Entail. The desire to preserve in our own family land which we have either inherited or acquired appears to be inherent in the human mind. Arrangements of this nature were not known to primitive peoples, among whom land descended according to strict customary rules which could not be altered by the act of an individual owner. In some of the ancient Greek states owners of property were permitted to name successors to their estates, and to appoint a substitute who should take the estate on the failure of him first named. The substitute so appointed was permitted to succeed on the death of the institute (as he was called) without leaving issue or without alienating the estate. Under the Roman law the practice of settling land upon a series of heirs, by means of Fideicommissa (q.v.), grew up, and was sanctioned by the state. These deeds, in their early form, contained merely a substitution of heirs. But by the later law a much fuller form of settlement was admitted, whereby the estate was protected from every sort of alienation. The limitation to a particular line of descent, the prohibition to alienate or burden with debt, and the still more peculiar feature of the declaration of forfeiture in case of non-compliance are to be found in both forms. There are, however, two points in which the Roman law differed from modern laws of entail. It did not recognise the right of Primogeniture (q.v.), and after the legislation of Justinian the limitation of the deed was restricted to four generations. For the right of primogeniture, as recognised in deeds of entail, we are indebted to the feudal law. That system, which has united with the civil law to form a basis for the codes of modern Europe, did not, in its original form, recognise the right of a holder of land to alienate his feudal benefice, or even to alter the succession, because on the failure of heirs the feu returned to the superior. But the right of the eldest son to represent his father, both in the duties and privileges of the fief, if not an original principle of the system, was universally recognised in the days of its greatest power.
In England, the Saxons seem to have prohibited the alienation of lands by those who had succeeded to them under condition that they should not alienate. The law of primogeniture was not recognised. But after the Norman Conquest feudal grants were often made 'to A and the heirs of his body,' or 'to A and his heirs, if he shall have heirs of his body.' The estate thus given was regarded as a fee-simple conditional; on the birth of an heir of his body, A would acquire the fee; and, like other owners in fee after the 13th century, he was at liberty to alienate. To prevent this, the feudal lords obtained the enactment of the statute De Donis, by which it was directed that the fee given with the words above quoted should in all cases descend according to the form of the gift; so that, in the case supposed, A would not have a fee-simple, an estate to him and his heirs-general, which he was free to alienate, but a fee-tail—i.e. a fee taillé or cut down, which he could not alienate so as to bar the rights of his issue. Under the statute, lands might be settled in tail, or in tail male, or in tail special—i.e. on a man and the heirs of his body by a particular wife.
A settlement in tail special was somewhat analogous to a settlement in Frankmarriage (q.v.).
The restraints on alienation thus imposed were contrary to sound policy, and the courts permitted tenants in tail to bar or cut off the entail; a tenant in possession was permitted to bar all rights of other persons, and so to turn his own estate into a fee-simple. From the time of Edward IV. down to 1833 this was effected by means of fictitious actions, called Fines and Recoveries; for these cumbersome and expensive forms the 3 and 4 Will. IV. chap. 74 substitutes a simple disentailing deed. A strict settlement of land usually begins with an estate for life to an existing person, followed by an estate tail to his son. When the donee of the estate tail comes into possession, he can disentail and alienate at his own discretion. If not in possession, he can dispose of his own rights and those of his issue; but he cannot destroy the entail, so as to bar remaindermen and reversioners, and turn his estate into a fee-simple, unless with the consent of the 'protector of the settlement,' who is usually the tenant for life. An estate tail is a freehold of a limited description. Tenant in tail in possession may commit Waste (q.v.). Formerly, an estate tail was not liable to the debts of the tenant, but by 1 and 2 Vict. chap. 110 this restriction has been removed. Copyhold lands have been held not to fall under the operation of the statute De Donis. A limitation, therefore, which in a freehold creates an estate tail, in copyhold lands creates a fee-simple conditional, according to the old common law, except where the custom of the manor is to the contrary. But, by trust-conveyances, copyhold estates may be settled in the same way as freeholds. The rules against Perpetuities (q.v.) prevent property from being tied up for an indefinite period; but family estates are usually re-settled by owners and heirs of entail in each generation. Lord Cairns's Settled Land Act, 1882, has given to tenants for life absolute power of sale upon notice to the trustees of the settlement, and without petition to the court, the price being invested for the persons interested under the settlement. By a series of statutes in England, tenants for life have also received large powers of managing and improving their estates.
In Scotland, as in England, entails appear first to have taken their rise from the feudal usages, and from the Roman law, the forms of which were closely followed by conveyancers. It has been observed by Lord Kames that, while the feudal system was in its vigour, every estate was in fact entailed, because no proprietor had any power to alter the order of the succession. But when the stricter feudal principles gave way, and the power of alienating land began to be recognised, the holders of estates sought by deed to secure in their own families the lands which they possessed. The form first adopted for this purpose was the simple destination, whereby the estate was simply limited to a particular series of heirs, without prohibition to alienate, or declaration of forfeiture for contravention of the will of the grantor. In this form the deed must have resembled the early English entails. The feudal law of primogeniture having been received as a principle of common law, the estate would naturally descend from father to son in the line indicated by the deed. But, as it was held that those succeeding under this deed were not restrained from alienating, the practice of adding prohibitory clauses was introduced. Entails in this form were held to bind the heir from granting gratuitous alienations; but he was not restrained from selling the estate, or burdening it with debt. Early in the 17th century a further addition was made to the form of the deed by the introduction of irritant and resolutive clauses—i.e. clauses declaring the act of alienation to be null, and to infer the forfeiture of the estate. The form thus adopted, which resembles closely the form of the Roman deed already noticed, was fortified by a decision of the Court of Session on the Stormonth entail in 1662, holding that an estate so protected could not be attached by creditors. This decision created much difference of opinion amongst lawyers as to the power of the grantor thus to protect an estate from the onerous act of the heir. In consequence the famous Scotch Entail Act, 1685, chap. 22, was passed, by which it was enacted that an estate conveyed by a deed fortified by prohibitory, irritant, and resolutive clauses, and recorded in a particular register, should be effectually secured in the line of destination. This act has always been most strictly viewed by Scottish lawyers; and entails which have been found deficient in any of the prescribed requisites have been regarded by the courts as utterly ineffectual. The operation of the old entail act was found, notwithstanding, to be of the most oppressive character. Statutes were in consequence passed from time to time, empowering heirs of entail to exercise larger powers of ownership than could be granted under the Act of 1685, and to make provisions for their families. Chief among these were the Montgomery, the Aberdeen, and the Rosebery Acts. At length, by 11 and 12 Vict. chap. 36 (known as the Rutherford Act), the power of fettering lands by a strict entail has been finally destroyed. By this act, heirs under an existing entail may disentail, with the consent of certain heirs next in succession; and in all entails made after 1st August 1848, and also in old entails where the heir in possession was born since 1st August 1848, the heir of entail in possession may, by means of a simple deed of disentail, free his estate from the restrictions of the entail. A statute in 1875 gave the heir in possession larger powers of permanent improvement and the right of buying out the interest of the next heirs at a compulsory valuation; and the Entail (Scotland) Act, 1882, gave further powers of disentailing in the case of entails made since 1848, and in all cases a practically absolute power of sale to be exercised on petition to the court, the price being invested for behoof of the heirs of entail. From statistics returned to parliament in 1882, it appeared that disentailed land was rapidly re-entailed in Scotland.
In America, before the Revolution, the English law as to estates tail prevailed. But in the United States, the law of entails has been gradually abandoned by the several states; and property can now be fettered to a limited extent only, by means of executory Devises (see WILL). In Germany, family settlements of a very strict character, and 'private laws' regulating the descent of property in certain noble houses, are permitted by the laws of some of the states which form the German empire. In France, the power of creating entails has varied much at different periods, from the right to make a perpetual entail, which appears to have been the original principle, to a limitation to four, and at one time to two degrees. But by the Code Napoléon, arts. 896–897, entails are now absolutely prohibited. In Spain, also, entails, till then permitted under certain restrictions, were entirely abolished by the Cortes in 1820. Thus it will be seen that the right of securing land in a particular family, which commends itself to the natural feelings, has been found so oppressive in operation, and so injurious to the public interest, that, after an existence of more than 600 years, it has been practically discarded almost simultaneously by the general consent of modern nations.
See Williams's Principles of the Law of Real Property; Sanford's History and Law of Entail in Scotland; Reports by H.M. Consuls on Systems of Land Tenure (1870); and Cobden Club Essays on the same subject.