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.
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.
What if they couldn’t find any male heirs, would the entailed state be returned to the present families children? For instance, let’s take Pride and Prejudice, the estate is entailed and Mr. Collins is set to inherit. If he were to die without having any male children and there are no other male relatives in the line alive; would it then go which to the Bennet daughters? Or would it revert to the widow?
Good question. If the estate is entailed to male heirs, then they will search all the collateral lines until they find a living male heir. If they can’t find one and if there is no title involved, I don’t know. In the case of a title, the title and the lands would go to the Crown. Does anyone know regency law regarding what happens to entailed land in a family such as the Bennetts? Common law if a man dies intestate might come into play. (The inheritance is split between the daughters and the widow. I think the widow gets a third and the girls equal shares in the rest, but I haven’t looked up my sources. Rushing today to get some stuff ready for the next release–I’ll come back to this if no one else can give us an answer.)
I think it would depend on the exact terms of the entail. There might be a clause covering what happened if no male heir existed. If not it might very well go to the Crown, which I believe is what happens now if a person dies intestate and no heirs can be found (who else watched “Heir Hunters”?)
I wonder if a younger son today, not inheriting the title and estate, would have the right to expect something in inheritance if his father died intestate.
Phillip, entails were outlawed in England in 1925, so the real property of any peer who dies intestate will be split according to current British law. The whole estate passes to the children in equal shares if the wife or civil partner is not still living. If the deceased does still have a spouse, how much that spouse gets depends on the value of the estate. All of it, if the estate is worth under 350,000 pounds. 350,000 pounds plus half the rest of the estate if it is worth more.
Male primogeniture still exists for titles.
Was it ever possible, in the long chain of history, for a legitimate, qualified male heir to inherit a baronetcy but not the property? IOW, was it literally impossible for the entailed lands to be lost due to the improvidence of the predecessor? Could a baronet therefore die personally bankrupt with no way for creditors to be paid from the estate? And what about today’s potential baronets, many of whom seem not to care about the title. Are titles floating around with no property whose current occupants have shrugged them off?
Andrew, I’m no lawyer, but my understanding is that entailed lands could not be sold by the present incumbent, or taken to pay his debts, because the nature of an entail is that the present holder of the title did not own the lands. As I say above, he has life possession, but the lands belong to his heirs or to their heirs.
So he could die bankrupt, and the creditors could take all the unentailed property — furniture, investments, jewelry. But the entailed land passes to the heir. Also any mortgages, which means the heir might end up working for the rest of his life to redeem the property, poor guy.
But, of course, if the entail is not renewed, then the property can be seized by creditors, or the heir can sell it to get out of hock. The title will pass on with no property.
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I didn’t know about the Deed of Settlement! That certainly throws a new light on the inheritance of titles. I always thought the title and entailed property automatically passed to the recognized heir. Thanks for the enlightenment, Jude!
Pity the poor heir who inherited a title and no property, or entailed property and massive debts he had no way to pay because he couldn’t sell anything.
Very interesting. I enjoyed reading. Thank you.
Thank you for commenting.
I loved all this research, now I need to understand this once or twice removed business. I sure hope sometime you can explain and explore that. Your the best Jude
It’s best understood with a graphic, Roxane. I’ll see if I can draw one.
Here you go. This is a pretty good explanation: http://www.genealogy.com/articles/research/16_cousn.html
And here’s a chart I found.
If a titled man’s sons were all dead, it would not necessarily be the eldest grandson who inherited the title, but the son of the eldest son, if he had one. His cousins could easily be older.
Yes. I intended that. Let me reword. Thanks.
Which is what I meant. I’ve changed it to reflect that.
Small amendment — “heirs male of the body” meant just that, heirs *male*. So children of daughters didn’t count. The line had to go through MALE heirs. This is how my boy’s peerage went extinct — because both his sisters had male descendants living when he died, but neither he nor his brothers managed to have children, so it didn’t count.
Word ‘male’ judiciously added. Yes, indeed.
Slight amendment. Abeyance is when a title is claimed by several daughters or their heirs and no one is a clear winner. If a successor is thought to be alive but hasn’t come forward to claim it, it is dormant. Also all the secondary titles a peer has are dormant if not borne by the heir– that is the barony or two held by an earl along with the viscountcy held by his heir. The Avonmore peerage went dormant in the late 19th century because a younger son of one of the viscounts was known to have gone to Australia ( voluntarily) and had several sons. None of that family came forth to claim the peerage when the other heirs died.
The property was handled according to a different set of rules and laws,
Only if it is known beyond doubt that no heirs are alive does a peerage become extinct.
Titles and property follow different rules.
As soon as the rule against perpetuity as made known to the solicitors and proctors they started looking for ways to get around it.
Modern day real estate lawyers throw up their hands in horror when considering the laws of real property of the regency period , Still the English laws were simple themselves compared to those of Scotland.
Thanks, Nancy. Amended to correct.