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.
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.
Looks like I need to read more of your posts to learn more about the specifics. Off to read.
Very interesting article. Thanks for sharing it!
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?
In short the answer is no, a hereditary title could not be ‘left’ to a daughter, even if she were the only surviving child of a peer. A title was not property which could be left. Titles were granted by the monarch, and in the patent for the title, it would usually mention the hereditary rules. Some titles could only be inherited by a direct male heir eg a brother, son or grandson. Most stated the next eldest male in the title holder’s family, which might end up being a cousin or nephew. The problem with the former is that if the title holder had no direct male, then the title would become extinct. Girls did not inherit titles. There are a few rare notable exceptions to this; mid 18th C a the only surviving daughter of a peer who had become a national hero was granted the right to inherit her father’s title so that the title did not become extinct. This right was granted by the King himself, but in the patent it stated that only one of her male heirs could inherit it from her. Various kings also granted their mistresses their own hereditary titles (presumably for services rendered!), but again, on her death the title would go to her eldest male heir. An example of this is Barbara Villiers who was the most famous of the numerous list of women who were mistresses to King Charles. She was made Countess of Castlemaine and the Duchess of Cleveland in her own right, but since she’d had five acknowledged illegitimate children to the king, the patent was made with the remainder that her eldest son could still inherit even though he was illegitimate.
I must step in after the fact and make a slight correction here. Girls could indeed inherit certain titles in certain specific situations.
Baronies in the Peerage of England that were originally granted when the King summoned the first title holder to Parliament via writ may be inherited by women. (Most of these arose before 1485.) The caveat is that a barony by writ will go into something called “abeyance” if the previous holder leaves multiple daughters but no sons; if he leaves a single daughter, though, she will inherit the title. The barony of Willoughby de Eresby is an example of this.
Many titles in the Peerage of Scotland (and most Highland chieftainships) are also inheritable by women. Unlike English baronies by writ these titles may be passed down to an eldest daughter even if she has younger sisters. (These would all have arisen before 1707.)
Finally, the letters patent creating a UK peerage may stipulate that a daughter may inherit if there are no sons, either in the first generation only or as a general rule. This sometimes occurs when a hereditary title is granted to a man who has no sons, such as Earl Mountbatten of Burma.
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!!
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look forward to new updates.
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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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!)
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.
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Thank you for the article and information. Nicely and clearly written/explained.
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…”
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.
So very interesting.most grateful for the information.
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!
I believe that happened in the BBC show “North and South”. The protagonist inherited money from her father’s friend who had no children.
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!
duplicately or near duplicately named cousins would be an interesting plot device. Or an adoptee vs. cousin or nephew situation…
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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!
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.
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.
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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I think the solution to this whole situation is fairly obvious and that’s Auburn should have to forfeit the Ole Miss game, and Auburn and State should be placed on 10 years’ probation. Further, Croom should be reinstated as State’s coach.Beyond that, this situation is debatable.
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 :-))
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!
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.
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.
Re THK’s questions:
A single woman or a widow over the age of 21 would control her own money and property unless and until she married. No male guardians, although if she wanted to do business or take out mortgages or bank loans she would probably need a male guarantor, not because of the law but because banks and businesses were reluctant to deal with a woman, and if her father or brother was still alive he would expect, and be expected by society, to have a lot of say in what she did, although he could not enforce it.
Women who had never married commonly lived with a relative, but this was for respectablility and not because they could be forced to do so, and widows, even young widows, commonly lived alone (apart from the servants of course), usually employing a companion or inviting a poor relation as company. If she married she would be able to determine her own marriage settlement, usually using her lawyer to do the negotiating for her. However, in these circumstances it did happen that the groom was able to persuade her into a disadvantageous agreement – for example in the famous Bravo murder case Florence Ricardo, a widow, was persuaded by her fiance Charles Bravo to allow all her property to pass into his hands because “he would feel ashamed of sitting on chairs that did not belong to him”. No settlement was made and he got the lot.
In the case of a group of sisters, the one who is of age would have immediate control of her own share of the estate and could be a trustee for her younger sisters and administer the estates of all of them, with no legal need for a male guardian. There would need to be at least one other trustee, usually the family lawyer. It would be normal for the nearest male relative to be involved, but it is not legally required. It was a very rare situation however, as most fathers woud have appointed guardians in a will, so this could only happen if the father died intestate. Most women would have felt unable to act in this way, and would have voluntarily given up the role to a male trustee, but they could not be forced to. No one can prevent the younger sisters marrying who they choose, although they would have to have the consent of the trustees if they were under 21, and the trustees would negotiate the marriage settlements, or their lawyers would. Supposing the younger sisters eloped to Gretna Green (no parental or other consent was required in Scotland), then the trustees could not have the marriage annulled if it was otherwise legal (although they might explore if this was possible, for example by showing that one of the couple was insane) but they could withold any money until the girl was 21. Such heiresses could become targets for unscrupulous men.
In some cases committal to an asylum was used to control women who behaved in a way the family disapproved. Whether the girl was really insane was another matter! See the case of the Nottidge sisters, who left their family to join what was seen as a religious cult. They were of age, and their father being dead, had control of their own money. The elder sisters were married, so the family had no authority, but the unmarried sister was “kidnapped” and placed in an asylum by her family. This was later deemed to be an abduction and false imprisonment, and she was released, going straight back to the cult, taking her money and a sum of damages with her!
As to business, it was difficult for a woman to run a large business or an estate, as workers might well refuse to obey her and other businesses to trade with her, and banks mght refuse to allow her credit or even an account. Many women ran small businesses such as shops, but women who found themselves in the position of having a large business or estate to run usually employed a manager and simply took the income. In my own family one of my forebears inherited a large farm, employed a manager and subsequently married him. I have heard of a case where a woman actually ran a business, but her uncle pretended to be in charge to preserve the conventions. Doing this kind of thing would most likely be social death, and the woman would be regarded as unmarriageable, being far too independent and unwomanly for men’s liking.
It was not unknown for a woman to get an agent to act in her name, for example to purchase large items or land at auction and then transfer it to her privately later. If property was for sale privately the parties involved could be kept private, of course. A married woman could not normally make such a purchase in her own name, but some managed to make such purchases – for example the author Mrs Gaskell managed to buy a house without the knowledge of her husband, as a surprise for him. We do not know how she did it, because theoretically all her income from her writing was his, so even if she got an agent to buy the house and then transfer it to her, how did she get the money to him without her husband’s knowledge? We simply don’t know.
Thank you, for the response, and the wealth of information. You have clarified what so many other references dance around. Greatly appreciated! Regards, tkh
A husband gave his wife a generous allowance as pin money. She was frugal and saved a great deal until she was able to buy a house with it. She rented out the house and used the income to buy a second house. When the husband died, the heir ( not her son) sued to have the houses declared part of the estate and they were. The woman wasn’t compensated either. If she had saved her money or left it in the bank it would have been hers though the heir could have used her possession of that money to try to keep her from having more. Most husbands and heirs didn’t push to enforce the laws against wives and mothers. Our knowledge of the way things were often comes from court cases which usually reflect people at their worse.
Could a man marry an heiress to gain a title of she is the last living relative?
No. If a woman held a title in her own right, depending upon the terms of creation it could pass to her descendants, but never a husband. Check out Laura Wallace’s examples: https://www.chinet.com/~laura/html/titles08.html
A woman could not inherit a title in her own right from her father or grandfather. Titles were not property. Several women had been made a peer in her own right, but that came directly from the reigning monarch not through inheritance. Only a male child could inherit a title from such a woman. A woman born to a peer was given the title of Lady as courtesy, and this she was allowed to keep throughout her life if her husband did not have his own title, if he did then she took on his title. Scenario 1- Lady Sarah Smith daughter of Lord Smith marries Lord Jones, Lady Sarah becomes Lady Jones, not Lady Sarah Jones. Scenario 2- Lady Sarah Smith marries Sir George Williams, as Sir(a knight) is not a level of the peerage, she would become Lady Sarah Williams because her husband’s title is lower than what she was born. Scenario 3- Lady Sarah Smith marries Mr John Thomson, she becomes Lady Sarah Thomson. So in answer to your question, no a title could not pass from a lord to a woman and her husband even if she were the last in the line. he could of course marry her, and when she inherits the property and money left to her, all of that would be legally his.
Thanks for clarifying this point. It also helps understand just how arbitrary middle class women’s’ fates were since the decision to have an entailment may have been made generations earlier to preserve the estate but in the process have excluded them from a stable economic future. This helps a lot with explaining Mrs. Bennet’s seemingly indecorous behaviour by showing it was largely out of concern for her daughters’ futures
Would you know if an entailment would be broken if there was no heir apparent and the heir presumptive was arrested and transported?