FEE TAIL (.OIL. feodum talliatum, abbre viated fee). A fee, or estate of inheritance, in which the inheritance is restricted to the lineal descendants of the tenant. The right of inher itance, which is the principal characteristic of a fee, is not ordinarily capable of restriction, but the fee tail was devised for the express purpose of permitting such a restriction in a limited class of cases. Its object was to tic up estates and keep them in the family of the donor, and it achieved this end by giving effect to a con ditional gift of lands to a person and the heirs of his body. This was originally known as a fee simple conditional, and was construed to vest in the donee a conditional estate, which be came absolutely subject to his disposition on birth of issue. As such power of disposition was inconsistent with the purposes of the gift, the celebrated statute De Donis Conditionalibus (`con cerning conditional gifts') was passed in 1285 (stat. Westminster II.) to restrict. the power of the donee of such an estate, and to protect the in terests of the issue and of the persons upon whom the estate was to go upon failure of issue. This it did by forbidding the alienation of the property by the tenant in tail.
For nearly two hundred years after the passing of this act land settled in the form which it pre scribed continued to be held under the fetters of a strict entail. But the tendency of the law, which in Scotland was to strengthen the power of entail, was in England in the opposite direc tion. For a long time tenants in tail, taking advantage of legal technicalities, were able prac tically 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 net was brought into use; this was achieved by means of a process called a common rcrort ry (q.v.). By this process a tenant in tail could bar the entail, and convert the estate into a fee simple. Another mode of barring an entail 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 liar to the entail: but by 32 Hen. VOL, eh. 30, 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 ob
served that the operation of a fine was confined to those Maiming under the tenant in tail; those who lied rights of reversion or remainder under the grantor of the entail M'c re not exeluded by this species of assuranee ; so that by means of a reeovery only could an cstale tail be converted into a fee simple. From the introduction of common recoveries till the passing of the Fines and Recoveries Act (•3 and 4 Will. IV., ch. 74), a period of more than three hundred years, it was impossible that an estate could be held under the fetters of an entail it 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 entail were removed, and a tenant in tail may now, by a simple conveyance, alienate his estate at pleasure.
Estates tail are classified according to the form of the gift. If the limitation be to the heirs of the body of the tenant in tail, without special qualification, it is a fee tail general; if it be to the heirs of the body of the tenant and his wife Joan, it is a fee tail special; if it be to the male heirs of the body, it is a fee tail male. So there may be fees tail special male, fees tail special female, etc. But the limitation must al ways be to the issue of the tenant in tail. As a fee tail is an abbreviated fee—a less estate, that is to say, than a fee simple—it is, unlike the fee simple, capable of supporting a future estate by way of remainder or reversion. Thus it is possible, even at common law, to make a con veyance of Lands to A and the heirs of his body, with remainder, on failure of heirs, to B.
Prior to the Revolution the English law of entails prevailed in the British colonies in America. But, though it still exists in a few States, it has generally been abolished in the United States by statute—in Virginia as early as 1776 and in New York in 1782. In most States it is provided that an attempt to create a fee tail shall result in a fee simple. Consult the authorities cited under FEE.