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 De donis, 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 was not, however, otherwise restrained; nor was his alienation 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 base fee (d), that is to say, a fee-simple to hold as long as the tenant in tail lived or had heirs of his body. But this estate was determinable on the death of the tenant in tail and the failure of his issue; and even on his death, might be avoided by the entry of the issue (e). [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 (f). 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 (d) Vide sup. p. 244. (e) Co. Litt. by Butler, 331 a, n. (1); Machell v. Clarke, Ld. Raym. 778; Salk. 618, S. C.; Seymour's case, 10 Rep. 97 b; Walsingham's case, Plowd. 557; Goodright v. Shilson, Burr. 1703. An alienation of the land, however, by tenant in tail in possession, if made by certain modes of conveyance, was a discontinuance, which took away the entry of the issue (Co. Litt. 328 a; 2 Inst. 335); as to which, vide post, bk. 11. pt. I. c. XIX. (f) Litt. ss. 14, 15. [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 further diversified by the distinction of sexes in such entails; for both 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 è converso, the heirs male, in case of the gift in tail female (g). Thus, if the donee 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 (h). 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 (i). As the word heirs is necessary to create a fee, so in further imitation of the strictness of the feudal donation, the word body, or some other words of procreation (k), 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 (g) Litt. ss. 21, 22. (h) Ibid. s. 24; Co. Litt. 25 b. (i) Co. Litt. 25 b. (k) Beresford's case, 7 Rep. 40. [or offspring; all these are only estates for life, for there are wanting the words of inheritance, "his heirs" (l). So, on the other hand, a gift to a man and his heirs male, or heirs 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 ;] which is indispensable to an estate of the latter description (m); and every estate in fee, which is not in tail, must of necessity be fee-simple (n), as all fees consist either of one kind or the other (o). Upon such a gift too, as last supposed, heirs both male and female shall inherit (p); for a descent in fee-simple is inconsistent (by our definition (q)) 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 (r); and in these instruments therefore [an estatetail 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 (s),] 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 to be, where tenements are given to a man, on his marriage with the daughter or cousin of the donor, to hold in frankmarriage (t). [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, (1) Co. Litt. 20; Frogmorton v. Wharrey, 2 W. Bla. 728; 3 Will. 125, 144, S. C. (m) Litt. sect. 31; Co. Litt. 7 a; Abraham v. Twigg, Cro. Eliz. 478; Earl of Oxford's case, W. Jones, 105. But if the grant be by the Crown, such grant is void.-Ibid. Co. Litt. 27 a. (n) Co. Litt. 27 b. (0) Vide sup. p. 238. (p) Co. Litt. 27 b. (s) Co. Litt. 9 b, 27 a; see Mellish v. Mellish, 2 B. & Cr. 520; Doe d. Jearrad v. Bannister, 7 M. & W. 298; Good v. Good, 7 El. & Bl. 295. (t) Litt. s. 17. [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 passed between the issues of the donor and donee (t).] We have seen that lands cannot now be conveyed in feesimple to be holden of the grantor; but that the tenure must be of him to whose seigniory the fee belongs (u). It is otherwise, however, with respect to a gift in tail. For if a tenant in fee-simple grants an estate tail out of it, (the reversion remaining in the donor,) the donee in tail shall hold of the donor, by fealty and such other services as may be reserved; or if none be reserved, then by fealty and such other services as the donor himself renders to the next lord paramount (x). But the tenure thus created between the donor and donee in tail, differs from that between the tenant in fee-simple and the chief lord; the latter being described as a perfect, the former as an imperfect tenure (y). [Thus much for the nature of estates tail: the establishment of which family law, as it is properly styled by Pigott (2), occasioned infinite difficulties and disputes (a). Children grew disobedient when they knew they 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 : (t) Litt. ss. 19, 20. The reason given by Littleton is, that after the fourth degree the issues of the donor and donees were capable by the law of the church of intermarrying. As to the prohibited degrees in marriage, according to the different modes of computation in the civil and the canon law, vide post, bk. 11. pt. II. C. VII.; bk. 111. c. II. (u) Vide sup. p. 239. (x) Litt. s. 19; Co. Litt. 23 a, 93 a, 143 a, 68 b, n. (5), by Harg. ; (y) Co. Cop. s. 31. (a) Chudleigh's case, 1 Rep. 131 b. : [colour of long leases the issue might have been virtually disinherited: creditors were defrauded of their debts; for if tenant in tail could have charged his estate with 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 antient books are full and treasons were encouraged; as estatestail 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 (b). 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, by the connivance of an active and politic prince, a method was devised to evade it. Nearly 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 the fourth (c); which were then openly declared by the judges to be a sufficient bar of an estate tail (d). For though the courts had, so long before as the reign of Edward the third, very frequently hinted their opinion that a bar might be effected upon these principles (e), yet it never was carried into execution, till Edward the fourth, observing (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had upon families, whose estates were protected by the sanctuary of entails,] contrived (f), that Taltarum's case should be brought before Rep. 37, 38. (b) Co. Litt. 19 b; Hunt v. Gateley, Moor, 156; Mary Portington's case, 10 Rep. 38. (c) A.D. 1472. (d) Chudleigh's case, 1 Rep. 131; Mildmay's case, 6 Rep. 40. (e) Mary Portington's case, 10 (f) Pigott, 8. Blackstone (vol. ii. p. 117) says he suffered it to be brought, but the expression of Pigott is, that he "brought it on the stage." |