Myth busting: inheritance law in the Regency Era

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 husband’s, 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 he may also have provided her with what is called a jointure, which is basically an allowance for a widow. The jointure was totally at her husband’s discretion and it was not uncommon for widows to be reduced to poverty by a stingy jointure, or to have her allowance left to the kindness of her husband’s eldest, inheriting son (see: Sense and Sensibility)

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 property 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 do it; or at least that he does not want to look like a complete toad to his friends and family. If there is no will and no male children, then the property would be divided among the daughters. In a family like that of the Bennets of Pride and Prejudice, if there was not an entail,  their marginal income from their property, divided among 5 daughters, would not leave any individual woman with enough to support herself in comfort.

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 of property upon their death, you can see that 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 acknowledged by his previous friends. The traditions in France were on the side of dividing property among the sons of the family, and led to a weakening of the power of the people who had freehold land. Peers did not follow this custom in France, as the estate and the title would go to the eldest son, as in England.

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 until the end of time. 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.


31 comments on “Myth busting: inheritance law in the Regency Era

  1. Where do you think these myths come from? Are Victorian manners somehow getting skewed into these inaccuracies and confused with the Regency?

    • I think that it comes more from lack of understanding when people read these books. The rules were not significantly different in the Victorian Era when it came to women owning property and it was not until World War I that there was significant change in the inheritance practices and laws (primarily because of the millions of young men killed in the trenches, completely changing English society as women had to take over many jobs left empty and there were no young men in some families to inherit the estates). Because of the complexity of the inheritance laws someone reading one book or seeing one movie (which might be very inaccurate), might make assumptions based on that one situation. If they read only Pride and Prejudice they might conclude that because the Bennet women could not inherit Longbourn, then women could not own property. Now in the same book, Lady Catherine owns Rosings Park and Anne de Bourgh is spoken of as the “heiress of Rosings Park” but those are not the main storylines and might be missed. The first chapter of Sense and Sensibility tells of a convoluted inheritance situation which I don’t think most people understand. They might easily conclude from the results that the Dashwood women could not legally inherit Norland, when in fact the problem was a very unfair will made by someone who was not bound by any legal holds on the property and could do whatever he wanted.

      Because American society has always been less stratified than English society, a result of many younger sons being sent to “the colonies”, we also do not have a reference point to understand entails and the inheritance of large estates which have been in one family for centuries.

  2. Looks like I need to read more of your posts to learn more about the specifics. Off to read.

  3. Very interesting article. Thanks for sharing it!

  4. Bobbi-sue Coen says:

    Thank you for your article, it shed some light on a few things I have been researching. I understand that if a will was left a daughter could inherit property but what about a title is there every a time when a title could be left to a daughter in 1800’s?

  5. Boston Sheryl says:

    Thank you – very interesting! I always wonder how these legalities worked. I really love your sharing historical facts about life in Regency England, medical practices, entails, inheritances, etc. Please keep up the great work!!

  6. Hey! Do you use Twitter? I’d like to follow you if that would be okay. I’m absolutely enjoying your blog and
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    • My Twitter handle is @CAllynPierson- I am an irregular Tweeter these days as my “real job” has hijacked my writing and online time, but I do sneak back into Twitter occasionally. It is so seductive that I find myself just sitting there for hours reading and tweeting, so I have to be very firm with myself and only tweet for a treat…so to speak

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  7. I'mAllBooked says:

    Very helpful article in clearing up these little distinctives that appear in Austen’s novels, thanks! (just a little suggestion – I believe the comment just prior to mine by “how to pass a drug test” is probably spam!)

  8. Seo Lernen says:

    Nice post. I learn something new and challenging on blogs I stumbleupon every day.

    It’s always interesting to read through content from other authors and practice something from their web sites.

  9. […] Myth busting: inheritance law in the Regency Era ( […]

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  11. Thank you for the article and information. Nicely and clearly written/explained.

  12. Barbara Sbrocco says:

    Very informative article. One sentence confused me until I realized the word “money” should read “mother.” The third sentence under Myth#2 begins, “Society would look down on a man who tossed his elderly money out of the house to starve…”

  13. Aanel says:

    Hi there’s a confusing typo in there — could you fix it? It says “Society would look down on a man who tossed his elderly money out of the house to starve”. I don’t know what that should actually say or mean … please help.

  14. Kelsie Thorschmidt says:

    Hello, I really appreciate this article! I am currently in the process of writing a novel set in the Regency era, and I was wondering if a woman could inherit from any man, not just her father? In my story there is a man who loves a young woman as his own daughter, and wishes to leave her his fortune and estate. Was this possible back then? If not, I may have to rewrite some things!

    • Melissa A says:

      I believe that happened in the BBC show “North and South”. The protagonist inherited money from her father’s friend who had no children.

    • Susan says:

      A woman (or come to that a man) could inherit from anyone at all. British law at the time did not put restrictions on what you did with your property in your will, unlike some other countries where you were required by law to leave a certain proportion to your widow or children. There were cases of widows left penniless because their husband had left them completely out of the will.
      There was no legal adoption in Britain until the twentieth century (and even then the adopted child had no right of inheritance from the adoptive parents if they died intestate). There were informal adoptions, and in this case the “parent” would have to make a will specifying the person to inherit by name. Care had to be taken to use the correct name – in my own family there was a case where someone wished to leave her property to a distant cousin who was like a son to her, but unfortunately she gave only his first and surname in the will, not his middle name as well, and there was another cousin of that name, with no middle name, who she had never met, who got the lot!

    • Midge says:

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  15. Sharon McFrederick says:

    What property was included in an entailment? That is, if Mr. Bennet died, would Mr. Collins get not only the land, but all the furnishings, money, livestock, etc.. that had belonged to Mr. Bennet’s? I keep reading contradictory research that the eldest son, by law, must receive his father’s property. However, you say that is only true if the father leaves no will. If a father owns the property, can he cut off his oldest son if he likes, leave it to a son he favors, or to another male relative? Also, if a wealthy man, who already owns an estate, receives an estate by entailment, what is he allowed to do with it, since he is not free to sell it? These are specific questions I have not been able to answer definitively in my own research. If you can answer them, I would certainly appreciate it!

    • 42luv says:

      There is a clue to this in the text — the fact that the girls can expect to still receive £50 per year after their father’s death. Real property was included in an entail, personal property was not.

    • Susan says:

      Mr Bennet could leave his personal property, that is his money, clothes, books, furniture, etc etc to whoever he chose under his will. However it is unlikely they are worth very much, and Mr Bennet’s funeral costs and the payment of any debts will have to come out of them first. Only the land and buildings on it are normally included in an entail. I am unsure about farm livestock, but I think horses were deeemed personal property, and so I assume cows and sheep would be treated in the same way.
      In this case we know that Mrs Bennet has some sort of settlement, because Wickham wants what Lydia would get from this on her mother’s death to be given straight away. However, it is not very much.

    • Susan says:

      If someone who already owned an estate inherited one under an entail (this was actually quite common), he could not sell it, or certainly not straght away. If he did not wish to run it himself (which he might if it was larger than his former home!) he would put in an agent or manager to run it and take the income. He might give it to one of his sons to manage, if he had an adult son who was interested. Most aristocratic estates of the time consisted of a number of separate estates run in this way – for example the Dukes of Devonshire owned not only Chatsworth but also Hardwick estate, the Dukes of Rutland not only Belvoir Castle but Haddon Hall. It was not uncommon for the owner to visit them in turn during the year. He could also, if he had an heir apparent, agree with him to break the entail – this is what Mr Longestaffe and his son Dolly intend to do in Trollope’s The Way We Live Now. The estate could then be sold, as the Longstaffes intend to do, but the villain Melmotte cheats them.

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  16. Nicole says:

    I wonder how the inheritance is handled when the left children are still young. Let’s say if both parents die in an accident and the daughters are 18 years old. They do not inherit any money. But what about the houses? To the nearest relative until the children are older? Or not at all?
    (sorry for my English, I am German speaking :-))

    • Susan says:

      If the heirs were under age (this was normally 21, but could be older if the will said so, 25 was not uncommon) the whole inheritance was held in trust for them until they did come of age. Guardians would be appointed by the will or the Court of Chancery if there was no will – there have to be at least 2 and they are normally close relatives, but may be the family’s legal representatives. The trustees paid for the children’s keep and education out of the income from the property, and had to run it properly, but could not sell it or use it for other purposes, and as the children came of age (or in the case of girls, if they got married with the approval of the trustees) they would get their share of the inheritance to do whatever they liked with (in the case of girls who married a settlement would normally be made that the income from her share would come to her husband but the property itself would pass to her children – often to the second son. This stopped the husband from spending it, and also stopped the property from passing out of the family if the woman died and the husband married again). If she did not have a second son the matter could get very complicated – Lady Hertford who inherited Temple Newsam estate in Leeds as the eldest daughter of her father did not have a second son, and the estate passed on her death to the son of her third sister (who had already died) but he had no son of his own and the entail having ended, the estate eventually passed to the son of his wife’s brother!
      In the case of an entailed estate the male heir would get the whole of that plus his share of the personal property, and the girls and younger sons only their proportionate share of the personal property, unless the will specified differently. There were cases where wills were badly written, and by the time the heirs came of age the whole inheritance had been eaten up by legal fees (see Bleak House). There were also many cases where the trustees had managed to use the estate in ways they were not allowed to do and there was little or nothing left. Often the heirs could not afford to sue the trustees because there was now no money!

      • TKH says:

        Detailed answer, great answer. Raises a couple questions for me:

        1) If single woman is over 21, and has been controlling her own estate (dowry?); and her parents die (with no close relatives), then… does she still control her estate as a single woman alone in the world? Can she make her own marriage settlements? Does she still require a guardian for that and other aspects of her life? How much control does such a guardian wield? And if the only relatives are quite distant, is she required to live with them anyway, be controlled by them in any way?

        2) Let’s say there are 3 girls. One is 23 (or anything suffuciently over 21 to have managed her estate for some time). The other two are younger, let’s say, young enough that they aren’t marriagable (eg, 12 to 16 yr range), and would be expected to have years more rearing. Can the oldest sister become a guardian for her younger sisters? Would she be allowed to manage their estates as well as hers? Or does the Court of Chancery still appoint a male guardian? At that point, what power does the oldest daughter wield — if any — to help her sisters? Who negotiates marriage settlements for all three of them? Does the older sister have any say in approving a marriage for her sisters?

        3) Finally, if it is Not Done for a gentleman to be in trade, or keep such a close eye on the bookkeeping of his estate, how much worse is it for a woman who is trying to manage her own estate? How does she do business with gentlemen in terms of investments and things like that? Many tropes seem to hide the name of the investing party (the woman) with initials or a pseudonym — is that required?

        I greatly appreciate you knowlege and expertise, and your willingness to share that here. I look forward to your repy.

  17. Susan says:

    Question – I was reading an article on how come Heathcliff manages to get all the property in Wuthering Heights (an interesting subject it itself, by the way!) and I noticed a throw-away remark by the author about the legal situation in Trollope’s Orley Farm being absurd. I have read the book and know that the plot hinges on a will which the second wife has apparently forged to give her son part of his father’s estates, as he has left everything in his real will to his eldest son (the child of his first marriage). However, I do not know why it is absurd. Can anyone shed any light.

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