Docking an entail

The language of the law. Part Latin, part Anglo-Saxon, all confusing.

In 1752, the Virginia House of Burgesses passed “[a]n Act to dock the entail of certain lands whereof David Garland is seised.” The statute carefully recited that Edward Garland, who had owned 680 acres in what by 1752 was Hanover County, had executed a will in 1719 leaving his land to “his son Edward Garland, and the heirs of his body lawfully begotten.” After the death of Edward the father, Edward the son took possession of the land, and after the death of Edward the son, David Garland (the grandson) took possession. But David had bought larger tracts of land in Lunenburg County and at his request the Burgesses voted to dock the entail of the original land “and to settle other lands and slaves of greater value to the same uses.”1

Just what was going on here?

First off, David was “seised” of the land. That means he was the owner of the property, as a freehold.2

Now you might think that if it was a freehold, he could do with the property as he pleased. Nope. In his case, there was a hitch. When Edward the father wrote his will, he didn’t just leave the land to Edward the son. It left the land to Edward “and the heirs of his body lawfully begotten.” Those specific words are called “words of procreation”3. That’s not a grant of all of the rights to the land to the son on the father’s death. That language created what was called a fee tail; the estate itself was entailed.4 All Edward the son inherited was the right to use the land during his lifetime. He wasn’t free to sell it, he couldn’t divide it up in his will among his various children, and he couldn’t leave it in his will to, say, a home for wayward cats. On the death of the son, the land had to go to the son’s oldest living male descendant. If there weren’t any male descendants, then Edward the father’s original will would control who got the land.5

So what David Garland wanted to do, some 33 years after his grandfather’s death, was get rid of the restriction on the Hanover County land, “to make a better provision for his younger children.”6 But to convince the legislators to end the restriction — to “dock the entail” — on that land, he agreed to apply the same restriction to his new land in Lunenburg County and to certain of his slaves.7

David went on to live a long and celebrated life. He was a militia captain in Lunenburg County in 1757, deputy sheriff of Lunenburg County in 1759, militia colonel in 1767, and county sheriff from 1771 to 1773.8 In 1763, my own ancestor, David Gentry (my 4th or 5th great grandfather, depending on whether you vote with the crowd that says he was the son of Nicholas Gentry I (called “the Immigrant”) or Nicholas I’s grandson), was a witness for David Garland in a suit against William Burgamy,9 and in 1764 David Gentry was recorded (as “Long David”) by Garland in his tithables list.10

And oh, by the way… David’s own heirs didn’t have to deal with figuring out the entailment when David himself died. By the time David’s will was probated in 1782,11 fee tail had been abolished in Virginia.12 At that point, all of the Garland land — even the land in Lunenburg County — was free of the restriction. You could say the entail was docked forever by the statute abolishing fee tails.


SOURCES

  1. William Waller Hening, Virginia Statutes at Large 6: 311-314, Chap. XLIX, February 1752.
  2. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1075, “seised in demesne as of fee”; see also ibid., “seisin.”
  3. Ibid., 1245, “words of procreation”
  4. Ibid., 435, “estate in fee-tail.”
  5. Ibid., 1149, “tail, estate in.”
  6. Hening, Virginia Statutes at Large 6: 312.
  7. Ibid., 312-313.
  8. Landon C. Bell, Cumberland parish, Lunenburg County, Virginia, 1746-1816 : Vestry book, 1746-1816/ (Baltimore: Genealogical Pub. Co., 1974), 218-219.
  9. Lunenburg County, Virginia, County Court Order Book 9: 245; Library of Virginia (LVA) Lunenburg County microfilm 29, Richmond.
  10. Landon C. Bell, Sunlight on the Southside, Lists of Tithes, Lunenburg County, Virginia, 1748-1783, (Baltimore: Genealogical Pub. Co., 1974), 230.
  11. Lunenburg Co., Va., Will Book 3: 108; LVA Lunenburg County microfilm 19.
  12. Hening, Virginia Statutes at Large 9: 226-227, Chap. XXVI, October 1776.
Print Friendly
This entry was posted in Legal definitions. Bookmark the permalink.

11 Responses to Docking an entail

  1. I am familiar with entail but your post really clarified things for me. If these words ““and the heirs of his body lawfully begotten” are specific to leaving the land to the first born son, what would be used to leave the land to “any” descendant? (You can save it for another blog post if you like)

    Also, another blog post I would find interesting would be an explanation of how a lay person like me could find the specific cases that are referred to (such as x. Hening, Virginia Statutes at Large 9: 226-227, Chap. XXVI, October 1776).

    You’re off to a great start with your blog. Can’t wait to read more.

  2. Patti Hobbs says:

    Judy, what a great use of your specific talents to help other genealogists! Thanks. I’ll get your blog in my reader software.

  3. Martin Hollick says:

    It’s like reading Jane Austen. If you don’t know what an entail was, you were missing half the plot line.

    • Judy G. Russell says:

      You couldn’t be more right, Martin! That is the best argument possible for really understanding the law as a genealogist.

  4. Peggy says:

    This was a great post! It is so helpful to know the terms and the conditions of certain legal processes in our history! I look forward to more of your posts…

    • Judy G. Russell says:

      Thanks, Peggy. Martin’s point is so right: how do you understand the document if the language the writers use might as well be in a foreign language?

  5. Pingback: Follow Friday – January 6, 2012 « All My Branches Genealogy

  6. Barbara Schenck says:

    Judy,
    Thank you so much for doing this. Your clarity and explanations are making legalese much clearer. I will be waiting with bated breath for further enlightenment. Heaven knows I need it!

    • Judy G. Russell says:

      Thank YOU for the kind words. I hope I can help — and I know we’re all going to have fun in the process!

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>