Fee tail

From Academic Kids

Fee tail is an obsolescent term of art in common law. It describes an estate of inheritance in real property which cannot 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." 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).

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, such as that only the owner's children by a particular spouse could inherit it. 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 pur autre vie, 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 do not always go as planned, however. Owners of land in tail occasionally had "failure of issue" --- that is, they had 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.

Fee tail has been abolished by statute in England and in all but four states in the United States: Delaware, Massachusetts, Maine, and Rhode Island. New York, for example, abolished it in 1782. In most states it is provided that an attempt to create a fee tail shall result 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. Many other states 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 sole civil law jurisdiction in the US, the doctrine of legitime restricts owners from willing property out of their family when they die with children.

Fee tail appears in the plot of Pride and Prejudice by Jane Austen and in other novels by nineteenth century writers of fiction.


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