CHAPTER V. ESTATES TAIL. An estate tail-feudum talliatum, so called because the inheritance is cut down and confined to the heirs of the bodyis an estate limited to a person male or female and the heirs of the body of such person. Estates tail are of two kinds, i.e. 1. Estates in tail general; 2, estates in tail special. kinds of estates tail. (1) An estate in tail general is an estate limited to a person Different and the heirs of his or her body, in which case the issue by any marriage may inherit. (2) An estate in tail special is an estate limited to the heirs of the body of two persons, either already married, or capable of inter-marriage, as to A. and the heirs of his body begotten or to be begotten upon B., in both which cases no issue, except by the marriage of those two persons, can possibly inherit. Estates tail, whether general or special, may be limited in tail male, i.e. to males and the male descendants of males only, or in tail female, i.e. to females and the female descendants of females. This latter kind of estate tail, however, is of extremely rare occurrence. Where, in the case of an estate in tail special, the person from whose marriage with the tenant the issue was to proceed is dead, and there has been no issue of the union, or the issue has failed, the estate becomes in effect an estate for the life merely of the tenant, and, as such, is subject to the rules applicable to estates for life generally, except that the tenant is not liable for waste. Such an estate is called an estate tail after possibility of issue extinct (ante, p. 23). And here upon the threshold of our subject it will be desirable to notice the celebrated rule in Shelley's Case (1). "The rule," says Mr. Jarman," simply is, that where an estate of freehold is limited to a person, and the same instrument contains a limitation, either mediate or immediate, to his heirs (1) Coke's Reports, 93b. Rule in Case, VOL. I. D Creation of estate tail. Words of or the heirs of his body, the word 'heirs' is a word of limitation, i.e., the ancestor takes the whole estate comprised in this term. Thus, if the limitation be to the heirs of his body, he takes a fee tail; if to his heirs general, a fee simple " (1). In a will technical words are not required in order to create an estate tail; but any words that evince an intention to create such an estate, will suffice for the purpose; thus, a devise to a person and his seed, or to him and his issue, will create an estate tail. So, a limitation to a person and his heirs male, which, if it occurred in a deed would create an estate in fee simple will, when it occurs in a will, create an estate in tail male according to the apparent intention of the testator (2). It is now provided by the Conveyancing and Law of Property limitation. Act (44 & 45 Vict. c. 41, s. 51), with regard to deeds executed after the commencement of the Act, January 1st, 1882, that in the limitation of an estate in tail it shall be sufficient to use the words "in tail," without the words "heirs of the body;" and in the limitation of an estate in tail male or in tail female, to use the words "in tail male," or "in tail female," as the case requires, without the words " heirs male of the body," or "heirs female of the body." Origin of estates tail. Taltarum's Every estate tail owes its origin to the statute De Donis, 13 Edw. 1, c. 1, passed in 1285. Prior to this statute, when an estate was given to a man and the heirs of his body, he was enabled, as soon as he had issue born, at once to alienate and defeat the lord's right to the land on failure of the issue, as well as the right of the issue. The Statute of Westminster the Second, De Donis conditionalibus, provided that the will of the donor according to the form in the deed of gift manifestly expressed, should be from thenceforth observed; so that they, to whom the tenement was given, should have no power to alien it, whereby it should fail to remain unto their own issue after their death or to revert unto the donor or his heirs, if issue should fail. Nearly two centuries after this statute Taltarum's Case was decided. The practical effect of this celebrated decision, which established the right of every tenant in tail to convert his estate tail into an estate in fee simple, by "suffering," as it was termed, a common recovery, was to repeal to a great extent the statute De Donis, and to set lands free from the fetters of perpetual () "Shelley, whose ancestors a The words (his heirs) a limita- (2) Tudor's Real Property, 3rd ed. p. 716; Theobald on Wills, 3rd ed. p. 306; and see Tufnell v. Borrell, 20 Eq. 194. entails. After this time the estate tail was barred wholly and thereby converted into a fee simple estate by means of a "common recovery," i.e. a collusive action brought against tenants in tail or persons to whom they had conveyed their estates for the purpose of the action. Estates were also partially barred, i.e. so as to bar the issue in tail but not so as to defeat the rights in remainder and reversion, by fines, i.e. fictitious actions commenced and compromised by leave of the judge and in open Court, so as to put an end to all claims in respect of the property which were not made within a year and a day. Act. Fines and recoveries were abolished in the year 1833 by a Fines and statute (3 & 4 Wm. 4, c. 74), commonly called the Fines and Recoveries Recoveries Act, which substituted for these clumsy fictions a simple method of barring an estate tail, namely, an ordinary deed of conveyance. The Act, however, required that the deed should be enrolled within six months after its execution in the Court of Chancery (1). In this way a tenant in tail is empowered to convey away or dispose of the fee simple, or any less estate in the lands entailed; the conveyance, to the extent of the estate created thereby, is effectual as against all persons claiming by virtue of the estate tail, or in remainder or reversion thereon. Under the Judicature Acts enrolment in the central office of the Supreme Court of Judicature takes the place of the enrolment in the Court of Chancery (2). The deed by which an estate tail is barred is called a "disentailing deed," or "disertailing assurance.' An estate tail cannot, however, be barred by will, and any disposition "resting only in mere contract," whether express or implied, and whether supported by consideration or not, is void. Settlement. The old rule of law was that the freehold tenant in possession Protector (usually the tenant for life) must be a party to all proceedings of the in recoveries, and the framers of the Fines and Recoveries Act, applying this idea to a practical purpose, established the office of Protector. The Act provides that "If at the time when there shall be a tenant in tail . . . there shall be subsisting in the same lands. . . under the same settlement, any estate for years determinable on the dropping of a life or lives, or any greater estate (not being an estate for years) prior to the estate Protector of the Settlement. ... tail, then such owner of the prior estate, or the first of such estates if more than one. . . . shall be the protector of the settlement." . . . Estates by the curtesy... or by way of resulting use or trust are within this section. The protector is usually the first tenant for life, though it must be borne in mind that the statutory definition includes an estate for years determinable on the dropping of a life or lives. When there is one tenant in tail in possession and another in reversion the tenant in tail in possession is treated as the protector. Power to appoint protectors is also given by sect. 32 of this Act, which enacts that "it shall be lawful for any settlor entailing lands to appoint, by the settlement by which the lands are entailed, any number of existing persons, not exceeding three, and not being aliens, to be protector of the settlement in lieu of the person who would otherwise have been protector . ."(1). The protector's consent is required by the Act (2) to enable the tenant in tail to bar the entail as against persons entitled in remainder or reversion subsequent to the estate tail. This consent must be given either by the deed barring the entail or by a separate deed, to be executed and enrolled prior to or at the time of the execution and enrolment of the deed barring the entail (3). The Act expressly provides that any "device, shift, or contrivance by which it is sought to control the protector in the exercise of his powers is void." He is declared by the Act not to be a trustee, and the rules of equity which apply to other personages in respect of powers are not to apply to his dealings and transactions (4). Where there is a protector of the settlement, a disentailing assurance made without his consent will be operative only to the extent of creating a base fee; that is, an estate effectual as against the tenant in tail himself and his issue, but not as against persons entitled in remainder or reversion. The Act, however, contains provisions under which a base fee so created may subsequently be enlarged, in different ways, into a fee simple absolute (5). It was decided by the Court of Appeal in 1887 that if a (1) Challis, Law of Real Property, (2) 3 & 4 Wm. 4, c. 74, s. 34. fee and the remainder or reversion, then the base fee shall not merge, but shall be ipso facto enlarged into as large an estate as the tenant in tail, with the consent of the protector, if any, might have created by any disposition under this Act, if such remainder or reversion had been vested in any other person. See Shelford's Real Property as to the effect of this section on charges. tenant in tail conveys a base fee, and enters into a covenant for Protector further assurance (post, p. 88), he is bound on the death of of the the protector to execute a disentailing deed, so as to enlarge ment. the base fee into a fee simple, and that the Court will force him specifically to perform the covenant (post, p. 565 (1)). If any protector of a settlement is lunatic, idiot, or of unsound mind, whether found so by inquisition or not, the Lord Chancellor is protector, and in a variety of other cases, e.g., where the protector is convicted of treason or felony, the Court of Chancery, now the Chancery Division, is the protector (2). Settle tail. In a case where a lunatic was tenant in tail of an estate Lunatic tenant in which was subject to charges, and it became necessary that a disentailing deed should be executed for the purpose of raising the charge by mortgage, the Court proceeded on the principle that they could not assume that the lunatic, if sane, would have desired to bar the entail, and, accordingly, that it ought not to be barred further than was necessary for the purpose. The mortgage was accordingly made in a limited form, and it was directed that the deed should express that the estate tail of the lunatic and the remainders over were barred "for the purpose of giving effect to the security, but not further or otherwise " (3). A disentailing assurance will be effectual to bar not only Barring the entail, but all remainders and reversions in the cases follow- entail. ing, viz.: (1) If the tenant in tail who executes it is in possession; (2) If the tenant in tail though not in possession is entitled to the immediate remainder or reversion in fee simple; and, (3) If the protector consents. The Fines and Recoveries Act was drawn with immense care and consummate skill by a very eminent conveyancer, Mr. Brodie, and has always been regarded as a model of parliamentary drafting. For this reason, and, perhaps, because its provisions have been comparatively little subjected to the ordeal of contentious business, very few cases have been decided upon its construction. A variety of interesting cases, however, have been decided by the courts in recent years with regard to estates tail, the principal of which we shall now proceed to consider. (1) Bankes v. Small, 36 Ch. Div. 716, affirming 34 Ch. D. 415. (2) 3 & 4 Wm. 4, c. 74, s. 33. (3) In re Pares, 2 Ch. Div. 61. It is the duty of the Court so to exercise the power of barring an entail as not to affect the rights of persons entitled in remainder: Re Pares, 12 Ch. Div. 333. See also Re Sharp, 3 Ch. D. 59, |