Fee tail
Property law |
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Part of the common law series |
Types |
Acquisition |
Estates in land |
Conveyancing |
Future use control |
Nonpossessory interest |
Related topics |
Other common law areas |
Higher category: Law and Common law |
In English
Most common law jurisdictions have abolished fee tails or greatly restricted their use. They survive in limited form in England and Wales, but have been abolished in Scotland, Ireland, and all but four states of the United States.
Purpose
The fee tail allowed a patriarch to perpetuate his blood-line, family-name, honour and armorials[1] in the persons of a series of powerful and wealthy male descendants. By keeping his estate intact in the hands of one heir alone, in an ideally indefinite and pre-ordained chain of succession, his own wealth, power and family honour would not be dissipated amongst several male lines, as became the case for example in Napoleonic France by operation of the Napoleonic Code which gave each child the legal right to inherit an equal share of the patrimony, where a formerly great landowning family could be reduced in a few generations to a series of small-holders or peasant farmers. It therefore approaches the true corporation which is a legal body or person which does not die and continues in existence and can hold wealth indefinitely.
Indeed, as a form of trust, whilst the individual trustees may die, replacements are appointed and the trust itself continues, ideally indefinitely. In England almost seamless successions were made from patriarch to patriarch, the smoothness of which were often enhanced by baptising the eldest son and heir with his father's Christian name for several generations, for example the FitzWarin family, all named Fulk. Such indefinite inalienable land-holdings were soon seen as restrictive on the optimum productive ability of land, which was often converted to deer-parks or pleasure grounds by the wealthy tenant-in-possession, which was damaging to the nation as a whole, and thus laws against perpetuities were enacted, which restricted entails to a maximum number of lives.[citation needed]
An entail also had the effect of disallowing
History
Fee tail was established during
The effects of English primogeniture and entail have been significant plot details or themes in a number of notable works of English literature.[2] (See some examples cited below.)
Statute of Westminster 1285
The
Opponents
Fee tail was never popular with the monarchy, the merchant class and many holders of entailed estates themselves who wished to sell or divide their land.[citation needed]
Abolition
Fee tail as a legal estate in England was abolished by the Law of Property Act 1925.[3]
Continuing use
A fee tail can still exist in England and Wales as an equitable interest, behind a strict settlement; 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 fee tail by a simple disentailing deed, which does not now have to be enrolled. A tenant in tail in reversion (i.e., 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 would have received it, the owner of the base fee gets nothing. No new "fees tail" can now be created following the Trusts of Land and Appointment of Trustees Act 1996.[4]
In the US, conservation easements are a form of entail still in use.
Creation
Traditionally, a fee tail was created by a trust established in a
Breaking of fee tail
The breaking of a fee tail was simplified by the Fines and Recoveries Act 1833,[5] which allowed the holders of property in tail to file a disentailing assurance freeing them from its conditions; such a document needed to be enrolled. This obviated the previous method of breaking entails, the arcane legal fictions that enabled the system of common recovery.
The requirement that a disentailing assurance should be enrolled was abolished in 1926.[6]
Mortgage of entailed lands
Lending upon security of a mortgage on land in fee tail was risky, since at the death of the tenant-in-possession, his personal estate ceased to have any right to the estate or to the income it generated. The absolute right to the income generated by the estate passed by operation of law to parties who had no legal obligation to the lender, who therefore could not enforce payment of interest on the new tenants-in-possession. The largest estate a possessor in fee tail could convey to someone else was an estate for the term of the grantor's own life. If all went as planned, it was therefore impossible for the succession of patriarchs to lose the land, which was the idea.[citation needed]
Failure of issue
Things did not always go as planned, however. Tenants-in-possession of entailed estates occasionally suffered "failure of issue" – that is, they had no legitimate children surviving them at the time of their deaths. In this situation the entailed land devolved to male cousins, i.e., back up and through the family tree to legitimate male descendants of former tenants-in-possession, or reverted to the last owner in fee simple, if still living. This situation produced complicated
Depending on how the original deed or grant was worded, in the event of there being daughters but no sons, all the sisters might inherit jointly, it might pass to the eldest sister, it might be held in trust until one of them should produce a (legitimate) son, or it might pass to the next male-line relative (an uncle, say, or even a cousin, sometimes very distant). The last possibility, commonly called 'entailment to heirs male', is used in Jane Austen's Pride and Prejudice; the estate of Longbourn is entailed to a distant male cousin rather than the incumbent's five daughters or their offspring.
Common recovery
In the 15th century, lawyers devised "common recovery", an elaborate legal procedure which used collaborative lawsuits and legal fictions to "bar" a fee tail, that is to say to remove the restrictions of fee tail from land and to enable its conveyance in fee simple. Biancalana's book The Fee Tail and the Common Recovery in Medieval England: 1176–1502 (2001) discusses the procedure and its history at length.[7]
Resettlement
In the 17th and 18th centuries the practice arose whereby when the son came of age (at 21), he and his father acting together could bar the existing fee tail, and could then re-settle the land in fee tail, again on the father for life, then to the son for life and his heirs male successively, but at the same time making provision for annuities chargeable on the estate for the father's widow, daughters and younger sons, and most importantly, and as an incentive for the son to participate in the re-settlement, an income for the son during his father's lifetime. This process effectively evaded the law against perpetuities, as the entail in law had been terminated, but in practice continued. In this way an estate could stay in a family for many generations, yet emerged on re-settlement often fatally weakened, or much more susceptible to agricultural downturns, from the onerous annuities now chargeable on it.
Formedon
Formedon (or form down etc.) was a right of writ exercisable by a holder in fee for claiming property entailed by a lessee beyond the terms of his feoffment.[
I received your ladyship's letter by which ye willed me to speak with my Lady Coffyn for her title in East Haggynton in the county of Devon who had one estate in tail to him and to his heirs of her body begotten; and now he is dead without issue of his body so that the reversion should revert to Mr John Basset and to his heirs so there be no let nor discontinuance of the same made by Sir William Coffyn in his life. Howbeit Mr Richard Coffyn, next heir to Sir William Coffyn, claimeth the same by his uncle's feoffment to him and to his heirs so that the law will put Mr John Basset from his entry and to compel him to take his action of form down which is much dilatory as Mr Basset knoweth
Historical examples
Marquess of Hertford
An English example of a fee tail may be the main estates of the wealthy art collector Richard Seymour-Conway, 4th Marquess of Hertford (d. 1870). His only child was his illegitimate son, Sir Richard Wallace, 1st Baronet, to whom he left as much of his property as he could. The main land holdings and Ragley Hall were inherited by his distant cousin, Francis Seymour, 5th Marquess of Hertford, descended from a younger son of the 1st Marquess who had died in 1794. Most of the 4th Marquess's art collection had been acquired by himself or his father, went to Wallace, and is now the Wallace Collection. Other works were covered by the fee tail, however, and passed to the 5th Marquess.
Earl of Pembroke
Another example was George Herbert, 11th Earl of Pembroke, who died in 1827. He had quarreled with his eldest son, later the 12th Earl, and left his unentailed estate to Sidney Herbert, 1st Baron Herbert of Lea, his son by a second marriage.
Fees tail in fiction
Fees tail figure in the plots of several well known novels and stories, particularly in the 19th century, including:
- Pride and Prejudice (1813) by Jane Austen
- Guy Mannering (1815) by Walter Scott – inheritance of an estate goes to an heir of tailzie.[9]
- Middlemarch (1871–1872) by George Eliot
- The Belton Estate (1866) and Ralph the Heir (1871) by Anthony Trollope
- The Master of Ballantrae (1889) by Robert Louis Stevenson
- Kidnapped (1886) by Robert Louis Stevenson mentions it by implication in a dispute over the House of Shaws that drives the plot
- The Adventure of the Priory School by Sir Arthur Conan Doyle
- Brideshead Revisited by Evelyn Waugh
- Wideacre by Philippa Gregory
- The Quincunx by Charles Palliser (written in 1989, but it takes the form of a Dickensian mystery set in early-19th-century England)
- Downton Abbey by Julian Fellowes[10] (written in 2009–2015, but set in England in the period 1912–1927)
- To Kill a Mockingbird by Harper Lee (referred to as an "entailment")
- Wives and Daughters by Elizabeth Gaskell
Pride and Prejudice
Pride and Prejudice contains a particularly thorny example of the kind of problems which could arise through the entailing of property. Mr. Bennet, the father of protagonist Elizabeth Bennet, had only a life interest in the Longbourn estate, the family's home and principal source of income. He had no authority to dictate to whom it should pass upon his death, as it was strictly arranged to be inherited by the next male heir. Had Mr. Bennet fathered a son it would have passed to him, but since he did not it could not pass to any of his five daughters.[11] Instead, the next nearest male heir would inherit the property—Mr. Bennet's cousin, William Collins, a boorish minister in his mid-twenties. The inheritance of the Longbourn property completely excluded the five Bennet daughters, who were thus to lose their home and income upon their father's death. The need for the daughters to make a good marriage to ensure their future security is a key motivation for many episodes in the novel. Many fees tail arose from wills, rather than from marriage settlements which usually made some provision for daughters. Austen was very familiar with the law of entail; her brother, Edward, had inherited similarly entailed estates at Chawton, Godmersham and Winchester from distant cousins under the will of Elizabeth Knight, who died in 1737.[12]
Law professor Maureen B. Collins (2017)[13] cites several other authors debating the accuracy of Austen's depiction of the entailment, including Appel (2013),[14] Treitel (1984),[15] Redmond (1989),[16] and Grover (2014).[12]
Other countries
Scotland
In Scots law, the word tailzie "comes from the French Word tailier, to cut," implying "cutting the ordinary Line of Succession, and giving the Estate to others than those to whom it would have descended by Law." By the late 18th century it was also known as entail, but the archaic spelling continued in law books.[17] The Abolition of Feudal Tenure etc. (Scotland) Act 2000 (section 50) abolished all feudal tenures including the entail.[18] 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.
A Scottish example of entail is the case of Alfred Douglas-Hamilton, 13th Duke of Hamilton, who in 1895 inherited from the 12th Duke, his fourth cousin, who had attempted to marry his daughter to the heir.[clarification needed][citation needed]
Ireland
In the Republic of Ireland, Section 13 of the Land and Conveyancing Law Reform Act 2009 largely abolished the fee tail and converted existing fees tail to fees simple.[19] For constitutional reasons, this section is subject to a saving clause which prevents the conversion of fees tail to fees simple where the protector of the settlement is still alive. Therefore, some fees tail still exist in the state.
United States
The fee tail has been abolished in all but four states in the United States: Massachusetts, Maine, Delaware and Rhode Island. However, in the first three states, property can be sold or deeded as any other property would be, with the fee tail only applying in case of death without a will. In Rhode Island, a fee tail is treated as a life estate with remainder in the life tenant's children. New York abolished fee tail in 1782, while many other states within the U.S. never recognized it at all. In most states in 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.
In Louisiana, the common law concept of estates in land never existed. The concept of forced heirship and the marital portion protects force heirs and surviving spouses from total divestment of value of the estate of the decedent, who has a duty to provide for their care.
Fee tail-like restrictions still exist though contractual obligations. For example, owners of
Polish–Lithuanian Commonwealth
In the
According to the rules of ordynacja, which became a statute approved by the
Ordynacja was similar to the French law of
Many Polish
- Nesvizh, and Kletsk
- Ordynacja Zamojska, created for Jan Zamoyski in 1589, centered on Zamość
- Ordynacja Jarosławska , created for Rafał Jarosławski in 1470, centered on Jarosław
- Ordynacja Pińczowska , created for Piotr and Zygmunt Myszkowski in 1601, later inherited by the Wielopolski family, centered on Pińczów
Other
Other European legal systems had comparable devices to keep estates together, especially in Spain and Northern European countries like
See also
- Fee simple
- Majorat
- Primogeniture
- Reichserbhofgesetz
- Rule in Wild's Case
- Tailzie (Scots law)
- Taltarum's Case
- Easement
References
- ^ Frequently in default of a son and heir to the tenant-in-possession, the entail required the next male heir, if via a female line, to adopt the surname and arms of the patriarch, see for example Mark Rolle
- ^ See generally, Zouheir Jamoussi, Primogeniture and entail in England: A survey of their history and representation in literature (1999).
- ISBN 978-0199664924. Retrieved 16 April 2015.
- ^ Trusts of Land and Appointment of Trustees Act 1996 Schedule 1 Para 5
- ^ Fines and Recoveries Act 1833 s.15
- ^ Law of Property Act 1925, s. 133.
- ISBN 9780521806466.
- ^ Byrne, Muriel St. Clare, (ed.) The Lisle Letters, 6 vols, University of Chicago Press, Chicago & London, 1981, vol.5, letter 1359, p.408, note 6
- ^ "Dictionaries of the Scots Language:: SND :: tailyie". Dictionaries of the Scots Language. 26 August 2023. Retrieved 26 August 2023.
Heir of tailzie and provision to the estate of Ellangowan.
- ^ Ruhl, J.B. (2015). "The Tale of the Fee Tail in Downtown Abbey". Vanderbilt Law Review en Banc. 68: 131–142 – via HeinOnline.
- ISBN 978-1317821458. Retrieved 17 April 2015.
- ^ a b Grover, Christine (2013). "Edward Knight's Inheritance: The Chawton, Godmersham, and Winchester Estates". Persuasions. 34 (1). Jane Austen Society of North America. Retrieved 17 April 2015.
- ^ Maureen B. Collins, "The Law of Jane: Legal Issues in Austen’s Life and Novels", Persuasions On-line 38.1 (Winter 2017).
- ^ Appel, Peter A. "A Funhouse Mirror of Law: The Entailment in Jane Austen’s Pride and Prejudice", Georgia Journal of International and Comparative Law 41.3 (2013): 609–636.
- ^ Treitel, G. H. "Jane Austen and the Law". The Law Quarterly Review 100 (1984): 549–586.
- ^ Luanne Bethke Redmond, "Land, Law and Love", Persuasions 11 (1989): 46–52
- ^ "Dictionaries of the Scots Language:: SND :: tailyie". Dictionaries of the Scots Language. 26 August 2023. Retrieved 26 August 2023.
Sc. 1734 J. Spotiswood Hope's Practicks 400: The Custom of tailzying Estates came from Normandy, and the Word Tailzie comes from the French Word tailier, to cut, importing a cutting the ordinary Line of Succession, and giving the Estate to others than those to whom it would have descended by Law.
- ^ Abolition of Feudal Tenure etc. (Scotland) Act 2000, section 50.
- ^ Land and Conveyancing Law Reform Act 2009, section 13.
- ^ a b c Peter Paul Bajer. "Short history of the Radziwill Family" Archived 2006-12-31 at the Wayback Machine
Further reading
- Bell, William (1861). Dictionary and Digest, Law of Scotland, with Short Explanations of the most Ordinary English Law Terms (Revised and Corrected with Numerous Additions by George Ross ed.). Edinburgh: Bell & Bradfute. p. 328.
- Biancalana, Joseph. The Fee Tail and the Common Recovery in Medieval England 1176–1502 (PDF). Cambridge University Press. ISBN 0-511-01631-X. Archived from the original(PDF) on 2022-08-06.
- Cahill, James C. (1922). The Cyclopedic Law Dictionary (2nd ed.). Chicago: Callaghan and Company. p. 353. (1st edition by Walter A. Shumaker and George Foster Longsdorf)
- English, Barbara; Saville, John (1983). Strict Settlement: A Guide for Historians. Hull: University of Hull Press. ISBN 9780859584395.