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the death of the donee without heirs of the body; this reversion being obviously much more valuable in the case of a fee restricted to such heirs than in the case of an absolute fec simple.

46

It was to avoid these results that the statute De Donis Conditionalibus was passed, it being thereby provided, after a recital of the evils sought to be avoided, that the will of the donor, according to the form in the deed of gift manifestly expressed, should be from henceforth observed, so that they to whom the land was given should have no power to aliene the land, but that it should revert to the donor or his heirs if issue failed, either by an absolute default of issue, or, after the birth of issue, by its subsequent extinction. The pri mary effect of this statute was to prevent the alienation of the property by the donee so as to bar his issue, or to affect the grantor's right of reverter, and it was given the following interpretation by the courts: The donee who, before the statute, had a conditional fee which became absolute on the birth of issue, now had a new kind of estate, which descended to such heirs as were named in the gift; and this estate being considered smaller than a fee simple, which descends to the heirs generally, was called an "estate in fee tail," or an "estate tail," it being a portion of an estate taille-cut off-from the fee. On the other hand, the donor, who, before the statute, had a mere possibility of reverter in case of the failure. of the donee's issue before alienation by the donee, after the statute had an estate in fee simple in reversion expectant on the determination of the estate tail.48

46 13 Edw. I. c. 1 (1285), the whole statute being also known as that of Westminster II.

47 Challis, Real Prop. 231; Digby, Hist. Real Prop. 228; Williams. Real Prop. 43.

48 2 Bl. Comm. 112; 4 Kent, Comm. 12; Digby, Hist. Real Prop. 228; Williams, Real Prop. 43 et seq.; 1 Leake, 37.

22. Origin and history.

In the time of Bracton, who wrote about the middle of the thirteenth century, if an estate was given to a man and the heirs of his body, or to a man and his sons, an estate was created which passed to the donee's descendants according to the terms of the gift, and if no such issue were born, then the property reverted to the donor. In case, however, the donee had heirs of the body, and then made an alienation of the land, the heirs named would be bound to warranty,—that is, to uphold the gift, and consequently it came to be considered that, as stated by that writer, while the donee had a life estate only until the birth of issue, upon that occurring the donee could alienate and convey an estate in fee simple, might forfeit the property for treason, and could charge it with rents or other incumbrances, which would bind his heirs. It was thus in effect decided that a gift to one and the heirs of his body was the same as a gift to him and his heirs, if he had heirs of his body, and the estate was consequently called a conditional fee or fee simple conditional, as being for most purposes equivalent to a fee-simple estate, conditioned on the birth of issue. If, however, the donee named died without alienating the property, it passed to his heirs of the body, according to the terms of the gift, and on the failure of such heirs it reverted to the donor, in view of which latter contingency the donee of such an estate usually took care to alienate the property as soon as issue was born, afterwards repurchasing it to hold in fee simple absolute.45 This construction placed upon gifts of such a character was calculated to materially injure the interests of the great land owners, partly because it tended to prevent the perpetuation of property in their own families, and partly because the feudal lord was thereby deprived of the reversionary interest in case of

45 Co. Litt. 19a; 2 Bl. Comm. 110; Digby, Hist. Real Prop. 161. 220, et seq.; Challis, Real Prop. 209 et seq.

the death of the donee without heirs of the body; this reversion being obviously much more valuable in the case of a fee restricted to such heirs than in the case of an absolute fec simple.

It was to avoid these results that the statute De Donis Conditionalibus 46 was passed, it being thereby provided, after a recital of the evils sought to be avoided, that the will of the donor, according to the form in the deed of gift manifestly expressed, should be from henceforth observed, so that they to whom the land was given should have no power to aliene the land, but that it should revert to the donor or his heirs if issue failed, either by an absolute default of issue, or, after the birth of issue, by its subsequent extinction." The pri mary effect of this statute was to prevent the alienation of the property by the donee so as to bar his issue, or to affect the grantor's right of reverter, and it was given the following interpretation by the courts: The donee who, before the statute, had a conditional fee which became absolute on the birth of issue, now had a new kind of estate, which descended to such heirs as were named in the gift; and this estate being considered smaller than a fee simple, which descends to the heirs generally, was called an "estate in fee tail," or an "estate tail," it being a portion of an estate taille-cut off-from the fee. On the other hand, the donor, who, before the statute, had a mere possibility of reverter in case of the failure. of the donee's issue before alienation by the donee, after the statute had an estate in fee simple in reversion expectant on the determination of the estate tail.48

46 13 Edw. I. c. 1 (1285), the whole statute being also known as that of Westminster II.

47 Challis, Real Prop. 231; Digby, Hist. Real Prop. 228; Williams. Real Prop. 43.

48 2 Bl. Comm. 112; 4 Kent, Comm. 12; Digby, Hist. Real Prop. 228; Williams, Real Prop. 43 et seq.; 1 Leake, 37.

23. Classification.

An estate tail may, by the terms of its creation, be an es tate tail general or an estate tail special. An estate tail general arises when the estate is given to a man and the heirs of his body generally. An estate tail special arises where the estate is limited to the heirs of the donee's body by a certain wife, whether by a limitation to that effect on a gift to him, or by a gift to two persons married or capable of marriage, and the heirs of their bodies. Moreover, either an estate tail general or an estate tail special may be restricted to male or female heirs, it being then termed an "estate tail male," or an "estate tail female," as the case may be. In the case of an estate tail male, not only are the female issue excluded, but also the male issue of female issue, it being necessary to trace the descent through males, and the same rule applies, mutatis mutandis, in the case of an estate tail female.50

24. Statutory changes.

In many of the states of this country, an estate tail such as was formerly recognized no longer exists, it having in some states been changed by statute, and in others abolished.51 In

40 Litt. §§ 14, 16; 2 Bl. Comm. 113; Challis, Real Prop. 233. 50 Litt. §§ 21-25; Co. Litt. 377a; 2 Bl. Comm. 114; 1 Leake, 168. To this classification is sometimes added "quasi entail," which is an estate pur autre vie granted to a man and the heirs of his body. The interest so granted is not an estate tail, for the statute De Donis applies only where the subject of the entail is an estate of inheritance, but it partakes so far of the nature of an estate tail that it will go to the heirs of the body as special occupants during the life of the cestui que vie in jurisdictions where special occupancy is recognized. See post, § 33.

Estate tail after possibility of issue extinct is also sometimes added, but this is properly a life estate, and is so treated. See post, § 34.

$14 Kent, Comm. 14 wood & B. Lead. Cas

imson's Am. St. Law, § 1313: 1 SharsProp. 111 et sea. See for some ju

several states, as in New York, an estate tail is changed into a fee simple in the grantee, the first taker, as he is called."2 In others, the first taker has an estate tail, but, after his death, the estate becomes one in fee simple in his issue,53 and in other states the donee is given a life estate with remainder to his issue, or, sometimes, to his heir at common law. But, whatever form such statutes abolishing or modifying estates tail as they formerly existed may take, in order that they may be properly applied, a knowledge of the character of the estate and the mode of its creation is absolutely necessary, and in few, if any, jurisdictions can the subject be regarded as one of purely historical importance.

25. Words of limitation.

The most appropriate mode of creating a fee tail are by a

dicious remarks upon the legislation on this subject, 1 Dembitz, Land Titles, 115-125.

In South Carolina, the statute De Donis has never been in force, and conditional fees exist there as at common law. Burnett v. Burnett, 17 S. C. 545, Finch's Cas. 551; Powers v. Bullwinkle, 33 S. C. 293. In Mississippi, likewise, the statute has never been in force. Jordan v. Roach, 32 Miss. 481, 617. In New Hampshire, it was repealed by implication at an early day, and there the words "heirs of the body" create neither a conditional fee nor an estate tail, but have no effect whatever. Jewell v. Warner, 35 N. H. 176. In Pierson v. Lane, 60 Iowa, 60, it was decided that the statute De Donis was not in force in Iowa, and the opinion, by implication, favors the view that a conditional estate at common law exists there.

52 See, as to the effect of such statutes, Smith v. Greer, 88 Ala. 414; Ewing v. Shropshire, 80 Ga. 374; Posey's Lessee v. Budd, 21 Md. 477; Wendell v. Crandall, 1 N. Y. 491; Mcllhinny v. Mcllhinny, 137 Ind. 411, 45 Am. St. Rep. 186; Nellis v. Nellis, 99 N. Y. 505; Leathers v. Gray, 101 N. C. 162, 9 Am. St. Rep. 30; Parkhurst v. Harrower, 142 Pa. St. 432, 24 Am. St. Rep. 507.

See St. John v. Dann, 66 Conn. 401; Phillipps v. Herron, 55 Ohio St. 478; Lippitt v. Huston, 8 R. I. 415, 94 Am. Dec. 115.

54 See Horsley v. Hilburn, 44 Ark. 458; Doty v. Teller, 54 N. J. Law, 163, 33 Am. St. Rep. 670; Wood v. Kice, 103 Mo. 329; Lehndorf v. Cope. 122 Ill. 317.

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