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THE FEE TAIL ESTATE

During the feudal period, when land was the primary source of wealth, power, and security, persons who held land wanted to keep it within their families from generation to generation. This was partly out of a beneficent desire to provide for their family, to be sure, but it was also partly out of a desire to preserve the family's influence within society and the feudal chain of landholding. As a feudal landholder, X wanted desperately to avoid the consequences that would follow for X's family if a son or grandson of X attempted to alienate the land outside the family and thereby cut off future generations from ownership of the land. As the book suggests (page 197), what X really wanted was an estate that would function within his family like an endless series of life estates-with the eldest son at each generation of the family being able to enjoy possession during that generation, but also being powerless to prevent the land from passing to the next generation of the family.

The trick for X was finding language of conveyance (i.e., words of limitation) that could be used in the feoffment ceremony (the ceremony in which X received his estate, page 170) that would be sufficient to create an estate with this characteristic. The words "to X and his heirs" did not work, as that language created a fee simple absolute, which X could transfer outside of the family. So creative landowners tried to "distinguish" their intent by using the words "to X and the heirs of his body"-the "heirs of X's body" meaning X's lineal descendants, or X's issue.

When the Law courts refused to construe these words in the fashion intended, influential landowners lobbied Parliament, which in 1285 enacted the Statute de Donis Conditionalibus. This statute established a rule of construction that enabled landowners to create this desired "fee tail" estate. After the Statute de Donis, a conveyance by O "to X and the heirs of his body" conveyed a fee tail estate to X, who became the tenant in tail. X could use and enjoy the land during his lifetime, but at his death, the land passed to X's eldest son. X could not transfer the land for longer than his lifetime. Even if X transferred the land to A, A received no better rights than X had to give (the derivative title principle); when X died, the land would pass automatically to X's eldest son X Jr., who then became the tenant in tail.

What happened if a tenant in tail died without leaving any issue (i.e., any living lineal descendants, meaning children, grandchildren, great-grandchildren, etc.)? At that point, the "tail" ran out, and the fee tail estate ended. Thus, for example, consider the following conveyances:

O, owner of Blueacre in fee simple absolute, conveys it "to A and the heirs of his body." A has a fee tail estate (i.e., at A's death, A's issue have right to possession, even if A had transferred his right to possession during A's life). O has a reversion in fee simple absolute. When and if A dies without issue (i.e., the first moment at which there are no living descendants of A), title to the land reverts to O in fee simple absolute.

Note that in this example, the term "die without issue" has a technical and somewhat counterintuitive meaning. Ordinarily, we would think that if A leaves lineal descendants surviving at the time of his death, then A could not possibly "die without issue." But given the character of the fee tail estate, the important thing was that the estate would not end "until A's branch of the family tree ran out," so to speak. Thus, if A died in 1420 survived by A, Jr., and A Jr. died in 1460 survived by A, III, and then A, III died in 1500 without ever having had a child, we would say that as of 1500 A has now "died without issue." The estate "tail" has run out and now the fee tail estate is over.

O, owner of Blueacre in fee simple absolute, conveys it "to A and the heirs of his body, and if A dies without issue, to B and his heirs." A has an estate in fee tail (i.e., at A's death, A's issue have right to possession, even if A had transferred his right to possession during A's life). B has a remainder in fee simple absolute that will take effect only at the conclusion of A's fee tail estate.

The common law fee tail estate enabled families to tie up land and effectively render it inalienable for as long as the family kept procreating. [Technically, each generation could transfer the land for its own lifetime. But, as you saw in White v. Brown, an interest that only lasts a few years is less valuable and desirable than an estate that will last forever.] Thus, the fee tail enjoyed great popularity among wealthy landowners; however, it was not very popular with the King. Wealthy landowners who held land in fee tail and who wanted to challenge the King's authority could do so without any risk that the land could be forfeited from the family. Even though treason triggered a forfeiture, the treasonous tenant in tail forfeited only his estate, not the land itself. Thus, when the treasonous former tenant in tail died, the land would return to the family. The King, concerned that the fee tail estate presented a financial and military threat to the Crown, prevailed upon the judges of the royal court, who in 1472 in Taltarum's Case approved the use of a collusive lawsuit to destroy a fee tail estate. Under this lawsuit, a tenant in tail could "cut off" or "disentail" his issue and obtain a court decree awarding him a fee simple estate. This lawsuit (known as the common recovery) limited the effectiveness of the fee tail, and its judicial sanction marked the beginning of the law's disfavor with the fee tail estate.

England abolished the fee tail estate in 1925, and almost every American jurisdiction has also abolished the fee tail, and thus the estate is largely of historical interest. However, you may well encounter in homemade deeds or wills that same language used to create the common law fee tail estate. From time to time, an unsophisticated person may convey land to someone "and the heirs of his body," thinking that the language sounds "legal" but not really appreciating the legal consequences of using that term. If someone did use such language today, what happens?

In most states, legislatures have enacted statutes that abolish the common law fee tail estate. Some of those statutes (such as Mississippi's statute, see page 198, note 2(c)) provide that a conveyance "to X and the heirs of his body" is deemed to create a fee simple absolute estate. Other statutes, such as Missouri's, basically allow the "tail" for one generation; that is, a conveyance "to X and the heirs of his body" would give X a life estate and a remainder in fee simple to the person who, at common law, would have taken the estate tail after X's death.

Thus, consider a conveyance from O, owner of Blueacre in fee simple absolute, "to X and the heirs of his body." In Mississippi, thus would give X a fee simple absolute estate. In Missouri, this would give X only a life estate. If X dies leaving a daughter D, the land would then go to D in fee simple absolute. If X died without ever having had a child, the land would revert to O (the grantor) in fee simple absolute.