Fee Tails and Entailment

In her 1989 NGSQ article, “The Adeustone-Rogers Families of Virginia: Tracing a Colonial Lineage through Entailment and Naming Patterns,” the late Margaret Hickerson Emery provided a definition of the term that was key to solving her genealogical problem:

Fee tail or entailment, as defined by Black’s Law Dictionary, is the encumbrance of property with a fixed line of inheritable succession, limited to certain classes of particular heirs.[1]

While that definition is certainly correct and concise, I needed a bit more help in understanding exactly what the term means. The glossary in Pat Hatcher’s 2016 Locating Your Roots: Discover Your Ancestors Using Land Recordsincludes the kind of definition that genealogists can more thoroughly understand and put to use:

Fee tail: The type of title or ownership in which the title or ownership is limited, defined, or specified by a document created by a previous owner. For example, a will stating “to my son William and then on his death to his son John” creates a fee tail for William, who cannot sell the land. If there were no additional wording, John would hold the land in fee simple and could sell it after he came into possession, if he so chose. If, however, the words “and the male heirs of his body forever” were added, then the land was still entailed, a specific type called fee tail male. Other deed restrictions could be made, such as liquor could never be sold on the property, or the property was transferred only as long as a specified use continued (such as a church or school), or that a cemetery must be preserved.[2]

[Side note: In the terms fee simple and fee tail, the word fee has nothing to do with money or the exchange of it. Instead, it is derived from the medieval term fief and relates to the granting of a freehold. Also, entail is sometimes rendered as in taille.]

Now that we understand the essentials of entails/fee tails and entailment, how do we use that understanding to solve genealogical problems? Let’s take another look at Emery’s NGSQ article.

Emery’s focus was William Aduston Rogers, who shared part of his name with more than a dozen other men named Aduston Rogers, all of whom lived in York County, Virginia, in the one hundred years leading up to the Revolution. In 1778, William Aduston Rogers sold a tract of land. In the indenture for that sale, after the description and bounds of the land, was the following language: “. . . which said Plantation Tract or parcel of Land the said William A. Rogers was seized as Tenant in fee tail and by an Act of the General Assembly of Virginia the Entail is [now] docked.”[3]

From that phrase, we can see that William Aduston Rogers did not purchase the land he was selling. Instead, he inherited it by way of a will or entailed deed. He was allowed to sell the land in 1778 because Virginia had abolished fee tail in 1776. Those who had held land or slaves in fee tail thenceforth held the same in fee simple.[4]

What we cannot yet see is what document articulated the entailment that led to William Aduston Rogers’s tenancy or who executed that document.

Emery’s thorough research ultimately led to the 1677/8 will of one John Adeustone (also Adleston, Aduston, Adison), which included the following entail:

Touchinge the disposition of my Lands and Tenements, I give and bequeath all my Lands in Generall unto my lovinge wife Joane Adeustone duringe her life p’vided that she doeth not marry . . . & after her Decease my will is that the before Specified Land in Generall shall be for [my nephew] Adeustone Rogersand the heirs of his body lawfully to be gotten and if in case the aforesaid Adeustone Rogers should die before he come to age of one and twenty that . . . it returne unto Richard Dixsone, my grand child and the heirs of his body lawfully to be gotten and if in case he dieth before he cometh to age that then it Returne to Agnes and Eliz: Dixsone as joynt heirs and to the heirs of their bodys lawfully to be gotten, provided always where the name of Adeustone is amongst the aforesaid Orphans that the said land do remaine without any trouble or Molestation of any heir whatsoever & if in case all the aforesaid Orphans doeth die before they be of age, that then my will is that it returne unto my daughter Agnes Rogers and the further heirs of her body lawfully to be gotten provided always that the name of Adeustone be continued upon the aforesaid land.[5]

It was this entailment that led to so many Rogerses named Adeustone. And though William Aduston Rogers was not named in this entailment it ultimately led to his tenancy first in fee tail and then in fee simple. Because Emery understood the language in the 1778 deed and because she understood the local laws of the period, she was able to put these clues to excellent use in ferreting out and untangling five generations of Rogerses in York County, Virginia.

For more about entailment in Virginia and other American colonies, see the following:

Holly Brewer, “Entailing Aristocracy in Colonial Virginia: ‘Ancient Feudal Restraints’ and Revolutionary Reform,” William and Mary Quarterly 54 (1997), 307–346.

George L. Haskins, “The Beginning of Partible Inheritance in the American Colonies,” Yale Law Journal 51 (1942), 1280–1315.

Ray Keim, “Primogeniture and Entail in Colonial Virginia,” William and Mary Quarterly 25 (1968), 545–586.

Richard B. Morris, “Primogeniture and Entailed Estates in America,” Columbia Law Review 27 (1927), 24–51.

 

[1] Margaret Hickerson Emery, “The Adeustone-Rogers Families of Virginia: Tracing a Colonial Lineage through Entailment and Naming Patterns,” National Genealogical Society Quarterly 77 (1989), 90; PDF, NGSQ Archives (https://www.ngsgenealogy.org/ngsq/ngsq_archives/ : 20 March 2020).

[2] Patricia Law Hatcher, Locating Your Roots: Discover Your Ancestors Using Land Records (Baltimore: Genealogical Publishing Company, 2016), 192.

[3] Emery, “The Adeustone-Rogers Families of Virginia” (note 1), 90, citing York County Deed Book 6, 1777–1791, 7–8.

[4] William Waller Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia from the First Session of the Legislature in the Year 1619, volume 9, chapter 26, “An Act declaring tenants of lands or slaves in taille to hold the same in fee simple,” 226–227.

[5] Emery, “The Adeustone-Rogers Families of Virginia” (note 1), 91, citing York County Deeds, Orders, Wills, Etc., Book 6, 1677–1684, 40.

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