Fee tail


Fee tail or entail is a legal concept and set of associated rules restricting the manner in which real property passes from one generation to the next; these rules tend to keep deceased estates together as a whole, and in the hands of a single owner, rather than allowing them to be split up amongst multiple children. Entail has been known in English law since feudal times, and it has evolved as the law has evolved. It is concerned with heirship, ensuring the male line and preserving intergenerationally its power and ownership of property. As Lawrence Stone has argued, a key element is psychological: a strong attachment by those involved to the principle of preferential male primogeniture.
Two main phases may be identified:
In English common law, fee tail or entail is a form of trust, created by a deed or settlement by a 'grantor', that restricts the sale or inheritance of an estate in real property and prevents that property from being sold, wasted, devised by will, or otherwise alienated by a 'tenant-in-possession', and instead causes it to pass automatically and entirely, by operation of law, to an heir, or 'tenant in tail', as determined by the settlement deed.
The terms fee tail and tailzie are from Medieval Latin feodum talliatum, which means "cut fee". In its original form, the 'tenant in possession' is also a 'tenant for life' and has exclusive control over all fruits of the property while they live, but no prospect of coming into ownership of the property in 'fee simple'; the 'tenant in tail' can look forward to enjoying the property in 'fee simple' when the tenant in possession dies, but in the meanwhile has no access to the fruits of the property, except as specified in the 'settlement'.
Fee tail deeds are in contrast to "fee simple" deeds, possessors of which have an unrestricted title to the property, and are empowered to bequeath or dispose of it as they wish. Equivalent legal concepts exist or formerly existed in many other European countries and elsewhere; in Scots law tailzie was codified in the Entail Act 1685.
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 was devised to enable a patriarch to perpetuate his blood-line, family-name, honour and armorials in the persons of a series of capable and independent 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 approaches the true corporation, who is a legal person who does not die but continues to exist independently of the directors and owners.
Indeed, as a trust, whilst trustees may die, replacements are appointed. The trust itself continues, in perpetuity or not. As many jurisdictions do not allow perpetual entities in private interests, 'fees tail' are commonly restricted by a rule against perpetuities to extend only for a particular number of future generations.
An entail also had the effect of disallowing illegitimate children from inheriting.
Entails created complications for many propertied families, especially from about the late 17th to the early 19th century, leaving many individuals wealthy in land but heavily in debt, often due to annuities chargeable on the estate payable to the patriarch's widow and younger children, where the patriarch was swayed by sentiment not to establish a strict concentration of all his wealth in his lone heir while leaving his other beloved relatives destitute. Frequently in such cases the generosity of the settlor to people other than the heir left the entailed estate as an uneconomical enterprise, especially during times when the estate's fluctuating agricultural income had to provide for fixed sum annuities. Such tenants-in-possession were unable to sell any part of their land—or even to offer the property as security for a loan—in order to pay such annuities. The workaround was to obtain permission for such sale from Parliament: by organising the passage of a private act of Parliament; this was an expensive, uncertain and time-consuming mechanism but it was frequently resorted to nevertheless. The beneficial owner of the property in fact had only a life interest in it, albeit an absolute right to the income it generated, the legal owners being the trustees of the settlement, with the remainder passing intact to the next successor or heir in law; any purported bequest of the land or a portion of it by the tenant-in-possession was ineffective.

History

Fee tail was established during feudal times by landed gentry to attempt to ensure that the high social standing of the family, as represented by a single patriarch, continued indefinitely. The concentration of the family's wealth into the hands of a single representative was essential to support this process. Unless the heir had himself inherited the personal and intellectual strengths of the original great patriarch, often a great warrior, which alone had brought him from obscurity to greatness, he would soon sink again into obscurity, and required wealth to maintain his social standing. This feature of English gentry and aristocracy differs from the aristocracy which existed in pre-Revolution France, where all sons of a nobleman inherited his title and were thus inescapably members of a separate noble caste in society. Little-known, France then had one of the lowest ratios of noble families to population, in Europe. The accepted rule was however largely compensated by written or notarized wills which allowed fathers to favour, within certain limits, a first-born son. In England, primogeniture provided that an estate would be inherited entirely by the first-born legitimate son of a nobleman and that, accordingly, subsequent sons were born as mere gentlemen and commoners. Without the support of wealth, these younger sons might quickly descend into obscurity, and often did. On this eldest son was concentrated the honour of the family, and to him alone was granted all its wealth to support his role in that regard, by the process of the fee tail.
The effects of English primogeniture and entail have been significant plot details or themes in a number of notable works of English literature.

Statute of Westminster 1285

The Statute of Westminster II, passed in 1285, created and fixed the form of this estate. The new law was also formally called the statute De Donis Conditionalibus.

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.

Abolition

Fee tail as a legal estate in England was abolished by the Law of Property Act 1925. However, they continued to exist as equitable interests.

Continuing use

No new fees tail can now be created following the Trusts of Land and Appointment of Trustees Act 1996.
A fee tail created before 1 January 1997 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 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.
In the U.S., conservation easements are a form of entail still in use.

Creation

Traditionally, a fee tail was created by a trust established in a deed, often a marriage settlement, or in a will "to A and the heirs of his body". The crucial difference between the words of conveyance and the words that created a fee simple is that the heirs "in tail" must be the children begotten by the landowner. It was most commonly applied in limiting form of deed establishing a "fee tail male", by which only sons could inherit, although there might be an alternative limiting form of "fee tail female", by 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 "held in-tail", with the restrictions themselves known as entailments.
However, owing to the rule against perpetuities in the common law of England, the control established by a fee tail can be exercised over no more than two future generations — such that the terms of a will can create restrictions over the future disposal of real property by the testator's son and heir, but not over the further disposal of that property by that heir's own heirs. The reason in law being that feasibly, such a third-generation disposal might fall further into the future than "a life in being plus twenty-one years"; and consequently terms in a will written to constrain that disposal would be void from the outset as extending into 'perpetuity'.
Nevertheless, landed families commonly sought to establish a means to exercise just such perpetual control over estates of real property disposed of to future generations. The means by this was achieved in England from the mid-17th to the mid-19th century was through each successive generation of 'tenants in tail', on coming of age, entering into a strict settlement that converted them into 'tenants for life'. In exchange for surrendering the potential for eventually possessing the family estate in fee simple—on the death of the current 'tenant in possession' —the heir to the estate chose rather themselves to become 'tenant for life' with a guaranteed income from the estate sufficient to allow them to marry; such that the status of 'tenant in tail' now specified their own future son and heir. And should that son come to be born, and to reach legal majority, the process would repeat as 'resettlement'; each time with the legal persons in the entail chain jumping a generation. It would always be possible for an heir, as tenant in tail, to refuse to comply with this successive procedure; but without the support of their family, and specifically their father, they faced a long wait before they would be able to access the estate. Though with the consent of the current 'tenant in possession' the 'tenant in tail' could join in barring the entail through common recovery.
It was fundamental to the procedure of repeated 'resettlement', that although the person identified as 'tenant in tail' jumped down a generation each time it was done, the person identified as 'grantor'of the estate in fee tail remained as in the original entail. Consequently, should any 'tenant in possession' of an estate in fee tail male, fail to produce a male heir it might still be possible to find a male cousin who could trace descent uninterrupted in the male line from the original grantor. The longer a single family had remained in possession of an estate, the more likely it was that an heir in the male line could somewhere be found. Whereas family estates of recent creation were more likely to fail altogether in the male line, and be broken up to female heirs or sold altogether. In finding a cousin to succeed in the indirect male line, it was common for the new entrant as 'tenant in tail' to be required to take the ancient family name. Very commonly, when a younger son had married an heiress in another family, they would have dropped their birth surname and taken that of their wife's family. But if returning to their senior line as male heir, they would generally change their surname back; or join their surnames in hyphenated form. Over the centuries, almost all English families possessing estates in fee tail under a single name, nevertheless had at least one break in the line of male succession, glossed over through surname changes.