ENTAIL, or, as it is frequently called in Scotland, tailzie, from Fr. tailler, to cut, properly signifies any destination by which the legal course of succession is cut off, one or more of the heirs-at-law being excluded or postponed, and the settlement of land made upon a particular heir or series of heirs. The desire to preserve in our own family land which we have either inherited or acquired, appears to be inherent in the human mind. The first distinct trace of the existence of entails, is to be found in the Roman law. The Greeks, indeed, permitted persons to name successors to their estates, and to appoint a substitute who should take the estate on the failure of him first named. The substitute, as appointed, was permitted to succeed on the death of the institute (as he was called) without leaving issue Or without alienating the estate.. But this limited right fell far short of the power of entailing which has since prevailed in various coun tries. At Rome, under the later emperors, the practice of settling land upon a series of heirs, by means of fideicommissa (q.v.), grew up, and was sanctioned by the state. These deeds, which were originally simply a trust reposed in the honor of a friend, to whom the property was conveyed, to carry out the will of the grantor, by degrees received the sanction of the law. In their early form they contained merely a substitution of heirs. Thus, "Logo ne testamentum faeiat, donee libesys susceperit." " Rogo set testamento suo AS'eium haredem faciat." "logo laeredem, ne luereditatem alienet, sed relinquat familice."— Heineccius, s. 658. But by the later law, a much fuller form of settlement was admitted, whereby the estate was protected from every sort of alienation. "Polo meas cedes non vendi ab hceredibus meis, neque fcenerari super eas: sed manere eas firmas, simpliees, fills meis et nepotibus in universum tempts. Si aliquis autem eorum voluerit vendere partem suam, vel fanerari super earn, potestatern &cheat vendere coheredi suo at fcenerari ab so: si autem aliquis prceter haec fecerit, exit quod obligator, inutile atque irritum."—Dtg. xxxi. 88, s. 15. Here we have an example of the principal clauses of a strict E. as subse quently more fully carried out in Scotland. It is impossible to doubt that this Roman form must have been adopted by the Scottish lawyers in framing their deed% of entail. The limitation to a particular line of descent, the prohibition to alienate or burden with debt, and the still more peculiar feature of the declaration of forfeiture in case of non compliance, are to be found in both forms. There are, however, two points in which the Roman law differed from that which prevailed for many years in Scotland—viz., that the former did not recognize the right of primogeniture, and that the limitation of the deed was restricted to four generations. For the right of primogeniture, as recog nized in deeds of E., we are indebted to the feudal law. That system, which has united with the civil law to form a basis for the codes of modern Europe, did not, in its origi nal form, recognize the right of a holder of land to alienate his feudal benefice. But the right of the eldest son to represent his father, both in the duties and privileges of the fief, if not an original principle of the system, was universally recognized in the days of its greatest power. We shall presently see how this principle was embodied in a Scottish deed of entail. We come now to consider entails as they have existed in modern nations.
In England, the Saxons, it is said, prohibited the alienation of lands by those who had succeeded to them under condition that they should not alienate.—Wilkins's Leges Saxonica, p. 43 (note). Amonff, the Saxons, the law of primogeniture was not recognized. But on the establishment of the feudal laws in England, a practice began to prevail whereby an estate was settled upon a particular series of heirs, as "to a man and the heirs of his body." This is the first germ of an entail in England. It was called a fee
simple conditional, because the judges refused to recognize an absolute limitation of the estate to a particular line of heirs, but held the destination to be conditional on the birth of an heir, and that that condition having been purified, the donee was free to alienate the estate. The common law thus refusing to recognize entails, a statute was passed which had the effect of introducing that practice into England. This was the famous statute .De Donis (q.v.), whereby it was declared that the estate should be held secundum formam Boni. In order to the creation of an entail under this statute, it was not enough that the estate was limited to "a man and his heirs," as those words were held to constitute an estate in fee; it was necessary that the estate should be given to "a man and the heirs of his body," or "to a•man and the heirs of his body by his wife Joan." The former was called a general, the latter a special entail. Another form whereby lands might be entailed under the statute De Donis, was by settlement in Frank marriage (q.v.). For nearly 200 years after the passing of this act, lands settled in the form which it prescribed continued to be held under the fetters of a strict entail. But the tendency of the law, which in Scotland, as we shall presently see, was to strengthen the power of entails, was, in England, in the opposite direction. For a long time, ten ants in tail, taking advantage of legal technicalities, were able practically to defeat the limitation in tail by means of a discontinuance. But it was not till the time of Edward IV. that an effectual means of evading the provisions of the act was brought into use; this was achieved by means of a process called a common recovery. See FINES AND ItEcovuurEs. By this process, a tenant in tail could bar the E., and convert the estate into a fee-simple. Another mode of barring an E. was by means of a fine (q.v.). It had been declared by the statute De Donis, that levying a fine of lands should be no bar to the E.; but by 32 Hen. VIII. c. 36, it was enacted that a fine of lands, when duly levied, should be a complete bar to the tenant in tail, and those claiming under him. It is to be observed that the operation of a fine was confined to those claiming under the tenant in tail; those who had rights of reversion or remainder under the grantor of the E. were not excluded by this species of assurance; so that by means of a recovery only could an estate tail be converted into a fee-simple. From the intro duction of common recoveries till the passing of the fines and recoveries act (3 and 4 Will. IV. e. 74), a period of more than 300 years, it was impossible that an estate could be held under the fetters of an E., if the tenant in tail and the next heir chose to combine to defeat the entail. By the fines and recoveries act, the technicalities formerly necessary in order to bar an E. were removed, and tenant in tail may now, by a sim ple conveyance,: alieriatd his estate at pleasnre. An estate tail Is a freehold of a limited description. Tenant in tail may commit waste (q.v.). Formerly, an estate tail was not liable to the debts of the tenant, but by 1 and 2 Viet. c. 110, this restriction has been removed. Copyhold lands have been held not to fall under the operation of the statute De Danis. A limitation, therefore, which in a freehold creates an estate tail, in copy hold lands creates a fee-simple conditional, according to the old common law, except where the custom of the manor is to the contrary.