Hello Reader, this time Tabir Hukum will discuss about fee tail estates.
Recall the image of the fee simple as a circle which O can divide with others. With the fee tail, O conveys a part of the circle to A, while retaining a reversion in fee simple if A's estate comes to an end. The word "fee" indicates that the fee tail estate is one of inheritance; that is, it can go to A's heirs. But because the estate is less than a fee simple, the line of descent is cut down (talliatum) to the direct descendants of the grantee.
The fee tail began as a conditional fee simple but gained recognition as a saparate freehold estate through legislation overturning judicial decisions permitting conveyance of the fee tail estate free of the condition. Just as the words "and heirs" are the words of limitation necessary to grant a fee simple estate, the words "and heirs of the body" are the words of limitation to grant a fee tail estate. Heirs of the body refers to lineal descendants only - it does not include nieces and nephews, for example - whereas heirs alone includes lineal and collateral descendants.
The fee tail could take various forms, depending on the restrictions that the grantor chose to impose. If the transfer was simply to A and the heirs of the body, it was a fee tail general, for the birth of any direct descendants would suffice. But a grant to A and the heirs of his body by his wife, call her S, created an estate, called a "fee tail special", that would end if no children were born in the direct line of descent from A and S. If O wanted the male side of the family to have complete control, O would grant a fee tail male thus : "to A and the male heirs of his body". Similarly, O could grant a fee tail female, or combine a fee tail male or female with a fee tail special.
A grant using the words of limitation "heirs of the body" was a grant of something less than a full fee simple; the grantor was carving out a lesser estate from the full circle of rights and obligations that makes up estate ownership. As with the fee simple, the words "and the heirs of the body" do not give the direct descendants a share in the estate - the words simply identify the duration of the estate that is granted to A, or whomever else is identified by the words of purchase. But because the estate is a fee tail, not a fee simple, A cannot convey a fee simple, only a life estate, for A's life, called, as we shall see, a life estate pur autre vie. On A's death, if A has children, the estate goes to them; if A has no children, or if A's direct line of succession dies out in the future, the estate reverts to the original grantor.
Obviously, the condition attached to fee tail estates made them less marketable; attempts to avoid the condition brought courts face-to-face with the contradictions at the heart of property law in the common law tradition. Should a patriarch have the right to tie up land after death, or should conditions be restricted so as to promote the free alienability of land ?. The courts decided in favour of free alienability, and began to interpret grants "to A and the heirs of his body" as meaning that, once A produced children, A had met the condition of the grant and could convey a fee simple to any one, without restrictions. Patriarchs countered in 1285 with passage of a statute called De Donis Conditionalibus that prevented the conveyance of a fee simple absolute when the grantee had received only a fee simple conditional. The newly defined estate thus created by a grant to A and the heirs of his body became known as a fee tail.
But De Donis Conditionalibus did not end efforts to transform fee tails into fee simple estates. Conveyancers and courts connived in developing methods of barring or disentailing the entail through actions involving fictitious parties making fictitious claims. Some of these actions created what came to be known as a "base fee", which could be alienated as a fee, but would revert to the original grantor or his estate if the original grantee's direct line of succession died out. It was not the common law's finest hour, and the details need not concern us here. All the Canadian common law jurisdictions except Manitoba have prohibited the creation of new fee tail estates, and all have provided statutory methods of converting the fee tail to a fee simple. But is still possible to find fee tails in a chain of title, as well as in nineteent-century English novels.
Umpteen posts of tabir hukum about fee tail estates, hopefully the writing of tabir hukum about fee tail estates can be beneficial.
Books : In Writing Tabir Hukum :
Alan M. Sinclair and Margaret E. McCallum, 2005. An Introduction to Real Property Law (Fifth Edition). LexisNexis : Canada.
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| Figure Property Law : Freehold Estates - Fee Tail Estates |
