The Principal Laws of England, Treatise · Part 12 – Part 13
Fee tayle.
Ye shall vnderstande, that before a certayne statute called the statute of Westminster seconde, there was no state tayle, but all was fee simple, eyther purely that is to saye, wythout condition or condicinallye: as appereth by the pretence of y• said statute, but now sythens the promulgating of that statute diuers formes of state tayles hauehave rysen.
Fee tayle is whan it is prescribed and lymytted in the gifte, what heyres and by whome engendred shall inherite. As for exemple I gyue landes to a man and to his heyres and go no further, this is fee simple: but if I make a limitation, and adde of his hody begotten, now is it fee taile that is to saye, a fee or inheritaunce limitted, prescribed, determinate, or assigned. So that if I gyue landes to a man and to his heyres, he hathe fee simple, but yf I gyue landes to hym and to hys heyres of hys bodye lawfully begotten, he hathe but a fee tayle, for asmoche as I appoynte, lymytte, prescribe and determyne the heyres, and for lacke of suche heyres the gyfte shall be expired and worne out, & the landes shall reuerte agayn to the gyuer or his heyres.
But ye muste obserue that there bo two kyndes of fee tayle. There is a generall tayle, and there is a speciall tayle. Fee tayle generall is as where landes be giuen to a man and to his heyres of his bodye begotten, without anye mencyonynge and expressynge by what woman they are to be begotten. And therefore yfa mā be tenaunte in the generall tayle of landes, and taketh a wyfe and hathe issue by her, and she dyeth and afterwarde he takethe an other wyfe, of whom he hath also other issue, here either of these issue is inheritable to this land entayled. But if I expresse in the gifte by what womā the heires shall be procreate and ingēdred, then is it an especiall tayle, as for exemple to make the thynge playne, if landes be gyuen to a man and to the heyres of his body lawfully begotten by Katherin his wyfe, this is an especiall tayle, for the issue of him begotten by an other woman, shal neuer inherite by force & vertue of the tayle. Lykewyse it is, if landes be giuen to a woman and to y• heires of her body law fully begotten (& shewe not by what man) this is a general taile, but if I adde & saye by suche a man her husbande, than is it an especiall taylle.
Also yf I gyue landes to a man and to hys wyfe, and to the heyres of there two bodyes lawfully begotten: thys ys an especyal tayle, as wel in the husbande as in the wyfe,
Semblably it is, yf a man gyueth landes to an other man wyth hys daughter or kynswoman in francke mariage, thys emplyeth a state tayle especiall, and in thys case as wel the man as the woman hathe estate in in the speciall tayle.
But yf I gyue landes to a man and to suche a woman, and to hys heyres that he shall begette of her: here the woman hathe estate but for terme of her lyfe, and the husbands an estate in the especyall tayle. In lykewise it is on the womās behalfe, as if I gyue landes to a man and to hys wyfe, and to her heyres of the bodye of her said husbande engendred, he hathe an estate but for terme of lyfe, and she an estate in the specyall tayle. But in bothe cases, yf I hadde sayde to the heyres and not hys or her heyres, than shulde eyther of them hauehave hadde an estate in the specyall tayle, bycause thys worde heytes is as well referred to the one as to the other.
Ye shall also vnderstande, that yf landes be giuen to a man, ond to the heyres males of his bodye, this ys a state tayle, and in this case the heyre femalle shall neuer inherite.
Finally it is to be noted, that of landes whych a man hath in fee simple, the possession of the brother shall cause the syster germayne that is to saye, the syster bothe by the fathers syde & mothers, to inherite, and not the brother by the halfe blod, as here tofore was said, but of landes which be entayled otherwise it is. Therfore if a man be seysed of landes in the generall tayle, and hath issue by hys furst wyfe, a sonne and a daughter, and also a sonne by an other wyfe, & dyeth, and the eldest sonne entreth in to the landes & after dyeth, the suster germayne shall not hauehave the landes but the yonger brother of the halfe blode, bycause whosoeuer shall inherite landes in taile, must claym them as nexte and immediate heyre, not to hym that dyeth last seased of ye landꝭ; but to hym vntounto whome the landes were fyrst gyuen, whyche in the case before remembred, is the sonne and not the daughter.
Thus ye shal marke obserue a great diuersitie bytwene the forme of successyon in landes of fee simple, and the forme in fee tayle.
Tenaunt after possibilitie of issue extincte.
WHan landes or tenementes be giuen to a mā and to his wife, and to the heires of there two bodies lawfully begotten, yf in thys case either of them chaunce to dye before they hauehave issue betwene them, he or she that ouerlyueth hys styl tenaunt in tayle, but wythout all possibilitie of any issue that can be heyre to these landes entayled, and for thys cause he or she thus ouerlyuynge is called tenaunte after possibilitie of issue extincte, for in suche a tenaunte is all possibilitie of issue that maye be inherytable to these landes by force of the gyfte in tayle vtterlye extincte and quenched, and by his or her deth the state tayle shall expyre, cease, and be abolyshed for euer and shall reuerte agayn to the gyuer or donoure from whence it came.
Yet forasmoche as thys tenaunt after possibilitie of issue, hadde ones an inheritaunce in hym, he shall not be punyshede by an action of waste, though he makethe neuer so moche waste in the landes and tenementes, whereas yet in effecte he is but a tenaunte for terme of lyfe.