You must be able to interpret the laws in relation to land and succession of land when working with early land records. Following the ownership of land from one generation to the next is very useful for family history research, as well as exciting. The term Entail is one we will concentrate on here.
Land could be held in fee tail or fee simple. Fee simple is similar to how we own land in modern times. It is an unrestricted form of ownership. The reverse is fee tail which was a restricted form of ownership. With fee tail, land could not be mortgaged, devised by will or sold. You can think of fee tail as being more of a tenant relationship to your land, where you did not really own it but were a tenant for life.
Here is where Entail comes in. Land held under fee simple could be converted to fee tail. This is called Entailed. Once the land was entailed in this fashion it remained so forever. By the time the colonies were started, entailing land had been widely used in England for hundreds of years. The purpose of entailing in England might be obvious. There the land was scarce and society was stratified, so entailing allowed large estates to remain intact over long periods, by disabling future generation’s ability to sell off parts of land. Entailing in the American colonies was apparently held over from old English practice.
As a family history researcher you must look for examples of phrases that indicate land had been entailed. Land could be entailed by a will or deed as long as it was written in a special way. If you see in a will that a father left to his son land but the will says something like “…to Michael Johnson and the heirs of his body”, that indicates that the father intended the land to be entailed. The phrase “heirs of his body” meant the land was not to be fully owned by Michael Johnson but is to be passed down to his lineal descendants eternally. The phrase “unless he (or she) dies without issue” essentially meant the same thing. This is why when later looking at Michael Johnson’s will you will not see him mentioning the land. He had no ownership to it. How the land was to be passed down had already been directed by Michael’s father (from father to oldest son or child, and on and on), unless Michael had no heirs or at some point in the chain no heirs were produced.
Primogeniture determined who got the land in cases when land was entailed. Primogeniture was the standard practice in inheritance law, for land ownership, and simply dictated how land passed down in a lineal fashion, when any kind of heirs existed or when entailing took place. This practice was most common in the south.
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