(e) Cro. Eliz. 805; Co. Litt. IlI a; stat. 3 & 4 Will. IV. c. 74,
(f) Bac. Abr. tit. Estate in Tail (D); stat. 3&4 Will. IV. c. 74, s. 40.
(g) Co. Litt. 224 a; 2 Black. Com. 115.
(h) Stat. 32 Hen. VIII. c. 28; Co. Litt. 44 a; Bac. Abr. tit. Leases and Terms for Years, (D)2.
(i) Co. Litt. 45 b; 2 Black. Com. 319.
(k) Stat. 10 & 20 Vict. c. 120, s. 35.
It has been observed that, in ancient times, estates tail were not subject to forfeiture for high treason beyond the life of the tenant in tail(m). This privilege they were deprived of by an act of parliament passed in the reign of Henry VIII. (n), by which all estates of inheritance (under which general words estates tail were covertly included) were declared to be forfeited to the king upon any convictiou of high treason (o). But the act " to abolish forfeitures for treason and felony and to otherwise amend the law relating thereto" (p) now provides(q), that after the passing of that act, which took place on the 4th July, 1870, no confession, verdict, inquest, conviction or judgment of or for any treason or felony or felo de se shall cause any attainder or corruption of blood or any forfeiture or escheat. The attainder of the ancestor did not of itself prevent the descent of an estate tail to his issue, as they claimed from the original donor, per formam doni (r); and, therefore, on attainder for murder, an estate tail still descended to the issue. By virtue of another statute of the reign of Henry VIII. (s), estates tail are charged, in the hands of the heir, with debts due from his ancestor to the crown, by judgment, recognizance, obligation, or other specialty, although the heir shall not be comprised therein. And all arrears and debts due to the crown, by accountants to the crown, whose yearly or total receipts exceed three hundred pounds, were, by a later statute of the reign of Elizabeth (t), placed on the same footing. But estates tail, if suffered to descend, were not subject to the debts of the deceased tenant owing to private individuals(u) By an act passed at the commencement of Her present Majesty's reign debts, for the payment of which any judgment, decree, order or rule had been given or made by any court of law or equity, were made binding on the lands of the debtor, as against the issue of his body, and also as against all other persons whom he might, without the assent of any other person, cut off and debar from any remainder or reversion (x). But a more recent statute has enacted that no such judgment, decree, order or rule to be entered up after the 29th of July, 1864, the date of the act, shall affect any land until such land shall have been actually delivered in execution (y). An estate tail may also be barred and disposed of on the bankruptcy of a tenant in tail, for the benefit of his creditors, to the same extent as he might have barred or disposed of it for his own benefit (z).
Forfeiture lot treason.
Debts to the crown.
(l) Stat. 3 & 4 Wil IV. c. 74, ss. 15, 40, 41.
(m ) Ante, p. 43.
(n) 26 Hen. VIII. c. 13, s. 5; see also 5 & 6 Edw. VI. c. 11, s. 9.
(o) 2 Black. Com. 118.
(p) Stat. 33 & 34 Vict. c. 23.
(q) Sect. 1.
(r) 3 Rep. 10; 8 Rep. 165 b; Cro. Eliz. 28.
(s) Stat. 33 Hen. VIII. c. 39, s. 75.
In addition to the liabilities above mentioned are the rights which the marriage of a tenant in tail confers on the wife, if the tenant be a man, or on the husband, if the tenant be a woman; an account of which will be contained in a future chapter on the relation of husband and wife. But, subject to these rights and liabilities, an estate tail, if not duly barred, will descend to the issue of the donee in due course of law; all of whom will be necessarily tenants in tail, and will enjoy the same powers of disposition as their ancestor, the original donee in tail. The course of descent of an estate tail is similar, so far its it goes, to that of an estate in fee simple, an explanation of which the reader will find in the fourth chapter.
Husband and wife.
Descent of an estate tail.
(t) Stat. 13 Eliz. c. 4; and see 14Eliz. c. 7; 25 Geo. III. c. 35. (u) Com. Dig. Estates (B) 22. (x) Stat. 1 & 2 Vict. c. 110,
88. 13, 18.
(y) Stat. 27 & 28 Vict. c. 112, ss. 1, 2.
(z) Stat. 3 & 4 Will. IV. c. 74, ss 56 - 73; 32 & 33 Vict. c. 71, 8.25.
If an estate pur autre vie should be given to a person and the heirs of his body, a quasi entail, as it is called, will be created, and the estate will descend, dining its continuance, in the same manner as an ordinary estate tail. But the owner of such an estate in possession may bar his issue, and all remainders, by an ordinary deed of conveyance (a), without any inrolment under the statute for the abolition of fines and recoveries. If the estate tail be in remainder expectant on an estate for life, the concurrence of the tenant for life is necessary to enable the tenant in tail to defeat the subsequent remainders (b).
(a) Fcame, Cont. Rem. 495, et seq.
(b) Allen v. Allen, 2 Dru. &
War. 307, 324, 332; Edwards v. Champion, 3 De Gex, M. & G.