Who inherits the title and the estate?

The heroine of A Raging Madness is a penniless widow, with no family except her horrible in-laws,  her dead husband’s loathsome half-brother and his even more ghastly wife.

So why was she penniless? She is living in a substantial house on a nice little estate which has been comfortably supporting her, her mother-in-law, and the two villains, as well as a number of students. Who owned it, and why didn’t she?

Down the research rabbit hole I go

In order to know the answer, I had to research inheritance law in the early 19th century. What happened if a man died without a will? What if he had a title? What if his property was entailed. If he left a will; could he leave his wife out of it?

In this post, I’m going to talk about titles and entails. In part 2, I’ll get to wills and widows.

Gervase was a baronet

Ella was married to a baronet who inherited his estate while he was still a boy, and to understand why that matters, you need to know about entails.  Entails were to do with real property (land and buildings), not with titles.

(I’m not a lawyer, and this is all in layperson’s language, so please correct me in the comments if I’ve got anything wrong.)

Your title went to your heir

Who inherited a title was decided by the wording of the document setting up the title in the first place. Mostly, this was ‘heirs male of the body’, which meant the eldest living legitimate male in a direct male line from the most recent of the title holders to have male descendants.

That’s a complicated sentence, so let’s tease it out. If the baronet was married and had living sons (biological—adoption didn’t count), the eldest son would inherit the title. If he had no sons, but grandsons, then the eldest son of the eldest son would be baronet. If he had no male descendants, but his brother had sons, then the heir was the eldest living male descended from the baronet’s father, the most recent of the title holders to have male descendants.

A few titles were set up to go to females if there’s no male heir. If a qualifying heir is thought to exist but can’t be found, the title goes dormant (EDITED I originally said into abeyance, but that’s different. See Nancy’s correction, below). If no heir exists, it becomes extinct. That’s what happened to Gervase’s baronetcy. His son inherited it the moment he was born, since Gervase was already dead, but he died while still a baby.

I’ve posted before about male primogeniture, which was the English system. Primogeniture just means the eldest offspring.

If your land was entailed, it also went to your heir

Most titles, when granted, came with land, villages, and one or more houses or castles. The wealth of the aristocracy was still, in the early nineteenth century, in their land. Not because the real property naturally belonged to the title, but because the aristocracy had figured out a way to stop a careless descendant from getting rid of it all. They could create a agreement that settled the property on the heirs to the title, whether or not those heirs had been born yet. This agreement was called a Deed of Settlement and it meant that the current title-holder had life possession of the property, but that it belonged to the heirs.

This was the fee tail (or entail). By contrast, land owned in fee simple belonged to the current title-holder.

Entails needed to be renewed, generation by generation

In English law, real property was covered by something called the Rule Against Perpetuity. The Rule meant you couldn’t make a will stick if it left your house and land to your own descendants forever and ever. The Deed of Settlement could leave real property to your heir and maybe your heir’s heir.

I’m guessing that Gervase’s grandfather had a conversation with his son (we’ll call him Horace) that went something like this. “Now you’re twenty-one, boy, I need your signature on these documents. It’s the entail. It’ll keep the house and land with the title, so it goes to your son.”

Horace takes a quick look and frowns. How is he to support himself in London if he can’t use the land as a stake in a gambling match or as security for a loan? His father, who had the same conversation with his own father, can see the way the boy’s mind is working.

“Obviously, lad, you’ll need a raise in your allowance, and I’ll pay the lease on your London townhouse.”

Horace looks his father up and down. The old codger is hale and hearty; could live till he was ninety, beyond a doubt. Probably by then Horace will have settled down and will be glad to still have an estate on which to settle his wife and family. He signs the Deed of Settlement, and the land is safe for another generation.

Which is tricky if the heir has only daughters or the title holder dies young

Marry your daughters to someone who could support them

Of course, your heir signs the Deed of Settlement fully confident that he’ll eventually have sons. What if he doesn’t? There he is, with the whole estate tied up in the entail, and five daughters. He’d better find husbands for them all, for the next heir, his second cousin twice removed, won’t want to house them.

Or what if he has a son and then dies before the son is twenty-one? The agreement has to be made between adults. In my story, Horace inherited and then died before Gervase turned twenty-one. The entail meant the property was settled on Gervase by the agreement between Horace and his father, but the entail goes no further than Gervase, the next generation after Horace. Gervase can leave his real property however he likes, or die without a will, in which case the rules of inheritance come into play.

More about that next time.

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