Fee tail
Encyclopedia
At common law
, fee tail or entail is an estate
of inheritance
in real property
which cannot be sold, devised by will
, or otherwise alienated
by the owner, but which passes by operation of law
to the owner's heirs
upon his death. The term fee tail is derived from the Middle Latin feodum talliatum, which means "cut-short fee
."
The purpose of an entail was to keep the land of a family intact in the main line of succession
. The heir to an entailed estate could not sell the land, nor usually bequeath it to, for example, an illegitimate child. The complications arising from entails were an important factor in the life of many of the upper classes, especially from about the late 17th to the early 19th centuries, leaving many individuals wealthy in land but still heavily in debt
.
: "to A and the heirs of his body". The crucial difference between the words of conveyance and the words that created a fee simple
("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 in tail, with the restrictions themselves known as entailments.
Fee tail was formerly used during feudal times by landed nobility
in order to create family
settlements and to make certain that the land stayed "in the family". From the foregoing, attempting to mortgage land in fee tail would be risky and uncertain, since at the death of the owner the land passed by operation of law to children who had no obligation to the mortgage lender and whose interest was prior in right over the mortgage. Similarly, the largest estate an owner in fee tail could convey to someone else was a life estate
, since the grantee's interest again terminated automatically when the grantor (the original owner) died. If all went as planned, it was impossible for the family to lose the land, which was the idea.
Things do not always go as planned, however. Owners of land in tail occasionally had "failure of issue" - that is, they had no children surviving them at the time of their own deaths. In this situation, theoretically the entailed land went back up and through the family tree to descendants of former owners who were entitled to inherit, or to the last owner in fee simple. This situation produced complicated litigation.
Fee tail was a device tuned to the needs of family settlements in the thirteenth century, but it was never popular with the monarchy, the merchants, or many entailed holders themselves who wished to sell their land. In more mercantile eras, fee tail became rare. As early as the fifteenth century, lawyers devised an elaborate action called "Common Recovery
", which used collaborative lawsuits and legal fiction
s to "bar" an entail, i.e. remove the conditions of fee tail from land and enable its free conveyance in fee simple. In the 17th and 18th centuries the practice arose whereby a landed estate would be settled on a man for life, and thereafter to his eldest son in tail male; when the son came of age, he and his father together could bar the entail, and would then re-settle the land on the father for life, then to the son for life, and then to his eldest son in tail male, at the same time making provision for the father's widow, daughters and younger sons. In this way an estate could stay in a family for many generations. It also had the advantage that if an heir appeared irresponsibly spendthrift to his father, the entail could be retained to protect the estate.
(Concerning Conditional Gifts). Fee tail was abolished by the Law of Property Act
in England
(as a legal estate
) in 1925.
An entail can still exist in England and Wales as an equitable interest, behind a strict settlement, but 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 entail 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 reversion
ary 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.
The breaking of an entail was simplified by the Fines and Recoveries Act 1833, which replaced the conveyance for making a tenat in procipe 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. No new "fee tails" can now be created following the Trusts of Land and Appointment of Trustees Act 1996
.
An English example of a fee tail may be the main estates of the wealthy art collector Richard Seymour-Conway, 4th Marquess of Hertford
(d. 1870). His only child was his illegitimate son, Sir Richard Wallace, to whom he left as much of his property as he could. The main land holdings and Ragley Hall
were inherited by his distant cousin, Francis Seymour, 5th Marquess of Hertford
, 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
. Other works were covered by the entail, however, and passed to the 5th Marquess.
Another example was George Herbert, 11th Earl of Pembroke
, who died in 1827. He had quarreled with his eldest son
and left his unentailed estate to his son by a second marriage
.
.
and later in Polish-Lithuanian Commonwealth
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
. Ordynacja was abolished by the agricultural reform in the People's Republic of Poland
. Ordynat was the title
of the principal heir of ordynacja.
According to the rules of ordynacja, which became a statute approved by the Sejm
, the estate was not to be divided between the heirs but inherited in full by the eldest son (primogeniture
). Women were excluded from inheritance (Salic Law
). Ordynacja couldn't be sold or mortgaged
.
Ordynacja was similar to the French law of majorat
or German and Scandinavian fideicommisses, and succession to such resembles that of British peerages.
Many Polish magnate
s fortunes were based on ordynacja, among them those of Radziwiłłs, Zamoyski
's, Czartoryski
's, Potocki
's and Lubomirski
's. Most important ordynacja were veritable little principalities. The earliest and most extensive ordynacjas include:
disentailed all land following the passage of the Abolition of Feudal Tenure etc. (Scotland) Act 2000
, disapplying the Scots law
concept of tailzie
. Today, the doctrines of legitim
and jus relictae
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 Alfred Douglas-Hamilton, 13th Duke of Hamilton
, who in 1895 inherited from the 12th Duke, his fourth cousin, who had attempted to marry his daughter to the heir.
: Massachusetts
, Maine
, Delaware
and Rhode Island
. However, in the first three states, it can be sold or deeded as any other property would be (the fee tail would only control on death without a will). In Rhode Island, a fee tail is treated as a life estate with remainder in the life tenant's children. New York
, for example, abolished it in 1782. Many other states within the U.S. never recognized the fee tail estate at all.
In Louisiana
, the doctrines of legitime
and jus relictae
restrict owners from willing property out of their family when they die with children or have a surviving partner.
In most states within the United States, an attempt to create a fee tail results in a fee simple
; 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.
On page vii of the preface to The Writings of Thomas Jefferson: "When in later life he drew up a list of the services he believed he had rendered his countrymen he enumerated along with the disestablishment of State Church the abolition of entails, the prohibition of slave importation and the drafting of the Declaration of Independence, the introduction of olive plants and heavy upland rice into South Carolina and Georgia declaring that the greatest service which can be rendered to any country is to add a useful plant to its culture."
. They are derived from fideicommissum
, a legal institution in Roman Law
. Unlike most of the English aristocracy, the Prussian junker
s supported entails, 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
they persisted even later - a few old Swedish entails still remain in force, though no new ones may be established.
s and stories; it was particularly used as a plot device by 19th century writers of fiction
. Among those stories in which an entail plays a significant role in the plot are:
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
, 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. Such entails typically arose from wills, rather than from marriage settlements, which usually made at least some provision for daughters.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, fee tail or entail is an estate
Estate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
of inheritance
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
in real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
which cannot be sold, devised by will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
, or otherwise alienated
Alienation (property law)
Alienation, in property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Although property is generally deemed to be alienable, it may be subject to restraints on alienation....
by the owner, but which passes by operation of law
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 without a will, his heirs are determined by operation...
to the owner's heirs
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
upon his death. The term fee tail is derived from the Middle Latin feodum talliatum, which means "cut-short fee
Fiefdom
A fee was the central element of feudalism and consisted of heritable lands granted under one of several varieties of feudal tenure by an overlord to a vassal who held it in fealty in return for a form of feudal allegiance and service, usually given by the...
."
The purpose of an entail was to keep the land of a family intact in the main line of succession
Succession
Succession is the act or process of following in order or sequence. It may further refer to:*Order of succession, in politics, the ascension to power by one ruler, official, or monarch after the death, resignation, or removal from office of another, usually in a clearly defined order*Succession...
. The heir to an entailed estate could not sell the land, nor usually bequeath it to, for example, an illegitimate child. The complications arising from entails were an important factor in the life of many of the upper classes, especially from about the late 17th to the early 19th centuries, leaving many individuals wealthy in land but still heavily in debt
Debt
A debt is an obligation owed by one party to a second party, the creditor; usually this refers to assets granted by the creditor to the debtor, but the term can also be used metaphorically to cover moral obligations and other interactions not based on economic value.A debt is created when a...
.
General history
Traditionally, a fee tail was created by words of grant in a deedDeed
A deed is any legal instrument in writing which passes, or affirms or confirms something which passes, an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed...
: "to A and the heirs of his body". The crucial difference between the words of conveyance and the words that created a fee simple
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
("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 in tail, with the restrictions themselves known as entailments.
Fee tail was formerly used during feudal times by landed nobility
Landed nobility
Landed nobility is a category of nobility in various countries over the history, for which landownership was part of their noble privileges. Their character depends on the country.*Landed gentry is the landed nobility in the United Kingdom and Ireland....
in order to create family
Family
In human context, a family is a group of people affiliated by consanguinity, affinity, or co-residence. In most societies it is the principal institution for the socialization of children...
settlements and to make certain that the land stayed "in the family". From the foregoing, attempting to mortgage land in fee tail would be risky and uncertain, since at the death of the owner the land passed by operation of law to children who had no obligation to the mortgage lender and whose interest was prior in right over the mortgage. Similarly, the largest estate an owner in fee tail could convey to someone else was a life estate
Life estate
A life estate is a concept used in common law and statutory law to designate the ownership of land for the duration of a person's life. In legal terms it is an estate in real property that ends at death when there is a "reversion" to the original owner...
, since the grantee's interest again terminated automatically when the grantor (the original owner) died. If all went as planned, it was impossible for the family to lose the land, which was the idea.
Things do not always go as planned, however. Owners of land in tail occasionally had "failure of issue" - that is, they had no children surviving them at the time of their own deaths. In this situation, theoretically the entailed land went back up and through the family tree to descendants of former owners who were entitled to inherit, or to the last owner in fee simple. This situation produced complicated litigation.
Fee tail was a device tuned to the needs of family settlements in the thirteenth century, but it was never popular with the monarchy, the merchants, or many entailed holders themselves who wished to sell their land. In more mercantile eras, fee tail became rare. As early as the fifteenth century, lawyers devised an elaborate action called "Common Recovery
Common Recovery
A common recovery was a fictitious legal proceeding in England to enable an entailed estate in land to be converted into absolute ownership, fee simple.As a preliminary, there needed to be a conveyance of the land...
", which used collaborative lawsuits and legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
s to "bar" an entail, i.e. remove the conditions of fee tail from land and enable its free conveyance in fee simple. In the 17th and 18th centuries the practice arose whereby a landed estate would be settled on a man for life, and thereafter to his eldest son in tail male; when the son came of age, he and his father together could bar the entail, and would then re-settle the land on the father for life, then to the son for life, and then to his eldest son in tail male, at the same time making provision for the father's widow, daughters and younger sons. In this way an estate could stay in a family for many generations. It also had the advantage that if an heir appeared irresponsibly spendthrift to his father, the entail could be retained to protect the estate.
England
The Statute of Westminster II, passed in 1285, created and stereotyped this form of estate. The new law was also formally called the statute De Donis ConditionalibusDe donis conditionalibus
De donis conditionalibus is the chapter of the English Statutes of Westminster which originated the law of entail.Strictly speaking, a form of entail was known before the Norman feudal law had been domesticated in England...
(Concerning Conditional Gifts). Fee tail was abolished by the Law of Property Act
Law of Property Act 1925
The Law of Property Act 1925 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legisation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property...
in England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
(as a legal estate
Estate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
) in 1925.
An entail can still exist in England and Wales as an equitable interest, behind a strict settlement, but 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 entail by a simple disentailing deed, which does not now have to be enrolled. A tenant in tail in reversion (i.e. a future interest
Future interest
In property law and real estate, a future interest is a legal right to property ownership that does not include the right to present possession or enjoyment of the property. Future interests are created on the formation of a defeasible estate; that is, an estate with a condition or event...
where the property is subject to prior life interest) needs the consent of the life tenant and any 'special protectors' to vest a reversion
Reversion
Reversion may refer to:*Reversion *Reversion *Reversion *Reversion *Series reversion, in mathematics*Reversion, in evolutionary biology...
ary fee simple in himself. Otherwise he can only create a base fee
Base fee
A base fee is an interest in real property that has the potential to last forever, provided a specified contingent event does not take place. For example, a grantee might be given an interest in a piece of land,"as long as the land is not used for any illegal purposes."In law, a base fee is a...
; 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.
The breaking of an entail was simplified by the Fines and Recoveries Act 1833, which replaced the conveyance for making a tenat in procipe 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. No new "fee tails" can now be created following the Trusts of Land and Appointment of Trustees Act 1996
Trusts of Land and Appointment of Trustees Act 1996
The Trusts of Land and Appointment of Trustees Act 1996 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.-Background:...
.
An English example of a fee tail may be the main estates of the wealthy art collector Richard Seymour-Conway, 4th Marquess of Hertford
Richard Seymour-Conway, 4th Marquess of Hertford
Captain Richard Seymour-Conway, 4th Marquess of Hertford KG was the son of Francis Seymour-Conway, 3rd Marquess of Hertford....
(d. 1870). His only child was his illegitimate son, Sir Richard Wallace, to whom he left as much of his property as he could. The main land holdings and Ragley Hall
Ragley Hall
Ragley Hall is located south of Alcester, Warwickshire, eight miles west of Stratford-upon-Avon. It is the ancestral seat of the Marquess of Hertford and is one of the stately homes of England.-The present day:...
were inherited by his distant cousin, Francis Seymour, 5th Marquess of Hertford
Francis Seymour, 5th Marquess of Hertford
Francis George Hugh Seymour, 5th Marquess of Hertford GCB PC , known as Francis Seymour until 1870, was a British courtier and Conservative politician...
, descended from a younger son of the 1st Marquess
Francis Seymour-Conway, 1st Marquess of Hertford
Francis Seymour-Conway, 1st Marquess of Hertford KG, PC, PC was a British courtier and politician.He was born in Chelsea, London the son of Francis Seymour-Conway, 1st Lord Conway and Charlotte Shorter and died in Surrey, England...
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
Wallace Collection
The Wallace Collection is a museum in London, with a world-famous range of fine and decorative arts from the 15th to the 19th centuries with large holdings of French 18th-century paintings, furniture, arms & armour, porcelain and Old Master paintings arranged into 25 galleries.It was established in...
. Other works were covered by the entail, however, and passed to the 5th Marquess.
Another example was George Herbert, 11th Earl of Pembroke
George Herbert, 11th Earl of Pembroke
General George Augustus Herbert, 11th Earl of Pembroke and 8th Earl of Montgomery, KG, PC was a British peer, army officer and politician.-Early life:...
, who died in 1827. He had quarreled with his eldest son
Robert Herbert, 12th Earl of Pembroke
Robert Henry Herbert, 12th Earl of Pembroke and 9th Earl of Montgomery was a British nobleman in line for great estates and position as head of the distinguished Herbert family and heir to the earldom of Pembroke, but lived an irregular life in exile after a dissolute youth.-Early years:Herbert...
and left his unentailed estate to his son by a second marriage
Sidney Herbert, 1st Baron Herbert of Lea
Sidney Herbert, 1st Baron Herbert of Lea PC was an English statesman and a close ally and confidante of Florence Nightingale.-Early life:...
.
Ireland
The Land and Conveyancing Law Reform Act 2009 removed fee tail from Irish law and converted all existing entails to fee simpleFee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
.
Polish-Lithuanian Commonwealth
In the Kingdom of PolandKingdom of Poland (1385–1569)
The Kingdom of Poland of the Jagiellons was the Polish state created by the accession of Jogaila , Grand Duke of Lithuania, to the Polish throne in 1386. The Union of Krewo or Krėva Act, united Poland and Lithuania under the rule of a single monarch...
and later in Polish-Lithuanian Commonwealth
Polish-Lithuanian Commonwealth
The Polish–Lithuanian Commonwealth was a dualistic state of Poland and Lithuania ruled by a common monarch. It was the largest and one of the most populous countries of 16th- and 17th‑century Europe with some and a multi-ethnic population of 11 million at its peak in the early 17th century...
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 Batory
Stephen Báthory was a Hungarian noble Prince of Transylvania , then King of Poland and Grand Duke of Lithuania . He was a member of the Somlyó branch of the noble Hungarian Báthory family...
. Ordynacja was abolished by the agricultural reform in the People's Republic of Poland
People's Republic of Poland
The People's Republic of Poland was the official name of Poland from 1952 to 1990. Although the Soviet Union took control of the country immediately after the liberation from Nazi Germany in 1944, the name of the state was not changed until eight years later...
. Ordynat was the title
Title
A title is a prefix or suffix added to someone's name to signify either veneration, an official position or a professional or academic qualification. In some languages, titles may even be inserted between a first and last name...
of the principal heir of ordynacja.
According to the rules of ordynacja, which became a statute approved by the Sejm
Sejm
The Sejm is the lower house of the Polish parliament. The Sejm is made up of 460 deputies, or Poseł in Polish . It is elected by universal ballot and is presided over by a speaker called the Marshal of the Sejm ....
, the estate was not to be divided between the heirs but inherited in full by the eldest son (primogeniture
Primogeniture
Primogeniture is the right, by law or custom, of the firstborn to inherit the entire estate, to the exclusion of younger siblings . Historically, the term implied male primogeniture, to the exclusion of females...
). Women were excluded from inheritance (Salic Law
Salic law
Salic law was a body of traditional law codified for governing the Salian Franks in the early Middle Ages during the reign of King Clovis I in the 6th century...
). Ordynacja couldn't be sold or mortgaged
Mortgage loan
A mortgage loan is a loan secured by real property through the use of a mortgage note which evidences the existence of the loan and the encumbrance of that realty through the granting of a mortgage which secures the loan...
.
Ordynacja was similar to the French law of majorat
Majorat
Majorat is the right of succession to property according to age . A majorat would be inherited by the oldest son, or if there was no son, the nearest relative. This law existed in some of the European countries and was designed to prevent the distribution of wealthy estates between many members of...
or German and Scandinavian fideicommisses, and succession to such resembles that of British peerages.
Many Polish magnate
Magnate
Magnate, from the Late Latin magnas, a great man, itself from Latin magnus 'great', designates a noble or other man in a high social position, by birth, wealth or other qualities...
s fortunes were based on ordynacja, among them those of Radziwiłłs, Zamoyski
Zamoyski
Zamojski, plural: Zamojscy is the surname of an important Polish nobility family of Jelita coat of arms. The name is sometimes spelled Zamoyski. It is the Polish for "de Zamość" - the name they originally wore as lords of the place...
's, Czartoryski
Czartoryski
Czartoryski is the surname of a Polish-Ukrainian-Lithuanian magnate family also known as the Familia. They used the Czartoryski Coat of arms and were the leading noble family of the Polish-Lithuanian Commonwealth in the 18th century.-History:The Czartoryski is a family of a Grand Ducal...
's, Potocki
Potocki
Potocki is the surname of a Polish noble family.-History:The Potocki family is a great artistocratic family originated from Potok in the Kraków Voivodeship; their family name derives from that place name. The family is heavily entwined with the cultural development and history of Poland's Eastern...
's and Lubomirski
Lubomirski
Lubomirski family is a Polish szlachta family. The family used the "Szreniawa without a cross" arms and their motto was: Nil conscire sibi ....
's. Most important ordynacja were veritable little principalities. The earliest and most extensive ordynacjas include:
- Ordynacje Radziwiłłów, created for Mikołaj VII Radziwiłł, Albrecht Radziwiłł and Stanisław Radziwiłł in 1589, centered on OlykaOlykaOlyka is a town in Ukraine in the region of Volhynia. It is located east of Lutsk on the Putilovka river and has approximately 3,800 inhabitants .- History :...
, NesvizhNesvizhNesvizh is a city in Belarus. It is the administrative center of the Nesvizh District of Minsk Province and location of the Nesvizh Castle World Heritage Site. Its 2009 population is 14,300 .-History:...
, and KletskKletskKletsk is a city in the Minsk voblast of Belarus, located on the Lan river. , it had ca. 10,000 inhabitants.- History :The town was founded in 11th century by the Dregovichs, who erected a large fort and a tribal centre there... - Ordynacja Ostrogska, created for Janusz OstrogskiJanusz OstrogskiPrince Janusz Ostrogski was a Polish-Lithuanian noble.Janusz Ostrog - statesman of the Commonwealth...
in 1609, later inherited by the Zaslawski, LubomirskiLubomirskiLubomirski family is a Polish szlachta family. The family used the "Szreniawa without a cross" arms and their motto was: Nil conscire sibi ....
and SanguszkoSanguszkoSanguszko is a Polish-Lithuanian noble family of the Ruthenian Sanguszko is a Polish-Lithuanian noble family of the Ruthenian Sanguszko is a Polish-Lithuanian noble family of the Ruthenian (now Ukrainian stock from the Gediminid dynasty. Like other princely houses of Polish-Lithuanian...
families, centered on OstrohOstrohOstroh is a historic city located in Rivne Oblast of western Ukraine, located on the Horyn River. Ostroh is the administrative center of the Ostroh Raion and is itself designated as a special administrative subordination within the oblast... - Ordynacja Zamojska, created for Jan ZamoyskiJan ZamoyskiJan Zamoyski , was a Polish-Lithuanian nobleman, magnate, 1st duke/ordynat of Zamość. Royal Secretary since 1566, Lesser Kanclerz ) of the Crown since 1576, Lord Grand-Chancellor of the Crown since 1578, and Grand Hetman of the Crown since 1581...
in 1589, centered on ZamośćZamoscZamość ukr. Замостя is a town in southeastern Poland with 66,633 inhabitants , situated in the south-western part of Lublin Voivodeship , about from Lublin, from Warsaw and from the border with Ukraine... - Ordynacja Jarosławska, created for Rafał Jarosławski in 1470, centered on Jarosław
- Ordynacja Pińczowska, created for Piotr and Zygmunt Myszkowski in 1601, later inherited by the Wielopolski family, centered on PińczówPinczówPińczów is a town in Poland, in Świętokrzyskie Voivodship, about 40 km south of Kielce. It is the capital of Pińczów County. Population is 12,304 .-History:...
Scotland
ScotlandScotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
disentailed all land following the passage of the Abolition of Feudal Tenure etc. (Scotland) Act 2000
Abolition of Feudal Tenure etc. (Scotland) Act 2000
The Abolition of Feudal Tenure etc. Act 2000 was an act of the Scottish Parliament which was passed by the Parliament on 3 May 2000 and received Royal Assent on 9 June 2000....
, disapplying the Scots law
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
concept of tailzie
Tailzie
-Definition:Tailzie : The 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"....
. Today, the doctrines of legitim
Legitime
In Civil law and Roman law, the legitime , or forced share, of a decedent's estate is that portion of the estate from which he cannot disinherit his children, or his parents, without sufficient legal cause...
and jus relictae
Jus relictae
Jus relictae : The right of the surviving spouse in the 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 Alfred Douglas-Hamilton, 13th Duke of Hamilton
Alfred Douglas-Hamilton, 13th Duke of Hamilton
Lieutenant Alfred Douglas Douglas-Hamilton, 13th Duke of Hamilton and 10th Duke of Brandon TD, DL was a Scottish nobleman and sailor.-Life and Succession:...
, who in 1895 inherited from the 12th Duke, his fourth cousin, who had attempted to marry his daughter to the heir.
United States
Fee tail has been abolished in all but four states in the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
: Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
, Maine
Maine
Maine is a state in the New England region of the northeastern United States, bordered by the Atlantic Ocean to the east and south, New Hampshire to the west, and the Canadian provinces of Quebec to the northwest and New Brunswick to the northeast. Maine is both the northernmost and easternmost...
, Delaware
Delaware
Delaware is a U.S. state located on the Atlantic Coast in the Mid-Atlantic region of the United States. It is bordered to the south and west by Maryland, and to the north by Pennsylvania...
and Rhode Island
Rhode Island
The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...
. However, in the first three states, it can be sold or deeded as any other property would be (the fee tail would only control on death without a will). In Rhode Island, a fee tail is treated as a life estate with remainder in the life tenant's children. New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
, for example, abolished it in 1782. Many other states within the U.S. never recognized the fee tail estate at all.
In Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, the doctrines of legitime
Legitime
In Civil law and Roman law, the legitime , or forced share, of a decedent's estate is that portion of the estate from which he cannot disinherit his children, or his parents, without sufficient legal cause...
and jus relictae
Jus relictae
Jus relictae : The right of the surviving spouse in the 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.
In most states within the United States, an attempt to create a fee tail results in a fee simple
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
; 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.
On page vii of the preface to The Writings of Thomas Jefferson: "When in later life he drew up a list of the services he believed he had rendered his countrymen he enumerated along with the disestablishment of State Church the abolition of entails, the prohibition of slave importation and the drafting of the Declaration of Independence, the introduction of olive plants and heavy upland rice into South Carolina and Georgia declaring that the greatest service which can be rendered to any country is to add a useful plant to its culture."
Comparable devices in other legal systems
Other European legal systems had comparable devices to keep estates together, especially in Spain and Northern European countries like PrussiaPrussia
Prussia was a German kingdom and historic state originating out of the Duchy of Prussia and the Margraviate of Brandenburg. For centuries, the House of Hohenzollern ruled Prussia, successfully expanding its size by way of an unusually well-organized and effective army. Prussia shaped the history...
. They are derived from fideicommissum
Fideicommissum
The fideicommissum was one of the most popular legal institutions in Roman Law for several centuries. It translates from the Latin word fides and committere , meaning that something is committed to one's trust.-Text and translation:...
, a legal institution in Roman Law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
. Unlike most of the English aristocracy, the Prussian junker
Junker
A Junker was a member of the landed nobility of Prussia and eastern Germany. These families were mostly part of the German Uradel and carried on the colonization and Christianization of the northeastern European territories during the medieval Ostsiedlung. The abbreviation of Junker is Jkr...
s supported entails, 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
Scandinavia is a cultural, historical and ethno-linguistic region in northern Europe that includes the three kingdoms of Denmark, Norway and Sweden, characterized by their common ethno-cultural heritage and language. Modern Norway and Sweden proper are situated on the Scandinavian Peninsula,...
they persisted even later - a few old Swedish entails still remain in force, though no new ones may be established.
Entails in literature
Entails appear in the plot of several novelNovel
A novel is a book of long narrative in literary prose. The genre has historical roots both in the fields of the medieval and early modern romance and in the tradition of the novella. The latter supplied the present generic term in the late 18th century....
s and stories; it was particularly used as a plot device by 19th century writers of fiction
Fiction
Fiction is the form of any narrative or informative work that deals, in part or in whole, with information or events that are not factual, but rather, imaginary—that is, invented by the author. Although fiction describes a major branch of literary work, it may also refer to theatrical,...
. Among those stories in which an entail plays a significant role in the plot are:
- Downton AbbeyDownton AbbeyDownton Abbey is a British television period drama series, produced by NBC Universal-owned British media company Carnival Films for the ITV network. The series is set during the late Edwardian era and the First World War on the fictional estate of Downton Abbey in Yorkshire, and features an...
by Julian FellowesJulian FellowesJulian Alexander Kitchener-Fellowes, Baron Fellowes of West Stafford, DL , known as Julian Fellowes, is an English actor, novelist, film director and screenwriter, as well as a Conservative peer.-Early life:... - MiddlemarchMiddlemarchMiddlemarch: A Study of Provincial Life is a novel by George Eliot, the pen name of Mary Anne Evans, later Marian Evans. It is her seventh novel, begun in 1869 and then put aside during the final illness of Thornton Lewes, the son of her companion George Henry Lewes...
by George EliotGeorge EliotMary Anne Evans , better known by her pen name George Eliot, was an English novelist, journalist and translator, and one of the leading writers of the Victorian era... - Pride and PrejudicePride and PrejudicePride and Prejudice is a novel by Jane Austen, first published in 1813. The story follows the main character Elizabeth Bennet as she deals with issues of manners, upbringing, morality, education and marriage in the society of the landed gentry of early 19th-century England...
by Jane AustenJane AustenJane Austen was an English novelist whose works of romantic fiction, set among the landed gentry, earned her a place as one of the most widely read writers in English literature, her realism and biting social commentary cementing her historical importance among scholars and critics.Austen lived... - The Adventure of the Priory SchoolThe Adventure of the Priory School"The Adventure of the Priory School", one of the 56 Sherlock Holmes short stories written by British author Sir Arthur Conan Doyle, is one of 13 stories in the cycle collected as The Return of Sherlock Holmes...
by Sir Arthur Conan Doyle - The Master of BallantraeThe Master of BallantraeThe Master of Ballantrae: A Winter's Tale is a book 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...
by Robert Louis StevensonRobert Louis StevensonRobert Louis Balfour Stevenson was a Scottish novelist, poet, essayist and travel writer. His best-known books include Treasure Island, Kidnapped, and Strange Case of Dr Jekyll and Mr Hyde.... - The QuincunxThe QuincunxThe Quincunx 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 ending and unreliable narrators...
by Charles PalliserCharles PalliserCharles Palliser 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 of the late author and freelance journalist Marcus Palliser.-Life and career:Born in New England he is...
(written in 1989, but it takes the form of a Dickensian mystery set in early-19th-century England)
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
Elizabeth Bennet, later Elizabeth Darcy, 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...
, 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. Such entails typically arose from wills, rather than from marriage settlements, which usually made at least some provision for daughters.
See also
- Fee simpleFee simpleIn English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
- MajoratMajoratMajorat is the right of succession to property according to age . A majorat would be inherited by the oldest son, or if there was no son, the nearest relative. This law existed in some of the European countries and was designed to prevent the distribution of wealthy estates between many members of...
- Rule in Wild's CaseRule in Wild's CaseThe Rule in Wild's Case is a common law rule of construction dating back to 1599 concerning a particular type of ambiguity in devises of real property: If a grantor grants, by deed or will, property to another person with the language "To A and her children", who gets lawful possession of the...
- tailzieTailzie-Definition:Tailzie : The 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"....
(Scots law) - PrimogeniturePrimogeniturePrimogeniture is the right, by law or custom, of the firstborn to inherit the entire estate, to the exclusion of younger siblings . Historically, the term implied male primogeniture, to the exclusion of females...
Further reading
- The Fee Tail and the Common Recovery in Medieval England 1176–1502, by: Joseph Biancalana, University of Cincinnati