the condition expressed or implied in the donation of it, that, if the donee died without such particular heirs, the land should revert to the donor. For this was a condition annexed by law to all grants whatsoever; that, on failure of the heirs specified in the grant, the grant should be at an end, and the land return to its ancient proprietor (e). Such conditional fees were strictly agreeable to the nature of feuds (16), when they first ceased to be mere estates for life, and were not yet arrived to be absolute estates in fee-simple. And we find strong traces of these limited, conditional fees, which could not be alienated from the lineage of the first purchaser, in our earliest Saxon laws (ƒ). Now, with regard to the condition annexed to these fees by the common law, our ancestors held, that such a gift, (to a man and the heirs of his body) was a gift upon condition, that it should revert to the donor, if the donee had no heirs of his body; but, if he had, it should then remain to the donee. They therefore called it a fee-simple, on condition that he had issue (17). Now we must observe, that, when (e) Plowd. 241. (f) Si quis terram hæreditariam habeat, eam non vendat a cognatis hæ (16) A feudum talliatum is thus described by Du Cange (Gloss. ad vocem "feudum.") Feudum talliatum dicitur, verbis forensibus, hæreditas in quamdam certitudinem limitata: seu feudum certis conditionibus concessum. The conditional fees recognized by our common law, as well as our fees-tail since the statue de donis conditionalibus, were, in all probability, derived from feuda talliata. As Glanville makes no mention of conditional fees in his accurate work on our laws as they existed in his days, (that is, in the reign of Henry II.,) we may conclude they were not then known; but Bracton, who wrote in the reign of Henry III. describes them very clearly, and as forms of donation then become familiar. He says (in book 2, c. 6,) ita coarctari poterunt hæredes per modum donationis, quod omnes hæredes generaliter ad succes redibus suis, si illi viro prohibitum sit, qui eam ab initio acquisivit, ut ita facere nequeat. LL. Ælfred, c. 37. sionem non vocantur.... quo casu, cum certi hæredes exprimuntur in donatione, videri poterit quod tantum sit descensus ad hæredes per modum in donatione appositum; omnibus aliis hæredibus a successione penitus exclusis, quia hoc voluit donator. We may conclude, therefore, that these limited donations were brought into common use, either at the close of the reign of Henry II. or during the reigns of Richard I. or of John. (17) In the great case of Willion v. Berkley, (Plowd. 233,) Lord C. J. Dyer said, upon the grant of a conditional fee, the fee-simple vested at the beginning; by having issue, the donee acquired power to alien, which he had not before, but the issue was not the cause of his having the fee, the first gift vested that: and (in p. 235 of S. C.) it was said, when land was given (before the statute de donis) to a man [ *111 ] and, when the any condition is performed, it is thenceforth entirely gone; and the thing to which it was before annexed, becomes absolute, *and wholly unconditional (18). So that, as soon as and the heirs of his body, this was a fee-simple, with a condition annexed, that, if the donee died without such heirs, the land should revert to the donor; to whom, therefore, the common law gave a formedon in reverter. But he was not entitled to a writ of formedon in remainder, for no remainder could be limited upon such an estate, which, though determinable, was considered a fee-simple, until the statute de donis was made: since the statute we call that an estate-tail, which before was a conditional fee; (Ibid. p. 239;) and whilst it continued so, if the donee had issue, he had power to alienate the fee, and to bar not only the succession of his issue, but the reversion of the donor in case his issue subsequently failed. To redress which evils (as they were thought to be), the act de donis conditionalibus was made. (Ibid. p. 242, 245.) (18) Where the person to whom a conditional fee was limited had issue, and suffered it to descend to such issue, they might alien it. But, if they did not alien, the donor would still have been entitled to his right of reverter; for, the estate would have continued subject to the limitations contained in the original donation. (Nevil's case, 7 Rep. 124; Willion v. Berkley, Plowd. 247.) This authority supports the statement of our author, to a similiar effect, lower down in the page; but it hardly authorises the assertion, that after issue, the estate became wholly unconditional. (See post, the first note to p. 112.) Bracton (lib. 2, c. 6) says, "Si do tali, habendum et tenendum sibi et hæredibus suis de carne talis exeuntibus, eo casu, cum certi hæredes exprimantur in donatione, quousque tales inceperint hæredes esse, est liberum tenementum, cum autem inceperint hæredes, incipit liberum tenementum esse feodum, et cum desierint esse, desinit esse feodum, et incipit esse liberum tenementum, et ita ibi nunquam erit dotis exactio." And, in Paine's case, (8 Rep. 71) it is distinctly laid down that, "after issue had, the tenant in tail at the common law had not such a fee-simple that his collateral heir should inherit." In the preceding page of the same case, it is said, "at the common law, after issue, it was taken, to three purposes, that the tenant in tail had a full fee-simple: 1. To alien; 2. To forfeit it by attainder; so that, although the tenant in tail afterwards died without issue, the land should not revert to the donor; 3. That in the case of a woman tenant in special tail, if she once had such special issue, the lands were descendible to other issue than those pointed out by the grant; for, as by alienation the donee might have made strangers to her blood absolutely inheritable; so, by construction of law, after the special issue had, all lineal issues of her body, by whatsoever husband they were begotten, should inherit, as a benefit and incident tacite annexed to her estate by the law: for, by having issue, the husband is entitled to his curtesy in the lands, which disposition and alteration of the estate, although it be for life, tacite, as an incident to it, make the issue of the second husband inheritable." (And see Willion v. Berkley, Plowd. 246.) In Paine's case (ubi supra), it is also said, when, before the statute de donis, land was given to husband and wife, and the heirs of their two bodies, and they had issue, and the wife died, the second wife of the husband would be entitled to her dower, and his issue by her would, consequently, be capable of inheriting the land. : sue born, the absolute, to a the grantee had any issue born, his estate was supposed to grantee had isbecome absolute, by the performance of the condition; at estate became least, for these three purposes: 1. To enable the tenant to certain extent. aliene the land, and thereby to bar not only his own issue, but also the donor of his interest in the reversion (g). 2. To subject him to forfeit it for treason; which he could not do, till issue born, longer than for his own life; lest thereby the inheritance of the issue, and reversion of the donor, might have been defeated (h). 3. To empower him to charge the land with rents, commons, and certain other incumbrances, so as to bind his issue (i). And this was thought the more reasonable, because, by the birth of issue, the possibility of the donor's reversion was rendered more distant and precarious and his interest seems to have been the only one which the law, as it then stood, was solicitous to protect; without much regard to the right of succession intended to be vested in the issue. However, if the tenant did not in fact aliene the land, the course of descent was not altered by this performance of the condition; for if the issue had afterwards died, and then the tenant, or original grantee, had died, without making any alienation; the land, by the terms of the donation, could descend to none but the heirs of his body, and therefore, in default of them, must have reverted to the donor (19). For which reason, in order to subject the lands to the ordinary course of descent, the donees of these conditional fee-simples took care to aliene as soon as they had performed the condition by having issue; and afterwards repurchased the lands, which gave them a feesimple absolute, that would descend to the heirs general, according to the course of the common law. And thus stood the old law with regard to conditional fees: which things, says Sir Edward Coke (k), though they seem ancient, are yet necessary to be known; as well for the declaring how the common law stood in such cases, as for the sake of annuities, and such like inheritances, as are not within the (g) Co. Litt. 19; 2 Inst. 233. (19) As to the qualification of this right of reverter, in cases of special tail, although the conditions of gift (i) Co. Litt. 19. were not literally fulfilled, see the last [ *112 ] The statute de donis. Upon the construction of which it was held that the donce acquired an absolute fee, which was called a fee-tail. statutes of entail, and therefore remain as at the common law (20). *The inconveniences, which attended these limited and fettered inheritances, were probably what induced the judges to give way to this subtle finesse of construction, (for such it undoubtedly was,) in order to shorten the duration of these conditional estates. But, on the other hand, the nobility, who were willing to perpetuate their possessions in their own families, to put a stop to this practice, procured the statute of Westminster the second (1) (commonly called the statute de donis conditionalibus) to be made; which paid a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever. This statute revived in some sort the ancient feodal restraints which were originally laid on alienations, by enacting, that from thenceforth the will of the donor be observed; and that the tenements so given (to a man and the heirs of his body) should at all events go to the issue, if there were any; or, if none, should revert to the donor. Upon the construction of this act of parliament, the judges determined that the donee had no longer a conditional feesimple, which became absolute (21) and at his own disposal, the instant any issue was born; but they divided the estate into two parts, leaving in the donee a new kind of particular estate, which they denominated a fee-tail (m) (21); and investing in the donor the ultimate fee-simple of the land, (7) 13 Edw. I. c. 1. (m) The expression fee-tail, or feodum talliatum, was borrowed from the feudists; (see Crag. 1. 1, t. 10, s. 24, 25;) among whom it signified any mutilated or truncated inheritance, from (20) See page 113 of the text. (21) A conditional fee might have been disposed of by the donee after he had issue born, and during the life of the donee; but if the issue died before the alienation of the fee, the donee could not alien, nor would the subsequent birth of issue confirm the validity of a prior alienation. (Nevil's case, 7 Rep. 125; Willion v. Berkley, which the heirs general were cut off; being derived from the barbarous verb taliare, to cut; from which the French tailler and the Italiantagliare are formed. (Spelm, Gloss. 531.) Plowd. 235 b.) Whenever, therefore, it is said, that the instant issue was born a conditional fee became absolute, it must be understood, not that it was ipso facto absolute, (for that is expressly denied in Nevil's case, 7 Rep. 125,) but that it was capable of being made so. (And see ante, note (18), p. 111.) (22) See ante, note (16), p. 110. expectant on the failure of issue; which expectant estate is what we now call a reversion (n) (23). And hence it is that Littleton tells us (o), that tenant in fee-tail is by virtue of the statute of Westminster the second. may not be en tailed, under the statute de donis. [113] Having thus shown the original of estates-tail, I now What may or proceed to consider, what things may, or may not, be entailed *under the statute de donis. Tenements (24) is the only word used in the statute: and this Sir Edward Coke (p) expounds to comprehend all corporeal hereditaments (25) whatsoever; and also all incorporeal hereditaments, which savour of the realty, that is, which issue out of corporeal ones, or which concern, or are annexed to, or may be exercised within the same; as, rents (26), estovers (27), commons (28), and the like. Also offices (29) and dignities (30), which concern lands, or have relation to fixed and certain places, may be entailed (q). But mere personal chattels, which savour not at all of the realty, cannot be entailed. Neither can an office, which merely relates to such personal chattels; nor an annuity (31), which charges only the person, and not the lands of the grantor. But in these last, if granted to a man and the heirs of his body, the grantee hath still a fee-conditional at common law, as before the statute; and by his alienation (after issue born) may bar the heir or reversioner (r) (32). An estate to a man and his (n) 2 Inst. 335. (0) Sec. 13. (p) 1 Inst. 19, 20. (23) Before the statute de donis, no reversion, strictly speaking, remained in the donor, after he had created a conditional fee; he had only a possibility of reversion, not an actual estate in reversion. But, after the statute, an estate given to a man and the heirs of his body, was held to be only a particular estate, leaving the fee-simple as an estate in reversion in the donor. (Willion v. Berkley, 1 Plowd. 248 a; Co. Litt. 22 b.) (24) See ante, pp. 16, 59, and notes. (25) See ante, p. 17, and note. (26) See ante, p. 41, and the notes thereto. (q) 7 Rep. 33. (r) Co. Litt. 19, 20. (27) See ante, p. 34, and note. (29) See ante, p. 36, and the notes (30) See ante, p. 37, and the note thereto. (31) See ante, pp. 16, 40, with the notes thereto : as also the next note here following. (32) See ante, the notes to pp. 111, 112. An annuity when granted with words of inheritance, is descendible. It may be granted in fee: of course it may as a qualified or conditional fee; but it cannot be entailed, for it is not within the statute de donis; and, |