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died, and also the tenant or original grantee, without making any alienation, the land, by the terms of the donation, could descend to none but the heirs of his body, and in default of them, must have reverted to the donor. For which reason, the donees of these conditional fee-simples took care to aliene, as soon as they performed the condition by having issue, and afterwards repurchased the lands, which gave them a fee-simple absolute, that would descend to the heirs in general.
Statute de Donis. The inconveniences which attended these limited and fettered inheritances induced the judges to favor this subtle finesse of construction, to abridge these conditional estates. But the nobility, who desired to perpetuate their possessions in their own families, to put a stop to this practice, procured the passage of the statute de donis conditionalibus, which paid more regard to the private intentions of the donor, than to the interests of the public. This statute revived in some sort the ancient feudal restraints 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 not, should revert to the donor.
Origin of Estates-tail. The judges, in construing this statute, determined that the donee had no longer a conditional fee-simple, which became absolute and at his own disposal, the instant the issue was born; but they divided the estate into two parts, leaving in the donee a new kind of estate, which they termed a fee tail, and investing in the donor the ultimate feesimple of the land, expectant on the failure of issue, which expectant estate is now called a reversion. Littleton tells us, that tenancy in fee tail is by virtue of this statute.
What may be Entailed. We will now consider what things may or may not be entailed, under the statute de donis. Tenement is the only word used in the statute, which Coke asserts, comprehends all corporeal hereditaments, also all incorporeal hereditaments, which savor of the realty; 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, and have relation to fixed and certain places. But merely personal chattels, which savor not at all of the realty, cannot be entailed. Neither can an office relating to such chattels, nor an annuity, which charges only the person, and not the lands of the grantor. But if granted to a man and the heirs of his body, the grantee has still a fee conditional at common law, as before the statute, and by his alienation, after issue born, may bar the heir or reversioner.
What may not be Entailed. An estate to a man and his heirs for another's life cannot be entailed, for this is strictly no estate of inheritance, and therefore not within the statute de donis. Nor can a copyhold estate be entailed by virtue of the statute, for that would encroach upon 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 the lord's will.
Two kinds of Estates-tail. Estates tail are either general or special. Tail, general is where lands or tenements are given to one and the heirs of his body begotten, because no matter how often he marry, his issue in general by all marriages is, in successive order, capable of inheriting the estate tail, per formam doni.
Fee-tail Special. Tenant in tail special is where the gift is restrained to certain heirs of the donee's body. This may bappen in several ways, as where tenements are given to a man and the heirs of his body by his present wife. This would be special tail. The words of inheritance, to him and his heirs, give a man an estate in fee; but to him and to heirs by him begotten, makes it a fee-tail, and the person being also limited, on whom such heirs shall be begotten, makes it a fee-tail special.
Heir-tail, Male or Female. Estates in general and special tail may also be either in tail inale or tail female. In case of an entail male, the heirs female shall never inherit, nor e converso, the heirs male, in case of a gift to heirs female. And as the heir male must convey his descent wholly by males, so must the heir female wholly by females. Hence if a man has two estates tail, one male, the other female, and he has issue a daughter, who has issue a son, this grandson can succeed to neither estate, for he cannot convey his descent wholly in either the male or female line.
Words “ Heirs” and “Body.” As the word “heirs" is necessary to create a fee, the word “body” or some other words of procreation are requisite to make it a fee tail, and to ascertain to what heirs a fee is limited. Hence if either the words of inheritance or procreation be omitted, this will not constitute an estate tail. A grant to a man and his children, seed or offspring is only an estate for life, wanting the words of inheritance, “his heirs." A gift to a man and his heirs, male or female, is an estate in fee simple.
Indulgence as to last Wills. In last wills, where greater indulgence is allowed, an estate-tail may be created by a devise to a man and his seed, or to a man and his heirs male, or by other irregular modes of expression.
Estates in Frank-marriage. Another species of entailed estates, not now in use, but yet still capable of subsisting in law, are estates in frank-marriage. By such gift, the donees shall have the tenements to them and the heirs of their two bodies begotten; that is they are tenants in special tail. This is where tenements are given by one man to another, together with a wife, who is a daughter or cousin of the donor, to hold in frank-marriage. This word does, ex vi termini, not only create an inheritance like the word frankalmoign, but likewise limits that inheritance, supplying not only words of descent, but of procreation also. Such donees in frank-marriage are liable to no service but fealty, for a rent reserved thereon is void, until the fourth degrees of consanguinity be past between the issues of the donor and the donee.
Incidents to a Tenancy in Tail.
1. A tenant in tail may commit waste, by felling timber on the land, or pulling down houses, or the like, without accounting therefor.
2. The wife of such tenant shall have her dower or thirds of the estate tail.
3. The husband of such tenant may be tenant by curtesy.
4. That an estate-tail may be barred or destroyed by a fine, by a common recovery, or by lineal warranty, descending with assets to the heir.
Evils of Estates-tail. The establishment of this family estate occasioned infinite disputes. Children became disobedient, when they knew they could not be set aside; farmers were ousted of their leases made by tenants in tail, for if such leases had been valid, then under color of long leases, the issue might have been practically disinherited, and creditors defrauded of their debts. For if a tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by
mortgaging the property for what it was worth. Innumerable latent entails were produced to deprive purchasers of lands they had bought; law suits were increased ; treasons were encouraged, as estates-tail were not liable to forfeiture longer than for the tenant's life. They were considered the common grievance of the realm, but the nobility were attached to this statute, because it preserved their family estates from forfeiture, and hence they prevented its abolition by the legislature. However, by the contrivance of a politic prince, a method was devised to evade them.
Barred by Common Recoveries. About two hundred years elapsed after the enacting of the statute de donis, before the application of common recoveries in the reign of Edward IV, which were declared to be a bar of an estate-tail. The king observing in the disputes between the houses of York and Lancaster, how little effect attainders for treason had on families, whose estates were protected by entails, suffered a noted case to be brought before the court, wherein it was determined, that common recovery suffered by a tenant in tail should destroy such tenancy. These recoveries are fictitious proceedings, introduced by a kind of pia fraus, to elude the statute de donis, but however clandestinely introduced, are now by long use and acquiescence a most common assurance of lands, and are looked upon as the legal mode of conveyance, by which a tenant in tail may dispose of his lands and tenements.
Forfeited for High Treason. This expedient having abridged the duration of estates-tail, others were devised to strip them of other privileges, especially from their freedom of forfeiture for treason, which was effected by a statute of Henry VIII, enacting, that all estates of inheritance should be declared forfeited to the king upon conviction of high treason.
Other Modes of Barring. Subsequently by statute, certain leases made by a tenant in tail, not prejudicing the issue, were allowed to be good in law and to bind the issue in tail, and by further statute in the same reign, which declared a fine duly levied by a tenant in tail to be a complete bar to him and his heirs, and all other persons claiming under such entail.
Exception of Crown Property. Yet in order to preserve the property of the crown from any danger of infringement, all estates-tail created by the crown, and of which the crown has the reversion, are excepted. By statute, all estates-tail are liable to be charged with debts due the king by record or special contract, as since, by the bankrupt law, they may be sold for debts contracted by a bankrupt. An appointment by tenants in tail of the lands entailed to a charitable use is good, without fine or recovery.
Present Condition of Estates-tail. Estates-tail are now reduced almost to the same state, even before issue born, as conditional fees were at common law, after the condition was performed by the birth of issue. A tenant in tail may now aliene his lands by fine, by recovery and by certain other means, and thereby defeat the interest of his own issue, though unborn, as also of the reversioner, except in the case of the crown. He is is also liable to forfeit them for high treason; and finally he may charge them with reasonable leases, and with such debts as are due to the crown on specialties, or have been contracted with his fellow-subjects in the course of commerce.
CHAPTER VIII.— FREEHOLDS, NOT OF INHERITANCE.
Division. These freeholds are estates for life only, of which some are conventional, or expressly created by the act of the parties, and others merely legal, or created by construction and operation of law. I. ESTATES FOR LIFE.
Defined. Life estates, expressly created by deed or grant, are where a lease is made of lands or tenements to a man, to hold for the term of his own life, or for that of any other person, or for more lives than one; in any of which cases he is styled tenant for life, or tenant by another's life, pur autre vie.
Of Feudal Origin. These estates for life, like inheritances, are of feudal nature, and for a time were the highest estate one could have in a feud, which was not, in its original, hereditary. They are conferred by the same feudal solemnities, the same investiture or livery of seisin, as fees themselves are, and they are held by fealty, if demanded, and such rents and services, as the lord or lessor, and his tenant or lessee, have agreed upon.