The next estate we shall notice is an estate tail, or an estate given to a man and the heirs of his body. This is such an estate as will, if left to itself, descend, on the decease of the first owner, to all his lawful issue, - children, grand-children, and more remote descendants, so long as his posterity endures, - in a regular order and course of descent from one to another: and, on the other hand, if the first owner should die without issue, his estate, if left alone, will then determine. An estate tail may he either general, that is, to the heirs of his body generally and without restriction, in which case the estate will be descendible to every one of his lawful posterity in due course; or special, when it is restrained to certain heirs of his body, and does not go to all of them in general; thus, if an estate be given to a man and the heirs of his body by a particular wife; here none can inherit but such as are his issue by the wife specified. Estates tail may be also in tail male, or in tail female: an estate in tail male cannot descend to any but males, and male descendants of males; and cannot, consequently, belong to any one who does not bear the surname of his ancestor from whom he inherited : so an estate in tail female can only descend to females, and female descendants of females (a). Special estates tail, confined to the issue by a particular wife, are not now common : the most usual kinds of estates tail now given are estates in tail general, and in tail male. Tail female scarcely ever occurs.
General or special.
Male or female.
(a) Litt. ss. 13, 14, 15, 10, 21;
2 Black. Com. 113, 114.
The owner of an estate tail is called a donee in tail, and the person who has given him the estate tail is called the donor. And here it may be remarked, that such correlative words as donor and donee, lessor and lessee, and many others of a like termination, are used in law to distinguish the person from whom an act proceeds, from the person for or towards whom it is done. The owner of an estate tail is also called a tenant in tail, for he is as much a holder as a tenant for life. But an estate tail is a larger estate than an estate for life, as it may endure so long as the first owner of the estate has any issue of the kind mentioned in the gift. It is consequently an estate of freehold. We shall now proceed to give a short history of this estate; in doing which it will be necessary to advert to the origin and progress of the general right of alienation of lands.
It will readily be supposed that a mere system of life estates, continually granted by feudal lords to their tenants, would not long continue; the son of the tenant would naturally be the first person who would hope to succeed to his father's tenancy: accordingly we find that the holding of lands by feudal tenants soon became hereditary, permission being granted to the heirs of the tenant to succeed on the decease of their ancestor. By the term "heirs" it is said that the issue of the tenant were at first only meant; collateral relations, such as brothers and cousins, being excluded (b); the true feudal reason of this construction is stated by Black-stone to be, that what was given to a man for Lis personal service and personal merit ought not to descend to any but the heirs of his person (c). But in our own country it appears that, at any rate in the time of Henry II. (d), collateral relations were admitted to succeed as heirs; so that an estate which had l>een granted to a man and his heirs descended, on his de-cease, not only to his offspring, but also, in default of offspring, to his other relations in a defined order of succession. Hence if it were wished to confine the inheritance to the offspring of the donee, it became necessary to limit the estate expressly to him and the heirs of his body(e), making what was then called a conditional gift, by reason of the condition implied in the donation, that if the donee died without such particular heirs, or in case of the failure of such heirs at any future time, the land should revert to the donor (f). The most usual species of grant appears, however, to have been that to a man and his heirs generally; but, as the right of alienation seems to have arisen in the same manner with regard to estates granted in both the above methods, it will be desirable, in considering the origin of this right, to include in our remarks as well an estate granted, to a man and his heirs, as an estate confined to the heirs of the body of the grantee.
Donee in tail.
Tenant in tail.
An estate tail is a freehold.
Feudal tenancies become hereditary.
(b) Wright's Tenures, 18. (c) 2 Black. Com. 221.
(d) 1 Reeves's Hist. Eng. Law, 108.
In whichever method the estate might have been granted, it is evident that, besides the tenant, there were two other parties interested in the lands; one, the person who was the expectant heir of the tenant, and who had, under the gift, a hope of succeeding his ancestor in the holding of the lands; the other, the lord, who had made the grant, and who had a right to the services reserved during the continuance of the tenancy, and also a possibility of again obtaining the lands on the failure of the heirs mentioned in the gift. An alienation of the lands by the tenant might therefore, it is evident, defeat the rights of one or both of the above parties. Let us, therefore, consider, in the first place, the origin and progress of the right of alienation as it affected the interest of the expectant heir; and, secondly, the origin and progress of this right as it affected the interest of the lord.
To the donee and the heirs of his body.
A conditional gift.
Two other parties inte-rested, the expectant heir and the lord.
(e) Bracton, lib. 2, cap. 6, fol. 17b; cap. 19, fol. 47 a; Co. Litt.
290 b,n. (1), V. 1. (f) 2 Black. Com. 110.
The right of an ancestor to defeat the expectation of his heir was not fully established at the time of Henry II. For it appears from the treatise of Glanville, written in that reign (g), that a larger right of alienation was possessed over lands which a man had acquired by purchase, than over those which had descended to him as the heir of some deceased person: and even over purchased lands the right of alienation was not complete, if the tenant had any heir of his own body (h); so that if lands had been given to a man and his heirs generally, he was able to disappoint the expectation of his collateral heirs, but he could not entirely disinherit the heirs sprung of his own body. For certain purposes, however, alienation of part of the lands was allowed to defeat the heirs of his body; thus part of the lands might be given by the tenant with his daughter on her marriage, and part might also be given for religious uses (i). Such gifts as these were, however, as we shall presently see, almost the only kinds of alienation, in ancient times, which occasioned any serious detriment to the heir; and the allowing of such gifts may accordingly be considered as an important step in the progress of the right of alienation. For, when lands were given to a daughter on her marriage, the daughter and her husband, or the donees in frank-marriage, as they were called, held the land- granted, to them and the heirs of their two bodies free from all manner of service to the donor or his heirs (a mere oath of fealty or fidelity excepted), until the fourth degree of conganguiniiy from the donor was passed (A); and when lands were given to religious . the grantees in frankalmoign, as they were called, were for ever free from every kind of earthly or tem-poral service (/). Little or nothing, therefore, in these cases, remained for the heir of the grantor. But the other modes of alienation 'which then prevailed were very differenl in their results, as well from such gifts as above described, as from the ordinary sales of landed property which occur in modern times. Ready money was then extremely scarce; large fortunes, acquired by commercial enterprise, were not then expended in the purchase of country seats. The auction mart was not then established; such a thing as an absolute sale for a sum of money paid down was scarcely to be met with. The alienation of lands rather assumed the form of perpetual leases, granted in consideration of certain sendees or rents to be from time to time performed or paid. This method was, in feudal language, termed subinfeudation. In all the old conveyances, almost without exception, the lands are given to the grantee and his heirs, to hold as tenants of the grantor and his heirs, at certain rents or services (m); and when no particular service was reserved, it was understood that the grantee held of the grantor, subject to the same services as the grantor held of his superior lord (n). As, therefore, it cannot be supposed that gifts should be made without some fair equivalent, and as such equivalent, in the shape of rent or service, would descend to the heir in lieu of the land, we may fairly presume that alienation, as ordinarily practised in early times, was not so great a disadvantage to the heir as might at first be supposed: and this circumstance may perhaps help to account for that which at any rate is an undoubted fact, that the power of an ancestor to destroy the expectation of his heirs, whether merely collateral or heirs of his body, soon became absolute. In whichever way the grant were made, whether to the ancestor and his heirs, or to him and the heirs of his body, we find that by the time of Henry III. the heir was completely in his ancestor's power, so far as related to any lands of which the ancestor had possession. Bracton, who wrote in this reign, expressly lays it down, that the heir acquires nothing from the gift made to his ancestor (o). The very circumstance that land was given to a person and his heirs, or to him and the heirs of his body, enabled him to convey an interest in the land, to last as long as his heirs in the one case, or the heirs of his body in the other, continued to exist. And from the time of Bracton, a gift to a man and his heirs generally has enabled the grantee, either entirely to defeat the expectation of his heir by an absolute conveyance, or to prejudice his enjoyment of the descended lands by obliging him to satisfy any debts or demands, to the value of the lands, according to his ancestor's discretion. With respect to lands granted to a man and the heirs of his body, the power of the ancestor is not now so complete. The means by which this right of alienation was in this case curtailed will appear in the account we shall now give of the origin and progress of the right of alienation as it affected the interest of the lord.