or implied in the donation of it, that if the donee died without such particular heirs, the land should revert to the donor. For this was a condition annexed by law to all grants whatsoever; that, on failure of the heirs specified in the grant, the grant should be at an end, and the land return to its ancient proprietore. Such conditional fees were strictly agreeable to the nature of feuds, when they first ceased to be. mere estates for life, and were not yet arrived to be absolute estates in fee-simple. And we find strong traces of these limited, conditional fees, which could not be alienated from the lineage of the first purchaser, in our earliest Saxon lawsf.

Now, with regard to the condition annexed to these fees by the common law, our ancestors held, that such a gift (to a man and the heirs of his body) was a gift upon condition, that it should revert to the donor, if the donee had no heirs of his body; but, if he had, it should then remain to the donee. They therefore called it a fee-simple, on condition that he had issue. Now we must observe, that, when any condition is performed, it is thenceforth entirely gone; and the thing to which it was before annexed, becomes absolute, and wholly unconditional. So that, as soon [111] as the grantee had any issue born, his estate was supposed to become absolute, by the performance of the condition; at least, for these three purposes: 1. To enable the tenant to aliene the land, and thereby to bar not only his own issue, but also the donor of his interest in the reversion 8. 2. To subject him to forfeit it for treason: which he could not do, till issue born, longer than for his own life; lest thereby the inheritance of the issue, and reversion of the donor, might have been defeatedh. 3. To empower him to charge the land with rents, commons, and certain other incumbrances, so as to bind his issue. And this was thought the more reasonable, because, by the birth of issue, the possibility of the donor's reversion was rendered more distant

e Plowd. 241.

f Si quis terram haereditariam habeat, eam non vendat a cognatis haeredibus suis, si illi viro prohibitum sit, qui eam ab initio acqui

sivit, ut ita facere nequeat. LL.. Aelfred. c. 37.
g Co. Litt. 19. 2 Inst. 233.

h Co. Litt. Ibid. 2 Inst. 234.
i Co. Litt 19.

and precarious: and his interest seems to have been the only one which the law, as it then stood, was solicitous to protect; without much regard to the right of succession intended to be vested in the issue. However, if the tenant did not in fact aliene the land, the course of descent was not altered by this performance of the condition; for if the issue had afterwards died, and then the tenant, or original grantee, had died, without making any alienation; the land, by the terms of the donation, could descend to none but the heirs of his body, and therefore, in default of them, must have reverted to the donor. For which reason, in order to subject the lands to the ordinary course of descent, the donees of these conditional fee-simples took care to aliene as soon as they had performed the condition by having issue; and afterwards re-purchased the lands, which gave them a fee-simple absolute, that would descend to the heirs general, according to the course of the common law. And thus stood the old law with regard to conditional fees which things, says sir Edward Coke k, 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, and therefore remain as at the common law (5).

[112]

THE inconveniences, which attended these limited and fettered inheritances, were probably what induced the judges to give way to this subtle finesse of construction, (for such it undoubtedly was,) in order to shorten the duration of these 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 second1 (commonly called the statute de donis conditionalibus) to be made; which paid a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public

considerations whatsoever. This statute revived in some sort the ancient feodal restraints which were originally laid on alienations, by enacting, that from thenceforth the will of the donor be observed; and that the tenements so given (to a man and the heirs of his body) should at all events go to the issue, if there were any; or, if none, should revert to the donor.

UPON the construction of this act of parliament, the judges determined that the donee had no longer a conditional feesimple, which became absolute and at his own disposal, the instant any issue was born; but they divided the estate into two parts, leaving in the donee a new kind of particular estate, which they denominated a fee-tail m; and vesting in the donor the ultimate fee-simple of the land, expectant on the failure of issue; which expectant estate is what we now call a reversion". And hence it is that Littleton tells us °, that tenant in fee-tail is by virtue of the statute of Westminster the second.

HAVING thus shewn the original of estates-tail, I now proceed to consider, what things may, or may not, be entailed under the statute de donis. Tenements is the [113] only word used in the statute: and this sir Edward Cokep expounds to comprehend all corporeal hereditaments whatsoever; and also all incorporeal hereditaments which savor of the reality, 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 lands, or have relation to fixed and certain places, may be entailed 1. But mere personal chattels, which savor not at all of the reality, cannot

m The expression fee-tail, or feodum talliatum, was borrowed from the feudists; (See Crag. 1. 1. t. 10. sec. 24, 25.) among whom it signified any mutilated or truncated inheritance, from which the heirs general were cut off (6); being derived from the barbarous verb taliare, to eut; from which the French tailler

and the Italian tagliare are formed (Spelm. Gloss, 531.)

n 2 Inst. 335.

o sec. 13.
p 1 Inst. 19, 20.
q 7 Rep. 33.

(6) Or is it not rather called so because it is a part cut out of the whole?

be entailed. Neither can an office, which merely relates to such personal chattels ; nor an annuity, which charges only the person, and not the lands, of the grantor. But in these last, if granted to a man and the heirs of his body, the grantee hath still a fee conditional at common law, as before the statute; and by his alienation (after issue born) may bar the heir or reversioner (7). An estate to a man and his heirs for another's life cannot be entailed: for this is strictly no estate of inheritance, (as will appear hereafter,) and therefore not within the statute de donis (8). Neither can a copyhold estate be entailed by virtue of the statute; for that would tend to encroach upon and restrain the will of the lord: but, by the special custom of the manor, a copyhold may be limited to the heirs of the body; for here the custom ascertains and interprets the lord's will (9).

NEXT, as to the several species of estates-tail, and how they are respectively created. Estates-tail are either general or special. Tail-general is where lands and tenements are given to one, and the heirs of his body begotten: which is called

r Co. Litt. 19, 20.

s 2 Vern. 225.

t 3 Rep. 8.

(7) If an annuity is granted out of personal property to a man and the heirs of his body, it is a fee-conditional at common law, and there can be no remainder or further limitation of it; and when the grantee has issue, he has the full power of alienation, and of barring the possibility of its reverting to the grantor by the extinction of his issue. 2 Ves. 170. 1 Bro. 325.

But out of a term for years, or any personal chattel, except in the instance of an annuity, neither a fee-conditional nor an estate-tail can be created; for if they are granted or devised by such words as would convey an estate-tail in real property, the grantee or devisee has the entire and absolute interest without having issue; and as soon as such an interest is vested in any one, all subsequent limitations of conse quence become null and void. 1 Bro. 274. Harg, Co. Litt. 20. Fearne, 345. 3d ed.

(8) See page 260. post. (9) See page 372. post.

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". Tenant in tail-special is where the gift is restrained to certain heirs of the donee's body, and does not go to all of them in general. And this may happen several ways w. I shall instance in only one; as where lands [114] 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 to be by him begotten, 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 of them may either be in tail male or tail female. As if land 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 a gift in tail female x. 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 y. 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:

u Litt. sec. 14, 15.

w Ibid. sec. 16. 26, 27, 28, 29, VOL. II.

18

x Ibid. sec. 21, 22.

y Ibid. sec. 24.