Estates Tail Under the New Law

The Law of Property Act, 1922, to a very considerable extent assimilates the law of real and personal property, except so far as their physical natures render this impossible or undesirable. But the assimilation is not carried out, as some reformers wished, by making the law of real property correspond to the law of goods. That would have been too great a change. It would have upset the well-recognised method of settling land by means of life estates followed by successive estates tail. The plan was therefore adopted of permitting personalty also to be entailed. This will save much trouble when, as often happens, it is desired to settle the family pictures or heirlooms to go with the mansion house. The trusts now used to achieve this are complicated and, as numerous cases show, sometimes fail to bring about the result desired. Now in a deed, an estate tail can be created in three ways: by a grant (1) to A. and the heirs of his body, (2) to A. in tail, or (3) to A. for life with remainder to the heirs of his body. (These estates can be limited to heirs male or heirs of a particular class, such as the heirs of the body of two named persons.) Of the three forms of words: (1) is the old and correct form based on the Statute De Donis, 13 Ed. I., c. 1, which says that the will of the donor should be observed; (2) is possible as an alternative form by virtue of Section 51 of the Conveyancing Act, 1881; (3) is curious; it is due to the Rule in Shelley's Case, that if land is limited in remainder to the heir or heirs of the body of a person to whom a preceding estate of freehold is given, the words “heirs” or “heirs of the body” are words of limitation.