Questions on the Fee Tail in America Today

Property Section 5

Professor Donahue

Questions on the Fee Tail in America Today

[See DKM3, p. 391]

While no state today has the fee tail in its pristine, common law form, the reactions of American jurisdictions to the estate have been most diverse:

(a) In two states, of which South Carolina has by far the most decisions, the Statute De Donis is said not to be part of the received law and thus a grant “to A and the heirs of his body” creates a fee simple conditional. 2 R. Powell, Real Property sec. 195 (P. Rohan ed. 1991).

(b) In four states, Delaware, Maine, Massachusetts, and Rhode Island (only for estates created by deed), the fee tail is recognized, but disentailing is readily achieved by deed, and creditors take preference over issue in satisfying their claims. Id. sec. 196.

(c) Connecticut, Ohio, and Rhode Island (only for devises) have statutes preserving the fee tail for one generation and giving a fee simple to the issue of the first donee in tail. Id. 198[1].

(d) Six states have statutes which convert a purported grant in fee tail to an estate for life in the first taker with a remainder in fee simple in the issue. E.g., Ill. Rev. Stat. ch. 30, sec. 5 (1989); see R. Powell, supra, sec. 198[2].

(e) Approximately twenty-five states have statutes which convert a purported grant in fee tail to an estate in fee simple in the first donee. E.g., N.Y. Est., Powers & Trusts Law sec. 6–1.2 (McKinney 1967); see R. Powell, supra, sec. 198[3]. In this group probably should also be placed those few states in which the fee tail is prohibited. E.g., Tex. Const. art. I, sec. 26; see R. Powell, supra, sec. 197. About half of these states allow a remainder limited over after the fee tail to take effect as an executory interest if the first donee in tail dies without issue. E.g., Mich. Comp. Laws Ann. sec. 554.4 (1988); see R. Powell, supra, sec. 198[3], at 14.33.

Problems

What would be the effect of each of the above statutory provisions on each of these two devises:

5. D devises “to A and the heirs of his body”;

6. D devises “to A and the heirs of his body, remainder to B “; in the following situations:

(a) A dies without surviving issue;

(b) A dies with surviving issue;

(d) A has no issue and attempts to convey his estate to C.

These are good questions to test your competence with estates and future interests. For the suggested answers click here (but, obviously, you lose the point of the exercise if you look at the answer before you have tried to come up with one for yourself).

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URL: http://www.courses.law.harvard.edu/faculty/cdonahue/courses/prop/assign/FeeTailQRev.html
last modified: 08/08/09