others; as to the heirs of a man's body, by which only his lineal descendants were admitted, in exclusion of collateral heirs; or to the heirs male of his body, in exclusion both of collateral heirs, and lineal female heirs.

2. Thus Bracton, in treating of donations, says- Lib. 2. c. 6. Item sicut ampliari possunt hæredes, sicut prædictum est, ita coarctari poterunt per modum donationis, quod omnes hæredes generaliter ad successionem non vocantur. Modus enim legem dat donationi, et modus tenendus est contra jus commune, et contra legem, quia modus et conventio vincunt legem. Ut si dicatur-Do tali tantam terram cum pertinentiis in N. habendum et tenendum sibi et hæredibus suis, quos de carne sua et uxore sibi desponsata procreatos habuerit. Vel sic-Do tali, et tali uxori suæ, vel cum tali filia mea, &c. habendum et tenendum sibi et hæredibus suis, de carne talis uxoris, vel filiæ exeuntibus, vel procreatis vel procreandis: quo casu cum certi hæredes exprimuntur in donatione, videri poterit quod tantum sit descensus ad ipsos hæredes communes per modum in donatione appositum; omnibus aliis hæredi- Fleta lib.3. bus suis a successione penitus exclusis, quia hoc voluit donator.

c. 9.

Britton, c,36,

$75.

3. These limited donations were evidently derived from the feudum talliatum, of which an account has Dissert. c. 1. been already given. They were probably introduced into England about the end of the reign of King Henry II., or that of one of his sons: for Glanville, who gives a very accurate account of the different estates that were known in his time, makes no mention whatever of limited donations; whereas we have seen that Bracton, who wrote in the reign of King Henry III., has given a full description of them.

4. The evident object of these limitations was to restrain the donees from disposing of the estates thus VOL. I.

G

given; but the general propensity which prevailed about the reign of Edward I. to favour a liberty of alienation, induced the judges to construe limitations of this kind in a very liberal manner. Instead of declaring that the estates must descend to those heirs who were particularly described in the grant, according to the evident intention of the donors, and the strict principles of the feudal law*; and that the donees should not, in any case, be enabled by their alienation to defeat the succession of those who were mentioned in the gift, or the donor's right of reverter; they had recourse to an ingenious device, taken from Tit. 13. c. 2. the nature of a condition. Now it is a maxim of the

common law, that when a condition is once performed, it is thenceforth entirely gone; and the thing, to which it was before annexed, becomes absolute, and wholly unconditional.

5. The judges, reasoning upon this ground, determined that these estates were conditional fees; that is, were granted to a man and the heirs of his body, upon condition that he had such heirs: therefore, as soon as the donee of an estate of this kind had issue born, his estate became absolute, by the performance of the condition; at least for these three purposes: 1. To enable him to alien the land, and thereby to bar, not only his own issue, but also the donor of his right of reverter. 2. To subject him to forfeit the estate for treason or felony; which, till issue born, he could not do, for any longer term than that of his

Jus feudale non solum talliis non adversari, sed maximè eis favere constat : non solum quod nullas fæminas ad successionem admittet, sed multo magis, quod tenorem successionis semper servandum jubeat; hæreditatemque secundum eam deferendam expressè jubeat-Craig, Lib. 2. Tit. 16. § 3.

own life; least the right of inheritance of the issue, and that of reverter of the donor, might be thereby defeated. 3. To enable him to charge the lands with rents and other incumbrances, so as to bind his issue.

6. The donee of a conditional fee might also alien Plowd, 241. the lands, before issue had; nor could the donor have entered in such a case, because that would have been contrary to his own donation, which limited the lands to the donor and his issue. And if the donee had issue born, after the alienation, the donor was excluded during the existence of such issue. The issue were also bound by the alienation of their ancestor, though previous to their birth; because they could only claim in the character of his representatives, and were therefore barred by his acts. But where the donee of a conditional fee aliened before he had issue, such alienation did not bar the donor's right of reverter, whenever there happened a failure of issue; because the subsequent birth of issue was not a sufficient performance of the condition to render the precedent alienation valid.

7. Where the person, to whom a conditional fee 7 Rep. 34 b. was limited, had issue, and suffered it to descend to

such issue, they might alien it: because, having succeeded by descent to the estate of their ancestor, who had acquired a power of alienation by having issue, they took the estate in the same manner, discharged from any restraint whatever. But if the issue

did not alien, the donor would still be entitled to his 1 Inst. 19 a. right of reverter; as the estate would have continued subject to the limitations contained in the original donation.

8. From this mode of construing conditional fees, Statute the purposes for which they were intended were

de Donis.

1 Burr. 115.

2 Inst. 335.

Plowd. 248.

completely frustrated; and therefore the nobility, whose object was to perpetuate their possessions in their own families, procured the statute of Westm. 2. 13 Edward I., usually called the statute De Donis Conditionalibus, to be made; which, after reciting the right of alienation assumed by the donees of conditional fees, proceeds in these words-Dominus rex statuit quod voluntas donatoris, secundum formam in charta doni sui manifestè expressam, de cætero observetur, ita quod non habeant illi, quibus tenementum sic fuit datum sub conditione, potestatem alienandi tenementum sic datum, quo minus, ad exitum illorum quibus tenementum sic fuerit datum, remaneat post eorum obitum; vel ad donatorem, vel ad ejus hæredem, si exitus deficiat, revertatur; per hoc quod nullus sit exitus omnino; vel si aliquis exitus fuerit, et per mortem deficiet, hærede de corpore hujusmodi exitus deficiente.

9. This statute, as Lord Mansfield has justly observed, only repeated what the law of tenures had said before, that the tenor of the grant should be observed therefore the judges, in the con struction of it, determined that where an estate was limited to a man and the heirs of his body, the donee should not in future have a conditional fee; but divided the estates, by creating a particular estate in the donee, called an estate tail, subject to which the reversion in fee remained in the donor.

10. In consequence of this construction, estates limited in this manner are not conditional; nor is the right of entry of the donor, on failure of issue of the donee, considered as arising from a breach of the condition, but as a right of reverter accruing to the donor on the natural expiration of the estate granted. The statute rejects the erroneous opinion which had been held by the judges, that a donation

of this kind created a conditional fee; and declares that it vests an estate of inheritance in the donee, and some particular heirs of his, to whom it must descend; and that the estate of the donor is a Plowd. 242. reversion, expectant on the determination of that

estate.

11. The statute De Donis was made in the reign of a prince who, from the great number and excellence of his laws, has justly acquired the title of the English Justinian. It is therefore highly probable that he was induced, by some motives unknown to modern times, to give his assent to a law which, by 1 Inst. 392 . allowing the nobility to entail their estates, made it impossible to diminish the property of the great families; and at the same time left them all means

of increase and acquisition.

Tail.

12. An estate tail may be described to be an Description estate of inheritance, created by the statute De Donis of an Estate Conditionalibus; which is descendible to some particular heirs only of the person to whom it is granted, not to his heirs general. It is called an estate tail, or a fee tail, from its similarity to the feudum talliatum; which appears to have been well known at that time; as it is mentioned in the 46th chapter of this statute; where, in enumerating several kinds of estates, it is said, ad terminum vitæ, vel annorum, vel per feodum talliatum.

13. Littleton says, tenant in tail is in two man- Tail General ners; tenant in tail general, and tenant in tail spe- and Special. Lit. §13-15 cial. Where lands are given to a man, and the heirs of his body, without any farther restriction, it is an estate in tail general, because how often soever such donee in tail be married, his issue by every such marriage is capable of inheriting the estate tail. If the gift is restrained to certain heirs of the