can an office, which merely relates to fuch perfonal chattels ; nor an annuity, which charges only the perfon, and not the lands, of the grantor. But in these last, if granted to a man and the heirs of his body, the grantee hath still a fee conditional at common law, as before the ftatute; and by his alienation (after iffue born) may bar the heir or reverfioner' (7). · An estate to a man and his heirs for another's life cannot be entailed for this is strictly no eftate of inheritance, (as will appear hereafter) and therefore not within the ftatute de donis (8). Neither can a copyhold eftate be entailed by virtue of the ftatute; for that would tend to encroach upon and restrain the will of the lord: but, by the fpecial cuftom of the manor, a copyhold may be limited to the heirs of the body'; for here the custom ascertains and interprets the lord's will (9). NEXT, as to the feveral species of eftates-tail, and how they are respectively created. Eftates-tail are either general or fpecial. Tail-general is where lands and tenements are given to one, and the heirs of his body begotten: which is called (7) If an annuity is granted out of perfonal property to a man and the heirs of his body, it is a fee-conditional at common law, and there can be no remainder or further limitation of it; and when the grantee has iffue, he has the full power of alienation, and of barring the poffibility of it's reverting to the grantor by the ex"tinction of his iffue. 2 Vef. 170. 1 Bro. 325, But out of a term for years, or any perfonal chattel, except in the instance of an annuity, neither a fee-conditional nor an estatetail can be created; for if they are granted or devised by such words as would convey an eftate-tail in real property, the grantee or devifee has the entire and abfolute intereft without having issue; and as foon as fuch an intereft is vefted in any one, all fubfequent limitations of confequence become null and void. 1 Bro. 274Harg. Co. Litt. 20. Fearne, 345⋅ 3d ed. (8) See page 260. poft. (9) See page 372. post. 113 tail-general, becaufe, how often foever fuch donee in tail be married, his iffue in general by all and every such mar riage is, in fucceffive order, capable of inheriting the estatetail, per formam doni". Tenant in tail-fpecial is where the gift is restrained to certain heirs of the donee's body, and does not go to all of them in general. And this may hap pen feveral ways". ways". I shall instance in only one; as where [ 114 ] lands and tenements are given to a man and the heirs of his body, on Mary his now wife to be begotten: here no iffue can inherit, but fuch special iffue as is engendered between them two; not such as the hufband may have by another wife and therefore it is called fpecial tail. And here we may obferve, that the words of inheritance (to him and his heirs J give him an estate in fee; but they being heirs to be by him begotten, this makes it a fee-tail; and the perfon being alfo limited, on whom fuch heirs fhall be begotten, (viz. Mary bis prefent wife) this makes it a fee-tail special. ESTATES, in general and special tail, are farther diverfified by the diftinction of fexes in fuch entails; for both of them may either be in tail male or tail female. As if lands be given to a man, and his heirs male of his body begotten, this is an estate in tail male general; but if to a man and the heirs female of his body on his prefent wife begotten, this is an estate in tail female special. And, in cafe of an entail male, the heirs female fhall never inherit, nor any derived from them; nor e converfo, the heirs male, in cafe of a gift in tail female. Thus, if the donee in tail male hath a daughter, who dies leaving a fon, fuch grandfon in this cafe cannot inherit the cftate-tail; for he cannot deduce his descent wholly by heirs male". And as the heir male muft convey his defcent wholly by males, fo muft the heir female wholly by females. And. therefore if a man hath two eftates-tail, the one in tail male, the other in tail female; and he hath iffue a daughter, which daughter hath iffue a fon; this grandfon can fucceed to neither of the estates: for he cannot convey his descent wholly either. in the male or female line. As the word heirs is neceffary to create a fee, fo in farther limitation of the ftrictness of the feodal donation, the word body, or fome other words of procreation, are neceffary to make it a fee-tail, and afcertain to what heirs in particular [115]the fee is limited. If therefore either the words of inheritance or words of procreation be omitted, albeit the others are inferted in the grant, this will not make an estate-tail. As, if the grant be to a man and his iffue of his body, to a man and his feed, to a man and his children, or offspring; all thefe are only eftates for life, there wanting the words of inheritance, his heirs. So, on the other hand, a gift to a man, and his heirs male, or female, is an estate in fee-simple, and not in fee-tail; for there are no words to ascertain the body out of which they fhall iffue". Indeed, in last wills and teftaments, wherein greater indulgence is allowed, an eftate-tail may be created by a devife to a man and his feed, or to a man and his heirs male; or by other irregular modes of expreflion (10). THERE is ftill another fpecies of entailed eftates, now indeed grown out of ufe, yet ftill capable of fubfifting in law; which are cftates in libero maritagio, or frankmarriage. These are defined to be, where tenements are given by one man to another, together with a wife, who is the daughter or coufin of the donor, to hold in frankmarriage. Now by d fuch gift, though nothing but the word frankmarriage is (10) Or to a man and his children, if he has no children at the time of the devife (6 Co. 17.); or to a man and his pofterity (H. Bl. 447.); or by any other words, which fhew an intention to restrain the inheritance to the defcendents of the devifee. See 381. poft. expreffed, 115 expreffed, the donees fhall have the tenements to them, and the heirs of their two bodies begotten; that is, they are tenants in special tail. For this one word, frankmarriage, does ex vi termini not only create an inheritance, like the word frankalmoign, but likewife limits that inheritance; supplying not only words of defcent, but of procreation alfo. Such donees in frankmarriage are liable to no fervice but fealty; for a rent referved thereon is void, until the fourth degree of confanguinity be paft between the iffues of the donor and donee *. THE incidents to a tenancy in tail, under the ftatute Weftm. 2. are chiefly thefe '. 1. That a tenant in tail may commit wafte on the estate-tail, by felling timber, pulling down houses, or the like, without being impeached, or [ 116 ] called to account, for the fame. 2. That the wife of the tenant in tail shall have her dower, or thirds of the estatetail. 3. That the husband of a female tenant in tail may be tenant by the curtesy of the eftate-tail. 4. That an estate-tail may be barred, or deftroyed by a fine, by a common recovery, or by lineal warranty defcending with affets to the heir. All which will hereafter be explained at large. THUS much for the nature of eftates tail: the eftablifhment of which family law (as it is properly stiled by Pigott 8) occafioned infinite difficulties and difputes". Children grew disobedient when they knew they could not be fet afide: farmers were oufted of their leafes made by tenants in tail; for, if fuch leafes had been valid, then under colour of long leases the issue might have been virtually difinherited: creditors were defrauded of their debts; for, if tenant in tail could have charged his eftate with their payment, he might alfo have defeated his iffue, by mortgaging it for as much as it was worth innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; of fuits in confequence of which our antient books are full and 19, 20. e Litt. g Com. Recov. 5. K 3 treafons treasons were encouraged; as estates-tail were not liable to forfeiture, longer than for the tenant's life. So that they were juftly branded, as the fource of new contentions, and mischiefs unknown to the common law: and almost univer fally confidered as the common grievance of the realm. But as the nobility were always fond of this ftatute, because it preferved their family eftates from forfeiture, there was little hope of procuring a repeal by the legislature; and therefore, by the connivance of an active and politic prince, a method was devifed to evade it. ABOUT two hundred years intervened between the making of the statute de donis, and the application of common recoveries to this intent, in the twelfth year of Edward IV; which were then openly declared by the judges to be a futf[117] cient bar of an estate-tail *. For though the courts had, fo long before as the reign of Edward III, very frequently hinted their opinion that a bar might be effected upon these principles, yet it never was carried into execution; till Edward IV obferving" (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had on families, whofe eftates were protected by the fanctuary of entails, gave his countenance to this proceeding, and suffered Taltarum's cafe to be brought before the court"; wherein, in confequence of the principles then laid down, it was in effect determined, that a common recovery fuffered by tenant in tail fhould be an effectual deftruction thereof. What common recoveries are, both in their nature and confequences, and why they are allowed to be a bar to the estate tail, must be referved to a fubfequent inquiry. At prefent I fhall only fay, that they are fictitious proceedings, introduced by a kind of pia fraus, to elude the statute de donis, which was found fo intolerably mischievous, and which yet one branch of the legislature would not then consent to re |