Fee Tail

Elgin had two sons and two daughters. In drafting his will, Elgin decided that he wanted to limit the succession of his estate to his male lineal descendants. Thus, Elgin included a provision in his will that his estate should pass to his "two sons and the male heirs of their body."

The fact scenario set forth above describes the creation of what is known as a "fee tail" estate. A fee tail estate is one that is restricted by the grantor to lineal descendants, as opposed to collateral heirs. In order to create a fee tail estate, the grantor was required to use specific words of indefinite succession, such as "heirs of the body" or "issue of the body." Any limitation on the technical wording required to create the fee tail defeated the goal of the grantor in creating a fee tail.

In the fact scenario described above the estate is further limited to the male descendants of the creator. Such a restriction is known as a fee tail special, as opposed to a fee tail general. Based on the provision set forth above, Elgin's two sons would share Elgin's estate upon Elgin's death. In the event both of Elgin's sons predeceased Elgin, the estate would revert and be distributed according to applicable law.

The fee tail estate was based on English law and carried forward to the colonies. It served as a mechanism by which a person who held property could keep the property in the family. It also served the additional function of safeguarding the property from descendants who might squander the property. The fee tail estate existed in many variations, including such provisions as:

• to "A" and the heirs of his body
• to "A" and the female heirs of his body
• to "A" and the male heirs of his body

Following the American Revolution, courts called upon to construe such provisions regarded the provisions with extreme hostility. Today, the law of most states provides some type of mechanism to defeat the succession of a fee tail estate or to preclude the creation of a fee tail estate. In some states, the law provides for the conversion of a fee tail estate into a fee simple estate. In other states, the law changes a fee tail estate into a life estate. Still other states continue the fee tail to the first beneficiary and then provide for a fee simple estate in favor of the lineal descendants of the first beneficiary. Only a few states continue to recognize the fee tail estate as it existed at common law.

Copyright 2008 LexisNexis, a division of Reed Elsevier Inc.