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failure of issue, then, by a rule of the common law, A. will take an estate tail, it being regarded as a limitation to A. and his issue. By an "indefinite" failure of issue is meant a failure of issue which may occur at any time in the future, and not a failure at the time of the death of the first taker, or at any other fixed time, and the presumption is that the failure of issue on which the devise over is to take effect is such an indefinite failure of issue.78 Where, by statute, a

73 2 Jarman, Wills, 1320; 1 Leake, 181; 4 Kent, Comm. 276; 17 Am. & Eng. Enc. Law (2d Ed.) 575; 2 Sharswood & B. Lead. Cas. Real Prop. 98 et seq.; Chadock v. Cowley, Cro. Jac. 695, 5 Gray's Cas. 253; Brice v. Smith, Willes, 1; Barber v. Pittsburgh, Ft. W. &C. Ry. Co., 166 U. S. 83; Turrill v. Northrop, 51 Conn. 38; Richardson v. Richardson, 80 Me. 585; Allen v. Trustees of Ashley School Fund, 102 Mass. 262; Taylor v. Taylor, 63 Pa. St. 481; Nes v. Ramsay, 155 Pa. St. 628; Burrough v. Foster, 6 R. I. 534; Riggs v. Sally, 15 Me. 408; Morehouse v. Cotheal, 21 N. J. Law, 480; Eichelberger v. Barnitz, 9 Watts (Pa.) 447. For a large number of citations to the same effect, see 17 Am. & Eng. Enc. Law, 558. It has been held that a limitation over if the donee die "without leaving issue," while it presumptively means an indefinite failure of issue in the case of real property, in the case of personal property it presumptively means a definite failure of issue; and this, even when the two classes of property are disposed of by the same gift, so that the donee may take an estate tail in the real property, and a life interest merely in the personalty. Forth v. Chapman, 1 P. Wms. 663, 5 Gray's Cas. 256. The distinction as to the effect of the word "leaving" in gifts of realty and personalty, as stated in Forth v. Chapman, supra, was adopted in England in numerous cases (2 Jarman, Wills, 1324), and the rule of that case as to its effect in the case of personalty has been generally adopted in this country (2 Jarman, Wills, 1320, Bigelow's notes).

The courts will generally be more ready to construe the instrument as intending an indefinite failure of issue in the case of real property than in that of personal property. 2 Jarman, Wills, 1326; 4 Kent, Comm. 282, note a; 17 Am. & Eng. Enc. Law (3d Ed.) 561.

If a devise over is contingent upon the death of the first devisee "under the ag wenty-one and without issue," a definite, and not

fee tail is changed into a fee simple, or the first taker is given a life estate only, such a limitation will create a fee simple or life estate accordingly, unless the statute provides otherwise." A devise over on failure of issue may, however, be shown by the context of the will to refer to a definite failure of issue, and in such a case the estate created will be, not an estate tail, but a fee simple or life estate, according to the form of the limitation to the first devisee, without reference to the devise over. 75 And generally, at the present day, the tendency seems to be to lay hold of any expression in the instrument to show that the failure of issue referred to is not indefinite, but rather such as may occur at the first taker's death.76

an indefinite, failure of issue is intended. 2 Jarman, Wills, 1327, 17 Am. & Eng. Enc. Law (2d Ed.) 566.

In a deed, a limitation over on failure of issue will not, it seems, reduce a fee simple to a fee tail, unless the intent otherwise appears. Doe v. Smeaddle, 2 Barn. & Ald. 126, 3 Gray's Cas. 402; Olivant v. Wright, 9 Ch. Div. 646; Idle v. Cook, 1 P. Wms. 70; Elphinstone, Interp. Deeds, 250. But see Morgan v. Morgan, L. R. 10 Eq. 99, 3 Gray's Cas. 399; Lewis, Perpetuity, 180.

74 Morehouse v. Cotheal, 21 N. J. Law, 480, 22 N. J. Law, 430; Robinson's Estate, 149 Pa. St. 418; Hill v. Burrow, 8 Call (Va.) 342; Hertz v. Abrahams, 110 Ga. 707. Contra in Illinois, Kentucky, and New Hampshire. Summers v. Babb, 127 Ill. 645; Deboe v. Lowen, 8 B. Mon. 616; Sale v. Crutchfield, 8 Bush, 636; Dennett v. Dennett, 43 N. H. 499. See Hood v. Dawson, 98 Ky. 285.

That the general rule applies in the case of a devise to A. simply, or to A. for life, with a devise over on the indefinite failure of issue, so as to enlarge the estate to an estate tail, in the same way as it applies to diminish a fee simple to a fee tail, see Willis v. Bucher, 3 Wash. C. C. 369, Fed. Cas. No. 17,769; Albee v. Carpenter, 12 Cush. (Mass.) 382; Nes v. Ramsay, 155 Pa. St. 632; Tinsley v. Jones, 13 Grat. (Va.) 289.

75 2 Jarman, Wills, 428; Pells v. Brown, Cro. Jac. 590, 5 Gray's Cas. 563; Roe v. Jeffery, 7 Term R. 589, 5 Gray's Cas. 259; Parkhurst v. Harrower, 142 Pa. St. 432; Whitcomb v. Taylor, 122 Mass. 243; Burrough v. Foster, 6 R. I. 534; Rothwell v. Jamison, 147 Mo. 615.

7 17 Am. & Eng. Enc. Law (2d Ed.) 560 et seq.; 2 Jarman. Willa,

In a few states, a definite failure of issue, as a failure at the time of the death of the first taker, is always presumed to be intended, unless the contrary appears." 77 And in England and a number of the states there is a statutory provision to that effect, sometimes applying, in terms, to wills only, and not to deeds.78

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26. Things in which the estate may exist.

The statute De Donis describes the things on which it may operate as "tenements," and, as a general rule, all "hereditaments which savour of the realty" are regarded as tenements for this purpose. This includes land and things "of a real nature," such as profits from the land, or rents issuing therefrom. Terms for years and personal chattels cannot be entailed, and such an attempted limitation will vest an absolute interest in the donee.80

1320, Am. notes, where Mr. Bigelow says: "It is apprehended that at the present day the construction which refers the words in question prima facie to the death of the first taker will, not only in the case of personalty, but also of realty, be favored generally in this country and adopted upon slight indications of intention, in so far as the courts find themselves unfettered by binding authority."

. 77 St. John v. Darm, 66 Conn. 401; Sale v. Crutchfield, 8 Bush (Ky.) 636; Parish's Heirs v. Ferris. 6 Ohio St. 563. See 17 Am. & Eng. Enc. Law (2d Ed.) 559, and note 74, ante.

T8 Wills Act (1 Vict. c. 26, § 29 [1837]). 1 Stimson's Am. St. Law, 1415; 1 Dembitz, Land Titles, 192; 17 Am. & Eng. Enc. Law (2d Ed.) 572.

79 Co. Litt. 19b, 20a, and Hargrave's note, 120; 2 Bl. Comm. 113; Challis, Real Prop. 38.

80 Co. Litt. 20a, Hargrave's note, 120; Gray, Perpetuities, § 647 note; 2 Jarman, Wills, 1366, and note.

Terms for years and personal chattels may, however, be in effect entailed for a limited period by limitations to one for life, with an executory interest in his issue living at his death. See Co. Litt. 20a, Hargrave's note, 120.

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27. Barring the entail.

After the statute De Donis began to operate by fixing the land in perpetuity in the line of issue named in the grant, the inconveniences of the restriction imposed under the authority of the statute cere strongly felt,-farmers were de prived of their leases, creditors were defrauded of their debts, and latent entails were frequently produced to overthrow titles, while treason, it is said, was encouraged by the fact that the estate could not be forfeited for a period longer than the tenant's life. All classes of the community, except the great land owners, were thus interested in securing a repeal or modification of the statute, but, though repeated attempts were made in parliament to this end, they were always defeated.81 Finally the judges, in pursuance of the policy which the courts have always favored, of promoting and preserving freedom of alienation, decided that a common recovery suffered by the tenant in tail was an effectual method of conveying the land, the power of alienation being thus restored. Recoveries and fines, which latter were subsequently also adopted for the purpose, were collusive and fictitious proceedings, brought against the tenant in tail, in which he suffered judgment to go against him, or a compromise was effected. The legality of barring an estate tail by a recovery is said to have been first recognized in "Taltarum's Case" (12 Edw. IV., A. D. 1473), though the matter had probably for some time engaged the attention of the judges.82

These modes of barring entails were in general use in England till they were abolished by a statute which expressly

81 Mildmay's Case, 6 Coke, 40a, quoted in Digby, Hist. Real Prop. 251.

82 2 Bl. Comm. 117; Digby, Hist. Real Prop. 250 et seq.; Challis, Real Prop. 244; Williams, Real Prop. 44; 4 Kent, Comm. 14.

The pleadings in Taltarum's Case (Year Book, 12 Edw. IV., pl 25, f. 19) are given by Mr. Digby (pages 253-255), and it is explained, so far as capable of explanation, by Mr. Challia

authorized a tenant in tail to alienate the land in fee simple, or otherwise, and thus bar the expectations of his issue, and also of the owner of the reversion.83 In this country, fines and recoveries were recognized as a mode of barring entails in several of the colonies and states. But at an early date statutes were passed in several states authorizing the tenant in tail to bar the entail by deed; and wherever the estate still exists unchanged by statute, a deed by the tenant in tail is sufficient to convey an estate in fee simple.85

§ 28. Incidents of estate.

The gradual withdrawal of the restraints on the alienation of estates tail has been considered above, but the statutes do not generally, if ever, authorize the tenant to bar the entail by will, and consequently the disability in this respect remains as at common law, and the estate cannot be devised.86 Neither is the property liable for the debts of the tenant in tail for a period longer than his life, unless it is otherwise provided by statute.87 As hereafter stated, the tenant may use the property without regard to the interests of the owner

88 3 & 4 Wm. IV. c. 74 (1833); Digby, Hist. Real Prop. 252; Challis, Real Prop. 236.

84 See Carroll's Lessee v. Maydwell, 3 Har. & J. (Md.) 292; Hawley v. Inhabitants of Northampton, 8 Mass. 3, 5 Am. Dec. 66; Frost v. Cloutman, 7 N. H. 9, 26 Am. Dec. 723; Roseboom v. Van Vechten, 5 Denio (N. Y.) 414; Lyle v. Richards, 9 Serg. & R. (Pa.) 322.

85 1 Stimson's Am. St. Law, § 1313(c); 1 Washburn, Real Prop. 84, and note; 1 Sharswood & B. Lead. Cas. Real Prop. 109 et seq. See Croxall v. Shererd, 5 Wall. (U. S.) 268; Howard v. Moale, 2 Har. & J. (Md.) 249; Riggs v. Sally, 15 Me. 408; Collamore v. Collamore, 158 Mass. 74; Lawrence v. Lawrence, 105 Pa. St. 335; Jillson v. Wilcox, 7 R. I. 515.

Theological Seminary v. Wall, 44 Pa. St. 353; Laidler v. Young's Lessee, 2 Har. & J. (Md.) 69; Williams, Real Prop. 56; Co. Litt. 111a.

ST Williams, Real Prop. 58; 1 Cruise's Dig. tit. 2, c. 2, § 27;

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