Inheritance Law and Emma

Inheritance law has a much smaller role in Jane Austen’s Emma than in her earlier works.  Emma Woodhouse and her sister Isabella are the only children of Mr. Woodhouse, whose estate, Hartfield, is not entailed or otherwise legally encumbered.  Upon Mr. Woodhouse’s death there will be plenty of money to keep the two sisters from want.  No, the laws of inheritance come into the story only through the sub-plot involving Frank Churchill and Jane Fairfax.

Frank Churchill is Mr. Weston’s son, but after his mother died Mr. Weston gave him up to his wife’s family as they had no children of their own and it would have been difficult for a single man to raise an infant.  The Churchills therefore raised Frank as their heir, and he would eventually inherit the great estate of Enscombe.  Unfortunately for Frank, his adopted father and mother considered Mr. Weston to be a step too low for him to associate with and she ruled the men of her family with an iron will and frequent seizures of ill health.  Frank’s mother had been a Churchill and married beneath her and there had been a breach in the family because of this, which was only healed when his mother died of a lingering disease three years after her marriage.  His adoptive parents made it very clear that he must not marry against their wishes or he would be disinherited, something easily done since he was not legally their son; it was only a matter of changing a will.  This situation causes Frank to hide his engagement with Jane Fairfax, a beautiful an talented, but poor woman, and the constant dancing to his adoptive mother’s tune makes him a bit spoiled and not careful of other peoples’ feelings.

You might wonder why more people did not adopt sons if their estates were entailed and, as with the Bennets in Pride and Prejudice, the wife and the unmarried daughters would lose their home and income when the head of the family died.  The reason is that there was a very strong feeling at the time that purity of blood was important, and it was thus very rare to adopt children in the manner that we know it.  The adoption of a lower class child would be expected to yield a son who is clumsy, crude and lacking in elegance, no matter how young he was when adopted.  This adopted son would then pass on his lower class traits to his children and the family’s blood would no longer be ‘pure.’

Adoption of a nephew or other close relative could be considered if his parents were both of good blood, but it would not be possible for an estate owner to run off to an orphanage to adopt a random son.  These adoptions were informal, not legal, situations and the benefits of inheritance would only accrue to the adoptive son if his ‘father’s’ estate was not entailed.  The courts would not look with a friendly eye on an attempt to adopt a male heir, which was clearly performed to cheat the presumptive heir out of his due.  Only a son ‘of his body’ could overcome the rights of the heir presumptive.

Because of Frank Churchill’s close relationship with his uncle and the fact that his real father, Mr. Weston, was at least marginally a gentleman, Frank might be considered of good enough blood to become his uncle’s heir.  He was not adopted in the sense that we know it, but changed his name to Churchill when he turned twenty-one as an overt acknowledgement that he was his uncle’s heir.  So, he was raised from a young age as the heir of Enscombe and changed his name to Churchill, but he was not legally ‘adopted’ as we know it.

Changing your name because of the requirements of someone’s legacy was not uncommon.  For example,  Lord Byron, whose full name was George Gordon Byron, Lord Byron, received a legacy which required him to change his last name to Noel, the surname of the grantor of the legacy.  He did this and was then legally called George Gordon Byron Noel, but his title was still Lord Byron and that is what he would have been called, so most people were likely unaware that his name had been changed.  Actually, this might have been a good dodge if you were trying to get away from creditors, as Byron always was, but his acute awareness of the importance of that  title would make it very difficult for him to give it up and become a nobody!

5 comments on “Inheritance Law and Emma

  1. Carey, your knowledge in this area never ceases to amaze me. Do you suppose Austen developed these story lines based on her own family experiences?

  2. I am almost sure she did use her family experiences because she would not have had the ability to research the way we do (or even the way we did before the computer!) since she always lived in rural areas, apart from a period in Bath. She obviously was against marrying just for money, as her history shows with her quickly retracted engagement to the boring Harris Bigg-Wither. She also has a soft spot for the navy, as we see in Persuasion, not surprising as she had two brothers who had naval careers, and in fact became admirals.

    I think most of all, though, that she loved the interactions of people in society and probably was always “people watching.” I can almost see her sitting at the dinner table with her family and her father, the rector, talking about some family who had lost their home because the estate was entailed and they had nothing but daughters. JA is listening, while at the same time thinking “such a situation would really make you quite desperate about marrying off those daughters to men who could support them. Hmmmm, that might make a good story!”

  3. Magda says:

    Amazing! Thank you for explaining the difference between Bennet and Woodhouse’s daughters situation! I never could understand this.

  4. Hannah says:

    Why wouldn’t Isabella’s sons inherit the Woodhouse home and money over Emma?

    • Hannah says:

      I understand that women could inherit. Like georgiana Darcy and miss bingly in p&p. So getting hard cash wasn’t an issue. But with such a huge estate is it likely that there wouldn’t have been rules about passing it on to be managed by a woman?

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