Definition
An heir special is, in English property law, an heir who inherits not by general succession but by the specific terms of a grant — that is, by the form of the gift (per formam doni). The term applies most precisely to the issue in tail: a lineal descendant who takes an entailed estate under a fee tail because they fall within the class of persons designated by the original grantor. Unlike a general heir, who takes by the ordinary rules of descent, an heir special takes only if they satisfy the particular conditions embedded in the original limitation.
The concept is inseparable from the fee tail. When a grantor conveyed land "to A and the heirs of his body," the "heirs special" were those bodily heirs — children, grandchildren, and so on in lineal descent — who qualified under that grant. A collateral relative, even one who would otherwise be a general heir, could not take as heir special because the gift was not made to them.
Common Confusion
Heir special versus heir general: These two categories represent distinct modes of succession and should not be used interchangeably. An heir general takes by common law rules of descent — the person who would inherit in the absence of any testamentary direction. An heir special takes by virtue of the specific form of a grant, restricted to those within the designated class. In an entailed estate, a fee tail could terminate the line of heirs special (for want of issue in tail) while leaving general heirs who would take a different interest entirely, or while triggering reversion to the grantor's estate. Conflating the two produces errors in reading historical conveyances and fee tail instruments.
Why It Matters in Research
Heir special is a term of art embedded in the English law of real property and survives almost exclusively in historical sources. Researchers encounter it when tracing title chains involving fee tails, analyzing the operation of the Statute De Donis Conditionalibus (1285), or reading English case law and treatises from the medieval period through the nineteenth century.
Several navigational traps appear in the corpus. First, Rapalje & Lawrence simply redirects to the general HEIR entry without independent discussion, meaning researchers relying on that dictionary alone will miss the specific doctrinal content supplied by Black's and Burrill. Second, the Latin phrase per formam doni appears across historical sources as both a doctrinal label and a pleading phrase; recognizing that heir special is its operative heir-law counterpart is essential for connecting those materials. Third, American relevance is limited but real: fee tails were received in colonial America, and many states enacted statutes converting them to fee simples in the eighteenth and nineteenth centuries. In jurisdictions where fee tail persisted longer (notably Maine, Massachusetts, and Rhode Island into the modern period), the heir special concept remained operative in title disputes. Reading pre-conversion conveyances in those jurisdictions requires understanding which heirs qualified as heirs special under the original grant.
The term also appears in Scottish law under a cognate but distinct usage. Black's notes "heir substitute in a bond" as a Scots law concept — the person designated to receive payment of a bond on the creditor's death. This is a different creature from the English heir special and should not be read back into English property law discussions.
Historical Dictionary Support
Black's and Burrill are in complete agreement: heir special is the issue in tail, taking per formam doni. Both entries are brief and doctrinal, providing the core definition without extensive elaboration. Rapalje & Lawrence adds nothing independent, deferring to the general heir entry — a gap researchers should note. None of the three historical dictionaries trace the concept to De Donis explicitly, though that statute is the foundation of the doctrine; researchers will need to look beyond dictionary sources to treatise literature (Littleton, Coke on Littleton, Blackstone's Commentaries Book II) for the full doctrinal lineage. Black's helpfully distinguishes the Scots law "heir substitute in a bond," which neither Burrill nor Rapalje & Lawrence addresses — a reminder that Scottish legal materials use related vocabulary with different technical content.
Jurisdictional Note
Heir special is a concept of English common law with direct but historically bounded application in American jurisdictions that received the fee tail. Most American states abolished the fee tail by statute early in their legal history, converting fee tail interests into fee simples; in those states, heir special is a term of purely historical significance relevant only to pre-abolition instruments. A small number of states retained fee tail longer, making the concept operative in title analysis for that period.
Encyclopedia Cross-Reference
Estates 9: Escheat — When Property Passes to the State for Lack of Heirs (The Law Mind Trusts, Estates & Probate Encyclopedia). The escheat context is relevant because failure of heirs special in a fee tail — exhaustion of the designated line — triggers reversion or, ultimately, escheat when no heir general survives either.