Friday, 26 September 2014

Myth busting: inheritance law in the Regency Era

Myth busting: inheritance law in the Regency Era

This is a republication of a previously posted article from on June 2, 2011

For most fans of historical fiction and period films, English inheritance law is one of the most confusing parts of understanding English society. Unfortunately, it is also a major part of many novels from that period, as the inheritance of property could make the difference between living well and abject poverty. I am going to talk about some of the myths which I hear frequently and then talk about what the law really was during the Regency Era.

Myth #1: Women could not own property.

Wrong. This is completely untrue, as even a casual reading of Pride and Prejudice (Lady Catherine de Bourgh) or Sense and Sensibility (Mrs Ferrars) will demonstrate. Both Lady Catherine and Mrs Ferrars have complete control over their fortunes owning property and running their own estates. The catch to this is that when a woman married all her property became her husbands, to do with as he pleased. The exception would be the money set aside as her settlement when they married, which was to support the wife and any children still at home if the husband should die. He cannot touch the settlement. If she is widowed this money provides her with what is called a jointure, which is basically an allowance for a widow.

Myth #2: The Law of Primogeniture requires that estates always go to the eldest son.

Wrong. The Law is only involved in passing on property if the owner dies intestate (without a will). In this case, the entire estate will go to the eldest son and the others will have nothing, unless the new owner chooses to help him. Society would look down on a man who tossed his elderly mother out of the house to starve, but anything he does to help her and any unmarried sisters or underage brothers is done because he wants to; or at least he does not want to look like a complete toad. If there is no will and no male children, then the property would be divided among the daughters.
If a man left a will when he died, then he could leave freehold (not entailed) property however he wished, but there were a couple of societal pressures that would probably affect his decisions. First, custom was on the side of keeping the estate intact and passing it to the eldest son. Very few landowners would divide the property between all his children, or even between all his sons. In pre-twentieth century England, your place in society and your power were determined by how much land you owned. Although canny men would also have other investments, their land was what gave them both money and status. If, as an example, a man divided his land between his three sons when he died, they would each have 1/3 the power that their father had. If they then divided their pieces upon their death, it would not take many generations for the property to be cut up into pieces too small to support a family. Since a gentleman could not work for a living, loss of his land and the necessity of going out to work would drop him from the peerage or the gentry down to the level of a tradesman and he would no longer be associated with by his previous friends.

Myth #3: All land is entailed and must go to the nearest male relative.

Wrong. Entailment of land (as in Mr. Bennet’s property in Pride and Prejudice) is something which is voluntarily done by some previous owner. An entail specified that the estate went to the nearest male relative. It was active for a variable period, most often three or four generations, depending on how it was set up. It could not be set up for an unlimited time as English law forbade tying up land in perpetuity. An entail with no end could eventually, if all of the males in a family died, cause the estate to be sitting there with no owner forever. An entail could be removed before the end date if the owner and his heir (two generations of owners, in other words) both agree to break it. This is what Mr. Bennet wanted to do in Pride and Prejudice; if he had had a son they could have gotten together and removed the entail and the daughters could be given a share. This could only be done by the actual heir. In the case of Mr Collins, he could not break the entail (if he was stupid enough to agree to it) because he was only the heir presumptive. This means that he was only the heir if there was no closer male; if Mr Bennet was widowed and remarried with a young woman he might have had a son, who would then be the true heir. No one can displace the eldest legitimate son as heir to an entailed estate.
The benefit of an entail for the estate was that it protected the estate from being broken up or sold off. This might be a problem if the son inheriting it was a ne’er-do-well wastrel who gambled indiscriminately, or who in some other way wasted his money and got into debt. Many large estates would have some land entailed and some not, usually because the unentailed pieces were purchased after the entail was in place and not added to the entail.
The disadvantage to an entail is that if a man has no sons the property could end up going to nephews, or even more distant relatives if there are no males closer. This could leave the widowed or unmarried women of the family in desperate straits if the heir chooses not to help these distant relations.