Tracing the ownership of land from one generation to another is a very useful tool of genealogy, which I’ve discussed elsewhere on the site. However, the usefulness of this tool depends on our ability to interpret the laws relating to both land and succession. Entail, which touches on both, is unfamiliar to most genealogists. Yet it’s surprising how often we find instances of entailed land, particularly in colonial Virginia.
To over generalize a bit, land could be held in fee simple or fee tail. Fee simple was an unrestricted ownership, pretty much the form in which we own land today. Fee tail was a restricted form of ownership, in that the land could not be sold, mortgaged, or devised by will. A person who held land in fee tail did not “own” it in the sense we think of ownership today, but rather was a sort of a tenant with a lifetime right to the use of the land. After his death the land would pass to a specific successor, generation after generation.
Land held in fee simple could be entailed, or converted into fee tail. Once entailed, it remained so essentially forever. Clearly, that affects how we must interpret subsequent records for that land.
Entails had been prevalent in England for hundreds of years by the time the colonies were founded. In a country where land was scarce and society highly stratified, the purpose served by entails was obvious. It had the effect of keeping large estates intact over long periods, thus providing a means for a testator to assure the wealth and influence of future generations. And it did so by protecting the family line against a future generation who might dispose of any part of the land outside the family. In Virginia, where land was readily available, entail would seem to have been less important.
Creating a Fee Tail
Almost any conveyance, will or deed, could create an entail. The key was the use of some very specific language. Let’s take the case of John Smith who wants to will his land to his son Samuel Smith. He typically would write his will to leave the land to his son Samuel Smith and his heirs. But suppose he writes the will to leave the land to his son Samuel Smith and the heirs of his body or some similar language with a specific legal meaning.1 That language created an entail. Why? John Smith left the land, not to his son Samuel, and not to the heirs defined by Samuel’s own future will, but specifically to the heirs of his body, a legal catchphrase that invoked both entail and primogeniture.2 Thus the effect of that language, originally defined in the 1285 “Statute de Donis Conditionalibus”, was to specify that John Smith intended his land to remain eternally in the possession of his lineal blood descendants subject to primogeniture. A conveyance could also entail land by using language like “unless he [or she] dies without issue”. This accomplished the same end, since placing that condition on the title gave Samuel only a lifetime interest in the land.
Variations of this language could obviously create confusion, and it was certainly possible for a will to be written in a way that an entail was inadvertently created due to ignorance of the law. A number of entail-breaking suits brought to the Virginia General Court argued exactly that point. This was probably one of the factors which lead Virginia to pass the 1734 act, one of whose purposes was to provide a means to dock (or eliminate) entails created inadvertently through the testator’s ignorance or sloppy language.
The important thing for genealogists to know is that the son, in this case Samuel Smith, could not sell the land or devise it in his own will. (He could, of course, sell or lease his lifetime interest. Once he died, the land would revert to his heir. Likewise, he could mortgage the land, but if he defaulted the land could be seized only for his lifetime. ) The language his father used in his will meant that Samuel didn’t “own” it, but rather had a lifetime interest in the land. What that means to us is that we won’t see any mention of this land in Samuel Smith’s own will. Not only did he not have the right to dispose of it in his will, but there was no need. The original will, combined with primogeniture, had already determined the line of succession forever. As long as Samuel Smith had living descendants, the land remained entailed. Thus entail and primogeniture were intimately entwined.
Technically, there were several types of entails. For instance, a fee tail male restricted succession to males in the line of inheritance, and fee tail female restricted succession to females. Fee tails could be restricted in other ways, or could be made conditional (for instance on the heir’s occupation of the land).
Apart from taking legal action to break an entail, or a conditional conveyance whose condition was not met, the land would remain in fee tail until the original recipient had no living issue. It’s worth mentioning that in this context “dies without issue” has a counter-intuitive meaning. If a man dies with living children, it would seem that he died leaving issue. However, in this context he is said to have died without issue when his last living descendant dies (perhaps several generations after his own death). At that moment, the land reverts, in fee simple, to the original conveyor. Since the original conveyor would by then certainly be dead, his own heir as defined in the original conveyance (or by law otherwise) takes possession
Restrictions on Entailed Land
This is the key point for genealogists. The holder of a fee tail could not sell or will what he didn’t actually own, and therefore we will not usually find any disposition of entailed land in the records. The land passed automatically from one heir to another in a predefined way. Once we identify who held the land, we automatically determine his or her relationship to the prior holder.
A person could try to sell, however. A deed could be created, but would be technically voided since the seller couldn’t legally deliver a title he didn’t hold. It is certainly possible that such a deed could be executed and recorded if the local court’s memory or records were ignorant of the entail. But the buyer risked that the heirs in remainder and reversion, whose ignorance was far less likely, would not raise the issue. After the death of the seller, his own heir would own the land and could revoke the deed. The General Court records contain several suits to declare such deeds invalid, essentially all of them successful, including some which were initiated many decades later.
A person possessed of a fee tail interest in property could certainly lease the land, or even assign his lifetime interest. But at his death, the land passed to the next heir, voiding whatever arrangement existed.
How Common was Entail?
That’s a difficult question to answer for the obvious reason that lands, once entailed, would be ignored in the wills of subsequent generations. Therefore, we cannot simply count the proportion of wills that contained an entail provision. (If we did, the percentage would be small, say 5% or less in Virginia.) Some authors have estimated that as much as one-quarter of all land in the Virginia colony was entailed, although most authorities agree that estimate is much too high. The percentage of persons affected was considerably lower, for entail was a device used mainly by the aristocracy and others with large landholdings. However it seems that unintentionally entailed land – mainly by poorly worded wills – was common enough in Virginia that the general Assembly felt it necessary in 1734 to provide a mechanism to dock entails of small inherited parcels.
The use of entail outside the Virginia colony appears to have been quite low. Most northern colonies never recognized it at all.
Clearly, an heir might wish to sell the land (or to devise it to someone of their own choosing) and could not do so without some means of docking (or eliminating) the entail and substituting a fee simple interest. Scholars disagree on the ease with which entails could be docked, but most agree that it was more difficult to accomplish in Virginia than in the mother country. The formal mechanism required an act of the legislature, a strategy available only to the wealthy and persistent. [The process itself was cumbersome, requiring approvals from heirs in remainder and reversion, and usually that the entailed land be replaced by entailing land of equal value.] Of course, it is likely that poor recordkeeping resulted in some small entails being ignored, at least in the frontier counties (with, of course, the collusion of the heirs).
In 1734, Virginia passed an act that simplified the process for the average person with a small landholding.3 The act permitted entails on land valued at £200 or less to be docked via a writ of ad quod damnum from the Secretary, without legislative involvement. [Note that many of these resulted in deeds filed with the General Court rather than with the county courts.] The £200 limitation had the effect of limiting the process to very small parcels.4 One purpose of the act was to provide a remedy for descendants whose ancestors unintentionally created entails through the language of their conveyances. [The family pages on this website contain one example in which a son docked the entail on land he had received from his father so that he could transfer part of it to one of his own younger sons.]
Entail was effectively abolished by Virginia by an Act of October 1776 that declared that tenants in fee tail on land (or slaves) would henceforth be owners in fee simple. Primogeniture was replaced by the inheritance law of 1785 which distributed an intestate’s land equally among all his children. Some northern colonies never acknowledged the concept of fee tail and others abolished it almost immediately after the Revolution. The other new southern states abolished both entail and primogeniture as well during or shortly after the Revolution. (The exception is South Carolina, in which entail in the form described here never took hold.) Life estates continued to be quite common, but entail in the form described here disappeared.
Fee tail was not abolished in England until 1925. In a very technical sense, it still exists in a narrow form in a few New England states.
- The key phrase here is “of his body”. A transfer to “and his heirs” created a fee simple holding. That is, it gave the heirs nothing because Samuel Smith could sell the land thus depriving his heirs of any interest. Adding the phrase “of his body” or something similar created an entail. The language was basically defined in an English statute of 1285, the “Statute de Donis Conditionalibus”, and refined by judicial decisions. [↩]
- See a lengthy discussion of this subject in Blackstone’s Commentaries, Book 2, Chapter 7. [↩]
- The Statutes at Large: Being a Collection of All the Laws of Virginia, from the First Session of the Legislature…, William Waller Hening, ed., Vol. 4, pp399. [↩]
- Depending on the year, location, and the condition £200 might limit the process to parcels of anywhere from 50 acres to a few hundred acres. I would note, though, that it was surely possible to obtain low valuations in order to meet the criterion. [↩]