9. The fee tail

Before 1285 a gift "to B and the heirs of his body" was read as a fee simple conditional on B having a child. Once a child was born, B could alienate and defeat both the heirs and the donor. De Donis Conditionalibus, the statute of Westminster II, stopped that. The donor's intention was to be observed. B could not alienate so as to bar the issue. On failure of issue the land reverted to the donor. The estate that resulted is the fee tail, from feodum talliatum, a fee that has been cut down.

A tail general goes to the heirs of the body by any spouse. A tail special is limited to the heirs of two named people. Tail male and tail female restrict the sex of the heirs. "Heirs" was essential in a deed. "Seed" or "offspring" would not do. Section 51 of the Conveyancing Act 1881 allows "in tail". In a will the testator's intention is gathered from the whole will.

The entail was unpopular with children, tenants and creditors, and popular with the nobility. Lawyers invented the common recovery. Taltarum's Case, in 1472, is the authority. A tenant in tail in possession, or with the consent of that tenant, could suffer a recovery and come out with a fee simple. A fine, without that consent, produced only a base fee, which lasts only as long as the entail would have lasted. The Fines and Recoveries Act 1833 replaced both devices with a disentailing assurance, enrolled within six months. Without the consent of the protector of the settlement, the assurer still got only a base fee. Bankes v Small is the case on enlarging that base fee once the consent, or the prior life interest, is out of the way.

The rule in Shelley's Case is still law in Sierra Leone. England abolished it by section 131 of the Law of Property Act 1925. Where a freehold is given to a person and, by the same instrument, a remainder is limited to that person's heirs, or to the heirs of the body, the words "heirs" are words of limitation, not words of purchase. Both gifts must be legal, or both equitable. The rule is a rule of law. It does not yield to the donor's intention. "To F for life, remainder to the heirs of his body" gives F the entail, not a life estate with a gift to the children. Van Grutten v Foxwell is the House of Lords' later discussion. Lord Macnaghten was no admirer of the rule. It applies here all the same.

Wild's Case is about a devise "to A and his children". If A has no child when the will is made, A takes a fee tail, even if a child is born before the testator dies. If A already has children when the will is made, "children" is a word of purchase, and A and the children living at the testator's death take together. The rule has been applied in Sierra Leone. The reports are King v Williams (1920–36) ALR SL 171, Williams v Bollingbroke-King (1922–44) 2 SL Law Rec 21, May v Williams (1950–56) ALR SL 55, Sawyer v Rose [1964] 1 SLLR 107, George v George (1964–66) ALR SL 480 and again (1967–68) ALR SL 86, Harris v Nicol (1950–56) ALR SL 193, and Harding v Harris (1950–56) ALR SL 269.