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At common law, fee tail or entail is an estate of inheritance in real property which cannot be sold, devised by will, or otherwise alienated by the owner, but which passes by operation of law to the owner's heirs upon his death. The term fee tail is derived from the Middle Latin feodum talliatum, which means "cut-short fee."

The purpose of an entail was to keep the land of a family intact in the main line of succession. The heir to an entailed estate could not sell the land, nor usually bequeath it to, for example, an illegitimate child. The complications arising from entails were an important factor in the life of many of the upper classes, especially from about the late 17th to the early 19th centuries, leaving many individuals wealthy in land but still heavily in debt.


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[hide]*1 General history

[edit] General historyEdit

Traditionally, a fee tail was created by words of grant in the deed: "to A and the heirs of his body." The crucial difference between the words of conveyance and the words that created a fee simple, "to A and his heirs," is that the heirs "in tail" must be the children begotten by the landowner. It was also possible to have "fee tail male," which only sons could inherit, and "fee tail female," which only daughters could inherit; and "fee tail special," which had a further condition of inheritance, usually restricting succession to certain "heirs of the body" and excluding others. Land subject to these conditions was said to be entailed or in tail. The restrictions themselves were entailments.

Fee tail was formerly used during feudal times by landed nobility in order to create family settlements and to make certain that the land stayed in the family. From the foregoing, attempting to mortgage land in fee tail would be risky and uncertain, since at the death of the owner the land passed by operation of law to children who had no obligation to the mortgage lender and whose interest was prior in right over the mortgage. Similarly, the largest estate an owner in fee tail could convey to someone else was a life estate, since the grantee's interest again terminated automatically when the grantor (the original owner) died. If all went as planned, it was impossible for the family to lose the land, which was the idea.

Things do not always go as planned, however. Owners of land in tail occasionally had "failure of issue" --- that is, they had no children surviving them at the time of their own deaths. In this situation, theoretically the entailed land went back up and through the family tree to descendants of former owners who were entitled to inherit, or to the last owner in fee simple. This situation produced complicated litigation.

Fee tail was a device tuned to the needs of family settlements in the thirteenth century, but it was never popular with the monarchy, the merchants, or many entailed holders themselves who wished to sell their land. In more mercantile eras, fee tail became rare. As early as the fifteenth century, lawyers devised an elaborate action called "Common Recovery", which used collaborative lawsuits and legal fictions to "bar" an entail, i.e. remove the conditions of fee tail from land and enable its free conveyance in fee simple. In the 17th and 18th centuries the practice arose whereby a landed estate would be settled on a man for life, and thereafter to his eldest son in tail male; when the son came of age, he and his father together could bar the entail, and would then re-settle the land on the father for life, then to the son for life, and then to his eldest son in tail male, at the same time making provision for the father's widow, daughters and younger sons. In this way an estate could be kept in a family for many generations. It also had the advantage that if an heir appeared irresponsibly spendthrift to his father, the entail could be retained to protect the estate.

[edit] EnglandEdit

The Statute of Westminster II, passed in 1285, created and stereotyped this form of estate. The new law was also formally called the statute De Donis Conditionalibus (Concerning Conditional Gifts). Fee tail was abolished by the Law of Property Act in England (as a legal estate) in 1925.

An entail can still exist in England and Wales as an equitable interest, behind a strict settlement, but the legal estate is vested in the current 'tenant for life' or other person immediately entitled to the income, but on the basis that any capital money arising must be paid to the settlement trustees. A tenant in tail in possession can bar his entail by a simple disentailing deed, which does not now have to be enrolled. A tenant in tail in reversion (i.e. a future interest where the property is subject to prior life interest) needs the consent of the life tenant and any 'special protectors' to vest a reversionary fee simple in himself. Otherwise he can only create a base fee; a base fee only confers a right to the property on its owner, when its creator would have become entitled to it; if its creator dies before he would have received it, the owner of the base fee gets nothing.

The breaking of an entail was simplified by the Fines and Recoveries Act 1832, which replaced the conveyance for making a tenat in procipe for suffering a common recovery. This was the usual preliminary to a recovery with a disentailing assurance, which had to be enrolled. The need for this to be followed by the fictitious proceeding of a common recovery was abolished.

The requirement that a disentailing assurance should be enrolled was abolished in 1926.[1] No new "fee tails" can now be created following the Trusts of Land and Appointment of Trustees Act 1996.

[edit] ScotlandEdit

Scotland disentailed all land following the passage of the Abolition of Feudal Tenure etc. (Scotland) Act 2000, disapplying the Scots law concept of tailzie. Today, the doctrines of legitim and jus relictae restrict owners from willing property out of their family when they die with children or have a surviving partner.

[edit] United StatesEdit

Fee tail has been abolished in all but four states in the United States: Massachusetts, Maine, Delaware and Rhode Island. However, in the first three states, it can be sold or deeded as any other property would be (the fee tail would only control on death without a will). In Rhode Island, a fee tail is treated as a life estate with remainder in the life tenant's children. New York, for example, abolished it in 1782. Many other states within the U.S. never recognized the fee tail estate at all, as most of the land in the United States of America was deemed allodial.

In Louisiana, the doctrines of legitime and jus relictae restrict owners from willing property out of their family when they die with children or have a surviving partner.

In most states within the United States, an attempt to create a fee tail results in a fee simple; even in those four states that still allow fee tail, the estate holder may convert his fee tail to a fee simple during his lifetime by executing a deed.

On page vii of the preface to The Writings of Thomas Jefferson: "When in later life he drew up a list of the services he believed he had rendered his countrymen he enumerated along with the disestablishment of State Church the abolition of entails, the prohibition of slave importation and the drafting of the Declaration of Independence, the introduction of olive plants and heavy upland rice into South Carolina and Georgia declaring that the greatest service which can be rendered to any country is to add a useful plant to its culture." [1]

[edit] Comparable devices in other legal systemsEdit

Other European legal systems had comparable devices to keep estates together, especially in Spain and Northern European countries like Prussia. They are derived from fideicommissum, a legal institution in Roman Law. Unlike most of the English aristocracy, the Prussian junkers supported entails, and succeeded in reinstating them in 1853, after they had been abolished in a recent Constitution. In Germany and Austria the "Familienfideikommiss" was only abolished in 1938, and in Scandinavia they persisted even later - a few old Swedish entails still remain in force, though no new ones may be established.

[edit] Entails in literatureEdit

Entails appear in the plot of several novels and stories; it was particularly used as a plot device by 19th century writers of fiction. Among those stories in which an entail plays a significant role in the plot are:

Pride and Prejudice contains a particularly thorny example of the kind of problems which could arise through the entailing of property. Mr. Bennet, the father of protagonist Elizabeth Bennet, had only a life interest in his property. He had no authority to dictate to whom it should pass upon his death, as it was strictly arranged to be inherited by the next male heir. Had Mr. Bennet fathered a son, it would have passed to him, but it could not pass to any of his five daughters. Instead, the next nearest male heir would inherit the property; in the course of the novel, this was revealed to be Mr. Bennet's cousin, William Collins, a minister in his mid-twenties. The inheritance of the Longbourn property completely excluded the five legitimate Bennet daughters. Such entails typically arose from wills, rather than from marriage settlements, which usually made at least some provision for daughters.

[edit] ExamplesEdit

The main estates of the wealthy art collector Richard Seymour-Conway, 4th Marquess of Hertford (d. 1870), were entailed. His only child was his illegitimate son, Sir Richard Wallace, to whom he left as much of his property as he could. The main land holdings and Ragley Hall were inherited by his distant cousin, Francis Seymour, 5th Marquess of Hertford, descended from a younger son of the 1st Marquess who had died in 1794. Most of the 4th Marquess's art collection had been acquired by himself or his father, went to Wallace, and is now the Wallace Collection. Other works were covered by the entail, however, and passed to the 5th Marquess. George Herbert, 11th Earl of Pembroke, who died in 1827, had quarreled with his eldest son and left his unentailed estate to his son by a second marriage.

A Scottish example is Alfred Douglas-Hamilton, 13th Duke of Hamilton, who in 1895 inherited from the 12th Duke, his fourth cousin, who had attempted to marry his daughter to the heir.

[edit] See alsoEdit

[edit] Sources and referencesEdit

  • The Fee Tail and the Common Recovery in Medieval England 1176–1502, by: Joseph Biancalana, University of Cincinnati
  • Bell, William (1861). Dictionary and Digest, Law of Scotland, with Short Explanations of the most Ordinary English Law Terms (Revised and Corrected with Numerous Additions by George Ross ed.). Edinburgh: Bell & Bradfute. pp. 328.
  • Shumaker, Walter A.; George Foster Longsdorf (1922). The Cyclopedic Law Dictionary (Second Edition by James C. Cahill ed.). Chicago: Callaghan and Company. pp. 353.
  1. ^ Law Of Property Act 1925, s. 133.

[edit] Further readingEdit

(Series: Cambridge Studies in English Legal History) Publisher's link Retrieved from "http://en.wikipedia.org/wiki/Fee_tail"