Tail Male and Female. Lit. § 21, 22. 1 Inst. 25 a. n. 1. Lit. 24. 1 Inst. 25 b. Estates in Frank Marriage. Lit. § 17. donee's body, exclusive of others; as where lands are given to a man and the heirs of his body, on Mary his present wife to be begotten; it is an estate in tail special; and the issue of the donee by any other wife is excluded. 14. If lands are given to a person and the heirs male of his or her body, this is called an estate in tail male, to which the heirs female are not inheritable. On the other side, if lands are given to a person and the heirs female of his or her body, this is called an estate in tail female, to which the heirs male are not inheritable. 15. In all instances of special entails, which limit the lands to one particular class of heirs, no descendant of the donee can make himself inheritable to such a gift, unless he can deduce his descent through that particular class of heirs to which the succession of the land was limited. Therefore if lands be given to a man and the heirs male of his body, and he has issue a daughter, who has issue a son, this son can never inherit the estate; for being obliged to claim through the daughter, he must necessarily shew himself out of the words of the gift, which limited the lands to the heirs male only of the donee, which the daughter cannot be. 16. For the same reason, if lands be given to a man and the heirs male of his body, remainder to him and the heirs female of his body; and the donee has issue a son, who has issue a daughter, who has issue a son; this son cannot inherit either of the estates; because he cannot deduce his descent wholly either through the male or the female line. 17. It was formerly a practice for a person to give lands to another, as a marriage portion with his daughter or cousin; to hold to the husband and wife in frank marriage, by which the lands became descendible to the issue of such marriage. Thus Glanville says-Liberum dicitur maritagium, quando Lib. 7. c. 18. aliquis liber homo aliquam partem terræ suæ dat cum aliqua muliere alicui in maritagium. Finch says that B. 2. c. 3. land could not be given in frank marriage with a man that was cousin to the donor, but always with a woman. 18. The judges had construed gifts in frank mar- 1 Inst. 21 a. riage in the same manner as donations to persons and the heirs of their bodies; by which means they were considered as conditional fees, and consequently were alienable after issue had. But this construction being evidently contrary to the intention of the persons who had created such estates, the statute De Donis, after reciting the case of a gift in frank marriage, comprises it in the remedial part of that law, by which means gifts of this kind became estates in tail special; and the donees were restrained from alienating them. are held of $14. 19. We have seen that in consequence of the Estates Tail statute Quia Emptores, where a person conveys away the Donor. his whole estate, he cannot reserve any tenure to Dissert. c. 2. himself. This statute only extends to those cases where the entire fee simple is transferred; therefore, 1 Inst. 23 a. where a tenant in fee simple grants an estate tail out of it, the tenant in tail will hold of the donor, and not of the chief lord. 20. If the donor of an estate tail grants over his reversion to a stranger, the donee will hold of such stranger. But if lands be given to A. in tail, with remainder in fee to a stranger, the donee of the estate tail will hold of the chief lord; because the whole estate is conveyed away. Plowd. 237. 2-505. 2 Rep. 92 a. Dyer, 362 b. 2 Inst. 505. Modes of creating an Estate Tail. 21. Where the tenant in tail has also the reversion in fee in himself, as he cannot hold of himself, it being a maxim in law that nemo potest esse tenens et dominus, he shall hold of the superior lord. 22. The statute De Donis speaks only of three modes of creating an estate tail; namely, by a gift to a man and his wife, and to the heirs of their bodies ; a gift in frank marriage; and a gift to a person and the heirs of his body issuing. Yet if lands be given to a person and his heirs, and if the donee dies without heirs of his body, that it shall remain to another, this shall be an estate tail, by the equity of the statute; although it be out of the words. For the makers of the act did not mean to enumerate all the forms of estates tail, but to put these as examples: so as all manner of estates tail, general or special, are within the purview of the act. At common law the interest of the donor was infringed and eluded, which was contrary to right and good conscience; therefore the statute being made to restrain that vicious liberty of breaking Vide Tit. 32. such intents, which was suffered by the common law, shall be extended by equity. c. 20. 23. With respect to the kind of property on which the statute De Donis was meant to operate, the only word in the statute is tenementum, which has been stated to signify every thing that may be holden, provided it be of a permanent nature: so that not only lands may be entailed, but also every species of incorporeal property of a real nature; as will be shewn hereafter. 24. Mr. Hargrave observes that two things seem essential to an entail within the statute De Donis: one, that the subject be land, or something of a real nature; the other, that the estate in it be an estate. of inheritance. It is not however necessary that the thing to be entailed should issue out of lands; for if it is annexed to lands, or in anywise concerns lands, or relates to them, it may be entailed. 25. Thus Lord Coke says, that estovers, com- 1 Inst. 20 a. mons, or other profits whatsoever, granted out of land, may be entailed. So the office of serjeant of the Common Pleas, and the office of keeper of a church, may be entailed, as also the office of steward, 7 Rep. 33 b. receiver, or bailiff of a manor. 26. It has been stated that money, directed to be Tit. 1. § 6. laid out in the purchase of land, is considered in equity as land. 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. 27. As to inheritances merely personal, which 1 Inst. 20 a. neither issue out of, nor relate to, land, or some certain place; and which are not demandable, ut tenementa, in a præcipe, they cannot be entailed within the statute De Donis. So that when things of this nature are limited to a person and the heirs of his body, the donee takes a conditional fee, and may dispose of the property as soon as he has issue. 28. An annuity which only charges the person of Idem. the grantor, and not his lands, though it may be granted in fee, cannot be entailed. In a modern Stafford v. 11 case, Lord Hardwicke held that an annuity in fee 2 Ves. 170. Buckley, 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 com Carmarthen, 1 Bro. R. 377. mon law; so that A. having issue might alien it, and thereby bar the possibility of reverter. Holderness v. 29. It was held by Lord Thurlow, in a modern case, 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 entailable 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. Who may Tenants in Willion v. be 7 Rep. 32 a. Incidents to 30. All natural persons capable of holding estates of inheritance in land may be tenants in tail. It was determined in 4 Eliz. that the king was within the statute De Donis, as well as a common person; because that statute was made to remedy the error which had crept into the law, that the donee had the power of alienating an estate, given to him and the heirs of his body after issue had, and to restore the common law in this point to its right and just course; which it did, by restoring to the donor the observance of his intent. And when the statute De Donis ordained that the will of the donor should be observed, it made his will to be a law, as well against the king as against another. 31. Estates tail, like estates in fee simple, have Estates Tail. certain incidents annexed to them, which cannot be restrained by any proviso or condition whatever. Power to commit Waste. 32. The first of these is, that as tenant in tail has an estate of inheritance, he has a right to commit every kind of waste; by felling timber, pulling |