In English
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
, fee tail or entail is a form of
trust established by deed or settlement which restricts the sale or
inheritance
Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Of ...
of an
estate in
real property
In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or aff ...
and prevents the property from being sold, devised by
will
Will may refer to:
Common meanings
* Will and testament, instructions for the disposition of one's property after death
* Will (philosophy), or willpower
* Will (sociology)
* Will, volition (psychology)
* Will, a modal verb - see Shall and wi ...
, or otherwise
alienated by the tenant-in-possession, and instead causes it to pass automatically by
operation of law
The phrase "by operation of law" is a legal term that indicates that a right or liability has been created for a party, irrespective of the intent of that party, because it is dictated by existing legal principles. For example, if a person dies wi ...
to an heir determined by the settlement deed. The term ''fee tail'' is from
Medieval Latin
Medieval Latin was the form of Literary Latin used in Roman Catholic Western Europe during the Middle Ages. In this region it served as the primary written language, though local languages were also written to varying degrees. Latin functioned ...
, which means "cut(-short)
fee" and is in contrast to "
fee simple
In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time (i.e., pe ...
" where no such restriction exists and where the possessor has an absolute title (although subject to the
allodial title
Allodial title constitutes ownership of real property (land, buildings, and fixtures) that is independent of any superior landlord. Allodial title is related to the concept of land held "in allodium", or land ownership by occupancy and defense ...
of the monarch) in the property which he can bequeath or otherwise dispose of as he wishes. Equivalent legal concepts exist or formerly existed in many other European countries and elsewhere.
Purpose
The fee tail allowed a patriarch to perpetuate his blood-line, family-name, honour and armorials 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
A corporation is an organization—usually a group of people or a company—authorized by the state to act as a single entity (a legal entity recognized by private and public law "born out of statute"; a legal person in legal context) and ...
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.
An entail also had the effect of disallowing
illegitimate child
Legitimacy, in traditional Western common law, is the status of a child born to parents who are legally married to each other, and of a child conceived before the parents obtain a legal divorce. Conversely, ''illegitimacy'', also known as ...
ren from inheriting. It 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
Debt is an obligation that requires one party, the debtor, to pay money or other agreed-upon value to another party, the creditor. Debt is a deferred payment, or series of payments, which differentiates it from an immediate purchase. The ...
, 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 heir leaving his other beloved relatives destitute. Frequently in such cases the generosity of the settlor 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 impoverished tenants-in-possession were unable to realise in cash any part of their land or even to offer the property as security for a loan, to pay such annuities, unless sanctioned by private Act of Parliament allowing such sale, which expensive and time-consuming mechanism was frequently resorted to. The ''beneficial owner'' (or tenant-in-possession) of the property in fact had only a
life interest
A life interest (or life rent in Scotland) is a form of right, usually under a trust, that lasts only for the lifetime of the person benefiting from that right. A person with a life interest is known as a life tenant.
A life interest ends when ...
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
Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Offic ...
in law; any purported bequest of the land by the tenant-in-possession was ineffective.
History
Fee tail was established during
feudal
Feudalism, also known as the feudal system, was the combination of the legal, economic, military, cultural and political customs that flourished in medieval Europe between the 9th and 15th centuries. Broadly defined, it was a way of structur ...
times by
landed gentry
The landed gentry, or the ''gentry'', is a largely historical British social class of landowners who could live entirely from rental income, or at least had a country estate. While distinct from, and socially below, the British peerage, t ...
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
In political science, a revolution (Latin: ''revolutio'', "a turn around") is a fundamental and relatively sudden change in political power and political organization which occurs when the population revolts against the government, typically due ...
France, where all sons of a nobleman inherited his title and were thus inescapably members of a separate noble caste in society. In England,
primogeniture
Primogeniture ( ) is the right, by law or custom, of the firstborn legitimate child to inherit the parent's entire or main estate in preference to shared inheritance among all or some children, any illegitimate child or any collateral relativ ...
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
commoner
A commoner, also known as the ''common man'', ''commoners'', the ''common people'' or the ''masses'', was in earlier use an ordinary person in a community or nation who did not have any significant social status, especially a member of neither ...
s. 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. (See some examples cited below.)
Statute of Westminster 1285
The
Statute of Westminster II
The Statute of Westminster of 1285, also known as the Statute of Westminster II or the Statute of Westminster the Second, like the Statute of Westminster 1275, is a code in itself, and contains the famous clause '' De donis conditionalibus'', on ...
, passed in 1285, created and fixed the form of this estate. The new law was also formally called the statute ''
De Donis Conditionalibus'' (Concerning Conditional Gifts).
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
The Law of Property Act 1925c 20 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legislation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modern ...
.
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
The Trusts of Land and Appointment of Trustees Act 1996c 47, usually called "TLATA" or "TOLATA", is an Act of Parliament of the United Kingdom, which altered the law in relation to trusts of land in England, Wales, Scotland and Northern Ireland.
B ...
.
In the US,
conservation easement
In the United States, a conservation easement (also called conservation covenant, conservation restriction or conservation servitude) is a power invested in a qualified private land conservation organization (often called a "land trust") or gover ...
s are a form of entail still in use.
Creation
Traditionally, a fee tail was created by a trust established in a
deed
In common law, a deed is any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. It is commonly associated with transferrin ...
, 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
In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time (i.e., pe ...
("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, 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''.
Breaking of fee tail
The breaking of a fee tail was simplified by the
Fines and Recoveries Act 1833, which replaced the conveyance for making a tenant to the
praecipe for suffering a common recovery. This was the usual preliminary to a recovery with a disentailing assurance, which had to be enrolled. The need for this to be followed by the
fictitious proceeding of a common recovery was abolished.
The requirement that a disentailing assurance should be enrolled was abolished in 1926.
Mortgage of entailed lands
Lending upon security of a
mortgage
A mortgage loan or simply mortgage (), in civil law jurisdicions known also as a hypothec loan, is a loan used either by purchasers of real property to raise funds to buy real estate, or by existing property owners to raise funds for any ...
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.
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
litigation
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
and was an incentive for the production and maintenance of detailed and authoritative family pedigrees and supporting records of marriage, births, baptisms etc.
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 fiction
A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales.
Deve ...
s 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.
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. A letter dated 1539 from the
Lisle Letters The Lisle Papers are the correspondence received in Calais between 1533 and 1540 by Arthur Plantagenet, 1st Viscount Lisle (c.1480-1542), Lord Deputy of Calais, an illegitimate son of King Edward IV and an uncle of King Henry VIII, and by his wif ...
describes the circumstances of its use:
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
Captain Richard Seymour-Conway, 4th Marquess of Hertford KG (22 February 1800 – 25 August 1870) was an English aristocrat and sometime politician who spent his life in France devoted to collecting art. From birth to 1822 he was styled V ...
(d. 1870). His only child was his illegitimate son,
Sir Richard Wallace, 1st Baronet
Sir Richard Wallace, 1st Baronet (21 June 1818 – 20 July 1890), of Sudbourne Hall in Suffolk, Hertford House in London, and of the Château de Bagatelle in Paris, was a British art collector and Francophile.
Origins and youth
Richard i ...
, to whom he left as much of his property as he could. The main land holdings and
Ragley Hall
Ragley Hall in the parish of Arrow in Warwickshire is a stately home, located south of Alcester and eight miles (13 km) west of Stratford-upon-Avon. It is the ancestral seat of the Seymour-Conway family, Marquesses of Hertford.
History
...
were inherited by his distant cousin,
Francis Seymour, 5th Marquess of Hertford
Francis George Hugh Seymour, 5th Marquess of Hertford (11 February 1812 – 25 January 1884), known as Francis Seymour until 1870, was a British army officer, courtier and Conservative politician. He served as Lord Chamberlain of the Hous ...
, 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
The Wallace Collection is a museum in London occupying Hertford House in Manchester Square, the former townhouse of the Seymour family, Marquesses of Hertford. It is named after Sir Richard Wallace, who built the extensive collection, along w ...
. 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
General George Augustus Herbert, 11th Earl of Pembroke and 8th Earl of Montgomery (10 September 1759 – 26 October 1827) was an English peer, army officer, and politician.
Early life
He was born Lord Herbert at the family home, Wilton House ...
, 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
Sidney Herbert, 1st Baron Herbert of Lea, PC (16 September 1810 – 2 August 1861) was a British statesman and a close ally and confidant of Florence Nightingale.
Early life
He was the younger son of George Herbert, 11th Earl of Pembroke, his m ...
, his son by a second marriage.
Fees tail in fiction
Fees tail figure in the
plot
Plot or Plotting may refer to:
Art, media and entertainment
* Plot (narrative), the story of a piece of fiction
Music
* ''The Plot'' (album), a 1976 album by jazz trumpeter Enrico Rava
* The Plot (band), a band formed in 2003
Other
* ''Plot' ...
s of several well known
novel
A novel is a relatively long work of narrative fiction, typically written in prose and published as a book. The present English word for a long work of prose fiction derives from the for "new", "news", or "short story of something new", itsel ...
s and stories, particularly in the 19th century, including:
* ''
Pride and Prejudice
''Pride and Prejudice'' is an 1813 novel of manners by Jane Austen. The novel follows the character development of Elizabeth Bennet, the dynamic protagonist of the book who learns about the repercussions of hasty judgments and comes to appreci ...
'' by
Jane Austen
Jane Austen (; 16 December 1775 – 18 July 1817) was an English novelist known primarily for her six major novels, which interpret, critique, and comment upon the British landed gentry at the end of the 18th century. Austen's plots of ...
* ''
Middlemarch
''Middlemarch, A Study of Provincial Life'' is a novel by the English author Mary Anne Evans, who wrote as George Eliot. It first appeared in eight installments (volumes) in 1871 and 1872. Set in Middlemarch, a fictional English Midland town, ...
'' by
George Eliot
Mary Ann Evans (22 November 1819 – 22 December 1880; alternatively Mary Anne or Marian), known by her pen name George Eliot, was an English novelist, poet, journalist, translator, and one of the leading writers of the Victorian era. She wro ...
* ''
The Belton Estate'' (1866) and ''
Ralph the Heir
''Ralph the Heir'' is a novel by Anthony Trollope, originally published in 1871. Although Trollope described it as "one of the worst novels I have written",Trollope, Anthony (1883).''An Autobiography'', chapter 19. Retrieved 2010-05-19.
it was w ...
'' (1871) by
Anthony Trollope
Anthony Trollope (; 24 April 1815 – 6 December 1882) was an English novelist and civil servant of the Victorian era. Among his best-known works is a series of novels collectively known as the '' Chronicles of Barsetshire'', which revolves ar ...
* ''
The Master of Ballantrae
''The Master of Ballantrae: A Winter's Tale'' is an 1889 novel by the Scottish author Robert Louis Stevenson, focusing upon the conflict between two brothers, Scottish noblemen whose family is torn apart by the Jacobite rising of 1745. He w ...
'' by
Robert Louis Stevenson
Robert Louis Stevenson (born Robert Lewis Balfour Stevenson; 13 November 1850 – 3 December 1894) was a Scottish novelist, essayist, poet and travel writer. He is best known for works such as ''Treasure Island'', ''Strange Case of Dr Jekyll a ...
* ''
Kidnapped
Kidnapped may refer to:
* subject to the crime of kidnapping
Literature
* ''Kidnapped'' (novel), an 1886 novel by Robert Louis Stevenson
* ''Kidnapped'' (comics), a 2007 graphic novel adaptation of R. L. Stevenson's novel by Alan Grant and Ca ...
'' by
Robert Louis Stevenson
Robert Louis Stevenson (born Robert Lewis Balfour Stevenson; 13 November 1850 – 3 December 1894) was a Scottish novelist, essayist, poet and travel writer. He is best known for works such as ''Treasure Island'', ''Strange Case of Dr Jekyll a ...
mentions it by implication in a dispute over the House of Shaws that drives the plot
* ''
The Adventure of the Priory School
"The Adventure of the Priory School", one of the 56 Sherlock Holmes short stories written by Sir Arthur Conan Doyle, is one of 13 stories in the cycle collected as ''The Return of Sherlock Holmes''. It was first published in ''Collier's'' in th ...
'' by
Sir Arthur Conan Doyle
Sir Arthur Ignatius Conan Doyle (22 May 1859 – 7 July 1930) was a British writer and physician. He created the character Sherlock Holmes in 1887 for '' A Study in Scarlet'', the first of four novels and fifty-six short stories about Ho ...
* ''
Brideshead Revisited
''Brideshead Revisited: The Sacred & Profane Memories of Captain Charles Ryder'' is a novel by English writer Evelyn Waugh, first published in 1945. It follows, from the 1920s to the early 1940s, the life and romances of the protagonist Charles ...
'' by
Evelyn Waugh
Arthur Evelyn St. John Waugh (; 28 October 1903 – 10 April 1966) was an English writer of novels, biographies, and travel books; he was also a prolific journalist and book reviewer. His most famous works include the early satires ''Decli ...
* ''
Wideacre'' by
Philippa Gregory
* ''
The Quincunx
''The Quincunx (The Inheritance of John Huffam)'' is the epic first novel of Charles Palliser. It takes the form of a Dickensian mystery set in early 19th century England, but Palliser has added the modern attributes of an ambiguous plot and unr ...
'' by
Charles Palliser
Charles Palliser (born December 11, 1947 in Holyoke, Massachusetts) is a best-selling novelist, American-born but British-based. His most well-known novel, '' The Quincunx'', has sold over a million copies internationally. He is the elder brother ...
(written in 1989, but it takes the form of a Dickensian mystery set in early-19th-century England)
* ''
Downton Abbey
''Downton Abbey'' is a British historical drama television series set in the early 20th century, created and co-written by Julian Fellowes. The series first aired in the United Kingdom on ITV on 26 September 2010 and in the United States o ...
'' by
Julian Fellowes
Julian Alexander Kitchener-Fellowes, Baron Fellowes of West Stafford, (born 17 August 1949) is an English actor, novelist, film director and screenwriter, and a Conservative peer of the House of Lords.
He is primarily known as the author of se ...
(written in 2009–2015, but set in England in the period 1912–1927)
* ''
To Kill a Mockingbird
''To Kill a Mockingbird'' is a novel by the American author Harper Lee. It was published in 1960 and was instantly successful. In the United States, it is widely read in high schools and middle schools. ''To Kill a Mockingbird'' has become ...
'' by Harper Lee (referred to as an "entailment")
* ''
Wives and Daughters
''Wives and Daughters, An Every-Day Story'' is a novel by Elizabeth Gaskell, first published in the ''Cornhill Magazine'' as a serial from August 1864 to January 1866. It was partly written whilst Gaskell was staying with the salon hostess M ...
'' 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
Elizabeth Bennet is the protagonist in the 1813 novel '' Pride and Prejudice'' by Jane Austen. She is often referred to as Eliza or Lizzy by her friends and family. Elizabeth is the second child in a family of five daughters. Though the ci ...
, 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. 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
Chawton is a village and civil parish in the East Hampshire district of Hampshire, England. The village lies within the South Downs National Park and is famous as the home of Jane Austen for the last eight years of her life.
History
Chawton's re ...
,
Godmersham
Godmersham is a village and civil parish in the Ashford District of Kent, England. The village straddles the Great Stour river where it cuts through the North Downs and its land is approximately one third woodland, all in the far east and west o ...
and
Winchester
Winchester is a City status in the United Kingdom, cathedral city in Hampshire, England. The city lies at the heart of the wider City of Winchester, a local government Districts of England, district, at the western end of the South Downs Nation ...
from distant cousins under the will of Elizabeth Knight, who died in 1737.
Law professor Maureen B. Collins (2017) cites several other authors debating the accuracy of Austen's depiction of the entailment, including Appel (2013), Treitel (1984), Redmond (1989), and Grover (2014).
[
]
Other countries
Scotland
In Scotland
Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to the ...
, the Abolition of Feudal Tenure etc. (Scotland) Act 2000
The Abolition of Feudal Tenure etc. (Scotland) Act 2000 was a land reform enforced by an Act of the Scottish Parliament that was passed by the Scottish Parliament on 3 May 2000, and received Royal Assent on 9 June 2000.
Provisions
The Act off ...
(section 50) abolished all feudal tenures including the entail. Today, the doctrines of '' legitim'' and ''jus relictae
In Scots law, ''jus relictae'' is the right of the surviving spouse in the Personal property, movable goods of the deceased spouse. ''Jus relictae'' is the term used for a surviving wife, and ''jus relicti'' is the term used for a surviving husband ...
'' restrict owners from willing property out of their family when they die with children or have a surviving partner.
A Scottish example of fee tail is the case of Alfred Douglas-Hamilton, 13th Duke of Hamilton
Lieutenant Alfred Douglas Douglas-Hamilton, 13th Duke of Hamilton and 10th Duke of Brandon TD, DL (6 March 1862 – 16 March 1940) was a Scottish nobleman and sailor.
Early life
Hamilton was born at Shanklin, Isle of Wight, in 1862, the son ...
, who in 1895 inherited from the 12th Duke, his fourth cousin, who had attempted to marry his daughter to the heir.
Ireland
In the Republic of Ireland
Ireland ( ga, Éire ), also known as the Republic of Ireland (), is a country in north-western Europe consisting of 26 of the 32 counties of the island of Ireland. The capital and largest city is Dublin, on the eastern side of the island. A ...
, Section 13 of the Land and Conveyancing Law Reform Act 2009 largely abolished the fee tail and converted existing fees tail to fees simple.''Land and Conveyancing Law Reform Act'' 2009, section 13.
/ref> 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
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
: , Maine
Maine () is a state in the New England and Northeastern regions of the United States. It borders New Hampshire to the west, the Gulf of Maine to the southeast, and the Canadian provinces of New Brunswick and Quebec to the northeast and north ...
, Delaware
Delaware ( ) is a state in the Mid-Atlantic region of the United States, bordering Maryland to its south and west; Pennsylvania to its north; and New Jersey and the Atlantic Ocean to its east. The state takes its name from the adjacent Del ...
and Rhode Island
Rhode Island (, like ''road'') is a U.S. state, state in the New England region of the Northeastern United States. It is the List of U.S. states by area, smallest U.S. state by area and the List of states and territories of the United States ...
. 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
In common law and statutory law, a life estate (or life tenancy) is the ownership of immovable property for the duration of a person's life. In legal terms, it is an estate in real property that ends at death when ownership of the property may ...
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
In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time (i.e., pe ...
; 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
Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is borde ...
, 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 inholdings
An inholding is privately owned land inside the boundary of a national park, national forest, state park, or similar publicly owned, protected area. In-holdings result from private ownership of lands predating the designation of the park or fo ...
inside public lands may be prevented from selling or giving their land to non-family members. In this case, the restrictions result from an agreement between the government and the land owner, and is not a part of a deed or settlement.
Polish–Lithuanian Commonwealth
In the Kingdom of Poland
The Kingdom of Poland ( pl, Królestwo Polskie; Latin: ''Regnum Poloniae'') was a state in Central Europe. It may refer to:
Historical political entities
*Kingdom of Poland, a kingdom existing from 1025 to 1031
*Kingdom of Poland, a kingdom exist ...
and later in the Polish–Lithuanian Commonwealth
The Polish–Lithuanian Commonwealth, formally known as the Kingdom of Poland and the Grand Duchy of Lithuania, and, after 1791, as the Commonwealth of Poland, was a bi-confederal state, sometimes called a federation, of Crown of the Kingdom of ...
, fee tail estates were called ''ordynacja'' (; landed property in ''fideicommis''). ''Ordynacja'' was an economic institution for governing of landed property introduced in late 16th century by king Stefan Batory
Stefan may refer to:
* Stefan (given name)
* Stefan (surname)
* Ștefan, a Romanian given name and a surname
* Štefan, a Slavic given name and surname
* Stefan (footballer) (born 1988), Brazilian footballer
* Stefan Heym, pseudonym of German writ ...
. ''Ordynacja'' was abolished by the agricultural reform in the People's Republic of Poland
The Polish People's Republic ( pl, Polska Rzeczpospolita Ludowa, PRL) was a country in Central Europe that existed from 1947 to 1989 as the predecessor of the modern Republic of Poland. With a population of approximately 37.9 million nea ...
. ''Ordynat'' was the title
A title is one or more words used before or after a person's name, in certain contexts. It may signify either generation, an official position, or a professional or academic qualification. In some languages, titles may be inserted between the f ...
of the principal heir
Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Offic ...
of ''ordynacja''.
According to the rules of ''ordynacja'', which became a statute approved by the Sejm
The Sejm (English: , Polish: ), officially known as the Sejm of the Republic of Poland (Polish: ''Sejm Rzeczypospolitej Polskiej''), is the lower house of the bicameral parliament of Poland.
The Sejm has been the highest governing body of t ...
, the estate was not to be divided between the heirs but inherited in full by the eldest son (primogeniture
Primogeniture ( ) is the right, by law or custom, of the firstborn legitimate child to inherit the parent's entire or main estate in preference to shared inheritance among all or some children, any illegitimate child or any collateral relativ ...
).[Peter Paul Bajer.]
Short history of the Radziwill Family
Women were excluded from inheritance (Salic Law
The Salic law ( or ; la, Lex salica), also called the was the ancient Frankish civil law code compiled around AD 500 by the first Frankish King, Clovis. The written text is in Latin and contains some of the earliest known instances of Old Du ...
).[ ''Ordynacja'' could not be sold or mortgaged.][
''Ordynacja'' was similar to the French law of '']majorat
''Majorat'' () is a French term for an arrangement giving the right of succession to a specific parcel of property associated with a title of nobility to a single heir, based on male primogeniture. A majorat (fideicommis) would be inherited by t ...
'' or German and Scandinavian ''fideicommis'', and succession to such resembles that of British peerages
A peerage is a legal system historically comprising various hereditary titles (and sometimes non-hereditary titles) in a number of countries, and composed of assorted noble ranks.
Peerages include:
Australia
* Australian peers
Belgium
* Bel ...
.
Many Polish magnates' fortunes were based on ''ordynacja'', among them those of the Radziwiłłs, Zamoyski
The House of Zamoyski (plural: Zamoyscy) is the name of an important Polish noble (szlachta) family, which used the Jelita coat of arms. It is the Polish term for "de Zamość" (Polish "z Zamościa"), the name they originally held as lords of Z ...
s, Czartoryski
The House of Czartoryski (feminine form: Czartoryska, plural: Czartoryscy; lt, Čartoriskiai) is a Polish princely family of Lithuanian- Ruthenian origin, also known as the Familia. The family, which derived their kin from the Gediminids dyna ...
s, Potocki
The House of Potocki (; plural: Potoccy, male: Potocki, feminine: Potocka) was a prominent Polish noble family in the Kingdom of Poland and magnates of the Polish–Lithuanian Commonwealth. The Potocki family is one of the wealthiest and ...
s and Lubomirskis. Most important ''ordynacja'' were veritable little principalities
A principality (or sometimes princedom) can either be a monarchical feudatory or a sovereign state, ruled or reigned over by a regnant-monarch with the title of prince and/or princess, or by a monarch with another title considered to fall under ...
. The earliest and most extensive ''ordynacjas'' include:
* Ordynacje Radziwiłłów, created for Mikołaj VII Radziwiłł
Mikołaj Radziwiłł, also known as ''Mikołaj Radziwiłł The Seventh'' (1546–1589) was Reichsfürst of the Holy Roman Empire and a Polish–Lithuanian noble ( szlachcic), Great Chamberlain of Lithuania in the Grand Duchy of Lithuania ...
, Albrecht Radziwiłł and Stanisław Radziwiłł in 1589, centered on Olyka
Olyka ( uk, Оли́ка, pl, Ołyka, yi, אליק ''Olik'') is an urban-type settlement in Lutsk Raion, Volyn Oblast, Ukraine. It is located east of Lutsk on the Putylivka Rriver. Its population is .
History
The village of Olyka was founde ...
, Nesvizh
Nesvizh, Niasviž ( be, Нясві́ж ; lt, Nesvyžius; pl, Nieśwież; russian: Не́свиж; yi, ניעסוויז; la, Nesvisium) is a city in Belarus. It is the administrative centre of the Nyasvizh District (''rajon'') of Minsk Region ...
, and Kletsk
Kletsk ( be, Клецк, Klieck, originally known as ''Klechesk'', russian: Клецк, pl, Kleck, ) is a city in the Minsk Region of Belarus, located on the Lan River. In 2015 it had 11,237 inhabitants.
History
The town was founded in the ...
* , created for Janusz Ostrogski
Prince Janusz Ostrogski () (1554 – 17 September 1620 in Tarnów) was a Polish-Lithuanian noble and statesman. He served as a voivode of Volhyn (1584-1593), as a castellan of Kraków (from 1593 on), and as a starosta of Bohuslav (from 1591), B ...
in 1609, later inherited by the Zaslawski, Lubomirski and Sanguszko
150px, Paweł Karol Sanguszko
150px, Dymitr Sanguszko
150px, Roman Sanguszko
150px, Janusz Sanguszko
150px, Hieronim Sanguszko
150px, Barbara Sanguszko née Dunin
150px, Eustachy Erazm Sanguszko
150px, Władysław Hieronim Sanguszko
150p ...
families, centered on Ostroh
Ostroh ( uk, Остро́г; pl, Ostróg) is a historic city located in Rivne Oblast (province) of western Ukraine, on the Horyn River. Ostroh is the administrative center of the Ostroh Raion (district). Administratively, Ostroh is incorporated ...
* Ordynacja Zamojska, created for Jan Zamoyski
Jan Sariusz Zamoyski ( la, Ioannes Zamoyski de Zamoscie; 19 March 1542 – 3 June 1605) was a Polish nobleman, magnate, and the 1st '' ordynat'' of Zamość. He served as the Royal Secretary from 1565, Deputy Chancellor from 1576, Grand Cha ...
in 1589, centered on Zamość
Zamość (; yi, זאמאשטש, Zamoshtsh; la, Zamoscia) is a historical city in southeastern Poland. It is situated in the southern part of Lublin Voivodeship, about from Lublin, from Warsaw. In 2021, the population of Zamość was 62,021.
...
* Ordynacja Jarosławska, created for Rafał Jarosławski in 1470, centered on Jarosław
Jarosław (; uk, Ярослав, Yaroslav, ; yi, יאַרעסלאָוו, Yareslov; german: Jaroslau) is a town in south-eastern Poland, with 38,970 inhabitants, as of 30 June 2014. Situated in the Subcarpathian Voivodeship (since 1999), previ ...
* Ordynacja Pińczowska
In English common law, fee tail or entail is a form of trust established by deed or settlement which restricts the sale or inheritance of an estate in real property and prevents the property from being sold, devised by will, or otherwise alien ...
, created for Piotr and Zygmunt Myszkowski in 1601, later inherited by the Wielopolski family
The House of Wielopolski (plural: Wielopolscy, feminine form: Wielopolska) was a Polish szlachta family, magnates in the 17th and 18th centuries.
Coat of arms
The Wielopolski family used the Starykoń coat of arms.
Notable members
* Elżbi ...
, centered on Pińczów
Pińczów is a town in southern Poland, in Świętokrzyskie Voivodeship, about 40 km south of Kielce. It is the capital of Pińczów County. Population is 12,304 (2005). Pińczów belongs to the historic Polish province of Lesser Poland, a ...
Other
Other European legal systems had comparable devices to keep estates together, especially in Spain and Northern European countries like Prussia
Prussia, , Old Prussian: ''Prūsa'' or ''Prūsija'' was a German state on the southeast coast of the Baltic Sea. It formed the German Empire under Prussian rule when it united the German states in 1871. It was ''de facto'' dissolved by an em ...
. They are derived from ''fideicommissum
A ''fideicommissum'' is a type of bequest in which the beneficiary is encumbered to convey parts of the decedent's estate to someone else. For example, if a father leaves the family house to his firstborn, on condition that they will bequeath it to ...
'', a legal institution in Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
. Unlike most of the English aristocracy, the Prussian ''junkers'' supported fees tail, and succeeded in reinstating them in 1853, after they had been abolished in a recent Constitution. In Germany and Austria the ''Familienfideikommiss'' was only abolished in 1938, and in Scandinavia
Scandinavia; Sámi languages: /. ( ) is a subregion#Europe, subregion in Northern Europe, with strong historical, cultural, and linguistic ties between its constituent peoples. In English usage, ''Scandinavia'' most commonly refers to Denmark, ...
they persisted even later – a few old Swedish fees tail still remain in force, though no new ones may be established. For the law of German and Austrian fideicommissa in particular, an 862-page manual by the German legal scholar Philipp Knipschildt Philipp Knipschildt (1595 – September 29, 1657) was a jurist and legal historian.
Life
Philipp Knipschildt was born in Treisbach (Waldeck (state), Waldeck), the son of Melchior Knipschildt and Catharina née Lefart. From c. 1604 he attended ...
, entitled ''Tractatus de fideicommissis nobilium familiarum – von Stammgütern'' (), was the standard reference work. First published in 1654, this grand systematization of existing legal opinion was frequently reprinted and continued to be consulted until well into the 19th century.
See also
* Fee simple
In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time (i.e., perm ...
* Majorat
''Majorat'' () is a French term for an arrangement giving the right of succession to a specific parcel of property associated with a title of nobility to a single heir, based on male primogeniture. A majorat (fideicommis) would be inherited by t ...
* Primogeniture
Primogeniture ( ) is the right, by law or custom, of the firstborn legitimate child to inherit the parent's entire or main estate in preference to shared inheritance among all or some children, any illegitimate child or any collateral relativ ...
* Reichserbhofgesetz
* Rule in Wild's Case
* Tailzie
In Scots law, tailzie () is a feudal concept of the inheritance of immovable property according to an arbitrary course that has been laid out, such as in a document known as a "deed of tailzie". It was codified by the Entail Act 1685.
Tailzie i ...
(Scots law)
* Taltarum's Case
* Easement
An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a propert ...
References
Further reading
* ''The Fee Tail and the Common Recovery in Medieval England 1176–1502'', by: Joseph Biancalana, University of Cincinnati
*
*
*
{{DEFAULTSORT:Fee Tail
Inheritance
Legal history
Real property law
Scots law legal terminology
Land tenure