Tail - Definition - Law Dictionary Home Dictionary Definition tail

Definition :

Tail [fr. tailler, Fr., to prune]. An estate-tail was formerly a freehold of inheritance and is now an equitable interest which may be created after 1925 in respect of personalty as well as realty by way of trust and which (if not barred or disposed of by will after 1925) will devolve inequity on the person who would have taken realty as heir of the body or as tenant by the curtesy if the Law of Property Act, 1925, had not been passed [s. 130 (4) (ibid.)]

The limitation of an estate so that it can be inherited only by the fee owner's issue or class of issue, Black's Law dictionary 7th Edn., p. 1466.

An estate-tail in land now constitutes a settlement. [(English) Settled Land Act, 1925, s. 1]

With this and other statutory modifications under the (English) Law of Property Act, 1925, the rules relating to this form of estate are still applicable (a) in the investigation of all titles to land in existence on the 31st December, 1925; (b) in the construction of equitable interests into which these were converted on the 1st January, 1926, or created after that date. An estate-tail, or more accurately now, an equitable interest in tail, is an estate limited to a person and the heirs of his body general or special, male or female, and was the creature of the statute De Donis. The estate, if the entail be not barred, reverts to the donor or reversioner, if the donee die without leaving descendants answering to the conditions annexed to the estate upon its creation a, unless there be a limitation over to a third person on default of such descendants, when it vests in such third person or remainder-man.

Before 1926, in order to create an estate-tail by deed, the word 'heir' or 'heirs' must be used, White v. Collins, (1719) 1 Comyns' Rep 289, (301); 2 Prest. Est. 475, unless the deed was executed since the Conveyancing Act, 1881, when the words 'in tail' without the words 'heirs of the body' might be used: see s. 51. Subject to this Act the deed must contain, either indirect terms or by reference, words of procreation, to describe the body from whom the heirs are to proceed, or the person by whom they are to be begotten.

By the (English) Legitimacy Act, 1926, s. 3, in tracing descents under entailed interests created after the date of legitimation, a legitimated person will rank according to seniority next after all children born legitimate on the day of his or her legitimation, as if he or she had been born on that day.

In a will technical terms of limitation were before 1926 not necessary, if upon construction it appeared that the words were terms of limitation and not gifts to children or issue as purchasers or otherwise; thus a devise.

To A. and his issue; or

To A. and his seed; or children; or sons; or

To A. And his heirs male; or

To A. and his heirs lawfully begotten; or

To A., and if he die before issue, or not having issue, or not having a son, then to another, would have given an estate-tail.

By s. 130 of the (English) Law of Property Act, 1925, an interest in tail or in tail male or in tail female or in tail special (in the Act referred to as an 'entailed interest') may be created by way of trust in any property real or personal, but only by the like expressions as those by which before 1926 a similar estate-tail could have been created by deed not being an executory instrument in freehold land [see s. 60 (4) (b) and (c) of the (English) L.P. Act, 1925, reproducing s. 51 of 1881] It is necessary now either to limit to the heirs of the body etc. (but see s. 131 ibid., and SHELLEY'S CASE), or in tail, i.e., to create the interest. Informal limitations which would have created an entail in wills or executory instruments but would not have created an estate tail by deed before 1926, coming into operation after 1925 will be construed for this purpose according to their effect if the limitations had been limitations before 1926 of personal property [L.P. Act, 1925, s. 130 (2), except personalty settled by reference to land s. 130 (3)]

Sub-s. (4) of s. 130 provides for the devolution of unbarred estate-tail according to the general law in force before 1926, and by sub-s. (6) an entailed interest shall only be capable of being created by a settlement of real or personal property or the proceeds of sale thereof (including the will of a person dying after 1925), or by agreement for a settlement in which the trusts to affect the property are sufficiently declared.

Subject to his powers and duties as tenant for life under the (English) Settled Land Act, 1925, if a tenant-in-tail grant the fee-simple in the property to another person and his heirs without barring the entail, only a qualified or base fee will pass, com-mensurate with the estate-tail, capable, however, of being rendered absolute by barring the entail, but until so barred, defeasible by the entry not only of the reversioner, or remainder-man, when he becomes entitled to enter into possession of the estate but also of the issue-in-tail upon the death of the tenant-in-tail. after 1925 a devise by a tenant-in-tail in possession (but not after possibility of issue extinct and other exceptions) of the estate tail operates as a bar of the entail and passes the fee. [(English) Law of Property Act, 1925, s. 176; see infra]

This estate or equitable interest possesses the follow-ing incidents and privileges:-

(1) It was like a fee-simple formerly subject to curtesy and dower (if not barred); see now s. 130 (4), and see DOWER.

(2) With the exception of a tenant-in-tail after possibility of issue extinct who may be liable for equitable waste, the owner may commit waste upon it without being impeachable for it, and so it is said may his grantee, 3 Leon. 121, but see now (English) L.P. Act, 1925, s. 135 as to equitable waste.

(3) It is liable to every kind of debt to the extent of the debtor's interest in the estate and a trustee in bankruptcy may bar the entail, see (English) Fines and Recoveries Act, 1833 (3 & 4 Will. 4, c. 74), ss. 69 et seq., and now by s. 176 (English) L.P. Act, 1925, a tenant-in-tail in possession may after 1925, dispose of the whole estate by will either expressly or by general reference to his entailed estates, and in that case it passes to his personal representatives and is liable for his debts.

(4) It might have been lost by escheat; by forfeiture for treason or felony (but such forfeiture is now abolished by the Forfeiture Act, 1870); or by extinguishment.

(5) As 'estate owner,' having an inheritable freehold, he has a right to the title-deeds which equity will secure to him; see also s. 98 (3), S.L. Act, 1925.

(6) Although a tenant-in-tail must generally keep down the interest, yet, having only a particular interest, he is not bound to pay off any charge or incumbrance affecting the estate; if, however, he do so, the presumption is that the meant to exonerate the estate (for he might, if he pleased, have acquired the fee-simple), unless he evince the contrary intention by taking as assignment of the incumbrance to a trustee in trust for himself, or by some other express act. As to his powers as tenant for lie in regard to the employment of capital money or otherwise to discharge incumbrances see (English) S.L. Act, 1925 ss. 16 (2), 69, 73.

(7) the donee, if in possession, may exercise the powers of a tenant for life under the Settled Land Acts. [(English) S.L. Act, 1925, s. 20]

(8) This estate could not be merged, surrendered, or extinguished by the accession of the fee-simple of the tenant-in-tail except by tenant-in-tail after possibility of issue extinct, Co. Litt. 27 b; Halsbury, L.E., 'Real Property.'

(9) The issue-in-tail is not bound to complete, either at law or inequity, any contract made by his ancestor as tenant-in-tail, since he claims from the original grantor, and not from his immediate ancestor. If, however, he do any act towards completing such a contract, equity will then compel its performance. See now ss. 63 and 90 of the (English) Settled Land Act, 1925, replacing s. 6, S.L. Act, 1890, in regard to his powers as 'estate owner.'

(10) Neither was such issue bound to pay off his ancestor's incumbrances, nor to keep down the interest thereon; but he is liable to Crown debts under 33 Hen. 8, c. 39, s. 75.

(11) A tenant-in-tail might cut timber and dispose of it, without barring the entail; but if he sold the growing trees, the buyer must sever them during his life, otherwise the issue-in-tail would have been entitled to them as part of the inheritance; and the buyer, though obliged to pay the purchase-money, would not then have been allowed to sever them. These rights have not been impaired by the (English) Settled Land Act, 1925.

(12) If a tenant-in-tail grant estovers, or the vesture of his woods, to another, the grant determines with his death; for being a charge upon the inheritance, it necessarily ceases when his power is determined.

(13) It may be barred by the tenant-in-tail in possession or by the remainder-man in tail with the consent of the protector of the settlement, though not by the issue-in-tail, except as a base fee (q.v.), under the Fines and Recoveries Act, 1833 (3 & 4 Wm. 4, c. 74); but the entail of offices or dignities cannot be barred.

Before the statute De Donis Conditionalibus, the donee could, after issue born, have alienated the land, whereby the issue would have been disinherited and the donor deprived of his right of reversion. This being the case, the statute declared that the will of the donor should be observed; and that an estate granted to a man and the heirs of his body should descend to the issue (he not having power to alienate the estate), and that in default of issue, the land should revert to the donor or his heirs. Estates-tail were thus made inalienable, and neither the issue nor the remainder-man could be barred. And many other inconvenient consequences were produced, which quickened the ingenuity of the judicature, until it produced, at length (in its efforts to recover the liberty of alienation), the complicated machinery of fines and recoveries. See FINE; DONIS CONDITIONALIBUS; and RECOVERY.

The modes, then, of barring an estate-tail were two: viz., a fine, according to the statute law (which was a compromise of a fictitious action), giving a base fee commensurate with the existence of the issue upon whom the estate-tail would (if unbarred) have devolved, and a recovery at the Common Law (which was a real action carried onto judgment), giving the fee-simple absolute. these were abolished by the Fines and Recoveries Act, 1833, here described inconsequence of its importance.

The (English) Fines and Recoveries Act, 1833, entitled 'An Act for the Abolition of Fines and Recoveries, and for the Substitution of more Simple Modes of Assurance,' which received the royal assent August 28, 1833, and has not been repealed by the land legislation of 1925, abolished all the fictions together will their cumbruous technicality (see RECOVERY). The F. and R. Act, 1833, effected the virtual repeal of the Statute of Westminster 2, and the recognition of the right of barring estates-tail, prescribing and simplifying the mode of disposition.

The general enabling clause (s. 15) enacts, that 'after December 31st, 1833, every actual tenant-in-tail, whether in possession, remainder, contingency, or otherwise, shall have full power to dispose of (by deed enrolled, etc., see ss. 40 et seq., ibid.), for an estate in fee-simple absolute, or for any less estate, the lands entailed, as against all persons claiming the lands entailed by force of any estate-tail which shall be vested in, or might be claimed by, or which, but for some previous Act, would have been vested in, or might have been claimed by, the person making the disposition, at the time of his making the same, and also as against all persons, including the King's most excellent Majesty, his heirs and successors, whose estates are to take effect after the determination, or in defeasance of any such estate-tail; saving always the right of all persons in respect of estates prior to the estate-tail in respect of which such disposition shall be made, and the rights of all other persons except those against whom such disposition is by this Act authorized to be made.'

Enrollment has been abolished for deeds executed after 1925. [(English) L. P. Act, 1925, s. 133]

In order to prevent a son tenant-in-tail defeating a strict family settlement, against the wish of his father, the tenant for life, the legislature has introduced a reasonable but unaccountable agent, denominated 'the protector of the settlement,' who is, in many respects, but not in all (as will presently be seen), analogous to the abolished 'tenant to the pracipe' (q.v.). The office of the protector is to grant or withhold his consent, which is required to enable a tenant-in-tail in remainder, expectant on an estate of free-hold, to bar as well his own issue as also those in remainder, to the same extent as might have been effected by a recovery. It is to be observed that an expectant tenant-in-tail may bar his own issue only, under this Act, without the consent of the protector.

The procedure (now further simplified) is that every disposition of lands by a tenant-in-tail is to be effected by some one of the assurances evidenced by deed (not being a will or a contract either expressed or implied) used for the conveyance of fee-simple estates. If the tenant-in-tail be a feme covert (under coverture which began before 1883) (Law Reform (M. W. and T.) Act, 1935, s. 4, and (English) Law of Property Act, 1925, s. 167), her husband's concurrence only is necessary, but her deed required acknowledgment under the F. and R. Act, 1833, s. 40, if executed before 1926. [(English) L.P. Act, 1925, s. 167]

These modes of assurance of a fee-simple were feoffment (at the Common Law), bargain and sale, covenant to stand seised, a release (under the Statute of Uses), or grant, which is the best mode of assurance, and which must be adopted, if the estate be incorporeal, and now by deed; s. 51, (English) L.P. Act, 1925, replacing Real Property Act, 1845, s. 2, and Conveyancing Act, 1881, s. 49; or will (supra).

As to the protector's consent, it may either be given by the same assurance by which the disposition is effected, or by a deed distinct from the assurance, executed either on or at any time before the day on which the assurance is made, otherwise the consent will be void; if the protector consent by a distinct deed, such consent will be deemed absolute and unqualified, unless he refer to the particular assur-ance, and confine his consent to the disposition thereby made. His consent once given cannot be revoked. A married woman, being a protector, gives her consent in the same manner as if she were a feme sole in respect of her separate estate either by limitation or statute (ss. 42, 43, 44, 45), otherwise if still under a coverture which began before 1883 she and her husband are the 'protector' (F. and R. Act, 1883, s. 24). As to disentailing assurances, see K. and E. under that title and ss. 17 and 18, (English) Settled Land Act, 1925, as to discharge of trustees and freeing the property from the provisions of the (English) S.L. Act, 1925. As to undivided shares see (English) L.P. (Amendment) Act, 1932. See PRO-TECTOR; RECOVERY, and SETTLED LAND.