II. We are next to consider limited fees, or such estates of inheritance as are clogged and confined with conditions, or qualifications, of any sort. And these we may divide into two sorts: 1. Qualified, or base fees; and, 2. Fees conditional, so called at the common law; and afterwards fees-tail, in consequence of the statute de donis.

1. A base, or qualified fee, is such a one as hath a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As, in the case of a grant to A and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A cease to be tenants of that manor, the grant is entirely defeated. So when Henry VI granted to John Talbot, lord of the manor of Kingston-Lisle in Berks, that he and his heirs, lords of the said manor, should be peers of the realm, by the title of barons of Lisle; here John Talbot had a base or qualified fee in that dignity, (c) and, the instant he or his heirs quitted the seignory of this manor, the dignity was at an end. This estate (9) is a fee, because by possibility it may endure for

the

ever in a man and his heirs: yet as that duration depends upon [*110] concurrence of collateral circumstances, which qualify and debase the purity of the donation, it is therefore a qualified or base fee.

2. A conditional fee, at the common law, was a fee restrained to some particular heirs, exclusive of others: "donatio stricta et coarctata; (d) sicut certis hæredibus, quibusdam a successione exclusis;" 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. (e) Such conditional fees were strictly agreeable to the nature of feuds, when they first ceased to be mere estates for life, and were not yet arrived to be absolute estates in fee-simple. And we find strong traces of these limited, conditional fees, which could not be alienated from the lineage of the first purchaser, in our earliest Saxon laws. (ƒ)

Now, with regard to the condition annexed to these fees by the common law, our ancestors 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 call it a fee-simple, on condition that he had issue. (10) 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,

(c) Co. Litt. 27.

f) Si quis terram hæreditariam habeat, eam non vendat a cognatis hæredibus suis, si illi viro prohibitum sit, qui eam ab initio acquisivit, ut ita facere nequeat. LL. Ælfred, c. 37.

(9) [The proprietor of a qualified or base fee has the same rights and privileges over his estate, till the contingency upon which it is limited occurs, as if he were tenant in fee simple. Walsingham's Case, Plowd. 557.]

(10) [In the great case of Willion v. Berkeley, Plowd. 233, Lord C. J. Dyer said, upon the grant of a conditional fee, the fee-simple vested at the beginning; by having issue, the donee acquired power to alien, which he had not before, but the issue was not the cause of his having the fee, the first gift vested that: and in p. 235 it was said, when land was given (before the statute de donis) to a man and the heirs of his body, this was a fee-simple, with a condition annexed, that, if the donee died without such heirs, the land should revert to the donor; to whom, therefore, the common law gave a formedon in reverter. But he was not entitled to a writ of formedon in remainder, for no remainder could be limited upon such an estate, which, though determinable, was considered a fee-simple, until the statute of de donis was made: since the statute we call that an estate-tail, which before was a conditional fee: id. p. 239; and while it continued so, if the donee had issue, he had power to alienate the fee, and to bar not only the succession of his issue, but the reversion of the donor in case his issue subsequently failed. To redress which evils (as they were thought to be), the act de donis conditionalibus was made. Id. p. 242, 245.]

*and wholly unconditional. (11) So that, as soon as the grantee had any [*111] 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 aliene the land, and thereby to bar not only his own issue, but also the donor of his interest in the reversion. (g) 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. (h) 3. To empower him to charge the land with rents, commons, and certain other incumbrances, so as to bind his issue. (1) 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 aliene 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-simples took care to aliene 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, (k) 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 at the common law.

*The inconveniences which attended these limited and fettered in[*112] heritances, were probably what induced the judges to give way to this subtle finesse of construction (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 Wesminster the second () (commonly called the statute de donis conditionalibus) 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 consideration whatsoever. This statute revived in some sort 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 in the donee a new kind of particular estate, which they denominated a fee-tail; (m) and investing in the donor the ultimate fee-simple

(g) Co. Litt. 19. 2 Inst. 233. (k) 1 Inst. 19.

(h) Co. Litt., ibid. 2 Inst. 234.

(l) 13 Edw. I, c. 1.

(i) Co. Litt. 19.

(m) The expression fee-tail, or feodum talliatum, was borrowed from the fendists (see Crag. l. 1. t. 10, s. 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 talier and the Italian tagliare are formed. (Spelm., Gloss. 531.)

(11) [Where the person to whom a conditional fee was limited had issue, and suffered it to descend to such issue, they might alien it. But, if they did not alien, the donor would still have been entitled to his right of reverter; for the estate would have continued subject to the limitations contained in the original donation. Nevill's Case, 7 Rep. 124; Willion v. Berkeley, Plowd. 247. This authority supports the statement of our author, to a similar effect, lower down in the page; but it hardly authorizes the assertion that, after issue, the estate became wholly unconditional.]

of the land, expectant on the failure of issue: which expectant estate is what we now call a reversion. (n) And hence it is that Littleton tells us (0) that tenant in fee-tail is by virtue of the statute of Westminster the second.

Having thus shewn the original of estates-tail, I 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 [*113] Coke (p) expounds to comprehend all corporeal hereditaments whatsoever; and also all incorporeal hereditaments which savour 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, estovers, commons, and the like. Also offices and dignities, which concern lands, or have relation to fixed and certain places, may be entailed. (q) But mere personal chattels, which savour not at all of the realty, 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 (after issue born) may bar the heir or reversioner. (r) (12) An estate to a man and his heirs for another's life cannot be entailed: (s) for this is strictly no estate of inheritance (as will appear hereafter), 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; (t) for here the custom ascertains and interprets the lord's will.

Next, as to the several species of estates-tail, and how they are respectively created. Estates-tail 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 soever such donee in tail be married, his issue in general by all and every such marriage is, in successive order, capable

(n) 2 Inst. 335.
(r) Co. Litt. 19, 20.

(o) § 13.

(8) 2 Vern. 225.

(p) 1 Inst. 19, 20.
(t) 3 Rep. 8.

(q) 7 Rep. 33..

(12) [If an annuity is granted out of personal property to a man and the heirs of his body, it is a fee-conditional at common law, and there can be no remainder or further limitation of it, and when the grantee has issue, he has the full power of alienation, and of barring the possibility of its reverting to the grantor by the extinction of his issue. 2 Ves. 170; 1 Bro. 325.

But out of a term for years, or any personal chattel, except in the instance of an annuity, neither a fee-conditional nor an estate-tail can be created; for, if they are granted or devised by such words as would convey an estate-tail in real property, the grantee or devisee has the entire and absolute interest without having issue; and as soon as such an interest is vested in any one, all subsequent limitations of consequence become null and void. 1 Bro. 274; Harg. Co. Litt. 20; Fearne, 345, 3d ed.; Roper on Legacies, chap. xvii; see post, 398.

An annuity, when granted with words of inheritance, is descendible. It may be granted in fee of course it may as a qualified or conditional fee; but it cannot be entailed, for it is not within the statute de donis; and, consequently, it has been held, there can be no remainder limited upon such a grant: but it seems there may be a limitation by way of executory devise, provided that is within the prescribed limits, and does not tend to a perpetuity. An annuity may be granted as a fee-simple conditional; but then, it must end or become absolute, in the life of a particularized person. Turner v. Turner, 1 Bro. 325; S. C., Ambl. 782; Earl of Stafford v. Buckley, 2 Ves. Sen. 180. An annuity granted to one, and the heirs male of his body being a grant not coming within the statute de donis, all the rules applicable to conditional fees at common law still hold, with respect to such a grant. Nevill's Case, 7 Rep. 125.

The instance of an annuity, charging merely the person of the grantor, seems to be the only one in which a fee-conditional of a personal chattel can now be created. Neither leaseholds, nor any other descriptions of personal property (except such annuities as aforesaid) can be limited so as to make them transmissible in a course of succession to heirs; they must go to personal representatives. Countess of Lincoln v. Duke of Newcastle, 12 Ves. 225; Keiley v. Fowler, Wilm. Notes, 310. There is consistency, therefore, in holding, that the very same words may be differently construed, and have very different operations, when applied, in the same instrument, to different descriptions of property, governed by different rules. Forth v. Chapman, 1 P. Wms. 667; Elton v. Eason, 19 Ves. 77. Thus, the same words which would only give an estate-tail in freehold property, will carry the absolute interest in leasehold or other personal property. Green v. Stephens, 19 Ves. 73; Crook v. De Vandes, 9 id. 203; Tothill v. Pitt, Į Mad. 509.]

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of inheriting the estate-tail, per formam doni. (u) Tenant in tail special is where the gift is restrained to certain heirs of the donee's body, and does not go to all of them in general. And this may *happen several ways. (w) I [*114] 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 general 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 forgotten (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 estate in tail male general; but if to a man and the heirs female of his body on his present wife begotten, this is an estate in tail female special. And, in case of an entail male, the heirs female shall never inherit, nor any derived from them; nor e converso, the heirs male, in case of a gift in tail female.(x) 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. (y) 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, 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. (z)

As the word heirs is necessary to create a fee, so in farther limitation 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 inheri[*115] tance, or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an estate-tail. As, if the grant be to a man and his 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. (a) So, on the other hand, a gift to a man, and his heirs male or female, is an estate in fee-simple, and not in fee-tail: for there are no words to ascertain the body out of which they shall issue. (b) Indeed, in last wills and testaments, wherein greater indulgence is allowed, an estate-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. (c) (13)

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 maritagio, or frankmarriage. These are defined (d) to be, where tenements are given by one man to another, together with a wife, who is the daughter or cousin of the donor, to hold in frankmarriage. Now, by such gift, though nothing but the word frankmarriage is expressed, the donees shall have the tenements to them, and the heirs of their two bodies begotten; that is, they are tenants in special tail. For this one word, frankmarriage does ex vi termini not only create an inheritance, like the word frankalmoign, but likewise limits that inheritance; supplying not only words of descent, but of procreation also. Such donees in frankmarriage are liable to no service but fealty; for a rent reserved thereon is

(u) Litt. 14, 15.

(w) Ibid. 16, 26, 27, 28, 29. (x) Ibid. ? 21, 22. (z) Co. Litt. 25. (a) Co. Litt. 20. (b) Litt. ? 31. Co. Litt. 27. (c) Co. Litt. 9, 27. (d) Litt. & 17.

(y) Ibid. 24.

(13) [Or to a man and his children, if he has no children at the time of the devise: 6 Co. 17; or to a man and his posterity: 1 H. Bl. 447; or by any other words, which show an intention to restrain the inheritance to the descendants of the devisee. See 2 Jarm. on Wills, 232 et seq.]

void, until the fourth degree of consanguinity be past between the issues of the donor and donee. (e)

The incidents to a tenancy in tail, under the statute Westm. 2, are chiefly these. (f) 1. That a tenant in tail may commit waste on the estate-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 estate-tail. 3. That the husband of a female [*116] tenant in tail may be tenant by the curtesy of the estate-tail. 4. That an estatetail may be barred, or destroyed by a fine, by a common recovery, or by lineal warranty descending with assets to the heir. All which will hereafter be explained at large.

Thus much for the nature of estates-tail: the establishment of which family law (as it is properly styled by Pigott) (g) occasioned infinite difficulties and disputes. (h) Children grew disobedient when they knew they could not be set aside: farmers were ousted of their leases made by tenants in tail; for, if such leases had been valid, then under colour of long leases 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 bought; 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 mischiefs unknown to the common law; and almost universally considered as the common grievance of the realm. (i) But as the nobility were always fond of this statute, because it preserved their family estates 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 two hundred years intervened between the making of the statute de donis, and the application of common recoveries to this intent, in the twelfth year of Edward IV; which were then openly declared by the judges to be a *sufficient bar of an estate-tail. (k) For though the courts had, so long before as the reign of Edward III, very frequently hinted their opinion [*117] that a bar might be effected upon these principles, (?) yet it was never carried into execution; till Edward IV, observing (m) (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 Taltarum's case to be brought before the court; (n) 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. What common recoveries are, both in their nature and consequences, and why they are allowed to be a bar to the estate-tail, must be reserved to a subsequent inquiry. At present I shall only say, that they are fictitious proceedings, introduced by a kind of pia fraus, to elude the statute de donis, which was found so intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal: and that these recoveries, however clandestinely introduced, 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 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 (0) have by a sidewind countenanced and established them.

(g) Com. Recov, 5. (h) 1 Rep. 131. (k) 1 Rep. 131. 6 Rep. 40. (7) 10 Rep. 37, 38. Abr. tit. faux recov. 20 Bro. ibid. 30 lit. rocov. in value, 19.

34 and 35 Henry VIII, c. 20. 14 Eliz. c. 8. 4 and 5 Ann, c. 16,