ANCIENT DEMESNE.

155. The ancient tenants, who preserved their holdings from Edward the Confessor, thenceforward and during the reign of William I., were afterwards called tenants in ancient demesne: though this kind of tenure demands mention, it is now so rare, and has been so considerably altered by recent enactments, that, practically, it is of no popular importance.

FRANKALMOIGN.

156. One of the most ancient, if not the most ancient tenure, now subsisting, is Frankalmoign, or free alms, by which the lands of the Church are for the most part held.

157. Prayers in lieu of Fealty.-The peculiarity of frankalmoign tenure, was, anciently, that the tenants were not bound to do fealty to their lords, because it was held that the prayers, and other divine services of the tenants, were better for the lords than any doing of fealty.

158. Nearest Approach to Ownership.-Frankalmoign tenure (as not requiring fealty) is said to be the nearest approach to absolute dominion over the land, which the theory of the law never entirely concedes, and in this case there could of course be no individual property.

159. Mortmain a Bar to Frankalmoign.—The statutes of mortmain (*) have effectually prevented the creation of any modern tenures in frankalmoign.

PARAMOUNT POWER OF A WILL.

160. All the possible complications of descent to real property, in fee simple, may be entirely superseded by the will of any possessor at his option.

161. Under Frankalmoign.—A will of property, under the law of frankalmoign, seems to be an impossibility; but,

162. Under Gavelkind and Borough-English.-A tenant in gavelkind, or borough-English, is quite at liberty to dispose of his estate, however he pleases; hence,

163. Universality of Settlements and Entails.-A will or settlement of gavelkind or borough-English land, can as effectually entail it (175) as it can any other estate in fee simple, either in the order of primogeniture or otherwise, at the discretion of the settlor; and

PREFERENCE FOR PRIMOGENITURE.

164. The tendency in England is strongly in the direction of pri (a) See "Mortmain."

mogeniture, which has the effect of preserving an undivided inheritance from generation to generation; consequently,

165. Aggravation of the Law.-When estates are disposed of other than by descent at law, the disposition adopted by the possessor usually indicates a desire rather to aggravate the law than to modify it; hence,

166. Feudal Tendencies.-Most of the estates of the greatest landholders in England are strictly entailed (175) in accordance with the extremest feudal customs (134).

ENTAIL.

167. In the earliest times of feudal tenure, grants of land were made without any condition, though, in all ordinary cases where the fine was duly paid (49), estates descended to the heir of the donee; but,

168. Ancient Interest of the Crown in Entails.—As the custom of alienation, and the failure of direct heirs, gradually tended to breaking up estates, and to much confusion of identity, the control of the Crown became impaired; so,

169. Grants upon Condition.—It appears that Henry II. first adopted the practice of making grants of land "upon condition," that is, to the donee and the heirs of his body, so that, if he had no children the estate reverted to the king, as against the donee's brothers and other heirs not of his body, and this practice has become developed into the present law of entail.

RESISTANCE OF THE BARONS.

170. The barons resisted the first introduction of entail, and, as the lawyers concurred with them, a decision was soon arrived at, that the possessor of an estate tail was at liberty to alienate as soon as he had a child, the existence of one heir of his body being interpreted to be a fulfilment of the condition of grant; however,

CONCURRENCE OF THE BARONS.

171. The barons, who at first resisted entail, soon perceived that the system would tend to consolidate their own estates, so that they, in their turn, devised their possessions to their sons, upon condition of succession to their grandsons.

THE STATUTE OF WESTMINSTER.

172. As the lawyers, previously to Edward I., continued by their interpretations to frustrate the intentions of entailment, an Act was

passed, with the hearty concurrence of both barons and king, in the reign of Edward I., called the Statute of Westminster the Second (De Donis Conditionalibus), which provided as follows :—

"Wherefore our Lord the King, perceiving how necessary and expedient it should be to provide remedy in the aforesaid cases, hath ordained, that the will of the giver, according to the form in the deed of gift, manifestly expressed, shall be from henceforth observed; so that they to whom the land was given upon such condition, shall have no power to aliene the land so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert unto the giver or his heirs."

173. Inconvenience of Ancient Entails.-No sooner was strict entail provided for, by statute, than its inconvenience was felt: children became disobedient: no entailed estate could be forfeited for treason, except for the life of the possessor and estates tail were successfully created, for the purpose of defrauding creditors: notwithstanding,

174. Defiance of Inconvenience.—The desire to maintain large estates prevailed over every inconvenience, and the institution of entail survives, with some modifications, to the present day.

MODERN ENTAIL.

175. The only kind of property that can be entailed, is land in fee simple, or copyhold in possession. Personal property is not available for an estate tail, except in the limited sense that heirlooms can be said to be entailed (a).

176. By Will.—Any holder of estate in fee simple may effectually entail such estate by will, devising it to any person and the heirs of kis [or her] body (169), such words being interpreted to imply an

entail.

177. Operative Words.-In a will the words "and his [or her] issue," will create an estate tail; but,

BY SETTLEMENT.

178. The most usual way of entailing an estate is by marriage settlement (*). The intended husband, or the intended wife, if either has a landed estate, or the father or other friend of either of them, by effecting a settlement upon the parties and the heirs of their bodies, thus creates an estate tail.

179. Usual Course.-When the primary object of a settlement is to create an estate tail (207), a common course is for A to convey his landed estate to trustees, to be held by them for the benefit of A during his life, and at his death to devolve upon B and C for their (b) See "Settlements."

(a) See "Heirlooms."

lives, and the heirs of their bodies, which, after the death of A, makes B, the husband, a tenant for life, and if C the wife survives then she is tenant for life, after which their heir, if male, succeeds, or heirs, if daughters, become coparceners; or,

180. Reserve to Tenant for Life.-A marriage settlement may make the husband a tenant for life, then to be succeeded by his son, reserving dower (236), or other consideration for the widow, in lieu of tenancy for life.

DISTINCTIVE KINDS OF ENTAIL,

181. A landed estate may be entailed under a variety of recognized orders of succession and restrictions more or less modified; thus,

ENTAIL GENERAL.

182. An entail general is a settlement upon heirs of the body generally (169), including all descendants, in the same order as in the case of succession to a fee simple (129), strictly observing the law of primogeniture.

ENTAIL SPECIAL.

183. Special entail is created, when a marriage settlement indicates the children of that marriage only; thus,

184. Children of One Marriage only.-A strict entail by a marriage settlement (*), secures the children of that marriage only, to the exclusion of any other children, which either the father or mother may have by a second marriage; so that,

185. Precedence of Daughters over Sons.-Should the wife die, leaving one daughter, her only child; and the widower by a subsequent marriage should have a family of sons, the daughter would have the estate to the exclusion of such sons; therefore,

186. Special Provision to the Contrary.-When a settlement is made by a husband or his father, it is usual to provide against the wife dying, by making the settlement void should she die without leaving a son; but,

187. Justice of Special Entail in Certain Cases.-If the property settled is derived from the wife or her friends, the settlement should be strictly special in favour of her children only.

ENTAIL MALE.

188. It is frequently provided that the settlement shall be upon heirs male of the body, which excludes all but sons, and their male issue; thus,

(a) See "Settlements."

189. Settlement Defeated.—If an estate is settled upon heirs male, and there are only heirs female, the settlement is defeated; and

190. Precedence of Collateral Male.-When the eldest son, under a settlement upon heirs male, has issue only daughters, and his younger brother has a son, the estate must pass to such son, in defiance of the common law of succession (169); again,

191. Succeeding Generations.—If the eldest brother has daughters only, and the second brother has an only son who has a family of daughters only, and the third brother has a son who also has a son, who is thus the only or eldest great grandson of a settlor, and the settlement is upon heirs male, such great grandson, though only an infant or unborn, succeeds, to the exclusion of the elder branches of the family.

PRECEDENCE OF SETTLOR'S HEIRS OVER COLLATERALS. 192. In the ordinary course, when the direct heirs of an estate tail fail, the estate devolves upon the settlor or his heirs, and not upon the collateral heirs of the last holder; therefore,

193. Provision against Complications.—In most settlements of estates tail, in order to avoid complications of claims, it is usual to provide, in case there are no children of the contemplated marriage, as to which other branch of the family shall have the preference.

THE TENANT IN TAIL.

194. A tenant in tail, in possession, has the same rights and freedom of action, in his occupation, as if he were a tenant in fee simple; he may legally commit waste, fell timber, pull down, alter, or rebuild; open mines of minerals or metals, or do any other thing incident to his rights as a freeholder of inheritance; and additional powers are conferred upon tenants in tail by an Act of 1870, "33 and 34 Vic. c. 56."

UNLIMITED CONTROL.

195. However outrageous the proceedings of a tenant in tail may be-no matter what havoc or waste he may commit-the Court of Chancery will not, in any case, interfere; and this is carried to such an extreme, that

196. "Idle Bonds."-A bond to restrain a tenant in tail from committing waste is void; for,

197. Liable to be Cancelled.-It was decided, where a person settled an estate, and took a bond to restrain waste, that the bond