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.

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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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AMAZON

Inheriting an Estate

by Maria Grace

For most, land ownership came about as the privilege (or right depending on how you looked at it) of being the eldest son (or otherwise designated heir) and inheriting the family holdings. Since, during the era, social standing and power was all about land, those who possessed it enjoyed considerable perks as a result. But there were commensurate responsibilities that went along with those advantages

Primogeniture

The law of primogeniture guided most estate inheritance of the era. In short, the law required that a family’s eldest surviving son would inherit the family’s estate in its entirety. Only in the case of a family with no sons, would the estate pass to a daughter or daughters. If there was more than one daughter, the estate would pass to all of them equally, not just the eldest. Since, if any of these daughters married, their share would then belong to their husbands, the ownership of the estate could become very complicated very quickly. So when multiple daughters inherited, the estate was often sold and the money divided equally among the sisters.

What about widows and younger children?

Widows did not inherit estates. Instead, marriage settlements would establish a jointure—an allowance normally based on one tenth of the dowry she brought into the marriage—to be paid by the estate annually for the remainder of their lifetime. These arrangements would have been made at the time of the marriage and might or might not permit her to maintain the lifestyle to which she had been accustomed during her married life.

Primogeniture did not require any inheritance be passed to younger children. When a man wanted to provide something for his younger children, the total legacy allowable was based on the amount his estate could support without harm to its capital value. In England this sum was calculated customarily by estimating the amount available at twelve and a half per cent of the capital value of the estate. (Copeland, 2006) This total amount could be divided among all the younger children, equally or not, according to the father’s wishes. This amount would usually be separate from the money for daughter’s dowries, which would have been established in the marriage articles.

Merchant families were not bound by the constraints of primogeniture and typically left fortunes to all their children, including their daughters.

Strict Settlement and Entailment

Since females inheriting estates generally mean the loss of estate to the family line, many—estimates place it at half or more during the eighteenth century—used strict settlement entailment to ensure an estate would pass down a family’s male line, usually for three generations.

A strict settlement could be done in two ways, each featured in Jane Austen’s writing: a fee tail and a left estate. Sense and Sensibility featured a life estate. The senior Mr. Dashwood inherited the use of Norland estate during his life time, not the actual ownership of the estate. After Mr. Dashwood’s death, the estate would go to the individual designated in the original will, in this case, his son by his first marriage.

In Pride and Prejudice, Jane Austen featured a fee tail estate. In the simplest of terms, a fee tail meant that a man would leave his estate not to his heir but to his heir’s heir. The man’s heir would receive a ‘limited life tenancy’ to the estate, after which the estate would pass to the life tenant’s heir. The inheritance could be further limited to male heirs or ‘male heirs of the body’ which would ensure patrilineal inheritance, keeping the estate in the family for two more generation.

When a landowner suffered a failure of issue—that is, he failed to produce sons—a paternal nephew would normally be made the sole heir. If he were somehow unavailable, then a descendent would be determined according to ancient heirship rules. (Designations other than ‘male heirs of the body’ could be made. Wills could designate a daughter or daughters as life tenant with the fee tail held for the first (legitimate) male heir produced among them.)

A strict settlement of either variety gave the life tenant limited use of the estate during his lifetime. He might enjoy the income of the estate and the responsible use of its facilities. However, he could not dispose of the estate or any part of it. Moreover, he was often limited in the ways he could use the resources of the estate. A life tenant might be prevented from selling timber from the land because it was considered as belonging to fee tail holder of the estate and would deplete the capital value of the estate. Similarly, he might not be able to mine resources on the estate and even if he could, he might not be able to raise the money to do the mining because he could not obtain a mortgage on the land.

All of this meant that the life tenant had limited access to capital to repair or improve the estate, leading to estates falling into severe disrepair. To avoid this problem, in many cases, a small portion of the estate was granted outright to the current owner to give him some flexibility to deal with unexpected problems. (Shapard, 2010)

Even with all these difficulties, entailments could continue for many generations through the process of resettlement. Typically, this would occur when the heir or eldest son reached the age of twenty one, or at the time of his marriage. Essentially, the life tenant would offer the fee tail heir—usually a father offering this son—a lump sum of money or an annuity from the estate. In order to acquire the money, they further agreed to end the current entail, fund the amount from the estate, and create a new settlement whereby the land would go to the father for his life, to the heir for his life and then in fee tail to the heir's heir. Thus a new entail would be created, but the estate would now be depleted by the lump sum or encumbered by the annuity pair to the original fee tail heir.

So, if the Dashwood family had done this, when Mr. John Dashwood reached twenty one (or married Fanny) he and his father, Henry Dashwood, would have sat down together and decided how much Henry would have to offer John to see the entail continued. Next, they would visit the solicitor to have the original entailment barred (discontinued). A trip to the banker would follow to juggle the finances in whatever way necessary to provide John’s money. The process would end with another visit to the solicitor to redraft a new entail, naming John’s (not yet born) heir as the fee tail heir of Norland. John would have money to fund his lifestyle, Henry would know the estate would be preserved in the family for two more generations, and the heir to be of John Dashwood would have to deal with an estate, now depleted of a possibly significant portion of its capital. The estate might be impoverished, but it would remain in the family, which was after all, the most important thing.

This system of inheritance flourished between the mid-seventeenth century to the later part of the nineteenth century, when an act of parliament gave the life tenant greater powers to dispose of the estate.

References

Adkins, Roy, and Lesley Adkins. Jane Austen's England. Viking, 2013.
Austen, Jane, and David M. Shapard. The Annotated Pride and Prejudice. New York: Anchor Books, 2003.
Austen, Jane, and David M. Shapard. The Annotated Sense and Sensibility. New York: Anchor Books, 2011.
Austen, Jane, and Edward Copeland. The Cambridge Edition of Sense and Sensibility. Cambridge: Cambridge University Press, 2006.
Bennetts, M.M., “At the heart of a great estate is… .“ M.M.Bennetts. April 11, 2012. Accessed May 20, 2014. http://mmbennetts.wordpress.com/2012/04/11/at-the-heart-of-a-great-estate-is/
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Hitchcock, Tim, Sharon Howard and Robert Shoemaker, "Churchwardens and Overseers of the Poor Account Books", London Lives, 1690-1800 (www.londonlives.org, version, 1.1 17 June 2012). https://www.londonlives.org/static/AC.jsp
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Sullivan, Margaret C., and Kathryn Rathke. The Jane Austen Handbook: Proper Life Skills from Regency England. Philadelphia, PA: Quirk Books, 2007.
Swift, Deborah. “Law & Order - Duties of the Constable in 17th Century England.” English Historical Fiction Authors. May 24, 2017. Accessed May 29, 2017. http://englishhistoryauthors.blogspot.com/2017/05/law-order-duties-of-constable-in-17th.html
Trevelyan, George Macaulay. Illustrated English Social History. New York: D. McKay, 1949.
Vickery, Amanda. The Gentleman's Daughter: Women's Lives in Georgian England. New Haven, Conn.: Yale University Press, 1998.
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Wilson, Ben. The Making of Victorian Values: Decency and Dissent in Britain, 1789-1837. New York: Penguin Press, 2007.

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Though Maria Grace has been writing fiction since she was ten years old, those early efforts happily reside in a file drawer and are unlikely to see the light of day again, for which many are grateful. 

After penning five file-drawer novels in high school, she took a break from writing to pursue college and earn her doctorate. After 16 years of university teaching, she returned to her first love, fiction writing.

Click here to find her books on Amazon. For more on her writing and other Random Bits of Fascination, visit her website. You can also like her on Facebook, or follow on Twitter.