Entailment in English Inheritance Laws during the Regency Era

By Josi Kilpack

Rosings Park in Pride and Prejudice 1995 

Have you ever found yourself looking sideways at a plot element in an historical fiction novel or period drama movie or television show and wondered—but why? Why did Mr. John Dashwood kick out his stepmother and half-sisters after their father Henry Dashwood died in Jane Austen’s Sense and Sensibility? Why would Anne de Bourgh inherit Rosings Park after her mother dies, and why wouldn’t Mrs. Bennet inherit Longbourn, thus securing a living for her and her daughters in Pride and Prejudice?

Jane Austen uses English inheritance laws as a plot element in many of her novels. It can be very confusing to the modern reader. Entailments feature prominently. The word gets batted around often enough that it is easy to believe that all estates are entailed, all entailments are bad, and the English inheritance laws hate women. I’m not a historian or an expert, but I have researched this and believe I’ve got it right. If I didn’t, please let me know if the comments.

What an Entailment is:

An entailment is essentially a clause in a will that extended beyond the life of the person who made the will. The clause, therefore, survives the grantor of the entailment for a certain number of generations. Usually, three or four. So Bob Sr. draws up his will with an entailment that settles the estate he’s worked so hard to build on the next male heir for four generations, which means Bob Jr. becomes the automatic owner when Bob Sr. dies, Bob III becomes the automatic owner when Bob Jr. dies, and Bob IV becomes the automatic owner when Bob III dies. When Bob IV inherits, the entailment is satisfied. He can do whatever he wants with it—divide it, sell it, turn it into a killer skate park, and leave it to whoever he wants to.

Sounds terribly controlling to make such a big decision for four generations of Bob’s, right? But there is method to the madness and there are legal remedies. The purpose of entailments was not to be egomaniacs (well, for most people that wasn’t the purpose) it was to assure that estates were not broken up, which divided the necessary income to sustain the houses and buildings. Keeping estates intact also assured those making the entailments that the status of their family line would remain strong. Land was power—still is—and it can’t be too hard on the man for looking at the twelve-year-old heir apparent and thinking “I have to protect him from himself.” Creating an entailment that didn’t let an owner ruin everything prior generations had built ensured that the status and wealth could continue.

Entailments were also not only reserved for the first-born son, or a son at all. If someone owned property not bound by an existing entailment, they could entail it on whoever they wanted. The second born son, the youngest son, the eldest daughter. The entailment usually ran with a position in the family, but there was no restriction on what position and what gender that position had to be in order to receive the entailed property. That we see it so often entailed on the oldest son was due mostly to the cultural adherence to primogeniture—first born sons inheriting, which is based upon inheritance laws that the courts used to determine who inherited if someone died without a will. This type of inheritance law still exists for intestate persons in most developed countries, though in most developed countries it would be equally split between all children (I think.)

David Bamber as the odious Mr Collins in the television series of Pride
and Prejudice (1995). Because of the entailment of Mr Bennet's estate,
he is the heir to Longbourn, not his wife and daughters

It was also possible to break an entailment. Let’s say that Bob Jr. thinks this whole entailment thing is a bad deal—it’s not fair that “his” property has already been decided for him. He can’t sell it, he can’t divide it, he’s limited in the way he uses it all because Dad made these decisions. He can break the entailment by getting Bob III—the next generation of direct male heir entitled to the entailment—to agree with him and together they can submit affidavits or something of the sort saying they want the entail broken. If Bob III goes along with this, he will be forgoing his inheritance of the land and allowing Bob Jr. to make his own decisions. This is a little risky for Bob III. Maybe Bob Jr. is a drunk, maybe he’s a gambler. Surely they make some decision so that Bob III isn’t cut out—otherwise why would Bob III go along with breaking the entailment at all—but if Bob Jr. in some way messes things up, Bob III could end up with nothing. 

In the case of Mr. Bennet in Pride and Prejudice, Longbourn was entailed on the next male heir in line to receive—probably the first born. Mr. Bennet only had daughters, which meant there was no direct heir—heir apparent—for the entailment to pass to. The entailment then went sideways in the family tree to the next male heir, a cousin of Mr. Bennet, Mr. Collins who is the lucky guy. The option of getting Mr. Collins to break the entailment is not available because an entailment can only be broken by the heir apparent and Mr. Collins is the heir presumptive—presumptive because there is still a chance that should Mrs. Bennet die, Mr. Bennet could sire a son with his next wife who would then be a direct heir to Mr. Bennet and the entailment would settle on him. Until Mr. Bennet’s death there is still a chance for an heir apparent. The entailment, therefore, can’t be broken by a “possible” heir. Mr. Collins will inherit, leaving Mrs. Bennet and the five Miss Bennets without financial security.

What an Entailment is not:

Infinite. The grantor determines a number of generations, but it can’t go on forever. Back to our Bobs—Bob IV would have been the last to receive the entailed property. He could then decide if he wanted to create a new entailment or take the chance of the estate being broken up by future generations. He’s going to spend his life taking care of it—does he want to risk the chance of Bob V undoing it?

Entailments were not the only way a person inherited. People could will things however they wanted. Entailments were usually reserved for large estates and plenty of inheritances had nothing to do with entailments. If a person in an entailed position purchased additional lands or houses or whatever, those items would be outside of the entailment and he could leave them to whomever he wished however he wished to.

Maggie Smith as Lady Violet Crawley, the Dowager Countess of Grantham
in the television series Downton Abbey (2010-2015). The first season revolved around
her desire to break the entailment set up by previous generations of the Crawley family
so that her granddaughter Lady Mary Crawley could inherit the estate.

A men’s only club?:

So, then, how does it work out for women? Women could have entailments settled on them as well—Lady Catherine de Bourgh from Pride and Prejudice and Mrs. Ferrars in Sense and Sensibility were probably recipients of entailments—one way or another they both controlled their own fortunes out right. Things got tricky, however, when a woman married because anything she owned would legally become her husband’s on marriage. This was viewed as a process of simplification for a government who viewed a married couple as one legal person. The reason women didn’t have the right to vote during this time was because it was assumed that the husband and wife would agree on an issue and therefore the husband’s vote represented them both. Granted, there were a lot of people talking about women having smaller brains and less capacity that makes us struggle to give the benefit of the doubt on this issue, but this was the law’s defense.

Women were also not always left out in the cold when their husband died and the entailed heir took possession. Most men created a settlement for their wife when they married as part of the marriage contract for this exact reason, often investing a portion of his wife’s dowry to ensure she was cared for in case of his death. Mr. Bennet explains that he should have done this, and he didn’t because he assumed, he would have a male heir. It was lazy and irresponsible on his part but made for a good plot devise. A husband could also create a jointure at any point in his marriage, which was money set aside to provide for his wife upon her death—this money could not be part of the entailment, however.

The defense on the male-centric trickle down of wealth during the Regency era was the same defense that had been reflected in most societies over time—men would take care of women. And most of them did. But when they didn’t, the cultural limitations on women put them in a very disadvantaged position. A woman could not vote, so she could not vote for any candidate who might champion her cause politically. She could not hold office, which meant the positions were always held by men and voted in by men—women’s rights were likely not very high on their list of concerns in need of being addressed.

A widow could inherit from her husband if he chose for her to be the beneficiary. She could also tie up her property in what was called a separate estate before marriage which appointed a trustee to manage her holdings so that her husband couldn’t get it. This sort of arrangement did not happen often, and certain factors would have to line up just right for it to work, but it did happen. Many estates had “Dowager Cottages” which was a house set up for the widow to live in for the rest of her life. The Dowager Lady Grantham from Downton Abby lived in the Dowager House after her husband’s death. Sons commonly did look after their mother and sisters after they inherited which caused little change in living situations and secured women’s futures for them.

Am I grateful that inheritance laws provide for equality these days? Absolutely, but it was somewhat of a relief to understand that the reasons behind the inequality of the Regency era wasn’t “necessarily” due to meanness, it was cultural ideals translated into law that usually worked for the good of everyone.

~~~~~~~~~~

Josi S. Kilpack is the bestselling author of several Proper Romance and Proper Romance Historical series and a Cozy Culinary Mystery series. Her new Regency romance novel, Rakes and Roses, was published by Shadow Mountain Press on May 05, 2020.  A Heart Revealed and Lord Fenton's Folly were Publishers Weekly Best Romance Books of the Year. She and her husband, Lee, are the parents of four children.
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