The Genealogy Research Blog

Previously we discussed the use of “entailing land”.  A brief summary of that would be land that was removed from being in Fee Simple (similar to how we own land today) to Fee Tail, in which the land could not be sold mortgaged or passed down in a will.  As we discussed previously you may find, as a family history researcher, wills that pass land down with the phrase “heirs of his body” or “unless he dies without issue.”  This usually means the land has been entailed.  So subsequently you will not see mention of the land in future wills of the descendants because in essence the land has already been designated as to how it is passed down.

So what happens is that the land gets “lost” in the will records because it is possibly not mentioned again.  Only the original will that entailed that land mentions it, and in subsequent wills it is implied.  This makes it almost impossible to tell how common entailing land was.  Entail was a device used mostly by the wealthy, so generally you will not find it with common people.

Was there a method to abolish entails?

Eventually an heir usually came about who wished to sell, or pass down, his land the way he wanted and so wished to get rid of the entail.  This was called “docking” the entail, or eliminating it.  Was there a way to turn land back from Fee Tail to Fee Simple so the heir could do what he pleased with it?  Most authorities seem to agree that, in Virginia, docking was very hard, even harder than in England itself.  There was a difficult method of doing it.  It required and act of the legislature, which usually means you needed connections.  All the potential heirs had to agree on it as well.  Sometimes the entailed land had to be substituted with another parcel of entailed land of similar value.  I personally feel that it is possible many parcels of entailed land simply got lost in the records once enough generations passed and so the entail was eventually ignored.

In 1734 Virginia passed a law that allowed docking of entailed land that was valued under 200£, if you got approval in the form of a writ from the secretary of the court.  This of course only involved very small pieces of land since 200£ was not that much.  It was a measure that was to help those descendants who mistakenly had their land in Entail from the way an ancestor mistakenly wrote his or her will.  Deeds that came about from this may have been filed with the General court rather than the county court.

In 1776, entail was abolished by Virginia.  Between then and 1785, primogeniture (the standard unwritten practice of passing assets down in lineal fashion to the oldest child) was the rule.  Inheritance law was then enacted in 1785, which distributed land equally among the children.  All the southern states abolished entail and or primogeniture around the time of the Revolutionary War.

For family history researchers this all makes our hobby that much more exciting.