Fee tail

"Entail" redirects here. For other uses, see Entail (disambiguation).

Property law
Part of the common law series
Acquisition
Gift · Adverse possession · Deed Conquest · Discovery · Accession Lost, mislaid, and abandoned property Treasure trove  · Bailment · License Alienation
Estates in land
Allodial title · Fee simple · Fee tail Life estate · Defeasible estate Future interest · Concurrent estate Leasehold estate · Condominiums Real estate
Conveyancing
Bona fide purchaser Torrens title · Strata title Estoppel by deed · Quitclaim deed Mortgage · Equitable conversion Action to quiet title · Escheat
Future use control
Restraint on alienation Rule against perpetuities Rule in Shelley's Case Doctrine of worthier title
Nonpossessory interest
Easement · Profit Covenant Equitable servitude
Related topics
Fixtures · Waste · Partition Riparian water rights Prior-appropriation water rights Lateral and subjacent support Assignment · Nemo dat Property and conflict of laws · Blackacre
Other common law areas
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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.

General history

Traditionally, a fee tail was created by words of grant in a 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, with the restrictions themselves known as 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 stay 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.

England

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.^[1]

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 1833,^[2] 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.^[3] No new "fee tails" can now be created following the Trusts of Land and Appointment of Trustees Act 1996.^[4]

An English example of a fee tail may be the main estates of the wealthy art collector Richard Seymour-Conway, 4th Marquess of Hertford (d. 1870). 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.

Another example was George Herbert, 11th Earl of Pembroke, who died in 1827. He had quarreled with his eldest son and left his unentailed estate to his son by a second marriage.

Ireland

The Land and Conveyancing Law Reform Act 2009 removed fee tail from Irish law and converted all existing entails to fee simple.

Polish-Lithuanian Commonwealth

In the Kingdom of Poland and later in Polish-Lithuanian Commonwealth fee tail estates were called Ordynacja (landed property in fideicommis) . Ordynacja was an economic institution for governing of landed property introduced in late 16th century by king Stefan Batory. Ordynacja was abolished by the agricultural reform in the People's Republic of Poland. Ordynat was the title of the principal heir of ordynacja.

According to the rules of ordynacja, which became a statute approved by the Sejm, the estate was not to be divided between the heirs but inherited in full by the eldest son (primogeniture).^[5] Women were excluded from inheritance (Salic Law).^[5] Ordynacja couldn't be sold or mortgaged.^[5]

Ordynacja was similar to the French law of majorat or German and Scandinavian fideicommisses, and succession to such resembles that of British peerages.

Many Polish magnates fortunes were based on ordynacja, among them those of Radziwiłłs, Zamoyski's, Czartoryski's, Potocki's and Lubomirski's. Most important ordynacja were veritable little principalities. The earliest and most extensive ordynacjas include:

• Ordynacje Radziwiłłów, created for Mikołaj VII Radziwiłł, Albrecht Radziwiłł and Stanisław Radziwiłł in 1589, centered on Olyka, Nesvizh, and Kletsk
• Ordynacja Ostrogska, created for Janusz Ostrogski in 1609, later inherited by the Zaslawski, Lubomirski and Sanguszko families, centered on Ostroh
• Ordynacja Zamojska, created for Jan Zamoyski in 1589, centered on Zamość
• Ordynacja Jarosławska, created for Rafał Jarosławski in 1470, centered on Jarosław
• Ordynacja Pińczowska, created for Piotr and Zygmunt Myszkowski in 1601, later inherited by the Wielopolski family, centered on Pińczów

Scotland

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.

A Scottish example of fee tail 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.

United States

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.

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." ^[6]

Comparable devices in other legal systems

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.

Entails in literature

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:

• Downton Abbey by Julian Fellowes
• Middlemarch by George Eliot
• Pride and Prejudice by Jane Austen
• The Adventure of the Priory School by Sir Arthur Conan Doyle
• The Master of Ballantrae by Robert Louis Stevenson
• The Quincunx by Charles Palliser (written in 1989, but it takes the form of a Dickensian mystery set in early-19th-century England)

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 the Longbourn estate, the family's home and principal source of income. 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 since he did not it could not pass to any of his five daughters. Instead, the next nearest male heir would inherit the property — Mr. Bennet's cousin, William Collins, a boorish minister in his mid-twenties. The inheritance of the Longbourn property completely excluded the five Bennet daughters, who were thus to lose their home and income upon their father's death. The need for the daughters to make a "good marriage" to ensure their future security is a key motivation for many episodes in the novel. Such entails typically arose from wills, rather than from marriage settlements, which usually made at least some provision for daughters.

See also

• Fee simple
• Majorat
• Rule in Wild's Case
• tailzie (Scots law)
• Primogeniture

References

1. ^ Law of Property Act 1925 s.130
2. ^ Fines and Recoveries Act 1833 s.15
3. ^ Law Of Property Act 1925, s. 133.
4. ^ Trusts of Land and Appointment of Trustees Act 1996 Schedule 1 Para 5
5. ^ ^{a b c} Peter Paul Bajer Short history of the Radziwill Family
6. ^ The writings of Thomas Jefferson

Further reading

• 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.