Definition
A condition or limitation attached to a gift or devise that triggers a change in property ownership whenever the designated person's line of descendants becomes completely extinct — not merely at that person's death, but at any future point, however remote. Under an indefinite failure of issue, there is no fixed time by which the failure must occur; the condition remains open and operative indefinitely across successive generations until the bloodline runs out entirely.
This concept operates in contrast to a definite failure of issue, where the relevant period is anchored to a specific event or time — most commonly the death of the first taker. With an indefinite failure, a court looks not to whether the first taker died without children, but to whether descendants of any generation eventually cease to exist altogether.
The distinction carried enormous practical consequences under the old common law of future interests. A grant "to A, but if A die without issue" read under the indefinite failure rule would imply a perpetually contingent limitation capable of defeating A's estate at any point down the generational chain, which courts construed as creating a fee tail rather than a fee simple defeasible. This interpretation was the engine of fee tail doctrine in many early American and English cases.
Common Confusion
INDEFINITE FAILURE OF ISSUE vs. DEFINITE FAILURE OF ISSUE: These two terms are frequently conflated because both involve conditions tied to the failure of a grantee's descendants. The critical difference is timing. A definite failure of issue is measured at a specific, fixed point — usually the death of the named person — and asks only whether that person left surviving issue at that moment. An indefinite failure is measured across unlimited future time and asks whether the entire line of descent ever runs out. The legal consequences diverge sharply: a definite failure typically supports a fee simple subject to an executory limitation, while an indefinite failure was historically read to create a fee tail.
INDEFINITE FAILURE OF ISSUE vs. DYING WITHOUT ISSUE: Ordinary language treats "dying without issue" as meaning simply that a person died childless. In property law, the phrase historically carried the indefinite failure construction — meaning not that the person lacked children at death, but that the entire bloodline would one day be extinguished. Courts and legislatures spent considerable effort displacing this broader reading.
Why It Matters in Research
This term is a navigational landmark for researchers working in pre-twentieth-century property law, wills, and future interests. Its importance is almost entirely historical; modern statutes have largely abolished or reversed the indefinite failure rule.
Trap in historical sources: When reading older deeds, wills, or equity opinions that use phrases like "if A die without issue," "for want of issue," or "in default of issue," do not assume the modern reading. Prior to statutory reform, courts in England and many American states applied the indefinite failure construction as the default, which transformed what looks like a simple conditional gift into something closer to a fee tail. The result could entail property across generations in ways the grantor may never have intended.
Statutory displacement: England's Contingent Remainders Act and later the Wills Act 1837 progressively narrowed the indefinite failure rule. American states varied considerably; many enacted statutes expressly providing that "failure of issue" or "die without issue" shall be construed as a definite failure — i.e., measured at the first taker's death — unless a contrary intent appears. Researchers working across jurisdictions must identify which statutory regime governed at the time the instrument was executed, not merely at the time of litigation.
Fee tail connection: Because the indefinite failure rule was the mechanism by which courts found implied fee tails, the abolition of fee tail estates in American jurisdictions is directly relevant. Once a state converted fees tail into fees simple (whether by statute or judicial decision), the practical stakes of the indefinite versus definite failure distinction collapsed in many contexts. Research on instruments predating fee tail abolition in a given state requires understanding both doctrines in parallel.
Corpus connections: Cases and treatises discussing this term frequently appear alongside discussions of executory interests, contingent remainders, the rule against perpetuities, and fee tail. A researcher who locates one will reliably find the others in the same sources.
Historical Dictionary Support
Black's Law Dictionary and Burrill's Law Dictionary are in close agreement, drawing from the same two primary authorities: Stephen's Commentaries (1 Steph. Com. 562) and Kent's Commentaries (4 Kent's Com. 274). Both define indefinite failure of issue as a failure occurring at any subsequent period, however remote, without a fixed or certain time limit. Burrill's entry extends slightly further, adding that the condition concerns the moment "when the issue or descendants of the first taker shall become extinct" — language that more explicitly captures the generational scope of the doctrine.
Neither entry devotes significant attention to the statutory reforms that were already underway at the time of their publication, which limits their utility as guides to how courts applied the rule in practice. Researchers should treat these definitions as accurate statements of the common law baseline while consulting jurisdictional statutes and equity treatises for the full picture of how courts deviated from or modified that baseline.
Kent's Commentaries remains one of the most thorough original expositions of this distinction in the American context and is worth consulting directly for anyone working on early American property instruments.
Jurisdictional Note
Most American states enacted statutes directing that "die without issue" and similar phrases be given the definite failure construction unless a contrary intent appears in the instrument. The timing and language of these statutes vary by state, making it essential to identify the governing jurisdiction and the date of the instrument before applying any presumption about which construction applies.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Fee Tail; Future Interests; Rule Against Perpetuities