could descend to none but the heirs of his body, and therefore, in default of them, must revert to the donor. "For which reason, in order to subject the lands to the ordinary course of descent, the donees of these conditional fees-simple took care to aliene as soon as they had performed the condition by having issue; and afterwards repurchased the lands, which gave them a fee-simple absolute, that would descend to the heirs general, according to the course of common law. And thus stood the old law." Blackstone adds that probably the inconvenience of these "fettered inheritances" induced the judges to "give way to this subtle finesse (for such indoubtedly it was) in order to shorten the duration of the conditional estates. But, on the other hand, the nobility, who were willing to perpetuate their possessions in their own families, to put a stop to the practice procured the Statute of Westminster the Second (commonly called the statute de donis conditionalibus) to be made; which pays a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever. … And hence it is that Littleton tells us, that tenant in fee-tail is by virtue of the Statute of Westminster the Second."[1]
The Statute De Donis made tenements given "conditionally" revert to the donor, if the tenant had no issue. Most of the questions about land which was not "common land" (to be considered later), concerned its transference. De Donis was devised to prevent the turning of "fee-simple" into "fee-simple absolute," by collusive recoveries. Religious communities were now forbidden to obtain lands by recovery. A jury was to try each case; if the jury decided against the religious person or community, the land in question was to be forfeit to the lord of the fee—that is, it was at once to revert to the donor. There were other provisions in the statute against the devices adopted to hold land exempt from feudal burdens. Tenants are forbidden to "set up crosses in their land, to
- ↑ "Commentaries," Bk. II. 112.
Tail, from the French, "to cut," meant an estate "docked, cut off, or abridged"—a limited inheritance, "what issue shall inherit, and how long the inheritance shall endure." Tail may be general or special—to a man's issue by any wife, or only by the wife mentioned in the grant.
