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 .
The most appropriate mode of creating a fee tail is by a conveyance or devise "to A and the heirs of his body." As the word "heirs" is necessary at common law, in a conveyance inter vivos, to create a fee simple, so it is necessary to create a fee tail, owing to the derivation of this estate from a conditional fee, and consequently a grant to a man and "the issue of his body," to him "and his seed," or to him "and his children," gives an estate for life only.61 The words "of his body" may, however, be supplied by other words of procreation, restraining the general import of the word "heirs" to the lineal descendants of the grantee.62 The state statutes which have been so generally passed, dispensing with the word "heirs" for the purpose of creating an estate in fee simple, make no reference to estates in fee tail, and consequently the common law requirement in this regard would appear still to control.63
60. Litt. Sec.Sec. 21-25; Co. Litt. 377a; 2 Blackst. Comm. 114; Leake, Prop. in Land, 168.
To the above classes is sometimes added "quasi entail," which is an estate pur autre vie granted to a man and the heirs of his body. The interest so granted is not an estate tail, for the statute De Donis applies only where the subject of the entail is an estate of inheritance, but it partakes so far of the nature of an estate tail that it will go to the heirs of the body as special occupants during the life of the cestui que vie in jurisdictions where special occupancy is recognized. See post Sec. 35.
Estate tail after possibility of issue extinct is also sometimes added, but this is properly a life estate, and is so treated. See post, Sec. 36.
The forms of estates tail, named in the text, are, according to the common law authorities, not exclusive, and the donor may speci fy any class of heirs of the body to take, or not to take. See editorial note 29 Harv. L. Rev. at p. 878; 2 Preston, Estates 355.
61. Co. Litt. 20a; 2 Blackst. Comm. 115; Challis, Real Prop 292; 4 Kent. Comm. 6; Adams v. Ross, 30 N. J. L. 505, 82 Am. Dec. 237. But see Williams v. Gause, 83 S. C. 265, 65 S. E. 241. (conditional fee created by word "issue").
An estate tail may be created by a limitation merely "to the heirs of the body of A.," provided A. be dead when the limitation takes effect. The heir then takes as first purchaser, and the estate passes, after the heir's death, to the next heirs of the body of A. as if the limitation had been to "A. and to the heirs of his body." Mandeville's Case, Co. Litt. 26b; Vernon v. Wright, 7 H. L. Cas. 35.
In a will, as technical words are unnecessary to create a fee simple, so they are unnecessary to create a fee tail, and, accordingly, any words which indicate an intention to create an estate which shall pass to the lineal descendants of the grantee are sufficient.64 For instance, a devise "to A or the heirs of his body," or "to A and the heir of his body" (in the singular), gives an estate tail to A;65 and the same effect has been given to a devise to one and "to his heirs lawfully begotten;"66 and to a devise to a man and "his male heirs" or "heirs male."67
62. Co. Litt. 20b; Challis, Real Prop. 292; 4 Cruise's Dig. tit. 32, c. 21, Sec. 12 et seq.; Doe v. Smed-dle, 2 Barn. & Ald. 126; Nightingale v. Burrell, 15 Pick. (Mass.) 104; Bundy v. Bundy, 38 N. Y. 410.
The expression "natural heirs" was regarded as equivalent to "heirs of the body" for this purpose. Maynard v. Henderson, 117 Ark. 24, Ann. Cas. 1917A 1157. 17S S. W. 831. But a different view was taken as to the expression "blood heirs." Howe v. Howe, 94 Kan. 67, 145 Pac. 873.
63. See Tygard v. Hartwell. 204 Mo. 200, 102 S. W. 989; Law-son v. Todd, 129 Ky. 132, 110 S. W. 412. But see Beauchamp v. Fitzpatrick, 133 Ga. 412, 65 S. E. 884.
64. 2 Blackst. Comm. 115; 2 Jar. man, Wills, 1169; 6 Cruise's Dig. tit. 38, c 12, Sec. 1; Doty v. Teller 54 N. J. L. 163, 33 Am. St. Rep. 670, 23 Atl. 944; Hall's Lessee v. Vandegrift, 3 Bin. (Pa.) 374.
65. Leake, Prop. in Land, 175; Jarman, Wills, 481, 1171. So to A and his oldest male heir. Cuf-fee v. Milk, 10 Mete. (Mass.) 366; Brownell v. Brownell, 10 R. I 509.
66. Co. Litt. 20b, Hargrave's note; 6 Cruise's Dig. tit. 38, c. 12, Sec. 8. Clarke v. Smith, 49 Md. 106; Buxton v. Uxbridge, 10 Mete. (Mass.) 87; Hall's Lessee v. Vandegrift, 3 Binn. (Pa.) 374, 375.
67. Co. Litt. 27a; Denn v. Slater, 5 Term R. 335; Den v. Fogg, 3 N. J. L. 385; Cooper v. Cooper, 6 R. I. 261; Johnson v. Whiton, 159 Mass. 424, 34 N. E. 542.
[ Sec. 26
- Use of word "children." In the case of a devise, as distinguished from a conveyance inter vivos, to "A and his children," the word children has occasionally been construed as a word of limitation, meaning heirs of the body, so as to vest in A an estate in fee tail68 or its modern statutory equivalent,69 and, still more occasionally, as a word of limitation meaning heirs general, so as to give A an estate in fee simple.70 Ordinarily, however, the word children is a word of purchase, in this connection as in others, with the result that A and his children take an estate or estates in possession as cotenants71 or that A takes a life estate with remainder in favor of his children.72
In a deed, on the other hand, a limitation to "A. and his heirs male" has been said to create a fee simple, since a man "cannot institute a new kind of inheritance not allowed by law," and the words "of the body" are not supplied, as in the case of a will, by construction of law, since that would favor the grantor. Litt. Sec. 31; Co. Litt. 13a, 27a; Challis, Real Prop. 264.
68. Parkman v. Bowdoin, 1 Sumn. 359, Fed. Cas. No. 10,763; Echols v. Jordan, 39 Ala. 24; An nable v. Patch, 3 Pick. (Mass.) 360; Mason v. Ammon, 117 Pa. St. 127, 11 Atl. 449; Roper v. Roper, L. R. 3 C. P. 32. See Smith v. Fox's Adm'r, 82 Va. 763, 765, 1 S. E. 200.
69. Shuttle & Weaver Land & Improvement Co. v. Barker, 178 Ala., 366, 60 So. 157; Butler v. Ralston, 69 Ga. 485; Moore v. Gary, 149 Ind. 51, 48 N. E. 630; Hood v. Dawson, 98 Ky. 285, 33 S. W. 75; Silliman v. Whitaker, 119 N. C. 89, 25 S. E. 742; Wilson v. Heilman, 219 Pa. 237, 68 Atl. 674.