the train of a beast, bird, or fish; which in land animals, it is said, serves to drive away flies, &c. and in birds and fishes to direct their course, and assist them in ascending or descending in the air or water. But the tail in all animals is of great use in directing their motions.

Fee-tail, in Law, is a conditional estate or fee, opposed to fee-simple. See Fee.

A conditional fee, at the common law, was a fee restrained to some particular heirs exclusive of others; as to the heirs of a man's body, by which only his lineal descendants were admitted, in exclusion of collateral heirs; or to the heirs male of his body, in exclusion both of collaterals and lineal females also. It was called a conditional fee, by reason of the condition expressed or implied in the donation of it, that if the donee died without such particular heirs, the land should revert to the donor. For this was a condition annexed by law to all grants whatsoever, that on failure of the heirs specified in the grant, the grant should be at an end, and the land return to its ancient proprietor. Such conditional fees were strictly agreeable to the nature of feuds, when they first ceased to be mere estates of life, and were not yet arrived to be absolute estates in fee-simple.

With regard to the condition annexed to these fees by the common law, it was held, that such a gift (to a man and the heirs of his body) was a gift upon condition that it should revert to the donor if the donee had no heirs of his body; but if he had, it should then remain to the donee. They therefore called it a fee-simple on condition that he had issue. Now we must observe, that when any condition is performed, it is thenceforth entirely gone; and the thing to which it was before annexed becomes absolute and wholly unconditional. So that as soon as the grantee had any issue born, his estate was supposed to become absolute by the performance of the condition; at least for these three purposes: 1. To enable the tenant to alienate the land, and thereby to bar not only his own issue, but also the donor, of his interest in the reversion. 2. To subject him to forfeit it for treason: which he could not do till issue born longer than for his own life, lest thereby the inheritance of the issue and reversion of the donor might have been defeated. 3. To empower him to charge the land with rents, commons, and certain other encumbrances, so as to bind his issue. And this was thought the more reasonable, because, by the birth of issue, the possibility of the donor's reversion was rendered more distant and precarious; and his interest seems to have been the only one which the law, as it then stood, was solicitous to protect, without much regard to the right of succession intended to be vested in the issue. However, if the tenant did not in fact alienate the land, the course of descent was not altered by this performance of the condition; for if the issue had afterwards died, and then the tenant or original grantee had died, without making any alienation, the land, by the terms of the donation, could descend to none but the heirs of his body; and therefore, in default of them, must have reverted to the donor. For which reason, in order to subject the lands to the ordinary course of descent, the donees of these conditional fee-simple took care to alienate as soon as they had performed the condition by having issue; and afterwards repurchased the lands, which gave them a fee-simple absolute, that would descend to the heirs general, according to the course of the common law. And thus stood the old law with regard to conditional fees: which things, says Sir Edward Coke, though they seem ancient, are yet necessary to be known, as well for the declaring how the common law stood in such cases, as for the sake of annuities, and such-like inheritances, as are not within the statutes of entail, and therefore remain as the common law. The inconveniences which attended these limited and fettered inheritances were probably what induced the judges to give way to this subtle finesse (for such it undoubtedly was), in order to shorten the duration of these conditional estates. But, on the other hand, the nobility, who were willing to perpetuate their possessions in their own families, to put a stop to this practice, procured the statute of Westminster the second (commonly called the statute de donis conditionibus) to be made; which paid a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever. This statute revived in some fort the ancient feudal restraints which were originally laid on alienations, by enacting, that from thenceforth the will of the donor be observed; and that the tenements so given (to a man and the heirs of his body) should at all events go to the issue, if there were any; or if none, should revert to the donor.

Upon the construction of this act of parliament, the judges determined that the donee had no longer a conditional fee-simple, which became absolute and at his own disposal the instant any issue was born; but they divided the estate into two parts, leaving the donee a new kind of particular estate, which they denominated a fee tail; and vesting in the donor the ultimate fee-simple of the land, expectant on the failure of issue; which expectant estate is what we now call a reversion. And hence it is that Littleton tells us, that tenant in fee-tail is by virtue of the statute of Westminster the second. The expression fee-tail, or feudum talium, was borrowed from the feudists (see Crag. l. s. t. 10. § 24, 25.), among whom it signified any mutilated or truncated inheritance, from which the heirs general were cut off; being derived from the barbarous verb taliare, to cut; from which the French tailler and the Italian tagliare are formed, (Spelm. Gloss. 531.).

Having thus shewn the original of estates tail, we now proceed to consider what things may or may not be entailed under the statute de donis. Tenements is the only word used in the statute: and this Sir Edward Coke expounds to comprehend all corporeal hereditaments whatsoever: and also all incorporeal hereditaments which favour of the reality, that is, which issue out of corporeal ones, or which concern or are annexed to or may be exercised within the same; as rents, esfovers, commons, and the like. Also offices and dignities, which concern lands, or have relation to fixed and certain places, may be entailed. But mere personal chattels, which favour not at all of the reality, cannot be entailed. Neither can an office, which merely relates to such personal chattels; nor an annuity, which charges only the person, and not the lands of the grantor. But in these last, if granted to a man and the heirs of his body, the grantee hath still a fee conditional at common law as before the statute, and by his alienation may bar the heir or reversioner. An estate to a man and his heirs for another's life cannot be entailed; for this is strictly no estate of inheritance, and therefore not within the statute de donis. Neither can a copyhold estate be entailed by virtue of the statute; for that would tend to encroach upon and restrain the will of the lord; but, by the special custom of the manor, a copyhold may be limited to the heirs of the body; for here the custom certains and interprets the lord's will.

As to the several species of estates-tail, and how they are respectively created; they are either general or special. Tail-general is where lands and tenements are given to one, and the heirs of his body begotten: which is called tail-general; because, how often ever such donee in tail be married, his issue in general, by all and every such marriage, is, in successive order, capable of inheriting the estate-tail per formam domi. Tenant in tail/special is where the gift is refrained to certain heirs of the donee's body, and does not go to all of them in general. And this may happen several ways. We shall instance in only one; as where lands and tenements are given to a man and the heirs of his body, on Mary his now wife to be begotten. Here no issue can inherit but such special issue as is engendered between them two; not such as the husband may have by another wife; and therefore it is called special tail. And here we may observe, that the words of inheritance (to him and his heirs) give him an estate in fee; but they being heirs to be by him begotten, this makes it a fee tail; and the person being also limited, on whom such heirs shall be begotten (viz. Mary his present wife), this makes it a fee-tail special.

Estates in general and special tail are farther diversified by the distinction of sexes in such entails; for both of them may either be in tail male or tail female. As if lands be given to a man, and his heirs-male of his body begotten, this is an entail in tail male general; but if to a man, and the heirs-female of his body on his present wife begotten, this is an entail in tail female special. And in case of an entail male, the heirs-female shall never inherit, nor any derived from them; nor, & converso, the heirs-male in case of a gift in tail female. Thus, if the donee in tail male hath a daughter, who dies leaving a son, such grandson in this case cannot inherit the estate tail; for he cannot deduce his descent wholly by heirs-male. And as the heir-male must convey his descent wholly by males, so must the heir-female wholly by females. And therefore if a man hath two estates-tail, the one in tail male and the other in tail female, and he hath issue a daughter, which daughter hath issue a son; this grandson can succeed to neither of the estates, for he cannot convey his descent wholly either in the male or female line.

As the word heirs is necessary to create a fee, fo, in farther imitation of the strictness of the feudal donation, the word body, or some other words of procreation, are necessary to make it a fee-tail, and ascertain to what heirs in particular the fee is limited. If, therefore, either the words of inheritance or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an entail-tail. As if the grant be to a man and the issue of his body, to a man and his seed, to a man and his children or offspring; all these are only estates for life, there wanting the words of inheritance, "his heirs." So, on the other hand, a gift to a man, and his heirs male or female, is an entail in fee-simple and not in fee-tail; for there are no words to ascertain the body out of which they shall issue. Indeed, in last wills and testaments, wherein greater indulgence is allowed, an entail-tail may be created by a devise to a man and his seed, or to a man and his heirs-male, or by other irregular modes of expression.

There is still another species of entailed estates, now indeed grown out of use, yet still capable of subsisting in law; which are estates in libero maritatio, or FRANK-MARRIAGE. See that article.

The incidents to a tenancy in tail, under the statute Westminster 2. are chiefly these: 1. That a tenant in tail may commit waste on the entail-tail, by felling timber, pulling down houses, or the like, without being impeached or called to account for the same. 2. That the wife of the tenant in tail shall have her dower, or thirds, of the entail-tail. 3. That the husband of a female tenant in tail may be tenant by the curtesy of the entail-tail. 4. That an entail-tail may be barred, or destroyed, by a fine, by a common recovery, or by lineal warranty descending with assets to the heir. See ASSETS.

Thus much for the nature of estates-tail: the establishment of which family law (as it is properly styled by Pigott) occasioned infinite difficulties and disputes. Children grew disobedient when they knew they could not be fet ailde: farmers were ousted of their leaves made by tenants in tail; for if such leaves had been valid, then, under colour of long leaves, the issue might have been virtually disinherited: creditors were defrauded of their debts; for, if a tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth: innumerable latent entails were produced to deprive purchasers of the lands they had fairly brought; of suits in consequence of which, our ancient books are full: and treasons were encouraged, as estates-tail were not liable to forfeiture longer than for the tenant's life. So that they were justly branded as the source of new contentions and mischief unknown to the common law; and almost universally considered as the common grievance of the realm. But as the nobility were always fond of this statute, because it preserved their family-entails from forfeiture, there was little hope of procuring a repeal by the legislature; and therefore, by the connivance of an active and politic prince, a method was devised to evade it.

About 200 years intervened between the making of the statute de donis, and the application of common recoveries to this intent, in the 12th year of Edward IV.; which were then openly declared by the judges to be a sufficient bar of an entail-tail. For though the courts had, so long before as the reign of Edward III. very frequently hinted their opinion that a bar might be effected upon these principles, yet it was never carried into execution; till Edward IV. observing (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had on families whose estates were protected by the sanctuary of entails, gave his countenance to this proceeding, and suffered Talturum's case to be brought before the court: wherein, in consequence of the principles then laid down, it was in effect determined, that a common recovery suffered by tenant in tail should be an effectual destruction thereof. These common recoveries are fictitious proceedings, introduced by a kind of pia fraud, to elude the statute de donis, which was found intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal; and that these recoveries, however clandestinely begun, are now become by long use and acquiescence a most common assurance of lands; and are looked upon as the legal mode of conveyance, by which a tenant in tail may dispose of his lands and tenements: so that no court will suffer them to be shaken or reflected on, and even acts of parliament have by a side-wind countenanced and established them.

This expedient having greatly abridged estates-tail with regard to their duration, others were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treason. For, notwithstanding the large advances made by recoveries, in the compass of about three-score years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them frequently resettled in a familiar manner to suit the convenience of families, had address enough to procure a statute, whereby all estates of inheritance (under which general words estates-tail were covertly included) are declared to be forfeited to the king upon any conviction of high-treason.

The next attack which they suffered, in order of time, was by the statute 32 Hen. VIII. c. 28, whereby certain leaves made by tenants in tail, which do not tend to the prejudice of the issue, were allowed to be good in law, and to bind the issue in tail. But they received a more violent blow in the same session of parliament, by the construction put upon the statute of fines, by the statute 32 Hen. VIII. c. 36, which declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other persons claiming under such entail. entail. This was evidently agreeable to the intention of Henry VII. whose policy it was (before common recoveries had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched, in his act, under covert and obscure expressions. And the judges, though willing to construe that statute as favourably as possible for the defeating of entailed estates, yet hesitated at giving fines so extensive a power by mere implication, when the statute de donis had expressly declared that they should not be a bar to estates-tail. But the statute of Henry VIII. when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention. Yet, in order to preserve the property of the crown from any danger of infringement, all estates-tail created by the crown, and of which the crown has the reversion, are excepted out of this statute. And the same was done with regard to common recoveries, by the statute 34 and 35 Hen. VIII. c. 28. which enacts, that no feigned recovery had against tenants in tail, where the estate was created by the crown, and the remainder or reversion continues still in the crown, shall be of any force and effect. Which is allowing, indirectly and collaterally, their full force and effect with respect to ordinary estates-tail, where the royal prerogative is not concerned.

Lastly, by a statute of the succeeding year, all estates-tail are rendered liable to be charged for payment of debts due to the king by record or special contract; as since, by the bankrupt laws, they are also subjected to be sold for the debts contracted by a bankrupt. And, by the construction put on the statute 43 Eliz. c. 4. an appointment by tenant in tail of the lands entailed to a charitable use is good without fine or recovery.

Estates-tail being thus by degrees unfettered, are now reduced again to almost the same state, even before issue born, as conditional fees were in at common law, after the condition was performed by the birth of issue. For, first, the tenant in tail is now enabled to alienate his lands and tenements by fine, by recovery, or by certain other means; and thereby to defeat the interest as well of his own issue, though unborn, as also of the reversioner, except in the case of the crown: secondly, he is now liable to forfeit them for high treason: and, lastly, he may charge them with reasonable leases, and also with such of his debts as are due to the crown on specialties, or have been contracted with his fellow-subjects in a course of extensive commerce.