Definition
An estate tail in which inheritance is restricted to a specific, narrowly defined class of the donee's bodily heirs — typically the issue born of the donee's body by a particular named spouse or partner — rather than passing to all lineal descendants generally. The defining characteristic is the limitation: only heirs who meet the special condition (descent from both the donee and the specified other person) can inherit. Issue born of any other union, even if biological children of the donee, are excluded.
The classic illustration: a grant to a man and "the heirs of his body on Mary, his now wife, to be begotten" creates a tail special. Children the grantee has by a subsequent wife cannot inherit under this limitation, even though they are his bodily issue. The entail runs only through the specified line.
Tail special stands in contrast to fee tail general (tail general), where all bodily heirs of the donee, regardless of which partner produced them, are eligible to inherit.
Common Confusion
TAIL SPECIAL vs. TAIL GENERAL: These two forms of fee tail are frequently collapsed in historical sources that use "entail" or "fee tail" without qualification. Tail general allows the estate to descend to any issue of the donee's body, from any union. Tail special narrows inheritance to issue born of a specific relationship. The distinction matters enormously when tracing chains of title in historical land records, because a subsequent marriage and new children may appear to continue an entail that, if special, was already extinguished or could not pass to them.
TAIL SPECIAL vs. CONDITIONAL FEE: Before the Statute De Donis Conditionalibus (1285), courts had treated grants "to A and the heirs of his body" as conditional fees — the condition being the birth of issue, after which the grantee held in fee simple and could alienate. De Donis converted these into true entails. Tail special emerged as one of the recognized forms under that statutory framework. Researchers encountering pre-1285 grants should not assume the tail special framework applied retroactively.
Recognized Forms
/SUBTYPES
Tail special admits internal variation based on how the restricting condition is framed:
— Tail special by named spouse: The most common form. Succession limited to issue of the donee and a specific named partner. Extinguished as a practical matter if the named partner predeceases without qualifying issue, or if the donee has no children by that partner.
— Tail special by class description: Occasionally framed by reference to a described class rather than a named individual (e.g., "the heirs of his body by his first wife"), which could create interpretive disputes when the description was ambiguous or when remarriage complicated the lineage.
Why It Matters in Research
Tail special appears almost exclusively in historical property law materials. It is effectively a dead doctrine in American law — abolished by statute in virtually every U.S. jurisdiction, either through fee tail abolition acts or through conversion statutes that transform attempted entails into fee simple estates. English law formally addressed entails through the Fines and Recoveries Act 1833 and ultimately the Law of Property Act 1925. Researchers will encounter the term primarily in three contexts:
1. Colonial and early American title chains: Grants using tail special language appear in older deed records, particularly in southern states where English conveyancing practice persisted longest. Understanding what the grant actually conveyed — and what happened to it under the applicable abolition statute — is essential before concluding anything about present title.
2. Wills and family settlements: Historical wills frequently employed tail special language to keep property within a particular bloodline. When researching estate disputes, probate records, or family settlement documents from the 17th through early 19th centuries, the distinction between tail general and tail special governs who could have inherited and whether a valid bar of the entail was ever executed.
3. English and comparative sources: Researchers using English treatises, Year Books, or common law materials will find tail special treated as a live doctrine well into the 19th century. American sources may assume familiarity with the English framework; understanding the underlying doctrine is necessary to interpret commentary that takes it as given.
A key research trap: many abolition statutes convert fee tail into fee simple in the grantee, but some earlier statutes converted it only into a life estate with remainder to lineal heirs. The specific conversion rule in the applicable jurisdiction determines what tail special language actually produced after abolition.
Historical Dictionary Support
Black's Law Dictionary defines tail special as an estate in tail where succession is restricted to certain heirs of the donee's body rather than all of them generally, using the canonical example of issue begotten on a named wife. This definition is stable and accurate, though brief.
Historical legal dictionaries largely agree on the core definition — the restricting condition directed at a specific partner's issue — but vary in how thoroughly they explain the consequences of the restriction. Older sources (Termes de la Ley, Rastell, Cowell) treat tail special as a routine category requiring little elaboration, which can leave modern researchers without sufficient context to apply the concept to document interpretation. Blackstone's Commentaries provide the most useful elaboration in classical sources, explaining how the special tail operated in practice and how it could be barred.
What historical sources tend to underemphasize: the practical extinction mechanics. A tail special could effectively end without a formal bar if the specified line failed — no qualifying issue survived — and sources that focus on the theoretical framework sometimes obscure how quickly a tail special could collapse in practice.
Jurisdictional Note
Fee tail, including tail special, has been abolished by statute throughout the United States, though the timing and conversion rules vary by state. A small number of states (historically including Massachusetts, Maine, and Delaware) had distinctive fee tail regimes that persisted longer than others. In England, the Law of Property Act 1925 effectively ended the practical creation of new entails. Any research touching on tail special must identify the specific abolition statute and its conversion rule for the relevant jurisdiction and time period.
Encyclopedia Cross-Reference
Policy Period, Retroactive Dates, and Extended Reporting Periods (Tail Coverage) (The Law Mind Insurance Law Encyclopedia) — Note: this encyclopedia entry addresses "tail coverage" in the insurance context, a wholly unrelated modern usage. The shared word "tail" is coincidental. That entry is not relevant to property law research on tail special.