a different manner. But as Lord Coke observes (ƒ), these things, though they seem ancient, are yet necessary to be known; as well for the declaring how the common law stood in such cases, as for the sake of annuities, and such-like inheritances, as are not within the statutes of entail (g), and therefore remain as at the common law.] II. The subject of conditional fees leads us by a natural introduction, to our second general division of estates in fee tail, or, as they are more concisely termed, estates tail. An estate tail (h) is that which a man hath to hold to him and the heirs of his body, or to him and particular heirs of his body; being as to the form of donation, the same kind of estate that we have just been considering under the name of fee simple conditional (i); for in that light (as we have seen) it was at first contemplated. But by force of the statute to be presently mentioned, and of the judicial construction which that statute received (k), another character has been long attached to it in point of legal effect :—viz. that of an estate tail; the incidents or consequences of which are very different from those of a fee conditional. The history of the change is as follows: [The inconveniences which attended a limited and fettered inheritance were probably what induced the judges to give way to the subtle finesse of construction (for such it undoubtedly was), by which the dispositions in question were construed as 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 the second (1), (commonly called the statute De donis conditionalibus) to be made; which paid a greater regard to the private will (f) Co. Litt. 19 a. (g) As to the things capable of being entailed, vide Co. Litt. by Harg. 20 a, n. (3), n. (5); Moore v. Lord Plymouth, 7 Taunt. 614. (h) As to this estate, vide Co. Litt. 18 b-28 b. (i) Willion v. Berkley, Plowd. 237. (k) 2 Inst. 335. (1) 13 Edw. 1, c. 1. Cand intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever.] This statute enacted that from thenceforth the will of the donor be observed secundum formam in carta doni expressam; and that the tenements so given (to a man and the heirs of his body, or the heirs male of his body, or the like) should, notwithstanding any alienation by the donee, go to his issue, if there were any; or, if issue failed, should revert to the donor or his heirs. [Upon the construction of this act of parliament, the judges determined that the donee had no longer a conditional fee-simple; but they divided the estate into two parts (m), leaving in the donee a new kind of particular estate, which they denominated a fee-tail (n); and vesting in the donor the ultimate fee-simple of the land, expectant on the failure of issue (o). And hence it is that Littleton tells us(p), that tenant in fee-tail is by virtue of the statute of Westminster the second.] This expectant estate or reversion of the donor is considered as of a different nature from the right which belonged to the donor of a fee-conditional: for his reverter was only in possibility (q), being dependant on the contingency of the estate's determining by force of the condition; but the reversion of the donor of an estate tail is the residue of the fee, and therefore a fixed or vested interest. By the express provision of the statute, the alienation of the tenant in tail was not to defeat the succession of the issue, or the reversion of the donor and his heirs. It (m) 2 Inst. 335; Butler's Fearne, 382 (n.), 9th edit. (n) The expression fee tail, or feodum talliatum, was borrowed from the feudists; (see Craig, 1. 1, t. 10, s. 24, 25;) among whom it signified any mutilated or truncated inheritance; being derived from the barbarous verb taliare, to cut; from which the French tailler and the Italian tagliare are formed.-Spelm. Gloss. ad verb. Feo dum. (0) 2 Inst. 335. (q) 2 Inst. 335; Co. Litt. 22 a. See the remarks on this subject in Bac. Abr. tit. Remainder and Reversion. was not, however, otherwise restrained; nor was the alienation of a tenant in tail a void act- for his leases, though liable to be defeated after his death by those claiming under the entail, were in other respects effectual; and if he conveyed his estate to another and his heirs, the alienee took a fee-simple to hold as long as the alienor lived or had heirs of his body; which is a base fee. But this estate was determinable on his death and the failure of his issue; and even on his death might be avoided by the entry of the issue (r). [Estates-tail are either special or general. 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 (s). Tenant in tail-special is where the gift is restrained to] the 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. And here we may observe that the words of inheritance (to him and his heirs) give him an estate in fee; but they being heirs] of his body, [this makes it a fee-tail; and the person being also limited on whom such heirs shall be begotten, (viz. Mary his present wife) this makes it a fee-tail special. Estates in general and special tail are farther diversified by the distinction of sexes in such entails; for both (r) Co. Litt. by Butler, 331 a, n. (1); Machell v. Clarke, Lord Ray. 778; Salk. 618, S. C.; Seymour's case, 10 Rep. 97 b; Walsingham's case, Plowd. 557; Goodright v. Shil. son, Burr. 1703, sup. n. (o). An alienation of the land, however, by [of them may either be in tail male or tail female. As if lands be given to a man and his 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 e converso, the heirs male, in case of a gift in tail female (t). Thus, if the donee in tail male hath a daughter, who dies leaving a son, such grandson in this case cannot inherit the estatetail; for he cannot deduce his descent wholly by heirs male (u). 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 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 estates: for he cannot convey his descent wholly either in the male or female line (w). As the word heirs is necessary to create a fee, so in farther limitation of the strictness of the feudal donation, the word body, or some other words of procreation (x), are necessary to make it a fee-tail, and ascertain to what 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 his children or offspring; all these are only estates for life, there are wanting the words of inheritance, his heirs (y). So, on the other hand, a gift 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 (t) Litt. s. 21, 22. (u) Ibid. s. 24; Co. Litt. 27 b. (w) Co. Litt. 25 b. (1) Beresford's case, 7 Rep. 40. (y) Co. Litt. 20; Frogmorton v. Wharrey, 2 W. Bl. 728; 3 Wil. 125, 144, S. C. [the body out of which they shall issue (2); which is indispensable to an estate of the latter description; and every estate in fee, which is not in tail, must of necessity be fee-simple (a), as all fees consist either of one kind or the other (b). Upon such a gift too as last supposed, heirs both male and female shall inherit (c); for a descent in fee simple is inconsistent (by our definition) (d) with a restriction to heirs of either sex. It is to be observed, however, that in last wills and testaments a greater indulgence is allowed as to the manner of expounding the donation; and in these instruments therefore [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 (e),] sufficient to indicate an intention to restrain the inheritance to the descendants of the devisee. [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 (f) to be, where tenements are given by one man to another, together with a wife, 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 frank-marriage 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 (g).] (z) Litt. s. 31; Co. Litt. 7 a; Abraham v. Twigg, Cro. Eliz. 478. (a) Co. Litt. 27 b. (b) Vide sup. 220. (c) Co. Litt. 27 b. (d) Vide sup. 220. (e) Co. Litt 9 b, v. Legh, 7 Taunt. 85. (f) Litt. s. 17. 27 a; Nanfam (g) Litt. s. 19, 20. The reason |