23. Estates tail were created by the operation of the statute de donis conditionalibus upon fees conditional at common law.
In early feudal times, when estates first became hereditary, and were given to a man and his heirs, the word "heirs" was considered to mean lineal heirs,or the descendants of the body of the first taker.18 The collateral relations, such as brothers, sisters, and cousins, could not take. This was obviously to the advantage of the feudal lord or
11 Co. Litt § 283. 12 Co. Litt. § 25.
13 That is, the donee has an estate tall after possibility of issue extinct. Post, p. 52. 14 Hulburt v. Emerson, 16 Mass. 241, 15 Co. Litt. § 25. 16 Co. Litt §§ 23. 24. 18 Dig. Hist Real Prop. (4th Ed.) 220; Pol. & M. Hist Eng. Law, II grantor; for, by confining the inheritance to the issue of his tenant, he was more likely to have profitable wardships and escheats than if collateral kinsmen were admitted. At this time the heir derived his title to the estate from the grantor by designation in the grant per formam doni. But as the tenant acquired, in course of time, the power of alienating the fee, the interest of the heir became reduced to a mere expectation of succeeding, in the event of his ancestor not exercising that power. The additional grant to the heirs was then referred wholly to the estate of the ancestor, as importing merely an estate of inheritance, an essential incident of which was the power of transferring the land, and the heir no longer claimed as grantee by designation in the grant, but derived his title from the ancestor by descent.19 The word "heirs" was also extended, so as to include collateral as well as lineal heirs.20 When the grantor, therefore, wished to confine the estate to the lineal descendants of the tenant, it became necessary for him to expressly limit it to the heirs of the tenant's body. Estates so limited were called, indifferently, "conditional fees," "fees conditional," and "fees conditional at common law," because of the condition, implied in the grant, that if the grantee died without heirs of his body, or in case of a failure of such heirs at any future time, the land should revert to the grantor. The grantor had no reversion, but only a possibility of a reverter. The fee was still considered to be in the grantee, subject to be divested by the failure of the condition. The limitation to the heirs of his body did not otherwise affect the rights and powers of a tenant, and in respect of these it remained a fee simple. So long as the fee lasted, the tenant for the time being had all such powers, including the power of alienation, as were the inseparable incidents of an estate of inheritance. It was, however, a condition necessary to the full effect of his alienation, so as to bar, not only his issue, but also the possibility of reverting to the grantor, that he should have heritable issue.21 The gift to one and to the heirs of his body was construed, for the purpose of alienation, to be the same as a gift to him and to his heirs, if he had heirs of his body. By this construction the intention of the grantor in limiting the estate to the heirs of his tenant's body was again defeated.22 The birth of issue was held to discharge the estale of the condition, and, like a fee simple, the tenant had power to alien or incumber it, and it was liable to forfeiture for treason. If the donee aliened the land before issue was born, the conveyance was effectual against both the donee and the donor during the donee's life. If issue was born to the donee subsequently to his conveyance, the grantee's estate became absolute, and cut off all rights of the issue and of the donor.*
19 Leake, Prop. Land. 33. 20 Williams, Real Prop. (17th Ed.) 101.
21 2 Bl Comm. 110; 1 Spence, Eq. Jur. 141; Anon., Fitzh. Abr. "Formedon," 65.
The Statute de Donis Condltionolitms.
In 1285, the great landowners secured the passage of the famous statute "de donis conditionalibus,"23 or, as it is often called, the Statute of Westminster El This act provided that, "where any giveth his land to any man and his wife and to the heirs begotten of the bodies, * * * the will of the giver according to the form in the deed of gift manifestly expressed shall be from henceforth observed, so that they to whom the land was given under such condition shall have no power to aliene the land so given, but it shall remain unto the issue of them to whom it was given after their death, or shall revert unto the giver or his heirs if issue fail," etc. No forfeiture was imposed on a tenant who should alien his estate, but his conveyance was of no effect, after his death, against his heirs or the donor. The statute, in taking away from the tenant the power to alien the land, deprived his estate of that incident which chiefly characterized it as a fee simple.24 It was, therefore, no longer classed as a fee simple conditional, but it was recognized to be a new kind of fee or inheritance created by the statute, and thenceforth distinctively known as a "fee tail." "Where an estate to one and to the heirs of his body was a fee simple before the statute, now since the statute it is taken that he has but a fee tail, and this is included in the statute although it is not expressed; for when the statute restrained the donee from aliening the fee simple, or from doing other acts which he that has a fee simple may do, it was presently taken that the fee was not in him, for it would be idle to adjudge it in him when he could not do anything with it, and therefore it was taken, by collection and implication of the act, that the fee simple continued in the donor. So that he has one inheritance, viz. a fee simple, and the donee has another inheritance of an inferior degree, viz. a fee tail. And immediately upon the making of the act it had this name given it."25 It was so called from the inheritance being cut down - "talliatum" - to the line of heirs designated. The name was used for a restricted inheritance before the statute, but since the statute it is used distinctively for the new estate thereby created.26 After the statute de donis the heirs of the donee again took per formam doni.
22 2 Bl. Comm. 111.
* 1 Spenee, Eq. Jur. p. 141. And see Nevil's Case, 7 Coke, 33a; Willion v. Berkley, Plow. 223; Buckworth v. Thirkell 3 Bos. & P. 652, note. 23 13 Edw. I. St 1. c. 1, § 2. 24 Hill v. Hill, 74 Pa. St. 173.