The inconvenience, which attended theſe limited and fettered inheritances, were probably what induced the judges to give way to this ſubtle fineſſe, (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 pays 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 revives in ſome ſort the antient 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 fee-ſimple, which became abſolute 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[2]; and veſting in the donor the ultimate fee-ſimple of the land, expectant on the failure of iſſue; which expectant eſtate is what we now call a reverſion[3]. And hence it is that Littleton tell us[4], that tenant in fee-tail is by virtue of the ſtatute of Weſtminſter the ſecond.
Having thus ſhewn the original of eſtates-tail, I now proceed to conſider, what things may, or may not, be entailed under
- ↑ 13 Edw. I. c. 1.
- ↑ The expreſſion fee-tail, or feodum talliatum, was borrowed from the feudiſts; (See Crag. l. 1. t. 10. §. 24, 25.) among whom it ſignified any mutilated or truncated inheritance, from which the heirs general were cut off; being derived from the barbarous verb taliare, to cut; from which the French tailler and the Italian tagliare are formed. (Spelm. Gloſſ. 531.)
- ↑ 2 Inſt. 335.
- ↑ §. 13.
