fee-tail, and aſcertain to what heirs in particular the fee is limited. If therefore either the words of inheritance or words of procreation be omitted, albeit the others are inſerted in the grant, this will not make an eſtate-tail. As, if the grant be to a man and his iſſue of his body, to a man and his feed, to a man and his children, or offspring; all theſe are only eſtates for life, there wanting the words of inheritance, his heirs[1]. So, on the other hand, a gift to a man, and his heirs male, or female, is an eſtate in fee-ſimple, and not in fee-tail; for there are no words to aſcertain the body out of which they ſhall iſſue[2]. Indeed, in laſt wills and teſtaments, wherein greater indulgence is allowed, an eſtate-tail may be created by a deviſe to a man and his feed, or to a man and his heirs male; or by other irregular modes of expreſſion[3].
There is ſtill another ſpecies of entailed eſtates, now indeed grown out of uſe, yet ſtill capable of ſubſiſting in law; which are eſtates in libera maritagio, or frankmarriage. Theſe are defined[4] to be, where tenements are given by one man to another, together with a wife, who is the daughter or couſin of the donor, to hold in frankmarriage. Now by ſuch gift, though nothing but the word frankmarriage is expreſſed, the donees ſhall have the tenements to them, and the heirs of their two bodies begotten; that is, they are tenants in ſpecial tail. For this one word, frankmarriage, does ex vi termini not only create an inheritance, like the word frankalmoign, but likewiſe limits that inheritance; ſupplying not only words of deſcent, but of procreation alſo. Such donees in frankmarriage are liable to no ſervice but fealty; for a rent reſerved thereon is void, until the fourth degree of conſanguinity be paſt between the iſſues of the donor and donee[5].
The incidents to a tenancy in tail, under the ſtatute Weſtm. 2. are chiefly theſe[6]. 1. That a tenant in tail may commit waſte on the eſtate-tail, by felling timber, pulling down houſes, or the
