PT. II. T. 4, the other of them, the estate tail vests in them both (4). CH. 2, s. 5. What may be entailed. Thus, where lands are given to two persons who are husband and wife, and to the heirs of their two bodies begotten, both together take an estate tail. And the same is the case if they are single, or even if they are married, but not to each other; for they both take an estate tail, on account of the possibility that they may marry (b). And if land is given to a man and his wife, and to the heirs of the body of the man, the husband has an estate tail general, and the wife an estate for life. And if land is given to the husband and wife, and to the heirs of the husband which he shall beget on the body of his wife, the husband has an estate tail special, and the wife an estate for life only. And if a gift is made to the husband and wife, and to the heirs of the body of the wife by the husband begotten, the wife has an estate tail special and the husband a term for life only. But if lands are given to the husband and wife, and to the heirs which the husband shall beget on the body of the wife, both of them have an estate tail (c). 421. With regard to what may be entailed, the only word used in the Statute de Donis is the word "tenement." But that is to be taken in its most comprehensive sense. Hence, all hereditaments of freehold tenure which savour of the realty may be entailed, whether they be corporeal or incorporeal; but things personal, whether they be chattels personal or chattels real, and an office which merely relates to personal chattels, and an annuity which charges only person and not the lands of the grantor, cannot be entailed. Nor can an estate for another's life. The statute does not extend to copyhold hereditaments; but there is a special custom in many manors authorising the entail of the (a) See 4 Cruise T. 32, c. 21, § 29; 1 Pres. Shep. T. 102, 103; Litt. (b) 4 Cruise T. 32, c. 21, § 26; Co. Litt. 25 b. (c) 4 Cruise T. 32, c. 21, § 28; 1 Pres. Shep. T. 102, 103; Litt. s. 26-29. CH. 2, s. 5. lands within those manors (a). A custom to create entails PT. II. T. 4, of copyholds may be said to exist wherever instances have occurred not merely of the limitation of estates to the heirs, of the body, but of the alienation of the ancestor being defeated by the issue, or of a remainder being enjoyed upon the failure of issue (b). 422. Sta Quasi entails of they estates pour Although estates pour autre vie are not within the tute de Donis, and therefore cannot be entailed, yet are sometimes limited to a person and the heirs of his body; and in such case he is a quasi tenant in tail; so that if he dies in the lifetime of the cestui que vie, without having disposed of the estate, it will devolve to the heirs of his body (c). 423. autre vie. cannot be "Chattels, whether real or personal, cannot be entailed, Chattels not being transmissible to the real representatives, as such, entailed. and not being within the Statute de Donis, even if they were so transmissible. Such being the case, it is a general rule, that, where the words would raise an estate tail in real estate, they will give the absolute property in personalty" (d). 424. One mode of barring estates tail was by warranty; but warranties have long fallen into disuse, and are abolished by the statute 3 & 4 Will. 4, c. 74, s. 14 (e). 425. (a) 2 Bl. Com. 113; 1 Cruise T. 2, c. 1, § 27; Burton, § 646, 1284; Co. Litt. 20 a, and n. (5). (b) Burton, § 1284, n.; Co. Litt. 19 b, 20 a, and n. (5), 60 b. (c) Burton, § 732; Watk. Conv. 3rd ed. by Prest. 38. (d) Smith's Executory Interests annexed to Fearne, § 593, 593 a. For a discussion on this subject, see Id. Part 2, ch. 19, 20; and see Watk. Conv. 3rd ed. by Prest. 26; 2 Jarm. Wills, 2nd ed. 479-494; Lewis v. Hopkins, 3 Drewry 668; Beaver v. Nowell, 25 Beav. 551; Re Andrew's Will, 27 Beav. 608. See also Wynch's Trusts, 5 D. M. & G. 188; Jackson v. Calvert, 1 Johns. & Hem. In Wild's case, 6 Rep. 16, it was (e) The subject of warranties is PT. II. T. 4, CH. 2, s. 5. Alienation before the Assurances by a tenant in tail under the stat. 3 & 4 Will. 4, c. 74, or the stat. 42 Geo. 3, Notwithstanding the Statute de Donis, a tenant in tail might always, by any ordinary and appropriate assurance alien or charge his estate, so far as to bind himself, and even so as to bind his issue, unless they entered to avoid such alienation or charge; except in the case of a limitation of an estate to commence after his own death, which was absolutely void in its creation; and except that when anything is granted by a tenant in tail out of land entailed (as a rent), such grant will be absolutely void upon the death of the grantor, unless the remainderman or reversioner in fee join in the grant, in which case it is good as against him, if the tenant in tail dies without issue (b). And, by certain modes of assurance (such as by a feoffment, fine, or recovery, under certain circumstances) (c), a tenant in tail in possession might alien or charge, and thereby bind himself; and he might also take away the right of entry of his issue, and of the remainderman and reversioner, unless the reversion were in the Crown, and reduce them to a right of action only, which effect is termed a discontinuance (d); and, under certain circumstances, a tenant in tail might, before the stat. 3 & 4 Will. 4, c. 74, by a fine or recovery, and he may now, by an enrolled conveyance under that Act, make an effectual alienation or charge, as against himself, his issue, and all claiming in remainder, reversion, or expectancy (e). 426. By stat. 42 Geo. 3, c. 116, s. 52, tenants in tail are c. 116, s. 52. enabled, by deed indented and enrolled or registered, to discussed in 2 Bl. Com. 300-3; 1 (a) As to the barring of entails (b) See 1 Cruise T. 2, c. 2, § 4, 5, 9, 12; Burton, § 671, 715; 2 Pres. Shep. T. 243, and n. (36); Watk. CH. 2, s. 5. convey parts of their estates for the redemption of the land PT. II. T. 4, tax charged thereon (a). 427. a base fee by a tenant in tail. The effect of an alienation in fee by a tenant in tail, by Creation of an assurance which did not bar the issue in tail and those who were entitled in remainder, reversion, or expectancy, was to give the alienee a qualified or base fee commensurate with the estate tail; that is, an estate of inheritance, descendible to his heirs general, so long as the tenant in tail lived, or there was issue inheritable under the entail; but on the one hand, capable of being converted into an absolute fee simple by the act or default of the issue in tail, and those who were entitled in remainder, reversion, and expectancy; and on the other hand, subject to be defeated by the entry or action of any of those parties (b). 428. contracts of ancestor on issue in tail. The issue in tail is not bound by his ancestor's contracts Effect of respecting the estate tail, unless the issue does any act towards carrying the contract or agreement into execution, or in any manner accepts it (c). And therefore, if a tenant in tail contracts to sell the trees growing on the inheritance, unless the vendee severs them during the life of the tenant in tail, the issue in tail will have a right to them as part of the inheritance (d). 429. Alienation by a quasi tenant in tail of an estate pour A quasi tenant in tail in possession of an estate pour autre vie, whether he has issue or not, has complete power to bar the entail and the remainders over, by any act inter autre vie. vivos, without any declaration of an intention so to do, even by a surrender made only with a view to obtain a renewal of the lease for life, or by articles of agreement to sell or settle the estate (e). For the purposes of alienation, PT. II. T. 4, he stands in the position of a person who has the whole CH. 2, s. 5. Stat. 45 & 46 Settled Land Act, 1882. Powers of a tenant in tail, etc., under. estate and the absolute dominion. And the quasi entail and the remainders over will be barred, if a quasi tenant in tail in remainder concurs with the tenant for life in aliening the estate, or if the tenant for life procures a renewal, and then conveys to the quasi tenant in tail. But a quasi tenant in tail in remainder, without the concurrence of the tenant for life, cannot defeat the remainder, even if he can bar the entail (a). 430. [By virtue of stat. 45 & 46 Vict. c. 38, s. 58 (Appendix), a tenant in tail, including a tenant in tail who is by Act of Parliament restrained from barring or defeating his estate tail, and although the reversion is in the Crown, and so that the exercise by him of his powers under that Act binds the Crown, but not including such tenant in tail where the land in respect whereof he is so restrained, was purchased with money provided by Parliament in consideration of public services, has, when his estate or interest is in possession, the powers of a tenant for life under that Act, and its provisions referring to a tenant for life either as conferring powers on him or otherwise, and to a settlement, and to settled land extend to such tenant in tail, and to the instrument under which his estate or interest arises, and to the land therein comprised (b).] 430a. (a) Allen v. Allen, 2 D. & W. 307. (b) See infra, par. 448c. |