in fee simple. In the states of Vermont, Indiana, Illinois, South Carolina, and Louisiana, they do not appear to be known to their laws, or ever to have existed; but in several of the other states, they are partially tolerated, and exist in a qualified degree.

a Act of North Carolina, 1784. Act of Kentucky, 1796. Griffith's Reg. under the appropriate heads, No. 8.

b In New-Hampshire, estates tail are said to be retained, but I should infer from statutes passed in 1789, 1791, and 1792, respecting conveyances by deed and by will, and the course of descents, that estates tail were essentially abolished. In Alabama and Mississippi, a man may convey or devise land to a succession of donees then living, and to the heirs of the remainder-man. In Connecticut, by statute, (Kirby's Rep. 118. 176, 177. Swift's Dig. vol. i. 79.) and in Ohio and Missouri, if an estate tail be created, the first donee takes a life estate, and a fee simple vests in the heirs, or person having the remainder after the life estate of the grantee. This is also the case in NewJersey, by the act of 1820, though difficulty has been suggested to exist if the grantee has no children, or their issue. (Griffith's Reg.) The tenant in tail in those states, is in reality but a tenant for life, without the power to do any act to defeat or incumber the estate in the hands of the heir or person in remainder. In Rhode Island, estates tail may be created by deed, but not by will, longer than to the children of the devisee, and they may be barred by deed or will.-Estates tail exist in Maine, Massachusetts, Delaware, and Pennsylvania, subject nevertheless to be barred by deed, and in two of these states by will, and they are chargeable with the debts of the tenant. (Dane's Abr. vol. iv. 621. Lithgow v. Kavenagh, 9 Mass. Rep. 167. 170. 173. Statute of Mass. 1791. c. 60. Jackson on Real Actions, 299.) A fee simple passes on a judicial sale to satisfy a charge. This is so decided in one of those states, and the same consequence must follow in all of them when the land is chargeable with debt. (Gause v. Wiley, 4 Serg. & Rawle, 509.) In Maryland, estates tail general, created since the act of 1786, are now understood to be virtually abolished, since they descend, and can be conveyed, and are devisable, and chargeable with debts, in the same manner as estates in fee simple. It is equally understood that estates tail special, are not affected by the act of 1786, and therefore the decisions prior to Newton v. Griffith, (1 Harris & Gill, 111.) would seem to apply to that species of estates tail. Such estates may be barred by deed as well as by common recovery; and they are chargeable with debts by mortgage, and not otherwise; and they are not devisable; and if the tenant dies seised, they go to the

Conditional fees at common law, as known and defined prior to the statute de donis, have generally partaken of the fate of estates in fee tail, and have not been revived in this country. Executory limitations under the restrictions requisite to prevent perpetuities, and estates in fee upon condition, other than those technical conditional fees of which we are speaking, are familiar to our American jurisprudence, as will be more fully shown in a subsequent lecture. In Connecticut, the doctrine of conditional fees, so far as they are a species of entails, restraining the descent to some particular heirs in exclusion of others, have never been recognised or adopted. These conditional fees are likewise understood to be abolished in Virginia, by a statute which took effect in 1787; and this I apprehend to be the better construction of the statute law of New-York in respect to these common law entailments; for the owner can alienate or devise them as well as an absolute estate in fee. By the act of 1787, every freeholder was authorized to give or sell at his pleasure any lands whereof he was seised in fee simple; and by the act of 1813, every person having an estate of inheritance, was enabled to give or devise the same; and by the new revised statutes, every person capable of holding lands, and seised of or entitled to any estate or interest therein, may alien the same. These qualified fees are estates of inheritance in fee simple, though not in fee simple absolute; and they would seem to come within the letter and spirit of the statute provisions in New-York. In South Carolina, fees conditional at common law exist, and fees tail proper

d

issue, but not to collaterals. (Statutes of 1782 and 1799. 3 Harris & M. Henry, 244. 1 Harris & Johns. 244. 465. 2 lbid. 69. 281. 314. 3 Ibid. 302.)

a Kirby's Rep. 118. 176. 3 Day, 339. Swift's Digest, vol. i. 79. b Laws N. Y. sess. 10. ch. 36.

c Laws N. Y. sess. 36. ch. 23.

d N. Y. Revised Statutes, vol. i. 719. sec. 10.

e Litt. sec. 13. Co. Litt. 19. a.

have never existed. The first donee takes an estate for life, if he has no issue; but if he has issue, the condition of the grant is performed, and he can alien the land in fee simple.a

The general policy of this country does not encourage restraints upon the power of alienation of land; and the New-York Revised Statutes have considerably abridged the prevailing extent of executory limitations. The capacity of estates tail in admitting remainders over, and of limitations to that line of heirs which family interest or policy might dictate, renders them still beneficial in the settlement of English estates. But the tenant in tail can alien his lands by fine or recovery; and the estate tail can only be rendered inalienable during the settlement on the tenant for life, and the infancy of the remainder-man in tail. Executory limitations went further, and allowed the party to introduce at his pleasure any number of lives, on which the contingency of the executory estate depended, provided they were lives in being at the creation of the estate; and to limit the remainder to them in succession, and for twenty-one years afterwards. This was the rule settled by Lord Chancellor Nottingham, in the great case of the Duke of Norfolk; and the decision in that case has been acquiesced in uniformly since that time, and every attempt to fetter estates by a more indefinite extent of limitation, or a more subtle aim at a perpetuity, has been defeated. But the power of protracting the period of alienation has been restricted, in New-York, to two succesive estates for life, limited to the lives of two persons in being at the creation of the estate.

a 2 Bay, 397. 1 McCord's Ch. Rep. 91. 2 ibid. 324. 326. 328. b In Benjough v. Edridge, 1 Simons, 173. 267. a limitation was made to depend on an absolute term of twenty-one years after twentyeight lives in being at the testator's death!

c 3 Cases in Chancery, 1.

d Duke of Marlborough v. Earl Godolphin, 1 Eden's Rep. 404. Long v. Blackall, 7 Term Rep. 100.

e N. Y. Revised Statutes, vol. i. 723, 724. sec. 17. 19.

The English law of entail is so greatly mitigated, as to remove the most serious inconveniences that attend that species of estates; and it is the opinion of the most experienced English property lawyers, that the law of entail is a happy medium between the want of any power, and an unlimited power, over the estate. It accommodates itself admirably to the wants and convenience of the father who is tenant for life, and of the son who is tenant in tail, by the capacity which they have, by their joint act, of opening the entail, and resettling the estate from time to time, as family exigencies may require. The privileges of a tenant in tail are very extensive. He not only can alienate the fee, but he may commit any kind of waste at his pleasure.a And yet, with a strange kind of inconsistency in the law, he is not, any more than a tenant for life, bound to discharge incumbrances on the estate. If, however, he does it, or pays the interest on them, he is presumed to do it in favour of the inheritance. He is not obliged even to keep down the interest on a mortgage, as a tenant for life is bound to do. If, however, he discharges the incumbrance or the interest, he is presumed to do it in favour of the inpheritance; for he might acquire the absolute ownership by a recovery, and it belongs to his representatives to disprove the presumption. On the other hand, the tenant cannot affect the issue in tail, or those in remainder or reversion, by his forfeitures or engagements. They are not subject to any of the debts or incumbrances created by the tenant in tail, unless he comes within the operation of the bankrupt law, or creates the mortgage by fine.d

Entails, under certain modifications, have been retained in various parts of the United States, with increased power

a Moseley, 224. Cases temp. Talbot, 16.

b Amesbury v. Brown, 1 Vesey, 447. Earl of Buckinghamshire v. Hobart, 3 Swanston, 186.

c Lord Talbot, in Chaplin v. Chaplin, 2 P. Wms. 235. Amesbury v. Brown, 1 Vesey, 477. Earl of Buckinghamshire v. Hobart, 3 Swanston, 186.

d Jenkins v. Keymes, 1 Lev. 237.

over the property, and greater facility of alienation. The desire to preserve and perpetuate family influence and property is very prevalent with mankind, and is deeply seated in the human affections."

This propensity is attended with many beneficial effects. But if the doctrine of entails be calculated to stimulate exertion and economy, by the hope of placing the fruits of talent and industry in the possession of a long line of lineal descendants, undisturbed by their folly or extravagance, they have a tendency, on the other hand, to destroy the excitement to action in the issue in tail, and to leave an accumulated mass of property in the hands of the idle and the vicious. Dr. Smith insisted, from actual observation, that entailments were unfavourable to agricultural improvement. The practice of perpetual entails is carried to a great extent in Scotland, and that eminent philosopher observed, half a century ago, that one third of the whole land of the country was loaded with the fetters of a strict entail : and it is understood that additions are every day making to the quantity of land in tail, and that they now extend over half the country. Some of the most distinguished of the Scots statesmen and lawyers have united in condemning the policy of perpetual entails, as removing a very

a Ch. J. Crew, of the K. B., in the great case concerning the Earldom of Oxford, in which that house, under the name of De Vere, was traced up through a regular course of descent to the time of William the Conqueror, observed, that "there was no man that hath any apprehension of gentry or nobleness, but his affection stands to the continuance of so noble a name and house, and would take hold of a twig or twine thread to uphold it." (Sir Wm. Jones' Rep. 101. 1 Charles I.) But the lustre of families, and the entailments of property, are, like man himself, perishable and fleeting; and the Ch. Justice, in that very case, stays for a moment the course of his argument, and moralizes on such a theme with great energy and pathos. "There must be," he observes, "an end of names and dignities, and whatsoever is terrene. Where is Mowbray? Where is Mortimer? Nay, which is more and most of all, where is Plantagenet? They are entombed in the urns and sepulchres of mortality."