Everything about Fee Tail totally explained
Fee tail or
entail is an obsolete term of art in
common law. It describes an
estate of
inheritance in
real property which can't be sold, devised by will, or otherwise alienated by the owner, but which passes
by operation of law to the owner's
heirs upon his death. The term fee tail is derived from the Middle Latin
feodum talliatum, which means "cut-short fee."
Traditionally, a fee tail was created by words of grant in the
deed: "to A and the heirs of his body." The crucial difference between the words of conveyance and the words that created a
fee simple, "to A and his heirs," is that the heirs "in tail" must be the children begotten by the landowner. It was also possible to have "fee tail male," which only sons could inherit, and "fee tail female," which only daughters could inherit; and "fee tail special," which had a further condition of inheritance, usually restricting succession to certain "heirs of the body" and excluding others. Land subject to these conditions was said to be
entailed or
in tail. The restrictions themselves were
entailments.
Fee tail was formerly used during
feudal times by
landed nobility in order to create
family settlements and to make certain that the land stayed in the family. From the foregoing, attempting to
mortgage land in fee tail would be risky and uncertain, since at the death of the owner the land passed by operation of law to children who had no obligation to the mortgage lender and whose interest was prior in right over the mortgage. Similarly, the largest estate an owner in fee tail could convey to someone else was a
life estate, since the grantee's interest again terminates automatically when the original owner died. If all went as planned, it was impossible for the family to lose the land, which was the idea.
Things don't always go as planned, however. Owners of land in tail occasionally had "failure of issue" --- that is, they'd no children surviving them at the time of their own deaths. In this situation, theoretically the entailed land went back up and through the family tree to descendants of former owners who were entitled to inherit, or to the last owner in fee simple. This situation produced complicated
litigation.
Fee tail was a device tuned to the needs of family settlements in the
thirteenth century, but it was never popular with the monarchy, the merchants, or many entailed holders themselves who wished to sell their land. In more
mercantile eras, fee tail became rare. As early as the
fifteenth century, lawyers devised an elaborate action called "
Common Recovery," which used collaborative lawsuits and
legal fictions to remove the conditions of fee tail from land and enable its free conveyance in fee simple.
England
The Statute of Westminster II, passed in
1285, created and stereotyped this form of estate. The new law was also formally called the statute
De Donis Conditionalibus (Concerning Conditional Gifts). Fee tail was abolished by
statute in
England (as a legal
estate) in
1925.
An entail can still exist in England and Wales as an equitable interest, behind a strict settlement, but the legal estate is vested in the current 'tenant for life' or other person immediately entitled to the income, but on the basis that any capital money arising must be paid to the settlement trustees. A tenant in tail in possession can bar his entail by a simple disentailing deed, which doesn't now have to be enrolled. A tenant in tail in reversion (for example a
future interest where the property is subject to prior life interest) needs the consent of the life tenant and any 'special protectors' to vest a
reversionary fee simple in himself. Otherwise he can only create a base fee; a base fee only confers a right to the property on its owner, when its creator would have become entitled to it; if its creator dies before he'd have received it, the owner of the base fee gets nothing. In most states within the United States, an attempt to create a fee tail results in a
fee simple; even in those four states that still allow fee tail, the estate holder may convert his fee tail to a fee simple during his lifetime by executing a deed.
Scotland
Scotland disentailed all land following the passage of the
Abolition of Feudal Tenure etc. (Scotland) Act 2000, disapplying the
Scots law concept of
tailzie. Today, the doctrines of
legitim and
jus relictae restrict owners from willing property out of their family when they die with children or have a surviving partner.
United States
Fee tail has been abolished in all but four states in the
United States:
Delaware,
Massachusetts,
Maine, and
Rhode Island.
New York, for example, abolished it in 1782. Many other states within the U.S. never recognized the fee tail estate at all, as most of the land in the
United States of America was deemed
allodial.
In
Louisiana, the doctrines of
legitime and
jus relictae restrict owners from willing property out of their family when they die with children or have a surviving partner.
Further Information
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