Estates in fee-tail "are the second class of estates of inheritance. An estate in fee-tail differed from an estate in fee-simple in that while the latter was a grant to a person and his heirs generally, the former was a grant to a person and the heirs of his body; i. e., his direct descendants. Upon the death of a person holding an estate in fee-tail the property could only go to those relations of his (otherwise qualified), who were lineal descendants of the first holder of the estate tail. If there were no persons with these requirements the land reverted to the original grantor or his heirs.

The estate of fee-tail was created to enable land to be kept in the same family, and to prevent its alienation.7 The Statute which created the estate (and at the same time abolished the fee conditional) was known as the Statute of DeDonis, and was the thirteenth chapter of the Statutes of Westminster II, 12 Edward I (1285) .8

6 Coke's Institutes, Vol. I, p. 494.

7 For the long contest in English legal history over the right of alienation of land, see Appendix A to Real Property.

8 "The statute of W. 2." This statute was made in 13 E., 1, and is called West. 2, because the Parliament was holden at Westminster, and hath the Estates in fee-tail are divided into those in fee-tail general and fee-tail special. The former were those estates limited to all the descendants of the grantee, and the latter those limited to the descendants of the grantee by a particular person. Thus a grant to "A and the heirs of his body" created a fee-tail general, while a grant to "A and the heirs of his body by his wife B" created a fee-tail special. Estates in fee-tail could also be limited either to the male or to the female heirs of the grantee. Such estates were called estates in fee-tail, male or fee-tail female.

Estates in fee-tail have been abolished in nearly all the States of this country. They still exist in a few states in a modified form. Thus in Illinois an estate in fee-tail may still be created but in such a case, while the grantee takes only a life estate, his children take an estate in fee-simple.

The remainder of this section is composed of extracts from Coke on Littleton.9

name of the second, because another Parliament was formerly holden at Westminster in the third year of the same king's reign, which was called Westminster the first. And albeit, many Parliaments were after holden at Westminster besides these, yet were they two only, propter excellentiam, called the statutes of Westminster. And the act intended by Littleton is W. 2, cap. 1, upon which statute our author, in the Inner Temple, did learnedly read, whose reading I have. Of King Edw. I, and of this statute, Sir William Herle. Chief Justice of the Court of Common Pleas, in 5 E., 3, 14, saith, that King E. I, was the wisest king that ever was; and the cause of the making of this statute, was to preserve the inheritance in the blood of them to whom the gift was made. And in 9 E., 3, 22, he saith, that they were sage men that made this statute. See more of this in the Chapter of Warranties, Sec. 746. Coke's Institutes. 9 See Section 5.

In gifts in tail these words (heirs) are as necessary as in feoffments and grants; for seeing every estate tail was a fee-simple at the common law, and at the common law no fee-simple could be in feoffments and grants without these words, (heirs) and that an estate in fee tail is but a cut or restrained fee, it followeth, that in gifts in a man's life-time no estate can be created without these words, (heirs) unless it be in case of frank-marriage, as hereafter shall be shown. And where Littleton saith, (heirs) yet (heir) in the singular number in a special case may create an estate tail, as it appeareth by 39 Ass. p. 20, hereafter mentioned. And yet if a man give lands to A. et haeredibus de corpore suo, the remainder to B. in forma praedicta, this is a good estate tail to B., for that in forma praedicta do include the other. If a man letteth lands to A. for life, the remainder to B in tail, the remainder to C. in forma praedicta, this remainder is void for the uncertainty. But if the remainder had been, the remainder to C. in eadem forma, this had been a good estate tail; for idem semper proximo antecedenti refertur. If a man give lands and tenements to a man et semini suo, or exitibus vel prolibus de corpore suo, to a man and to his seed, or to the issue or children of his body, he hath an estate for life; for albeit that the statute provideth, that voluntas donatoris secundum formam in charta doni sui manifeste expressam de caetero observetur, yet that will and intent must agree with the rules of law. And of this opinion was our author himself, as it appeared in his learned reading afore-mentioned upon this statute, where he holdeth if a man giveth land to a man et exitibus de corpore suo legitime procreatis, or semini suo, he hath but an estate for life, for that there wanteth words of inheritance. "These words, 'of his body/ are not so strictly required but that they may be expressed by words that amount to as much: for the example that the statute of W. 2, putteth hath not these words, (de corpore) but these words (haeredibus) viz., Cumaliquis dat terram suam alicui viro et muliere procreatis. If lands be given to B. et haeredibus quos idem B. de prima uxore sua legitime precrearet, this is a good estate in special tail, (albeit he hath no wife at that time), without these words (de corpore). So it is if lands be given to a man, and to his heirs which he shall beget of his wife, or to a man et haeredibus de came sua, or to a man et haeredibus de se. In all these cases these be good estates in tail, and yet these words (de corpore) are omitted., "Two things seem essential to an intail within the statute De donis. One requisite is, that the subject be land or some other thing of a real nature. The other requisite is, that the estate in it be an inheritance. Therefore, neither estates pur auter vie in lands, though limited to the grantee and his heirs during the life of cestui que vie, nor terms of years, are inalienable any more than personal chattels; because as the latter, not being either interests in things real or of inheritance, want both requisites; so the two former, though interests in things real, yet not being also of inheritance, are deficient in one requisite. However, estates pur auter vie, terms for years, and personal chattels, may be so settled, as to answer the purposes of an intail, and be rendered "unalienable almost for as long a time, as if they were intailable in the strict sense of the word. Thus estates pur auter vie may be devised or limited in strict settlement by way of remainder like estates of inheritance; and such as have interests in the nature of estates intail may bar their issue and all remainders over by alienation of the estate pur auter vie, as those, who are, strictly speaking, tenants intail, may do by fine and recovery; but then the having of issue is not an essential preliminary to the power of alienation in the case of an estate pur auter vie limited to one and the heirs of his body, as it is in the case of a conditional fee, from which the mode of barring by alienation was evidently borrowed. The manner of settling terms for years and personal chattels is different; for in them no remainders can be limited; but they may be intailed by executory devise or by deed of trust; as effectually as estates of inheritance, if it is not attempted to render them unalienable beyond the duration of lives in being and twenty-one years after, and perhaps in the case of a posthumous child a few months more; a limitation of time, not arbitrarily prescribed by our courts of justice, but wisely and reasonably adopted in analogy to the case of freeholds of inheritance, which cannot be so limited by way of remainder as to postpone a complete bar of the intail by fine or recovery for a longer space. It is also proper to observe, that, in the case of terms of years and personal chattels, the vesting of an interest which in reality would be an estate tail, bars the issue and all the subsequent limitations, as effectually as fine and recovery in the case of estates intailable within the statute De donis, or a simple alienation in the case of conditional fees and estates pur auter vie; and further, that if the executory limitations of personalty are on contingencies too remote, the whole property is in the first taker. Upon the whole, by a series of decisions within the last two centuries, and after many struggles in respect to personalty, it is at length settled, that every species of property is in substance equally capable of being settled in the way of intail; and though the modes vary according to the nature of the subject, yet they tend to the same point, and the duration of the intails is circumscribed almost as nearly within the same limits, as the difference in property will allow. As to the intail of estates pur auter vie, see 2 Vera., 184, 225; 3 P., Wms., 262; 1 Atk., 324; 2 Atk., 259, 376; 3 Atk., 464, and 2 Ves., 681. As to the intail of terms for years and personal chattels, see Manning's Case, 8 Co., 94. Lampett's Case, 10 Co., 46b; Child and Bailey, W. Jo., 15. Duke of Norfolk's Case, 3 Chan. Case 1, a case in Carth., 267, and one in 1 P. Wms., 1. See,' also, Fearne's Essay on Conting. Rem. and Exec. Dev., 2d ed., p. 122, to the end. Mr. Fearne's work is so very instructive on the dry and obscure subject of remainders and executory devises, that it cannot be too much recommended to the attention of the diligent student. Note, it was resolved in the 40 Eliz., that the statute De donis doth extend to the Isle of Man; because the statute is general, and the Isle of Man is not specially named. See 4 Inst., 284; 2 And., 115, and 2 Ves., 350. See, also, ante, 9a, where the following note by Lord Hale in respect to the case of the Isle of Man, there mentioned by Lord Coke to have been adjudged in 40 Eliz., should have been introduced; though as it partly relates to the statute De donis, it may come in here without any impropriety. Note, William, Earl of Salisbury, got Man from the Scots, and granted it to William Scroop. Hen. 4, claimed it by conquest from him, granted it to comiti Northumbrae, and on his attainder granted it to Sir John Stanley and his heirs; and in this case ruled. 1. That Man is not a parcel of England. 2. That it is bound by statutes of England where specially named, otherwise not. Therefore, the statutes De donis, of uses, of wills, not in force there; and it descends to the co-heirs of Ferdinando, and not of his brother, William, Earl of Derby. Hall MSS."