All Things Austen in April: Inheritance Law and Miss Austen

 

Welcome to All Things Austen in April! The dramatic tension in Jane Austen’s novels are strongly dependent on the inheritance of property, and the property laws of Regency England. These laws are often confusing for modern readers, so let’s separate truth from fiction when it comes to inheritance!

 

 

For most fans of historical fiction and period films, English inheritance law is one of the most confusing parts of understanding English society. Inheritance is also a major part of many novels from that period, as the inheritance of property could make the difference between living well and abject poverty. I am going to talk about some of the myths that I hear frequently and then talk about what the law really in the time of Jane Austen…

Myth #1: Women could not own property.

Wrong. This is completely untrue, as even a casual reading of Pride and Prejudice (Lady Catherine de Bourgh) or Sense and Sensibility (Mrs Ferrars) demonstrates. Both Lady Catherine and Mrs Ferrars have complete control over their fortunes and property and ran the estates themselves. The catch to this is that when a woman married all her property became her husband’s, to do with as he pleased. The exception would be the money set aside as her settlement when they married, which was to support the wife and any children still at home if the husband should die. He cannot touch the settlement.

Another form of support for a widow is if her husband provided her with what is called a jointure, which is basically an allowance for a widow. The jointure was totally at her husband’s discretion and it was not uncommon for widows to be reduced to poverty by a stingy jointure, or to have her allowance left to the kindness of her husband’s eldest, inheriting son (see: Sense and Sensibility to see how well this worked!).

Myth #2: The Law of Primogeniture requires that estates always go to the eldest son.

Wrong. The Law of Primogeniture is only involved in passing on property if the owner dies intestate (without a will). In this case, the entire estate will go to the eldest son and his mother and siblings will have nothing (unless the eldest son and new property owner chooses to help them). Society would look down on a man who tossed his mother out of the house to starve, but anything he does to help her and his unmarried sisters or underage brothers is done because he wants to do it (or at least because he does not want to look like a complete toad to his friends and family). If there is no will and no male child, then the law would divide the property evenly among the daughters. In a family like that of the Bennets of Pride and Prejudice, if there was not an entail and the estate was divided equally between the five daughters their income from a one fifth share of the small Longbourn estate would not leave any individual daughter with enough income to support herself in comfort.

If a man left a will when he died, then he could leave freehold (not entailed) property however he wished, but there were societal pressures that would probably affect his decisions (as John Dashwood’s kind intentions regarding his three half sisters were manipulated by his wife!). First, custom was on the side of keeping the estate intact and passing it to the eldest son (hence, primogeniture= “first son”). Very few landowners in England would divide the property between all his children, or even between all his sons. In pre-Twentieth Century England, your place in society and your power were determined by how much land you owned. Although canny men would also have other investments, their land was what gave them both cash income and status. If, as an example, a man divided his land between his three sons when he died, they would each have 1/3 the power that their father had. If they then divided their pieces of property upon their death, you can see that it would not take many generations for the property to be cut up into pieces too small to support a family.

Since a gentleman could not work for a living, loss of his land and the subsequent necessity of earning a living would drop him from the peerage or the gentry down to the level of a tradesman and he would no longer be acknowledged by his previous friends. The traditions in France were on the side of dividing property among the sons of the family, and led to a weakening of the power of the landowners. The privilege associated with a peerage in France (the title and attached estate) would go to the eldest son, as in England.

Myth #3: All land is entailed and must go to the nearest male relative.

Wrong. Entailment of land (as in Mr. Bennet’s property in Pride and Prejudice) is something which is voluntarily done by some previous owner. An entail specified that the estate went to the nearest male relative. It was active for a variable period, most often three generations, depending on how it was set up. It could not be set up for an unlimited time as English law forbade tying up land in perpetuity. An entail with no end could eventually, if all of the males in a family died, cause the estate to be sitting there with no owner until the end of time. An entail could be removed before the end date if the owner and his heir (two generations of owners, in other words) both agree to break it.

This strategy is what Mr. Bennet wanted to do in Pride and Prejudice; if he had had a son they could have gotten together and removed the entail and the daughters could be given a share. This could only be done by the actual heir. In the case of Mr Collins, he could not break the entail (if he was stupid enough to agree to it) because he was only the heir presumptive. This means that he was only the heir if there was no closer male; if Mr Bennet was widowed and remarried a young woman he might have had a son, who would then be the true heir. No one can displace the eldest legitimate son as heir to an entailed estate.

The benefit of an entail for the estate was that it protected the estate from being broken up or sold off by an unsatisfactory son who gambled, or otherwise wasted his estate. Many large estates would have some land entailed and some not, usually because the unentailed pieces were purchased after the entail was in place and were not added to the entail. This is mentioned in Persuasion when it says that Sir Walter would not sell off the pieces of unentailed land because he was determined to pass the entire estate and the baronetcy on to his heir, just as he had inherited it.

The disadvantage to an entail is that if a man has no sons the property could end up going to nephews, cousins, or even more distant relatives if there are no males closer. This could leave the widowed or unmarried women of the family in desperate straits if the heir chooses not to help these distant relations, as with the Bennet family.

William Cavendish, Fifth Duke of Devonshire

William Cavendish, Fifth Duke of Devonshire

The situation in the peerage was a little different. The upper peers (Earls, Marquises, and Dukes) had titles that were attached to a piece of property, which is why they were called the “Duke of Cumberland”, or the “Earl of Wessex.” This title was not related to their surname (see William Cavendish, Fifth Duke of Devonshire, left) The lower peers (Barons and Viscounts) were not attached to a specific piece of property and so Barons were just called Lord X (for example, Alfred, Lord Tennyson, or Lord Byron, see below) and Viscounts would be called “Viscount X” and not “The Viscount of X.” Peers could own property that was not attached to their title as well, which they could then leave to whomever they wanted, just like the unentailed property of the gentry.

Thus, if the owner of an entailed estate (or a peerage attached to a piece of property) had an heir that was a wastrel, the owner could threaten to leave all unentailed property away from their official heir. The result of this could be to leave the heir without enough resources to keep his estate up and also provide the money necessary to keep the heir in posh clothing and a London townhouse, so it was strong encouragement to the heir to keep his father happy until the he inherited control of the property!

Lord Byron in Albanian Costume

Lord Byron in Albanian Costume

This brings up another issue in English life during the Regency: adoption. A landowner could not adopt a son in order to control the inheritance of an entailed estate. In the first place, the aristocracy up until the 20th Century was very conscious of their status, and would not even consider bringing in a child from a lower class to be brought up as a landowner (which would cause “the shades of Pemberley to be polluted”). A good example of these issues is seen in “Pride and Prejudice.” If adoption of an heir were possible Mr. Bennet would have no worries about the fate of his daughters- he could just adopt a boy and keep the Longbourn estate under the control of someone who would (presumably) care about the health and welfare of Mrs. Bennet and her daughters. This would, naturally, mean that Mr. Collins could have had Longbourn snatched away from him by the adopted usurper, and the law did not allow this.

 

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    • Nicola on April 14, 2016 at 2:08 am
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    Thank you so much for making that clearer to me!
    One last question remains- if Mr. Bennet and M.Dashwood could not leave anything to their wifes and daughters, does that also mean that they could not spend the income from their land on saving their futures? Set away some money for them as some sort of “settlement”? Were thost two patrons just too lazy/not rich enough to do that?

    1. They can keep any past income on the estate, but, as Mr. Bennet is said to have thought: “Mr. Bennet had very often wished before this period of his life that, instead of spending his whole income, he had laid by and annual sum for the better provision of his children, and of his wife, if she survived him. He now wished it more than ever. Had he done his duty in that respect, Lydia need not have been indebted to her uncle for whatever of honour or credit could now be purchased for her.The satisfaction of prevailing on one of the most worthless young men in Great Britain to be her husband might then have rested in its proper place.” Then: “When first Mr. Bennet had married, economy was held to be perfectly useless; for, of course, they were to have a son. This son was to join in cutting off the entail, as soon as he should be of age, and the widow and younger children would by that means be provided for…….This event had at last been despaired of, but it was then too late to be saving.”(Chapter 50)

      The owners of entailed property could not sell any property involved in the entail, which included the land, manor house and any other buildings on the estate, furniture, etc. The remaining family after the owner’s death can only take personal property when they leave- their clothing and personal possessions. In the case of the wife, jewelry inherited from her husband’s family would most likely be included in the entail, but anything which her husband purchased as gifts for her belonged to her and she could keep them.

      In the case of Mr. Henry Dashwood, father of Elinor,Marianne and Margaret, the situation was a bit more complicated. The Norland estate was not entailed, so the uncle could leave the property however he wished. Henry’s son John from his first marriage inherited the Norland estate, but his father had a life interest in Norland from his uncle, so John did not get his inheritance until his father died. John also had a great deal of wealth that he inherited from his mother and her family, so he was already quite well off. The daughters from Henry’s second marriage were left 1,000 pounds each from this uncle as a mark of his affection and Henry Dashwood planned to live frugally and lay by much of his income while Norland was under his control so that he could provide for his second wife and his daughters, but he only lived 1 year after his uncle’s death and did not have time to do this.

      When making out a marriage contract the wife’s settlement is named and put aside for the future of his widow and children, and may include money from the bride’s family (in the form of a dowry) and from the groom in a marriage settlement, but, in the case of Mr. Henry Dashwood, he did not have money to set aside when he married his second wife and she did not come from a wealthy family. This settlement would be put into “the funds” which were basically government bonds where they would accumulate 4% interest, but were not available to be used until Henry Dashwood died. This would protect the widow and children from having the settlement used up by her husband. Once it is in the settlement neither the husband or the wife have access to it until the husband dies. In both S&S and P&P the wives were not from wealthy backgrounds so they only had small dowries and did not inherit any other family money to add to their savings.

    • Debra Perrin on April 14, 2016 at 5:01 am
    • Reply

    So interesting, thanks for this article. I’m British and I still get confused by our laws. Thankfully primogeniture no longer exists.

    1. Except in the peerage and the royal family (until 3 years ago when the inheritance of the throne was changed to allow Prince Williams first child, whether male or female, to inherit the throne). England is unique in that women have been able to inherit the throne for hundreds of years (hence, Queen Elizabeth I and Queen Victoria) but they could only inherit if there were no sons. Henry VIII’s youngest child was a son by Jane Seymour and this son inherited when Henry died, but he was only king for a few years in his teens before he died. At this point, Henry’s eldest daughter, Mary, inherited, followed by Elizabeth I.

    • Theresa M on April 14, 2016 at 7:59 am
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    Very interesting….it certainly clarifies alot. I never had considered the differences between landed titles and non-landed ones.
    Thank you!

    1. Thanks, Theresa!

  1. Thank you for writing about inheritance laws. They are certainly different.

    • Eva E on April 14, 2016 at 8:22 am
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    Thank you for an interesting article. I can now understand why estates were kept as one whole. I always feel sorry for second sons (Col Fitzwilliam) who could end up a tradesman if he needed to earn his living outside of the Army. He could be shunned by the society he was a part of.

    1. This was why wealthy families bought careers for their younger sons. The Army, the clergy, and the law (but only as a barrister followed by becoming a judge- not common solicitors, such as Mr. Philips) were the only respectable careers among the gentry. It would be unlikely that they would become tradesmen because of the drop in their social status, but also because they would have had no training in, or knowledge of) a trade.

    • Hollis on April 14, 2016 at 9:18 am
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    Great explanation of what happens in law and expectations.

    • Margaret Fransen on April 14, 2016 at 9:34 am
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    Nice summary. One question:
    ” If there is no will and no male child, then the law would divide the property evenly among the daughters. In a family like that of the Bennets of Pride and Prejudice, if there was not an entail and the estate was divided equally between the five daughters their income from a one fifth share of the small Longbourn estate would not leave any individual daughter with enough income to support herself in comfort.”

    Couldn’t the daughters decide to keep Longbourn intact and simply split the proceeds equally among them? Or sell it and divide the profit? That would be a significant chunk of change.

    1. That would theoretically work, but since the government would be determining the fate of the entailed estate they would have to sell the assets and divide them among the daughters (taking an inheritance tax along with it).

        • Margaret Fransen on April 14, 2016 at 9:19 pm
        • Reply

        If I’ve read the wikipedia article correctly, the inheritance tax (legacy duty) for the Bennet daughters would be about 1% of the sale price of the land. Not so burdensome.

          • Margaret Fransen on April 14, 2016 at 9:22 pm
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          But it may be that there was not an inheritance tax (succession tax) on estates until 1853.

    • Linda A. on April 14, 2016 at 10:04 am
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    Thank you for the information.

    Question: If the Bennets of Pride and Prejudice DID have a son, would they have had to wait (and hope) for the son to reach his majority before being able to break the entail?

    1. Yes, they could only break the entail when the son came of age, which was at age 21. So, for this to work, both father and son need to survive until the son is an adult, and then the son has to agree to break the entail, which he might not agree to as it would allow his father to sell some of the property to support his daughters and younger sons after his death. This plan would decrease the value of the estate and with an estate that only produced marginal income in the first place, it might make it impossible for the son to keep running the estate without debt.

    • Sheila L. M. on April 14, 2016 at 10:11 am
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    I was aware of these facts. However adoption seemed to be fairly murky. Was there even a legal procedure to adopt at all. Jane Austen’s brother agreed to change his name in order to inherit his aunt’s and uncle’s estate. But were there actual documents that he signed to agree to do so? Or was it more a gentleman’s agreement? So many stories seem to just have a baby, a child, etc. taken in and the “parents” decide to rear that little person as their own.

    1. It was not uncommon for a wealthy family to have “wards” who were raised by them when their parents died, but they had no financial claims on the family unless they decided to leave them something. Often the wards had money which they would inherit as an adult, but needed someone to raise them until then, and some of their fortune would be used to help cover the expenses of raising them, such as clothes, schooling, etc. The adoption of Jane Austen’s brother Edward by relatives occurred when he was 15 and yes, there would have been a detailed contract setting out the requirements on both sides. Obviously, they could do this because they did not have entailed property and could dispose of it as they wished. One of the items in the contract was that he would change his last name to theirs, so their family name would not die out, so he became Edward Austen Knight.

    • Laura H on April 14, 2016 at 10:37 am
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    This was very interesting and enlightening. Thanks for sharing it with us.

    • Carol hoyt on April 14, 2016 at 11:53 am
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    Very interesting! The book references really helped (me) !

    • Pam Hunter on April 14, 2016 at 12:01 pm
    • Reply

    Very interesting information! I learned a lot from your post. Thank you!

    • Kristine Shore on April 14, 2016 at 12:15 pm
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    Thank you for the information, but my question is the same as Sheila’s regarding the adoption of Jane Austin’s brother.

    1. See my response above!! 🙂

    • Deborah on April 14, 2016 at 1:37 pm
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    That was so interesting. Thank you for the clarifications.

    • Rosa on April 14, 2016 at 5:42 pm
    • Reply

    Fascinating! Thank you!

    • Tzivy on April 14, 2016 at 7:09 pm
    • Reply

    Very interesting information, it gives so much context to the storylines in Austen’s novels.

  2. Thanks everyone…I’m happy to answer any other questions you have about this issue (if it’s something I know the answer to!! :-))

    • Jennifer Redlarczyk on April 14, 2016 at 8:59 pm
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    Wow! This was so fascinating! Thanks for correcting some of my assumptions. Jen

    • Carole in Canada on April 14, 2016 at 9:00 pm
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    Thank you for all the detail. When in the death tax come into play? This became such a huge problem for those who inherited these estates/properties.

    • Carole in Canada on April 14, 2016 at 9:06 pm
    • Reply

    That should of said: When did the death tax come into play?

    • Glynis on April 15, 2016 at 12:19 pm
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    Thanks for this post. How complicated was it?? I always thought it was so unfair that the eldest son got it all (as in Colonel Fitwilliam losing out!)but you have explained it so well and I can see how the estates would rapidly disintegrate if split.

    • C. Allyn Pierson on April 16, 2016 at 2:07 pm
    • Reply

    The question of inheritance tax is not a straightforward one. The first “inheritance tax” laws began in the 1600s and various changes were made until 1984, when the current inheritance tax laws were made. This article on Wikipedia does a pretty good job of explaining the different types of taxes that were on inherited land and/or personalty (personal possessions). https://en.wikipedia.org/wiki/Inheritance_Tax_(United_Kingdom)

    • C. Allyn Pierson on April 16, 2016 at 2:10 pm
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    Yes, inheritance taxes have caused many people with large estates to lose their property or have to turn it over to the National Trust and have tourists tripping through the public rooms several days a week

    • Beatrice on April 27, 2016 at 2:11 am
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    Is there an explanation of how Mr Collins does not have the same surname as Mr Bennet that does not assume Mr Collins or his father changed his name, as per Edward Austen Knight? Surely the nearest male relative would have to go through the male line at all points, and a son born to Jane or Elizabeth would therefore never qualify as an heir under the entail.

    • Pamela on February 10, 2020 at 5:17 pm
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    Thanks for this information. My question is would a grandson be able to inherit instead of Mr. Collins if any of the Banner daughter’s had a son before Mr. Bennett died?

    • Marcela on October 4, 2023 at 7:06 am
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    Thanks for the information, because this topic is very confusing to me.
    I would like to ask you what would happen to the inheritance in this case (in Jane Austen’s time):
    A viscountess has been widowed for many years, she has received all of her husband’s fortune, but their only daughter has died in an unfortunate birth and the little newborn has been kidnapped, so the viscountess has no one to leave the fortune to. The only living relative in the family is a very distant cousin of hers. Since the viscountess is very ill, the cousin wants to declare her incapable of keeping her fortune. The questions are: Does the cousin have the right to claim the viscountess’s fortune? And if the granddaughter appeared, would she have more right to inherit than the viscountess’s cousin? In turn, the viscountess is the guardian of a young man who has a lot of fortune, but, since he has been orphaned, she took him to live with her. Would this young man, at the appropriate age, have the right over the viscountess’s granddaughter (if she appeared) or the viscountess’s cousin to claim the fortune?

    Thank you so much.

  1. […] England, women were given the short straw in property ownership. As outlined in the blog Jane Austen Variations, they could own property, with one catch: once married, their husband would take legal possession […]

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