A BEGINNERS GUIDE TO THE ENGLISH LAWS OF SUCCESSION
by Alison Stuart
Thank you, Eliza, for
the invitation to post my article on the English Laws of Succession...or Laws
of Succession 101.
Firstly my
qualifications for writing this article - I was a practicing lawyer for over 30
years in the Australian jurisdiction, which is an English common law system
rather than the American codified legal system. If you are struggling with
understanding the English common laws of succession then don’t panic ...most
lawyers don’t understand them either.
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| A wedding |
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 those 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 and that heir should be descended
from you by direct line.
Male descendents would
always be preferred to female (although inheritance by female descendants was
possible). 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 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.
However this left spouses,
younger siblings, illegitimate children and daughters without any rights of
inheritance. In short they 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 newly acquired estate, 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. In the absence of a male heir, 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” - 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. Dickens
wrote about this subject in Bleak House (the case of Jarndyce v Jarndyce). It is probably surprising to note that the
basic laws of inheritance and entailment did not change until the Property Law
Act of 1925.
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| Bleak House |
Example: Lord Fauntleroy is the proud possessor of
Fauntleroy Park.
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The estate is not entailed and he has three sons. The
eldest son inherits Fauntleroy Park. #2
goes into the church and #3 into the army...If he has no sons but a daughter
then the daughter inherits.
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The estate is entailed and the terms of the original
settlement stipulate “male heirs”. If he has a son then it goes to the son by
operation independent of the will. If he has a daughter, she is excluded by the
entail and the estate goes to second cousin Rufus Stuffnpuff. In the absence of
any assets independent of the entail, her prospects are grim!
Dowers and jointures
A wife was completely 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. If
the husband died without a will, the widow was deemed to inherit 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”.
The laws of succession
are complex and I am happy to answer specific questions if you would like to
email me at alison@alisonstuart.com
Alison
Stuart is an award winning Australian writer of historicals with heart. Whether duelling with dashing cavaliers or
waywards ghosts, her books provide a reader with a meaty plot and characters
who have to strive against adversity, always with the promise of happiness
together. Alison is a lapsed lawyer who has worked in the military and fire
service, which may explain a predisposition to soldier heroes. She lives with her own personal hero and two
needy cats and likes nothing more than a stiff gin and tonic and a walk along
the sea front of her home town. She
loves to hear from her readers and can be found at her website, facebook,
twitter and Goodreads.
Her latest book, GATHER THE BONES, is a “Downton Abbeyesque” haunting love
story set in 1923.
3 comments:
Thanks for the lesson. I knew about dower and entailment but not jointure, so thanks.
Fascinating! I notice it helps explain words like "endowment" and "entailment".
So glad you found it helpful.
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