may not be the statute de

entailed under

donis.

1 Inst. 19, 20.

which was called a fee tail (c), and that the donor had the ultimate fee simple of the land expectant on the failure of issue; which expectant estate is what we now call a reversion. 2 Inst. 355. Tenements is the only word used in the statute: and this What may or comprehends all corporeal hereditaments; and all incorporeal hereditaments which savour of the realty, that is, which issue out of corporeal ones, or which concern or are annexed to or may be exercised within the same; as rents, estovers, commons, and the like; also offices and dignities which concern 7 Rep. 33. lands or have relation to fixed and certain places. But not mere personal chattels; nor an office which relates thereto; nor an annuity which charges only the person, and not the lands of the grantor. In these last, if granted to a man and the heirs of his body, the grantee has still a fee conditional at common law, as before the statute; and by his alienation after issue born may bar the heir or reversioner. An estate to a man and his heirs for another's life cannot be entailed: for this is no estate of inheritance, and therefore not within the statute; nor can a copyhold estate be entailed under the statute: but by special custom of the manor it may be limited to the heirs of 3 Rep. 8. the body (d).

Co. Litt. 19,

20.

2 Vern. 225.

are either general or

Estates tail are either general or special. Tail general is Estates tail where lands and tenements are given to one and the heirs of his body begotten, which is called tail general, because how special. 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. Tenant in tail Litt. s. 14, 15. special is where the gift is restrained to certain heirs of the

(c) The expression fee tail, or feodum talliatum, was borrowed from the feudists; (see Crag. 1, 1, t. 10, s. 24, 25 ;) among whom it signified any mutilated or truncated inheritance, from which the heirs general were cut off, being derived from the barbarous verb taliare, to cut; from which the French tailler and the Italian tagliare are formed. (Spelm. Gloss. 531). Orig. n. to Bl. Com. vol. 2, p. 112.

(d) "There cannot be a proper entail of estates pur autre vie. Under a limitation of such an estate to A. and the heirs of his body, the heirs take not as heirs, but as special occupants, designated to fill up the possession, but still the freehold will devolve in the prescribed channel of succession, until diverted by the act of A. or his issue. That act, however, may be the ordinary conveyance of the quasi tenant in tail. Leaseholds for years are not susceptible of an entail or a quasi entail; for if a chattel rent be limited to A. and the heirs of his body, and on failure of such issue to B., the whole term or other interest vests in A., transmissible to his personal representatives, and as the gift over to B., to take effect after a general failure of issue of A. is too remote, vests absolutely," but as to bequests, see 7 Wm. 4 and 1 Vict. c. 26, s. 29.—Hayes's Conveyancing, 178, and note.

Litt. s. 16, 26, 27, 28, 29.

Estates tail may be either

in tail male or tail female.

donee's body, as where lands 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 the issue of these two; not such as the husband may have by another wife.

Estates in general and special tail are farther diversified by the distinction of sexes therein; for they may be either in tail male or tail female; and in case of an entail male, the heirs female shall never inherit, nor any derived from them; nor, Litt. s. 21, 22. è converso, the heirs male in case of a gift in tail female; the descent must be deduced in the first case wholly by heirs male, and in the second wholly by heirs female.

Co. Litt. 25. Words necessary to create a fee tail.

Litt. s. 31.

Co. Litt. 27.

As the word heirs is necessary to create a fee, so the word body or some other words of procreation must necessarily be added to make it a fee tail, and ascertain to what heirs in particular the fee is limited. If either the words of inheritance or words of procreation be omitted in the grant, this will not make an estate tail. If the grant be to a man and his issue of his body, or to his children or offspring; these are only estates for life, there wanting the words of inheritance, his heirs. So 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 the body out of which they shall issue. But in wills, wherein greater indulgence is allowed, an estate tail Co. Litt. 9, 27. may be created by other irregular modes of expression.

Incidents to

a tenancy in tail under the

statute de donis.

Co. Litt. 224.

The incidents to a tenancy in tail under the statute de donis are chiefly these: that a tenant in tail may commit waste on the estate tail, by felling timber, pulling down houses, or the like, without impeachment; that the wife of the tenant in tail shall have her dower of the estate tail; that the husband of a female tenant in tail may be tenant by the curtesy of the estate tail; that an estate tail may be barred or destroyed by a fine, or common recovery, or by lineal warranty, descending with assets to the heir(e).

(e) By 3 & 4 Wm. 4, c. 74, fines and recoveries are abolished from 31st Dec. 1833, s. 2. Estates tail and estates expectant thereon, are no longer barrable by warranty, s. 14. Power is given to every actual tenant in tail to dispose of entailed lands, either in fee simple or for any less estate, saving the rights of persons prior to the estate tail and the rights of all other persons, except those against whom such disposition is authorized to be made, s. 15. But the power of disposition cannot be exercised by women tenants in tail, ex provisione viri, under any settlement executed before this act, and within 11 Hen. 7, c. 20, except with the assent required by the provisions of that act, s. 16. Except as to lands in settlement before this act the act 11 Hen. 7, c. 20, is repealed, s. 17. The power of disposition does not extend to tenants of estates tail, who by 34 & 35

About two hundred years intervened between the making of the statute de donis and the application of common re

Estates tail barred by com

Hen. 8, intituled, “an act to bar feigned recovery of lands wherein the kiny is in reversion," or by any other act, are restrained from barring their estates tail, or to tenants in tail, after possibility of issue extinct, s. 18. Where an estate tail shall have been converted into a base fee, the tenant in tail has power to enlarge the base fee into a fee simple, saving the rights of certain persons as in s. 15.

If a tenant in tail shall make a disposition under the act by way of mortgage, or for any other limited purpose, it is a bar to all persons against whom it is authorized to be made; but if the estate created be only an estate pour autre vie, or for years, or if an interest charge, lien, or incumbrance, be created without a term of years, or any greater estate, then it is a bar only to give effect to the mortgage, or to such other limited purpose, s. 21. The owner of the first existing estate under a settlement prior to an estate tail under the same settlement, is to be the protector of the settlement so far as regards the lands in which such prior estate shall be subsisting, and to be deemed the owner of such prior estate, s. 22. Power is given to any settlor to appoint the protector. In cases of lunacy, &c., the lord chancellor is to be the protector, ss. 32. 33. Where an estate tail has been converted into a base fee, and there shall be a protector of the settlement, his consent is requisite to the exercise of the power of disposition, 8. 35. The protector is subject to no control in the exercise of his power, s. 36. A voidable estate by a tenant in tail in favour of a purchaser is confirmed by a subsequent disposition, whatever its object by such tenant in tail; but not against a purchaser for a valuable consideration, who shall not have express notice of the voidable estate, s. 38. Base fees, when united with the immediate reversions without any intermediate estate, are enlarged instead of being merged, s. 39. Every disposition under this act by a tenant in tail, is to be effected as if he were seised in fee simple; but no disposition is of any force, unless made or evidenced by deed; and no disposition resting only in contract, whether for a valuable consideration, or not, is of any force. If a married woman, her husband's concurrence is necessary, and her deed must be acknowledged as directed by s. 79 of the act, s. 40. Every assurance by tenant in tail, except a lease not exceeding twenty-one years, at rack rent, must be enrolled in chancery within six months, s. 41. The consent of the protector may be given by the same assurance, or by a distinct deed. If by the latter the consent is to be deemed unqualified, and in either case it is irrevocable, ss. 42, 43, 44. A married woman protector is to consent as feme sole, 8. 45. Consent of the protector by a distinct deed must be enrolled with or before assurance, s. 46. Courts of equity are excluded from giving any effect to dispositions by tenants in tail, or consents of protectors of settlements, which in courts of law would not be effectual, s. 47. The provisions of the act apply to copyholds, except that a disposition of such lands, if an estate in law, must be made by surrender; if in equity, either by surrender or deed, s. 50. Provision is made by the act as to the deed of consent, and the entry of it on the court rolls where the protector of a settlement of copyholds consents by deed to the disposition of a tenant in tail, and for evidencing the consent on the court rolls when not given by deed, ss. 51, 52. Power is given to equitable tenants in tail of copyholds to dispose of their lands by deed, s. 53. Enrolment is not necessary as to copyholds, s. 54. The bankrupt act, 6 Geo. 4, c. 16, s. 65, so far as it relates to estates tail, is repealed by this act, except as to commissions issued before December, 1833, s. 55. The commissioner, in the case of an actual tenant in tail becoming bankrupt after

&c.

mon recoveries, coveries to bar estates tail. This expedient having greatly abridged estates tail with regard to their duration, others were invented to strip them of remaining privileges. Their freedom

1 Rep. 130. 6 Rep. 40.

December, 1833, is to dispose of the lands of the bankrupt of any tenure for valuable consideration for the benefit of creditors, s. 56. Commissioner in case of a tenant in tail entitled to a base fee becoming bankrupt, and of there being no protector, shall, by deed, dispose of such lands for the benefit of creditors in fee simple, saving certain rights, as in s. 19, s. 57. In case there be a protector, the commissioner is to stand in the place of the tenant in tail, so far as regards the consent of such protector, s. 58. Every deed by which such commissioner shall convey must be enrolled within six months; and if the lands be copyhold, it must be entered on the court rolls of the manor, s. 59. If by the disposition of the commissioner only a base fee shall be created for want of the consent of the protector, on there ceasing to be a protector, such base fee becomes enlarged into a fee simple, saving certain rights, as in s. 19, s. 60. A base fee disposed of under the former bankrupt acts, and during its continuance there ceasing to be a protector, is to become enlarged into a fee simple, saving certain rights, as in s. 19, s. 61. A voidable estate created in favour of a purchaser by an actual tenant in tail, or by a tenant in tail entitled to a base fee, becoming bankrupt, is confirmed by the disposition of the commissioner, if no protector, or being such with his consent, or on there ceasing to be a protector, but not against a purchaser, without notice, s. 62. The acts of a bankrupt tenant in tail are void against any disposition under the act by the commissioner (s. 63), but subject to the powers given to the bankrupt commissioner and to the estate in the assignees, and the rights of persons claiming under them, a bankrupt tenant in tail is to retain his powers of disposition under the act as if he had not become bankrupt, s. 64. The disposition by the commissioner of the lands of a bankrupt tenant in tail, if the bankrupt be dead, has, in the cases therein mentioned, the same operation as if he were alive, s. 65. Every disposition by the commissioners of copyhold lands, where the estate is not equitable, has the same operation as a surrender; and the purchaser may claim to be admitted on paying the fines, &c., s. 66. The assignees of a bankrupt can recover rents of lands, of which the commissioner has power to make disposition and enforce covenants, as if entitled to the reversion. This clause applies to all copyhold lands; but as to other lands only to such as the commissioner may dispose of after the bankrupt's death, s. 67. The previous clauses, with certain variations, apply to lands of any tenure to be sold where the purchase money is subject to be invested in the purchase of lands to be entailed, and where money is subject to be invested in the same manner, s. 71. A married woman, with her husband's concurrence, may dispose of lands and money, subject to be invested in the purchase of lands, and of any estate therein, and may release and extinguish powers as a feme sole; but these powers do not extend to copyholds in any case in which before the act the objects to be effected by this clause could have been effected by surrender, and the powers are not to interfere with any other powers, limited or reserved to her, independently of the act, ss. 77, 78. Every deed by a married woman, not executed by her as protector, must be acknowledged by her before a judge or master in chancery, or two perpetual or special commissioners appointed under the act, who, before receiving such acknowledgment, are to examine her apart from her husband, and she is also to be separately examined on the surrender of an estate of copyholds, as if such estate were legal. The court of common

tenants in tail.

4 Hen. 7,

from forfeitures for treason was abolished by 26 Hen. 8, c. 13, Leases by and by 32 Hen. 8, c. 28, certain leases made by tenants in tail, which do not tend to the prejudice of the issue, were allowed to be good in law, and to bind the issue in tail. But they received a more violent blow in the same session of parliament by the construction put upon the statute of fines by the stat. 32 Hen. 8, c. 36, which declared a fine duly levied by c. 24. tenant in tail to be a complete bar to him and his heirs, and all other persons claiming under such entail. All estates tail created by the crown, and of which the crown has the reversion, are however excepted out of this statute. And by 34 & Co. Litt. 372. 35 Hen. 8, c. 20, no feigned recovery had against tenants in tail, where the estate was created by the crown, and the remainder or reversion continues still in the crown is of any

force (f). By a statute of the succeeding year, all estates tail 33 Hen. 8, are rendered liable to be charged for payment of debts due to c. 39, s. 75. the king by record or special contract; as since, by the bankrupt laws, they are also subjected to be sold for the debts con- 21 Jac. 1, tracted by a bankrupt (g). And by the construction put on the statute 43 Eliz. c. 4, an appointment by tenant in tail of 2 Vern. 453. the lands entailed to a charitable use is good without fine or recovery.

Estates tail, being thus unfettered, are now 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 (h).

c. 19.

Chan. Prec. 16.

pleas, when a husband is lunatic, may dispense with his concurrence, except where the lord chancellor is the protector, ss. 79, 80, 90, 91. If from being abroad a married woman is prevented from making the acknowledgment, special commissioners are to be appointed, s. 83. The persons taking the acknowledgment of a married woman are to sign a memorandum and certificate thereof to the effect mentioned in the act, s. 84. The certificate, with an affidavit verifying it, must be lodged with an officer of the court of common pleas, and filed of record, s. 85, and the deed by relation is to take effect from the acknowledgment, s. 86.

(f) See 3 & 4 Wm. 4, c. 74, s. 18, ante, note (e), to this chapter.

(g) See now 3 & 4 Wm. 4, c. 74, ss. 55 to 67, ante, note (e) p. 139.

(4) See now the statute abstracted ante, in note (e) to this chapter, whereby (s. 15) power is given to tenants in tail to dispose of entailed lands, either in fee simple or for any less estate, saving the rights of persons prior to the estate tail, and the rights of all other persons, except those against whom such disposition is authorized to be made. The rule in Shelley's case is as much applicable to estates tail as to estates in fee simple; Burton's Compendium, 221; Co. Litt. 22 b.; Fearne, C. R. 28. Tenant in tail was always allowed to make leases for any term of years, which, during his own life, would be valid and indefeasible; and after his death, if the estate tail continued, would still