Student Blogger - Claire Priest Reassesses the Death of the Fee Tail

The fee tail, as any first year property student knows (or knew, then promptly forgot), is a type of interest in property that renders it inalienable, instead automatically passing on to the owner's heirs upon his death. Though a long standing component of English property law, the fee tail is no longer enforceable in the United States, and indeed was relatively quickly subject to attack after the Revolutionary War. The common explanation for the fee tail's death was that it offended America's incipient republican spirit -- enabling the creation of large hereditary estates which too closely resembled European aristocracies.

In her presentation to the last session of this year's American Legal History Workshop, Northwestern Law Professor (joining Yale's faculty this summer) Claire Priest sought to complicate that explanation and offer a different picture for why the fee tail withered away soon after the revolution. Acknowledging that republican ideals may have played some role, Priest focused her inquiry on a different aspect of entailed estates -- their shielded status from creditors -- and how that affected the way that fee tails were employed in the revolutionary era.

The fee tail was not necessarily a permanent feature of any given slice of Blackacre. It could be removed, and the property converted into a fee simple, albeit at some cost. Fee tails could thus be used to protect strategic interests in property from being taken by creditors. Priest describes evidence that many families would only entail the actual family home of their estate, bequeathing the outlying lands in fee simple. Gifts to daughters were also often made in fee tail, most likely because that way they could not be seized by their husband's creditors in the event that he went into debt. Consequently, she proposes, the fee tail effectively occupied a niche that would later be filled by such progressive reforms like the homestead exemption and the married women's property acts. Less of a tool for aristocracy, the fee tail was used by large and small estates alike to help control and manage risk.

Given that function, where did the opposition to the fee tail stem from? Noting that the fee tail was first abolished (as opposed to reformed) primarily in southern states, Priest believes that the answer lies in the necessities of the slave economy. Fee tails by their very nature impeded liquidity in land markets. But slavery demanded close management of the amount of property possessed by plantation owners, with precise ratios of acreage to the number of slaves owned. This required an open market in land that fee tails impeded. Moreover, the ambiguous status of slaves themselves (part way between real and chattel property) posed a significant problem for slave owners who counted slaves as a key collateral in obtaining credit -- a function which they could not provide if they were entailed. Even those states which did not abolish the fee tail entirely carved out special rules for slaves, stating that even if entailed, they could be seized by creditors.

Prof. Priest observed these dynamics at work in the interesting history surrounding Georgia's founding. Georgia was established to be a buffer between South Carolina and Native American attackers. The Trustees of Georgia (operating from London) thus wanted the land to be well settled by (white) colonists who would defend their sister state from assault. In service of this goal, Georgia settlers were required by the colonial charter to take their land in fee tail. The Trustees apparently believed that abolition of the fee tail would be what encouraged land concentration. Georgia also originally prohibited slavery, and this policy was in keeping with the rationale for mandatory entailment: The Trustees believed that free alienation would create a few large estates, mostly populated by slaves, that would exacerbate rather than ameliorate the threat to South Carolina.

Does this mean that the republican thesis for the end of the fee tail is dead? Not necessarily, says Prof. Priest, but it does lose some of its more romantic sheen. The American South at the time, she observed, did have a significant republican spirit to it -- it was merely a republicanism predicated on the equality of all white men, to the exclusion of blacks. Insofar as abolishing the fee tail enabled the expanjsion of white supremacy and the slave system, it was perfectly compatible with the Southern tinted version of the American republican ideal.

Comments

[Doug Sayranian]

This reminds me of Prof. Friedman's (Stanford Law) position on the rejection of primogeniture in the northern colonies and the management of estates. Then, too, economic priorities caused gradual shifts in the way that law dealt with property; in the northern colonies large tracts of land were inessential. I wonder how contemporary economic concerns will help form emerging bodies of law dealing with information, technology, and internet-based "property."