Upon this, it was held, that if the testator appointed several persons jointly, to the inheritance, they formed, together, but one degree; if he appointed to it several persons successively, though in the same degree of kindred, as brothers or sisters, each person in whom the succession vested, formed one degree. The mode of settlement used in Spain, by what is termed a Majoratus, has been already noticed. In Germany, the restraints imposed by the feudal law, on the alienation of property confined by the original investiture, to a particular channel of descent, still prevail; so that the same intricate entails subsist with them, as with us; without those modes of eluding them which the laws of England have sanctioned. The tailzies or entails of Scotland appear still more intricate. The least restrictive of these is called a Simple Destination. It is defeasible and attachable by creditors, so that it amounts to no more than a designation who is to succeed to the estate, in case the temporary possessor neither disposes of it, nor charges it. The next degree of tailzie, is a tailzie with prohibitory clauses. The proprietor of an estate of this nature cannot convey it gratuitously, but he may dispose of it for onerous causes, and it may be attached by creditors. The substitutes, however, as creditors by virtue of the prohibitory clause, may by a process in Scotland, termed an inhibition, secure themselves against future debts or contracts. The third and strictest degree of tailzie, is a tailzie guarded with irritant and resolutive clauses. This is a complete bar to every species of alienation, voluntary or involuntary. The efficacy of these clauses, both against the heir, and the creditors of the tenant in tail, aliening, was established in 1662, by a solemn decision of the judges of Scotland, in the case of the Viscount Stormont against the creditors of the Earl of Anandale; and that decision was sanctioned by a statute of the Scottish Parliament in 1685. This mode of entail appears to be greatly discouraged by the judicature of the country; and modes of eluding it have been discovered, and allowed in their courts of justice. With respect to English entails, we have taken notice of the maxim of the Roman law, that no man can name an heir to succeed to his heir; and, of the opposite maxim of our law, that God only can make an heir, not man. The latter maxim was understood, with this qualification, that, though the party could not introduce a person into the heirship of the fief, who was not originally capable of inheriting the fief, by being of the blood of the donee, still he might give a preference to a particular class of persons, falling within that description, and might exclude others.

Thus, in England, according to Sir William Blackstone (lib. 2, c. 7, s. 2), as in all other countries, where fiefs have prevailed, they might originally be limited to the male, either in preference to, or in utter exclusion of, the female descendants of the party. In the same manner, they might be limited to a male and his descendants, by a particular wife, or to a female and her descendants, by a particular husband, or to both the parents and the heirs of both their bodies. These, at the common law, were all termed Estates in fee-simple conditional. The condition, from which these estates took their appellation, did not prevent the fee from vesting in the donee, immediately upon the gift; it only authorized the donor to re-enter, if the party had not issue, or, if having issue, the issue afterwards failed, and neither the donor nor the issue aliened. Upon this principle, it was considered to suspend the power of absolute alienation, till the birth of issue. But upon the birth of issue, the party had the same power of alienation over the conditional fee, as he had over an absolute fee. The statute de donis conditionalibus took away this power. It did not, however, affect the estate of the donee, in any other respect. In consequence of this was, that a tenant in tail was as much seized of the inheritance, after the statute de donis, as a tenant in fee simple conditional, was before it. Thus, therefore, an estate of inheritance remained in the donee; but, a particular description of heirs only being entitled to take under it, it received the appellation of an estate tail, that is, an estate docked, cut off, or abridged, in contradistinction from the estate in fee simple absolute. Thus, the fee was preserved to the issue, while there was issue to take it, and was preserved to the donor, when the issue failed. This reversionary right of the donor was soon found to be susceptible of the same modifications, as a present estate, and, therefore, limitations, either of the whole reversion, or of partial estates out of it, were made to strangers. It frequently happened, that, after a limitation to one series of heirs, another series of heirs was substituted, to take the fief, on the failure of the first series. The first person then, to whom this subsequent series was limited, was made the stock, or termimis, of this subsequent line of inheritance. In these cases, the substitute did not take in quality of heir to the last taker, but as a new purchaser under the original donor. Thus, in direct opposition to every genuine principle of the Roman law, endless substitutions were introduced, not only of individuals, but of whole lines of descendants, and the estate being thus unalienably preserved to the issue, there was still a more pointed opposition, to the maxim of the Roman law, that the heir necessarily succeeded to the obligations of the deceased.

VI. 8. These new restraints upon property were never favorably received, and various ARTIFICES WERE USED TO ELUDE THEM. One of these was carried into execution, through the medium of a discontinuance. It has been observed, that, though the statute de donis took away the power of lawful alienation, it did not suspend the vesting of the fee. The alienation, therefore, of the donee tenant in tail, was no forfeiture; and the alienee, as he took his conveyance from a person seized of the fee, was considered as coming in, under a lawful transfer of the inheritance. Now, it was an established rule of law, that, whenever any person acquired a presumptive right of possession, his possession was not to be defeated by entry. The consequence of this was, that in these cases, the alienation was unimpeachable during the life of the alienor, and, after his decease, the heir could not assert his title by the summary process of entry, but was driven to the expensive and dilatory process of a formedon; this was termed a discontinuance. The expense and delay attending a formedon frequently prevented the tenant in tail from resorting to it, to assert his right. In the course of time the period for asserting it elapsed, and thus, therefore, virtually, the discontinuance proved a bar to the entail. Another mode of eluding estates tail was, by warranty. When lands were conveyed from one to another, the grantor, for the greater security of the grantee, usually warranted, that is, entered into a covenant to defend the possession to the grantee, and, in case of eviction, to make him a recompense. This obligation of the ancestor was considered to be a covenant real, and therefore, on his decease, descended on the heir. Thus, it frequently happened, that on the death of the ancestor, his contract of warranty descended on the person, who would, otherwise, be entitled, as his heir, to the lands warranted, so that the obligation of warranty, and the right to the lands warranted, met in the same person. The consequence of this was, that, as heir in tail, he was entitled to the lands; as heir general, he was bound to defend the title of his ancestor's alienee; thus, if, on the one hand, he was entitled to recover the lands, the alienee was entitled on the other, to recover an equivalent recompense from him. To prevent this circuity, it was held, that the obligation to warranty, precluded him from claiming the lands warranted. Against this, in some cases, the statute de donis provided.