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

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

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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