time, was by the 32 Hen. VIII. c. 28, passed in the year 1540, whereby certain leases made by tenants in tail, not tending to the prejudice of the issue, were allowed to bind the issue in tail, though not the remainderman or reversioner (y). But they received a more violent blow by another statute of the same year, 32 Hen. VIII. c. 36, whereby it was declared that a fine, when duly levied by a tenant in tail, should bind, not only the tenant in tail himself, but also his heirs and all other persons claiming under the entail. Also, by the 33 Hen. VIII. (1541) c. 39, s. 75, estates-tail were rendered liable to be charged (x) Fines and Recoveries Act (y) Co. Litt. 45 b. (3 & 4 Will. IV. c. 74). [with the debts of the tenant in tail due to the king by record or specialty contract; by the construction put upon the 43 Eliz. (1601) c. 4, the tenant in tail was enabled to convey the fee simple to a charitable use (2); and by the 21 Jac. I. (1623), c. 19, s. 12, the estate tail, in case the tenant in tail was made a bankrupt, became liable for his debts generally. Estates tail, being thus by degrees unfettered, were reduced again to almost the same state, even before issue born, as conditional fees were in at the common law, after the condition was performed by the birth of issue.] The chief differences between an estate-tail and an estate in fee-simple, are in fact only these, that the tenant in tail cannot dispose of any interest by will, and that, in order to bind his issue and the remainderman, he must use the forms provided by the Fines and Recoveries Act, 1833 (a), hereafter to be explained (b). (z) Attorney-General (1703) 2 Vern. 453. V. Rye, (a) 3 & 4 Will. 4, c. 74. |