In English common law, fee tail or entail is a form of trust, established by deed or settlement, that restricts the sale or inheritance of an estate in real property and prevents that property from being sold, devised by will, or otherwise alienated by the tenant-in-possession, and instead causes it to pass automatically, by operation of law, to an heir determined by the settlement deed.
The fee tail allowed a patriarch to perpetuate his blood-line, family-name, honour and armorials[1] in the persons of a series of powerful and wealthy male descendants.
By keeping his estate intact in the hands of one heir alone, in an ideally indefinite and pre-ordained chain of succession, his own wealth, power and family honour would not be dissipated amongst several male lines, as became the case for example in Napoleonic France by operation of the Napoleonic Code which gave each child the legal right to inherit an equal share of the patrimony, where a formerly great landowning family could be reduced in a few generations to a series of small-holders or peasant farmers.
It created complications for many propertied families, especially from about the late 17th to the early 19th century, leaving many individuals wealthy in land but heavily in debt, often due to annuities chargeable on the estate payable to the patriarch's widow and younger children, where the patriarch was swayed by sentiment not to establish a strict concentration of all his wealth in his heir leaving his other beloved relatives destitute.
Such impoverished tenants-in-possession were unable to realise in cash any part of their land or even to offer the property as security for a loan, to pay such annuities, unless sanctioned by private Act of Parliament allowing such sale, which expensive and time-consuming mechanism was frequently resorted to.
[citation needed] Fee tail was established during feudal times by landed gentry to attempt to ensure that the high social standing of the family, as represented by a single patriarch, continued indefinitely.
The accepted rule was however largely compensated by written or notarized wills which allowed fathers to favour, within certain limits, a first-born son.
On this eldest son was concentrated the honour of the family, and to him alone was granted all its wealth to support his role in that regard, by the process of the fee tail.
Fee tail was never popular with the monarchy, the merchant class and many holders of entailed estates themselves who wished to sell or divide their land.
[citation needed] Traditionally, a fee tail was created by a trust established in a deed, often a marriage settlement, or in a will "to A and the heirs of his body".
The absolute right to the income generated by the estate passed by operation of law to parties who had no legal obligation to the lender, who therefore could not enforce payment of interest on the new tenants-in-possession.
Tenants-in-possession of entailed estates occasionally suffered "failure of issue" – that is, they had no legitimate children surviving them at the time of their deaths.
This situation produced complicated litigation and was an incentive for the production and maintenance of detailed and authoritative family pedigrees and supporting records of marriage, births, baptisms etc.
Biancalana's book The Fee Tail and the Common Recovery in Medieval England: 1176–1502 (2001) discusses the procedure and its history at length.
In this way an estate could stay in a family for many generations, yet emerged on re-settlement often fatally weakened, or much more susceptible to agricultural downturns, from the onerous annuities now chargeable on it.
Fees tail figure in the plots of several well known novels and stories, particularly in the 19th century, including: Pride and Prejudice contains a particularly thorny example of the kind of problems which could arise through the entailing of property.
The need for the daughters to make a good marriage to ensure their future security is a key motivation for many episodes in the novel.
[12] Law professor Maureen B. Collins (2017)[13] cites several other authors debating the accuracy of Austen's depiction of the entailment, including Appel (2013),[14] Treitel (1984),[15] Redmond (1989),[16] and Grover (2014).
[18] Today, the doctrines of legitim and jus relictae restrict owners from willing property out of their family when they die with children or have a surviving partner.
In the Kingdom of Poland and later in the Polish–Lithuanian Commonwealth, fee tail estates were called ordynacja (Polish: [ɔrdɨˈnatsja]; landed property in fideicommis).
According to the rules of ordynacja, which became a statute approved by the Sejm, the estate was not to be divided between the heirs but inherited in full by the eldest son (primogeniture).
Unlike most of the English aristocracy, the Prussian Junkers supported fees tail, and succeeded in reinstating them in 1853, after they had been abolished in a recent Constitution.
In Germany and Austria the Familienfideikommiss was only abolished in 1938, and in Scandinavia they persisted even later – a few old Swedish fees tail still remain in force, though no new ones may be established.