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 gradual withdrawal of the restraints on the alienation of estates tail has been considered above, but the statutes do not usually, if ever, authorize the tenant to bar the entail by will, and consequently the disability in this respect remains as at common law, and one having an estate in fee tail cannot devise the land.14 Neither is the property liable for the debts of the tenant in tail for a period longer than his life, unless it is otherwise provided by statute.15 As hereafter stated, the tenant may use the
12. Gilpin v. Williams, 25 Ohio St. 283; Ream v. Wolls, 61 Ohio St 131, 55 N. E. 176; Green v. Edwards, 31 R. I. 1, Ann. Cas. 1912B, 41, 77 Atl. 188.
13. Green v. Edwards, 31 R. I.
1, Ann. Cas. 1912 B41, 77 Atl. 188.
14. Theological Seminary v. Wall, 44 Pa. St. 353; Laidler v. Young's Lessee, 2 Har. & J. (Md.) 69; Williams, Real Prop. 107; Co. Litt. 111a.
15. Williams, Real Prop. (21st Ed.) 288; 1 Cruise's Dig. tit 2 c.
2. Sec. 27; Hazzard v. Hazzard, 29 Del. 91, 97 Atl. 233; Phillips v. Rogers, 12 Mete. (Mass.) 405;
Waters v. Margerum, 60 Pa. St. 39.
In two states the statute in regard to execution sales of land has been held not to enable the sheriff, by such a sale, to pass a fee simple to the purchaser, although the tenant himself could, by force of statute, bar the entail.
Hazzard v. Hazzard, 29 Del. 91, 97 Atl. 233; Elliott v. Pearsoll, 8 Watts & S. (Pa.) 38; Waters v. Margerum, 60 Pa. St. 39.
In Delaware it was held that the chancellor could, acting for a lunatic tenant in tail, direct the making of a conveyance to bar property without regard to the interests of the owner of the reversion, and is not liable for "waste" committed thereon.16
The doctrine of "merger," by which, if a greater estate and a lessor estate in the same land become the property of one person, the lesser estate is destroyed or "merged," does not apply so as to merge an estate tail in a fee-simple estate; this exception to the general rule being based on the fact that to apply the doctrine of merger in such a case would have, in effect, nullified the statute De Donis.17
The tenant in tail is not bound to pay off incumbrances on the property, nor generally even to pay interest thereon, though, if he does pay off an incumbrance, it is discharged.18