the having issue a son was a performance of the condition. Vide Co. L. 19. a. But if an estate was given to a man and the heirs male of his body, who had issue a daughter; the condition was not performed. Co. L.49. a. (A 8.) The effect of the condition performed. If the condition was performed, he who had the fee simple conditional, by the common law, might alien his land. Co. L. 19. a. Or might charge it with a rent, common, &c. Or might forfeit it. Co. L. 19. a. Co. L. 19. a. But though the condition was performed by having issue, and the issue inherits, the land does not descend to the heir general: for, if the donee, or his issue, afterwards dies without issue, the estate reverts to the donor. Co. L. 19. a. So, if he dies without issue_male, where the gift was to him and the heirs male of his body. Co. L. 19. a. Vide post, (B. 1, &c.) (B) Estate tail. (B 1.) The commencement of it. An estate is said to be entailed, when it is ascertained, what issue shall inherit it. Lit. S. 18. By the common law, all estates of inheritance were fee simple absolute, or (i) conditional. Co. L. 19. a. But by the st. (k) W. 2. 13 Ed. 1. 1. The will of the giver according to the form in the deed of gift manifestly expressed shall from henceforth be (i) 1. Item sicut ampliari possunt hæredes, sicut prædictum est, ita coarctari poterunt per modum donationis, quod omnes hæredes generaliter ad successionem non vocantur. Modus enim legem dat donationi, et modus tenendus est contra jus commune, et contra legem, quid modus et conventio, vincunt legem. Ut si dicatur-Do tali tantam terram cum pertinentis in N. habendum et tenendum sibi et hæredibus suis, quos de carne suâ et uxore sibi desponsatá procreatos habuerit. Vel sic-Do tali, et tali uxori suæ, vel cum tali filiâ meâ, &c. habendum et tenendum sibi et hæredibus suis, de carne talis uxoris, vel filiæ exeuntibus, vel procreatis vel procreandis: quo casu cum certi hæredes exprimuntur in donatione, videri poterit quod tantum sit descensus ad ipsos hæredes communes per modum in donatione appositum; omnibus aliis hæredibus suis a successione penitus exclusis, quia hoc voluit donator. Bract. lib. 2. c. 6. Vide Fleta, lib. 3. c. 9. Britton, c. 36.-2. These limited donations were evidently derived from the feudum talliatum. -3. They were probably introduced into England about the end of the reign of King Henry II., or that of one of his sons; for Glanville, who gives a very accurate account of the different estates that were known in his time, makes no mention whatever of limited donations; whereas Bracton, as we have seen, who wrote in the reign of King Henry III. has given a full description of them. 1 Cruise, 81. (k) 1. The evident object of limited donations was to restrain the donees from disposing of the estates thus given; but the general propensity which prevailed about the reign of Edward I. to favour a liberty of alienation, induced the judges to construe limitations of this kind in a very liberal manner. Instead of declaring that the estates must descend to those heirs who were particularly described in the grant, according to the evident intention of the donors, and the strict principles of the feudal law; and that the donees should not in any case be enabled by their alienation to defeat the succession of those who were mentioned in the gift, or the donors' right of reverter; they had recourse to an ingenious device, taken from the nature of a condition. Now it is a maxim of the common law, that when a condition is once performed, it is thenceforth entirely gone, and the thing to which it was before annexed, becomes be observed, so that they to whom the land was given under such condition shall have no power to alien the land so given, but it shall remain to the issue or revert to the giver, if issue fail. (B 2.) What tenements may be entailed. And therefore, all lands and inheritances corporeal may be entailed Co. L. 19. b. Vide Copyhold, (C 8, 9.) So all inheritances issuing out of them, or which concern or are annexed to lands and tenements, or exerciseable in land, though they cannot be holden. Co. L. 20. a. As, rents, commons, estovers, &c. Co. L. 20. a. becomes absolute and wholly unconditional. And the judges, reasoning upon this ground, determined that these estates were conditional fees; that is, were granted to a man and the heirs of his body, upon condition that he had such heirs ; therefore, as soon as the donee of an estate of this kind had issue born, his estate became absolute, by the performance of the condition, at least for these three purposes: 1o. to enable him to alien the land, and thereby to bar, not only his own issue, but also the donor himself of his right of reverter; 2°. to subject him to forfeit the estate for treason or felony; which, till issue born, he could not do, for any longer term than that of his own life; lest the right of inheritance of the issue, and that of reverter of the donor, might be thereby defeated; 3°. to enable him to charge the lands with rents and other incumbrances, so as to bind his issue. 1 Cruise, 81. 83. Plowd. 235. 241. 1 Inst. 19. a. 2 Inst. 333. 7 Rep. 34. b.-2. The donee of a conditional fee might also alien the lands before issue had; nor could the donor have entered in such a case, because that would have been contrary to his own donation, which limited the lands to the donor and his issue. And if the donce had issue born, after the alienation, the donor was excluded during the existence of such issue. The issue were also bound by the alienation of their ancestor, though previous to their birth; because they could only claim in the character of his representatives, and were therefore bound by his acts. But where the donee of a conditional fee aliened before he had issue, such alienation did not bar the donor's right of reverter, whenever there happened a failure of issue; because the subsequent birth of issue was not a sufficient performance of the condition to render the precedent alienation valid. 1 Cruise, 83. Plowd. 241.-3. Where the person to whom a conditional fee was limited, had issue, and suffered it to descend to such issue, they might alien it; because, having succeeded by descent to this estate of their ancestor, who had acquired a power of alienation by having issue, they took the estate in the same manner, discharged from any restraint whatever. But if the issue did not alien, the donor would still be entitled to his right of reverter; as the estate would have continued subject to the limitations contained in the original donation. 1 Cruise, 83. 7 Rep. 34. b. 1 Inst. 19. a.-4. From this mode of construing conditional fees, the purposes for which they were intended were completely frustrated; and therefore the nobility, whose object was to perpetuate their possessions in their own families, procured the above statute to be passed. 1 Cruise, 34.-5. Which statute, as observed by Lord Mansfield, only repeated what the law of tenures had said before, that the tenor of the grant should be observed. 1 Burr. 115.-6. And therefore the judges, in the construction of it determined, that where an estate was limited to a man and the heirs of his body, the donee should not in future have a conditional fee; but divided the estate by creating a particular estate in the donee, called an estate tail, subject to which the reversion in fee remained in the donor. 1 Cruise, 84. 2 Inst. 335. Plowd. 248.-7. In consequence of which construction, estates limited in this manner are not conditional; nor is the right of entry of the donor, on failure of issue of the donee, considered as arising from a breach of the condition, but as a right of reverter accruing to the donor on the natural expiration of the estate granted. The statute rejects the erroneous opinion which had been held by the judges, that a donation of this kind created a conditional fee; and declares that it vests an estate of inheritance in the donee, and some particular heirs of his, to whom it must descend; and that the estate of the donor is a reversion, expectant on the determination of that estate. 1 Cruise, 85. Plowd. 242. So So offices may be entailed, Co. L. 20. a. which concern lands and tenements. 1 Rol. 838. 1. 4. As, the office of marshal of England. Co. L. 20. a. 7 Co. 33. b. The office of serjeant of C. B., or chamberlain of the exchequer. Co. L. 20. a. Jon. 111. The office of fostership, or the custody of a church. Co. L. 20. a. 1 Rol. 838. 1. 5. The office of steward, receiver, or bailiff of a manor. 1 Rol. 638. 1. 10. 7 Co. 33. b. So, a dignity; for a baron, &c. is named of some county, town, or place. Co. L. 20. a. R. 7 Co. 33. b. 1 Rol. 837. 1. 55. Jon. 100. Uses. Co. L. 20. a. R. 7 Co. 33. b. So, the dignity of baronet; if he be created baronet of such a place. R. 12 Co. 81. So a villein in gross may be entailed: for he is a thing real. 812. 1. 20. So, charters. Co. L. 20. a. 1 Rol. But personal inheritances, or which concern chattels merely, cannot be entailed (1): As, an annuity. Co. L. 20. a. 1 Rol. 837. 1. 50. (m) Or, the office of master of the horse, hounds, &c. for they are merely personal. Co. L. 20. a. Nor things, which do not concern lands or tenements, nor are exerciseable in lands or tenements. 1 Rol. 837. 1. 50. And therefore, if a baronet be created to him and the heirs male of his body, without mentioning of any place, he shall have a fee conditional in his dignity, which will be forfeited for felony. R. 12 Co. 81. So a lease pur auter vie cannot be entailed; and if it be limited to one and the heirs of his body, remainder over, the remainder may be barred by a surrender, without a recovery. Cont. 2 Ver. 184. R. acc. 2 Ver. 226. (B 3.) By what words an estate tail shall be created. An estate tail ought, regularly, to be limited to a man and the heirs of his body begotten. (n) And (1) Money directed to be laid out in the purchase of land, is considered in equity as land; and in such a case, if the land to be purchased is directed to be conveyed to a person in tail, he will be considered, in equity, as tenant in tail of the money till the purchase is made. (m) 1. Lord Hardwicke held, that an annuity in fee simple, granted by the crown out of the four-and-a-half per cent duties, payable for imports and exports at the island of Barbadoes, was merely a personal inheritance, not entailable within the statute de donis. Therefore, that being settled upon A. and the heirs of his body, it was a conditional fee at common law; so that A. having issue might alien it, and thereby bar the possibility of reverter. 2 Ves. 170. 2. And Lord Thurlow held, that an annuity granted by act of parliament, out of the revenues of the post-office, redeemable upon payment of a sum of money, to be laid out in land, was a personal inheritance only, not entailed within the statute de donis; for that, notwithstanding the power reserved to the crown of laying it out in land, the parties had a right to treat it as an annuity; and the court of chancery would not keep the objection, of its being land, in contemplation from century to century, because of the possibility of substituting the money in the place of the annuity. 1 B. C. C. P. 377.-3. And a limitation of personal property, after a description that would raise an entail express or implied in real estate, is void; and the person who would be tenant in tail, takes the absolute interest. 3 Ves. 99. 3 Mer. 183. (2) 1. This word begotten, says Lord Coke, may in many cases be omitted, or expressed And therefore, if it be limited to a man and his issues, he has it only for life; for the word, heirs, is as necessary as to an estate in fee simple for all estates tail were fee simple conditional at the common law. Co. L. 20 a. 2 Inst. 334. 1 Rol. 837. 1. 30. So a gift to a man et semini suo, does not make an estate tail. Co. L. 20. b. Or, to a man et exituis, or, prolibus de corpore suo. Co. L. 20. b. (0) Or, to the issues male of his body. 1 Co. 103. b. Or, to the survivor having issue male, and to the issue male of such issue male. R. 1 Rol. 837. 1. 35. So a gift to a man and his heirs male, or, heirs female, does not make a tail, but shall be a fee simple: for it does not limit of what body the heirs ought to issue. Co. L. 27. a. Lit. S. 31. Vide infra. Ör, to a man and his heirs male lawfully begotten. R. Cro. El. 478. Or, to him and his heirs of the body of his sister lawfully begotten: for he cannot marry his sister. R. 1 And. 310. (p) Though limited by way of use. 1 Rol. 837. 1. 30. R. Mo. 424. Cro. El. 478. (q) So pressed by the like, and yet the estate in tail is good; as hæredibus de carne, hæredibus de se, hæred' quos sibi contigerit, &c. as is aforesaid; and where the word of Littleton is engendered,' or 'begotten,' procreatis, yet if the word be procreandis, or quos procreaverit, the estate in tail is good; and as procreatis shall extend to the issues begotten afterwards, so procreandis shall extend to the issues begotten before.-2. And the annotator subjoins, 10 E. 3. 19., adjudged accordingly. Hal. MSS.-3. But it is held, that where the words were in posterum procreandis, sons born before shall be excluded on account of the peculiar force of in posterum. Adj. M. 26 Eliz. B. R. 3. Leon. 87. (0) 1. To this passage the annotator has annexed the following: But devise to one et hæredibus legitime procreatis is tail. H. 43 Eliz. C. B. rol. 1408. L. Moor's case, 711.; but contrà by act executed. 7 Rep. 41. b. Dormer's case. 2. If lands be limited by deed to the use of J. S. et hæredum masculorum suorum legitimè procreatorum, remainder over, it is a fee simple; but if it be hæredum masculorum de se, or in English, the heirs of him lawfully begotten, especially where there is a remainder over, it is tail. 7 Rep. 41. Bedell's case, Dormer's case. H. 38 Eliz. B. R. rol. 739. Hal. MSS. (p) 1. If, says Lord Coke, tenements be given to a man and to a woman being not his wife, and to the heirs male of their two bodies; they have an estate tail, although they be not married at that time. Co. Litt. 25. b.-2. To which the annotator from Hal. MSS. subjoins, if husband and wife are divorced a vinculo, they are only tenants for life; for the law does not presume that they will marry again. 7 H. 4. 16. 3 H. 6. 43. 3. But, continues Lord Coke, if lands be given to a man and two women, and the heirs of their bodies begotten, in this case they have a joint estate for life and every of them a several inheritance, because they cannot have one issue of their bodies, neither shall there be by any construction a possibility upon a possibility, viz. that he shall marry the one first and then the other.-4. To which the annotator subjoins from Hal. MSS., here it cannot be tail, for the uncertainty which of them he will marry first. But if a gift was to A. and B. a feme sole, and to the heirs of their bodies, remainder to A., and C. a feme sole, and to the heirs of their bodies, it is tail. - 5. Lord Coke adds, and the same law it is, when land is given to two men and one woman, and to the heirs of their bodies begotten. (9) 1. It is affirmed by Lord Coke, in 1 Inst. 19. b., that by the statute of uses, the land is, as it were, appropriated to the tenant in tail, and to the heirs of his body; and therefore that if an estate be made, either before or since the statute, to a man and the heirs of his body, either to the use of another and his heirs, or to the use of himself and his heirs, this limitation of use is utterly void. For before the statute he could not have executed the estate to the use. And so was it adjudged in an ejectione firmæ between John Cowper, plaintiff, and Thomas Franklin, &c. defendant.-2. To which the annotator subjoins, but in Godbolt's report of Franklin and Cowper, it is said to So the use of a fine to A. and his eldest son and the heirs male of the son, does not make an entail in A. R. 1 Leo. 212. Cro. El. 220. So, if he has an express estate for life, he shall not take a tail by implication: as, if a copyhold be surrendered to A. and B. for life, and for want of issue of B., to D. and his heirs: B. has not a tail: for he had an estate expressly limited for life. R. Jon. 342. But if a man gives an estate tail to A. remainder to B. in formâ prædictá; B. has an estate tail. Co.'L. 20. b. 1 Rol. 838. 1. 35. If he had given an estate to A. and the heirs male of his body, with a power of revocation, and afterwards revokes, and gives the same estate to A. and his heirs male, paying 500l., &c. omitting, of his body; it shall be an estate tail. R. 3 Lev. 214. So a gift to A. and B. and one heir (r) of their bodies, and one heir of such heir only, makes an estate tail. Co. L. 22. a. 39 Ass. 20. Qu. Perk. Sect. 171. Semb. cont. Pl. Com. 29. b. Semb. acc. Reg. Jud. 6. So, a gift to A. and his heirs, habendum to him and his heirs, and if the donee dies without issue, that the land shall revert. 1 Rol. 838. 1. 45. (s) Or, to have been resolved that tenant in tail might stand seised to an use expressed, but that an use could not be averred.—3. Lord Bacon also gives it as his opinion, that an estate tail may be to uses since the statute for executing uses, and controverts the reasons for doubting it before. Bac. Law Tracts, 8vo. ed. 347. - 4. See a great number of authorities upon this subject, in Vin. Abr. Uses, C. (r) A limitation to A. and such heir of her body as should be living at her death, with a remainder over, is an estate tail. 2 Vern. 325. (s) 1. If, says Lord Coke, 1 Inst. 21. a. a man in the premises give lands to another and the heirs of his body, habendum to him and his heirs for ever, it hath been holden, that in this case he hath an estate tail, and a fee expectant.-2. And so, it is said, vice versa, if lands be given to a man and to his heirs in the premises, habendum to him and the heirs of his body, that he hath an estate tail, and a fee simple expectant. But vide lib. viii. fo. 154. b., otherwise resolved, ut patet ibi. 3. To which the annotator subjoins, the resolution in 8 Co. 54. b. is, that here the words, heirs of the body in the habendum, qualify the word heirs in the premises, and therefore that there shall be an estate tail without any fee expectant. See acc. Mo. 26. — 4. In Cro. Jac. 476., and 2 Rol. Rep. 19. 23, such words were adjudged to pass tail and fee expectant. But the case was attended with circumstances particularly shewing an intention to pass both; for there was a reservation of tenure to the lord paramount, which could not be if only an estate tail passed to the donee, and the reversion had remained in the donor, for then the tenure must have been of the donor. Also there was a warranty to the grantee and his heirs. However the court intimated, that their opinion would have been the same, if these special circumstances had not occurred.-5. Where, says Lord Coke, 1 Inst. 26. b., a man by deed gave lands to Emma late wife of John Master, habendum et tenendum prædict. Emme et hæredibus Johannes Master de corpore ejusdem Emme procreat; in that case the son and heir of John Master begotten on the body of Emma took no estate with Emma in the lands, because he was named after the habendum. 6. To which the annotator subjoins, from Hal. MSS., where one named after the habendum shall take. H. 13 Jac. Brookes and Brookes. In customary grant by copy, one not named in the premises being named in the habendum, may take a present estate. Venit J. S. et cepit de domino, habendum, to him and his wife is good. - 7. In frank-marriage, a wife shall take though named only in the habendum. Litt. S. 17. 4 E. 3, 4. 5 E. 3. 17. Brief, 703.- 8. So it seems in render by fine to B., habendum to B. and C. his wife. 8 E. 3. 31. 24 E. 3. 58.-9. So by a deed by way of remainder, a stranger to the deed, though not named in the premises, shall take. Litt. S. 285. 8 E. 3. 50. - 10. But otherwise, regularly, one shall not take a present interest jointly with another, unless he be party to the deed and named |