This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In the time of Bracton, who wrote about the middle of the thirteenth century,
39. Post Sec. 592(a).
40. 1 Cruise's Dig. tit. 1, Sec. 41; Leake, Prop. in Land, 33; Chalns, Real Prop. (3rd Ed.) 83.
41. 1 Cruise's Dig. tit. 1, Sec. 50; Williams, Real Prop. (21st Ed.)
74; Challis, Real Prop. 68 et seq.
42. Post Sec.Sec. 550-552.
43. Post Sec.Sec. 335-347.
44. Post, Sec. 280.
45. Post Sec.Sec. 561-565.
46. Post Sec.Sec. 548, 549.
If an estate was given to a man and the heirs of his body, an estate was created which passed to the donee's descendents according to the terms of the gift, and if no such issue were born, then the property reverted to the donor. In case, however, the donee had heirs of the body, and then made an alienation of the land, the heirs named would be bound to warranty, - that is, to uphold the gift, - and consequently it came to be considered that, as stated by that writer, while the donee had a life estate only until the birth of issue, upon that occurring the donee could alienate and convey an estate in fee simple, might forfeit the property for treason, and could charge it with rents or other incumbrances, which would bind his heirs. It was thus in effect decided that a gift to one and the heirs of his body was the same as a gift to him and his heirs, if he had heirs of his body, and the estate was consequently called a conditional fee or fee simple conditional, as being for most purposes equivalent to a fee simple estate, conditioned on the birth of issue. If, however, the donee named died without having alienated the property, it passed to his heirs of the body, according to the terms of the gift, and on the failure of such heirs it reverted to the donor, in view of which latter contingency the donee of such an estate usually took care to alienate the property as soon as issue was born, afterwards repurchasing it to hold in fee simple absolute.47 The construction thus placed upon gifts of the character referred to was regarded by the great land owners as prejudicial to their interests, partly because it tended to prevent the perpetuation of property in their families, and partly because the feudal lord was thereby deprived of the reversionary interest in case of the death of the donee without heirs of the body; this reversion being obviously much more valuable in the case of a fee restricted to such heirs than in the case of an absolute fee simple. And it was to avoid these results that the statute De Donis Conditionalibus48 was passed.
47. Co. Litt. 19a; 2 Blackst. Comm. 110; Digby, Hist. Real
Prop. (4th Ed.) 161, 220, et seq.; Challis, Real Prop. 263 et seq.
The statute referred to provided, after a recital of the evils sought to be avoided, that the will of the donor, according to the form in the deed of gift manifestly expressed, should be from henceforth observed, so that they to whom the land was given should have no power to aliene the land, but that it should revert to the donor or his heirs if issue failed, either by an absolute default of issue, or, after the birth of issue, by its subsequent extinction.49 The primary effect of this statute was to prevent the alienation of the property by the donee so as to bar his issue or affect the grantor's right of reverter, and it was given the following interpretation by the courts: The donee who, before the statute, had a conditional fee which became absolute on the birth of issue, now had a new kind of estate, which descended to such heirs as were named in the gift; and this estate being considered smaller than a fee simple, which descends to the heirs generally, was called an "estate in fee tail," or an "estate tail," it being a portion of an estate taille-cut off-from the fee. On the other hand, the donor, who, before the statute, had a mere possibility of reverter49a in case of the failure of the donee's issue before alienation by the donee, after the statute had an estate in fee simple in reversion expectant on the determination of the estate tail.50 An estate in fee tail, then, or, as it is frequently called, an estate tail, may be defined as an estate of inheritance which, if left to itself, will, after the death of the first owner, pass to his lawful issue, including children, grandchildren, and more remote descendants, so long as his posterity endures, in the regular order of descent from such owner, and will terminate on the failure of such posterity.
48. 13 Edw. I. c. 1 (1285), the whole statute being also known as that of Westminster II.
49. Challis, Real Prop. 288; Digby, Hist. Real Prop. 228; Williams, Real Prop. 93.
49a. Post Sec. 132.
50. 2 Blackst. Comm. 112; 2 Pollock & Maitland, Hist. Eng. Law 17-19; Digby, Hist. Real Prop. 228; Williams, Real Prop. 93 et seq.