At the time of the settlement of the Colonies the entail was suffering a transformation in England from a means of holding land to a conveyancing device. From the time of the Statute De Donis (13 Edw. I., c. i [1285]) the large landed estates had been held by tenants in fee tail, but when the courts devised a way to destroy the entail, the latter ceased to be a sufficient means of keeping the estate in the family and the modern settle ment was devised whereby the head of the family is a life tenant rather than a tenant in tail and the tenancy in tail is used for the sons and daughters of the life tenant but rarely comes into possession for on the oldest son reaching his majority a resettle ment is made and he is given a life tenancy with remainders in tail in his children. The recent legislation in England which is associated with the name of Lord Birkenhead did away with the fee tail at law but retained it in equity and left the characteristic features of the family settlement unchanged. The strict family settlement never seems to have gained much, if any, of a foothold in the United States and it is not likely that it did in the Colonies, for it required conveyancing skill of a high order. Nor is it likely that the fee tail which had largely ceased to function as an estate in possession in England could have had much of a revival in the Colonies. There would not have been much sense in creating limited estates in possession which could instantly be turned into estates in fee simple by the tenants. That entails were not much favoured in the Colonies is shown by the legislation at the time of the Revolution which either facilitated their destruction or changed them into something else. It is doubtful whether the fee tail either in the United States or the Colonies has ever been anything but a very sporadic thing.
Primogeniture originally became the gen eral rule of law in New York and the Southern Colonies, but with the exception of Rhode Island not in the New England Colonies nor in Pennsylvania. In New England in general and in Pennsylvania, however, the oldest son had a double portion. With the Revolution this double portion was abolished as was also primogeniture in those States where it had been the general rule, although it may have had a shadowy continuance in con nection with the fee tail.
The most striking difference between real property in the United States and England has been that in Eng land the great part of the land has been settled land, while in the United States settled land is the exception. Settled land means that the land is family land, that is land, which despite the long prevalence of individual rather than family ownership of land, is so tied up in the family that the beneficial interest of the one in possession is only a partial interest. In England, since the Com monwealth, the prevalent beneficial interest of the one in posses sion has been a life estate. In the United States most of the land is held either by the owner himself or by a tenant under a lease for years, but this lease is purely a commercial thing and not a family matter.
Other striking differences between the law of real property in England and in the United States are that titles in the United States are traced back to the original patent or grant, that except in the older States grants are apt to be based on governmental surveys and thus many of the old troublesome boundary difficulties avoided and that registration of deeds is practically if not quite universal.
The registration of deeds makes conveyancing open instead of secret and makes the abstract of title an abstract of the public record and not of the deeds themselves. This makes abstracting a different thing from what it is in England and has developed the abstractor who unlike his English brother, the solicitor, is not as such a member of the legal profession. The examination of the abstract, however, is the work of the lawyer and the delays incident to these examinations and the corrections of the record have tended to the spread of the title insurance policy and ac cordingly to the supercession of the formal abstract.
Sir Arthur Underhill, A Concise Explanation of Lord Birkenhead's Act (1922) ; Williams, The Seisin of the Freehold (1878) ; Pound, The Spirit of the Common Law (1921) ; Sedgwick and Wait, Trial of Title to Land (2nd ed., 1886) ; Morris, "Entailed Estates and Primogeniture in America," 27 Columbia Law Review,
(1927) ; Reinsch, English Common Law in the Early American Colonies, I Select Essays in Anglo-American Legal History, 367 (189o).
(P. Bo.)