Johnson v.
Lawson,
2 Bing. 86.

Bull. N. P.246;

Doe v. E. of
Pembroke,

11 East, 504;

7 T. R. 3. n.;

1 Phill. Ev.239.

(636.) And declarations of deceased members of the family, (though not of mere friends or servants,) have repeatedly been admitted as evidence in questions of Pedigree. Of this kind are statements in a Will, though cancelled; recitals in a Deed, or in a Bill in Chan

cery; entries in a Family Bible; Monumental Inscriptions, and the like. (637.) But such 1 Phill. Ev.241. declarations will be of no avail, if they appear to have been made after the matter had been called in question; and therefore, (as may be presumed,) with a particular object in view.

6 East, 85;

4 B. & A. 434.

(638.) When a person has not been heard of for seven years, his death may be presumed. Rowe v. Has (639.) And the best proof that a person was never married, or had no issue, (a fact without which no collateral descent can be established,) is, that none of his family ever heard of it.

land, 1 Bl.

Rep. 404;
Doe v. Griffin,

15 East, 293.

1 Prest. Abstr. 44. See Fort v. Clarke,

1 Russ. 601.

(640.) Where Land has been peaceably enjoyed by a Purchaser from an ostensible heir at law, it is not usual, (under ordinary circumstances,) upon a re-sale after thirty or forty years from the death of the first Vendor's ancestor, to require proof of his Pedigree.

CHAP. II.

OF ESTATES IN FEE TAIL.

SECT. 1.-Of the Nature and Creation of
Estates Tail.

(641.) BEFORE the Statute of Westminster
the Second, (13 Edw. 1, of which the first Co. Litt. 19. a.
Chapter is known as the Statute de Donis Con-
ditionalibus,) if any one gave lands or tenements
to another and the heirs of his body, the estate
was considered a fee simple conditional, which
could not be absolutely aliened until the per-
formance of the implied condition, namely that
a child should be born to the donee. (642.) If
there were no such child, or if after his birth
no alienation were made, the property, upon
failure of the donee's posterity, to whom only it
was descendible, would revert to the donor or
his heirs; who, if their title were disputed, were
enabled in such cases to enforce their claims by
means of a Writ called Formedon.

(643.) By the Statute just mentioned it was enacted, "That the Will of the Giver accord

⚫ (643. n.) The following are the words of the Original: Quod voluntas donatoris, secundum formam in carta "doni sui manifeste expressam, decetero observetur, ita “quod non habeant illi, quibus tenementum sic fuit datum "sub conditione, potestatem alienandi tenementum sic

But see 5 Bac.

Ab. 717.

ing to the Form in the Deed of Gift mani'festly expressed should be observed, so that

they to whom a Tenement was so given under "condition should not have power to alien the "same Tenement, whereby it should not remain "after the death of the donees, to their issue, "or to the donor or his heir if issue failed." And a Writ of Formedon was accordingly given to the issue, to whom the estate ought to descend; which has since been distinguished as the Formedon in the Descender. (644.) Thus the rights of the Donor and of the Donee's posCo. Litt. 22. a. terity were secured; and it is said that by the same Statute the Donor acquired an actual estate in reversion, where he had before only a possibility of reverter. This could only be effected by the conversion of the conditional fee simple into a Particular Estate; which character it obtained, under the new name of Fee Tail, (derived from talliare or tailler, to cut or reduce into new dimensions and form.) The necessary consequence would be that a Remainder might also be made to depend on an Estate Tail; and Plowd. 235. a. hence a Writ of "Formedon in the Remainder" came into use, though it is not expressly given by the Statute de Donis.

Litt. 18.

" datum, quo minus ad exitum illorum quibus tenementum "sic fuerit datum remaneat post eorum obitum, vel ad * donatorem vel ad ejus heredem, si exitus deficiat, per "hoc quod nullus sit exitus omnino, vel, si aliquis exitus "fuerit, per mortem deficiet, herede hujusmodi exitus "deficiente."

(645.) The Actions grounded on these Writs of Formedon must now, by particular enactments in the before-mentioned St. 21 Ja. 1, c. 16, s. 1 & 2, be commenced within twenty years after the title accrued, or ten years after the removal of disabilities: so that in general, where right is derived from an Entail, the remedy must be pursued within the same time, whether by Formedon or Ejectment; and if the latter be practicable, it will of course be preferred. In what cases it is not practicable, will appear in the next Section.

(646.) The word "Tenement" in the Statute de Donis is taken in its most comprehensive sense; and therefore every subject of Real Property is capable of being entailed.

(647.) Estates Tail are either General or Special. Tail General is where only one person's Litt. 14, 15. body is specified, from which the issue must be derived, as, where the gift is simply to A. and the heirs of his body. Tail Special is where both the original parents are marked out, as, if Litt. 16. 29. it be to A. and the heirs of his body to be begotten upon B. or to B. and the heirs of her body to be begotten by A.; or to A. and B. and the heirs of their bodies; in which last case the parties are Joint-tenants of the inheritance.

(648.) But if the gift had been to two persons Litt. 285, 284. either of the same sex, or by law absolutely in-. capable of intermarriage, and the heirs of their bodies; then they would have been Joint-tenants for life, (so that the entirety would go to

Litt. 21, 22, 23,

the survivor for his life,) but Tenants in Common in remainder of the Inheritance in Tail General.

(649.) Again, whether General or Special, 24, 25, 26, 27. the Estate Tail may be made descendible to all the issue in their order without distinction of sex, as in the preceding examples, or it may be confined to the heirs male, or, (which is not very usual,) to the heirs female. In the two latter cases, (which are distinguished by the appellations of Tail Male, and Tail Female,) the descent must be traced entirely through males, or entirely through Females.

Co. Litt. 15. b.

(322.)

Co. Litt. 20.a.b.

(650.) Half blood is no impediment to the descent of an Estate Tail. (651.) In* general in the creation of an Estate Tail, the word "heirs" is as necessary as in the Transfer of a Fee Simple; (652.) and there must also be some words which appropriate the heirs to the body 1 Ventr. 228; from which they are to issue. But for this pose no peculiar form is necessary. Thus if the gift be to a person "and his heirs if he have "heirs of his body, and if he die without heirs of "his body, to revert to the donor," this is a good 1P.Wms.57.n. estate tail; and so, if it be "to him and his "heirs, and if he die without issue, to remain to

Co. Litt. 21. a.

"another."

pur

(653) The Rule in Shelley's Case" is as

(651. n.) The gift called "in Frank Marriage,” (Litt. s. 17,) which is grown obsolete in practice, is an exception.