Definition
Discontinuance of an estate is a historical common law doctrine describing the suspension or termination of an estate tail caused by the wrongful act of the tenant in tail conveying a larger estate in the land than the law authorized. When a tenant in tail purported to alienate the fee simple — or any estate greater than what the entail permitted — the rightful heirs were said to have their estate "discontinued." They could not simply re-enter the land as a matter of right; instead, they were put to their real action in court to recover possession.
The doctrine operates in two related but distinct contexts in the common law:
1. DISCONTINUANCE OF ESTATE TAIL: The primary and most developed meaning. A tenant in tail who alienated land in fee simple, or for an estate greater than the tenant's lawful interest, did not merely commit a trespass or disseisin against the remaindermen or reversioners — the alienation "discontinued" their right to possession. The heir in tail was remediless by self-help and had to pursue a formal writ (such as a formedon in the descender) to recover. The land was not technically seized from the heir; rather, the continuity of seisin through the entail was broken, and the law withheld the ordinary remedy of re-entry.
2. DISCONTINUANCE IN PLEADING (related usage): In the procedural context, a discontinuance could also occur when a plaintiff's declaration covered several matters and the defendant pleaded to one or more but not all, and the plaintiff took judgment on the part answered without preserving the remainder. This is a distinct doctrine and is treated separately under procedural discontinuance.
The estate-tail meaning is the primary subject of this entry.
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Common Confusion
Discontinuance of an estate is frequently confused with disseisin and with forfeiture. These are distinct:
— DISSEISIN involves one party physically dispossessing another and taking wrongful seisin. The disseisee retains an immediate right of entry or possessory action. In discontinuance, the tenant in tail is the one making the conveyance; there is no wrongful dispossession of the current tenant — the harm falls on the heir.
— FORFEITURE involves the loss of an estate as a consequence of breach of condition or attainder. Discontinuance is not a penalty imposed on the tenant; it is a legal consequence affecting the heir's mode of recovery.
— ABEYANCE describes an estate held in suspension with no current holder. Discontinuance describes a break in the chain of entailed succession caused by an unauthorized conveyance, not a vacancy in the estate itself.
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Why It Matters in Research
This term belongs almost entirely to the historical common law of real property and will surface in English legal materials from the medieval period through the eighteenth century, and in American sources treating the law of entails before most states abolished the fee tail by statute in the late eighteenth and nineteenth centuries.
Several research traps apply:
ENTAILS IN AMERICAN LAW: Most American states either abolished the fee tail outright at or shortly after independence, or converted entails into fee simple estates by statute. This means discontinuance of an estate tail, as a live doctrine, largely disappeared from American practice before 1850. Researchers encountering the term in American sources after that period are almost certainly reading historical treatise material or examining the law of one of the few jurisdictions that retained modified entail rules.
VOCABULARY SHIFT: Eighteenth- and nineteenth-century English treatises (Blackstone, Coke, Preston) treat discontinuance with technical precision. American digests and encyclopedias of the same era may use the term loosely or conflate it with forfeiture or estoppel by deed. Check the source's jurisdiction and date carefully.
CORPUS CONNECTION — PLEADING DISCONTINUANCE: Because Black's 2nd Edition and other historical dictionaries bundle the pleading doctrine under the same headword, a researcher searching the Law Mind corpus for "discontinuance" may retrieve procedural materials (voluntary dismissal, nonsuit, gap in pleading) that have no connection to estate tail law. Distinguish by context.
HISTORICAL WRITS: Understanding discontinuance requires familiarity with the real actions — particularly the formedon — that provided the heir's remedy. These writs were abolished in England by the Real Property Limitation Act 1833 and by analogous statutes in American jurisdictions, which is another reason the doctrine is purely historical in most modern research contexts.
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Historical Dictionary Support
Black's Law Dictionary (2nd Ed.) defines discontinuance of an estate as "[t]he termination or suspension of an estate-tail, in consequence of the act of the tenant in tail, in conveying a larger estate in the land than he was by law entitled to do," with reference to Blackstone's Commentaries at 2 Bl. Comm. 275 and 3 Bl. Comm. 171. The entry notes the additional pleading sense (omission to take judgment on an unanswered portion of a declaration), citing Stephen on Pleading.
Blackstone remains the foundational explanatory source for this doctrine. His treatment at 2 Bl. Comm. 275 addresses what the tenant in tail lawfully can and cannot convey; his treatment at 3 Bl. Comm. 171 addresses the consequence for the heir — the loss of the right of entry and the need to pursue a real action. The historical dictionaries do not diverge meaningfully on the definition, because the doctrine was settled and largely academic by the time most American legal dictionaries were compiled. What the historical sources do not adequately address is the near-total obsolescence of the doctrine in American jurisdictions, which makes encountering the term in a modern American context a reliable signal that the source is either historical, English, or treating a highly specialized entail surviving in a limited jurisdiction.
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Jurisdictional Note
The doctrine is operative only where the fee tail estate exists. England substantially modified entail law through the Fines and Recoveries Act 1833. In the United States, states including Virginia, South Carolina, and Massachusetts abolished the entail during or shortly after the Revolution; most remaining states followed by the mid-nineteenth century. Maine and a few others technically retained modified forms. Researchers should treat this term as English common law history unless specific evidence of a surviving entail jurisdiction is present.
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Encyclopedia Cross-Reference
The Law Mind Property Law Encyclopedia — Estates in Land: Life Estate (Creation, Rights, Duties, Waste): Provides foundational context on limited freehold estates, the rights and duties of present holders, and the relationship between the current tenant and future interest holders — structural concepts that underlie the discontinuance doctrine.
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