Definition
In Scots law, the person designated by a deed of entail (a "tailzie") to inherit an estate in a sequence fixed by the granting instrument, rather than by the default rules of legal succession. Where ordinary inheritance would pass property to the nearest heir-at-law, a tailzie overrides that default and names a specific line of succession — often to keep land within a family branch or surname. The heir of tailzie takes because the deed says so, not because the law of intestacy would have brought the property to him.
The concept belongs to the Scots legal tradition of "tailzied" or entailed estates, which were governed primarily by the Entail Acts beginning with the Entail Act 1685 (also known as the Montgomery Act). An heir of tailzie holds subject to the conditions and prohibitions inserted in the deed — typically restrictions on selling, burdening, or altering the destination of the estate.
Common Confusion
HEIR OF TAILZIE vs. HEIR-AT-LAW: These are mutually exclusive in cases where a tailzie exists. The heir-at-law is determined by statutory rules of descent; the heir of tailzie is determined by private deed. Where a valid tailzie governs, the heir of tailzie prevails over the heir-at-law. Researchers encountering both terms in the same document should determine which governs the actual transfer.
HEIR OF TAILZIE vs. HEIR OF PROVISION: An heir of provision is a person designated to inherit by any deed or settlement (including marriage contracts and mortifications), while heir of tailzie is the specific term for succession under a formal deed of entail with the statutory conditions attached. All heirs of tailzie are heirs of provision in the broader sense, but not all heirs of provision are heirs of tailzie.
Why It Matters in Research
This is an exclusively Scots law term. It will not appear in English, American, or other common law sources in any operative legal sense. Researchers working in pre-1914 Scottish property records, title deeds, and estate litigation will encounter it frequently; those working outside that tradition can set it aside entirely.
The practical research trap is assuming that Scottish entail law mirrors English fee tail. It does not. English fee tail was governed by De Donis Conditionalibus (1285) and later effectively defeated by common recovery; Scots tailzie operated under a distinct statutory framework requiring registration in the Register of Entails and imposing specific prohibitory, irritant, and resolutive clauses. A source that discusses entail in an English context is not a reliable guide to how tailzie worked in Scotland.
The Entail Amendment Acts of the nineteenth century — particularly the Rutherfurd Act 1848 and the Entail Amendment Act 1875 — progressively loosened the restrictions on heirs of tailzie, allowing them to disentail with greater ease. By the Entail (Scotland) Act 1914, the creation of new entails was abolished entirely. Corpus sources from different periods will therefore reflect very different degrees of freedom available to the heir of tailzie: an 1820 source and an 1880 source may describe what appears to be the same office but with substantially different legal consequences.
When researching succession disputes in Scottish estate records, confirm whether the property was held under a registered tailzie and identify the specific prohibitions in the deed. The heir of tailzie's capacity to sell, mortgage, or alter the destination depended entirely on whether those clauses were properly inserted and registered.
Historical Dictionary Support
Black's Law Dictionary defines the heir of tailzie as "he on whom an estate is settled that would not have fallen to him by legal succession," citing Forbes's Institutes (pt. 3, p. 75). This is accurate as a baseline but strips out considerable practical content. It captures the essential distinction — departure from default succession — without explaining the deed-based mechanism, the registration requirement, or the burden of entail conditions that define the heir's tenure.
Historical dictionaries generally treat this term briefly and derivatively, reflecting its narrow geographic scope. Researchers should not rely on Black's or similar English-origin dictionaries for the operational details of Scots entail law. Primary Scots institutional writers — Stair, Erskine, and Bell — provide the substantive framework that dictionary entries compress to near-uselessness.
Jurisdictional Note
This term is operative only in Scots law. It has no equivalent function in English, Irish, or American legal systems, though analogous concepts (heirs of entail under English fee tail, or designated heirs under fideicommissary substitutions in civil law systems) exist under different names and rules.
Encyclopedia Cross-Reference
Escheat — When Property Passes to the State for Lack of Heirs (The Law Mind Trusts, Estates & Probate Encyclopedia): Relevant for understanding what occurs when a tailzied line fails entirely and no heir of tailzie can be identified — the estate's fate then turns on whether the tailzie was exhausted or whether general succession rules, including potential escheat to the Crown, apply.