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Monday, May 21, 2012

To the Heirs of My Body...Introduction to the laws of succession


Is everyone sitting up straight, pen in hand, ready to take notes? This blog came about following some comments I received on a recent contest entry that led me to think that the English laws of succession may not be well understood. Only fair...most lawyers don’t understand them either.. However I am (or used to be) a member of the legal profession so hopefully I can provide some information in usable format that may prove helpful.

The English aristocracy depended for survival on the devolution of their estate from one generation to the next and by the mid thirteenth century the common law had set in place certain rules of inheritance which determined who could inherit based on a “parentelic” calculus (now there's a phrase that just rolls off the tongue!) ie who could trace their blood directly to the deceased. Rather than split the ever diminishing estate between your children (as is the case in many European countries), it was determined you should only have one heir. Bearing in mind that male descendents would always be preferred to female...the law decreed that your estate went first to children or grandchildren or in the absence of those then to brothers, cousins, nephews etc.  If the deceased died leaving daughters but no sons, then the parentelic calculus (I do like saying that) would allow the daughters to inherit over say a brother or a cousin. If there were multiple males in the line then the law of “primogeniture” applied...ie it went to the first born. These basic rules of inheritance lasted into the twentieth century.

Spouses, younger siblings, illegitimate children and daughters could only be provided for during the life of the father. As nothing in the law prevented a newly inherited heir from selling off his land, to prevent a youthful heir from squandering his inheritance, family settlements, away from the will, became common. One way of disposing of property was to make a gift (generally on marriage) to the couple and their progeny eg “To H and W and the heirs of their bodies begotten”...or the “male heirs of their bodies begotten”. This gift could not then be disposed of until there were no heirs when the gift would revert to the donor. This was called the “fee tail”...or to use the word more common in our writing “entailment”.   Entails in stories we are familiar with are Downton Abbey and Pride and Prejudice.  For the direct family line to maintain a hold in the land, it was desirable one of the girls marry the heir...always good fodder for a story viz Matthew/Mary and Mr. Collins/Lizzie.

I won’t go into the complications and machinations that lawyers devised to “bar the tail” ie remove the tail from estates to allow the land to pass freely according to the general laws of inheritance. Succession law kept lawyers and courts busy (and still does) for years and years. Didn't Dickens write a novel on the subject? (Choccie frog for the person who can tell me which novel and what the dispute was about).  It is probably surprising to note that the basic laws of inheritance and entailment did not change until the Property Law Act of 1925.

A quick word on dowers and jointures. For the reasons stated above, a wife was outside the laws of inheritance - your estate passed to your children or through the entail. Husband and wife were counted, at law, as one person so a husband could not make a gift to his wife during his lifetime with one notable exception. A gift from husband to wife on the day they married, at the church door could take effect on the husband’s death if he predeceased her. This was “dower” and was subject to the supervision of the church. The dower lands were nominated before the marriage service, and after the husband had given his wife the ring saying “With this ring I thee wed”, he gave her tokens symbolising dower with the words “With this dower I thee endow”. The effect of the dower was to give the wife an interest for her life in the nominated lands. This evolved into the common law so as to give to a widow one third of her husband’s estate, independent of any specific dower. However if the bulk of the estate passed outside the will through the entail, there may not have been much for the widow or other children.


There was also a practice of settling land on husband and wife jointly so as to entitle the wife to an estate called a “jointure” instead of a dower.  A wife could elect to take their common law dower or her jointure but not both.

What if a man married an heiress? If his wealthy wife predeceased him, the widower was allowed, by law to continue to enjoy her estate for his life, providing there was a child of the marriage capable of inheriting. So in effect the husband held the land on trust for his child. This was called “tenancy by curtesy”.


Still awake? Well done, you have reached the end of this short legal lecture - Laws of Succession 101. For the contest judge who couldn’t understand why, in my story,  Lord Somerton’s widow could not inherit his estate, hopefully this has helped explain the situation (and why Lady Somerton has a very nice dower house to move into).

8 comments:

Suzi said...

Ali,
Great post on such a tricky subject.
Think every historical author is scared of making mistakes with some of these facts.
Suzi Love

Cheryl Leigh said...

Inheritance laws make my head hurt. :) Thanks Alison for such a wonderful, clear explanation!

angelynschmid.com said...

Jarndyce v. Jarndyce in Dickens' BLEAK HOUSE. Unhappily, one of the characters dies upon learning the estate assets that were the subject of litigation had been exhausted by lawyer's fees.

I'm glad you've written this post. Lots of folks are confused on the matter of females inheriting in their own right.

maryde said...

Oh Alison, you're just trying to play with our brains ... job well done! LOL
We don't give much thought really in our historical writings or reading on how much knowledge the lawyer or man of business for the titled family really had to have to keep them all up to *scratch*. It must have been a nightmare.
In your professional opinion, do you think it is more complicated today or Not - Family law *stuff*? I mean the rule of it only going to elder sons is not Usual anymore, Is it? but then there is de-facto issues now more than ever, so I guess it's not easier at all.
Great post.

C.J. Archer said...

Great post, Alison, on such a tricky subject but at least it gives us great fodder for plots. Oh, and the Dickens book was Bleak House, a wonderful story with a great title!

Alison Stuart said...

Thank you all for your reaction to what I was afraid would be a very dry subject.

What is important is that the "tail" operated outside of the will so if the man had no assets other than what was in the tail, the widow and siblings of the heir got nothing. SENSE AND SENSIBILITY? I suppose it was possible that the tail could operate to females depending on how generally it was worded but I suspect it was unlikely.

It was an enormously complex area of law which is much simpler these days. The UK Property Law Act of 1925 was a major reform.

Thank you for those who recalled Bleak House! It might have to be cyber choccie frogs!

But it is important that writers (not looking at you Regency writers in particular) do understand the difference between the general laws of succession and the law of the entail.

Christina Phillips said...

I'd always wondered about the entail, Alison, so thank you for clarifying with this post!

merryfarmer.net said...

Wonderful post! I was going to say "Bleak House" to earn myself a chocolate frog, but people beat me to it. There was a wonderful BBC mini series a couple years back that did justice to the book.

I've done a lot of looking into Medieval inheritance law for my books and it was actually much more lenient and favorable to women up until the time of the Black Death. Depending on where you were, wives and daughters could inherit estates and businesses and administrate them. Then with the panic of the plague the laws were changed ... and it took many hundreds of years to regain equality for women.

Fascinating stuff!