As a writer of historical fiction set in England during the Regency era, I am constantly dealing with the ramifications of the practice and the law of primogeniture. In primogeniture, the first born legitimate son is the sole inheritor of his father’s estate and realty property. This is done is preference to daughters, younger sons, other male relations, and elder illegitimate sons. The son of a deceased elder brother inherits before a living brother by right of substitution for the deceased heir. A system of perpetual entails are achieve by entailing the property not on the man’s son, but upon his grandson. But what does this practice do to the other members of the family.
First, what is the distinction between the law of primogeniture and the custom practiced within Great Britain. The custom of primogeniture is nestled in the practice of entailing land. The law of primogeniture concerns the rule governing the inheritance of property from an individual dying intestate. Ordinarily, the real estate of said individual devolves on the eldest son or heir-at-law, which is determined by the canons of descent. British history tells us soon after the Norman Conquest the right of the eldest son to inherit his father’s land moved from custom to an indefeasible right to a judicial practice during the reign of Edward IV, when the father acquired the power to disinherit his son by fraudulent actions, to Henry VIII’s Statute of Wills, where the right of testamentary bequest was partly conceded, to the period of the Restoration, which abolished feudal tenure and extended the limitations to the whole estate.
The seventeenth century saw the devolutions of settlements, which reflects modern law. Hence all realty devolved to the eldest upon a parent’s death intestate. Even so, personal property is dispensed by different provisions passed during the reign of Charles II and James II. These are known as the Statutes of Distribution. The personal property of an intestate is separated as such: (1) if there is no widow, the children receive the property in equal shares; (2) if there are children and a widow, the children receive two-thirds (after creditors have been repaid) and the widow one-third; (3) the eldest son still retains the real estate, but he is also entitled to his share of the personal property; (4) if there is a widow, but no children, the widow receives half; the other half goes to the man’s father, if alive; if not, to his mother and siblings in equal shares; and (5) if there are no widow, children, parents or siblings, personal property goes to the next of kin, traced by definition of civil law.
Although on the surface women of the aristocracy appeared to enjoy the power of their positions, in reality, like their middle-class counterparts, they depended upon the men in their lives for their status and their financial futures. Only a very few, such as Sarah Villiers, Countess of Jersey, knew financial freedom, managing to retain the power she inherited from her mother, the only issue of Robert Child, the principal shareholder in the banking firm Child & Co. Under the terms of Child’s will, not only did Lady Jersey inherit Osterley Park, but she became senior partner in the bank. At her death, Lady Jersey’s personal estate was near £300,000.
However, Lady Jersey was the exception. Generally speaking, a woman depended upon her father or her husband, or in the case of spinsterhood or being a widow, her fate might rest with a brother or a cousin or some distant relative. Even family trusts and jointures did not protect a woman’s limited income from ending up in her husbands’ hands to use as the husband wished. Neither did the Married Women’s Property Acts of 1870, which allowed married women to be the legal owners of the money they earned and permitted them to inherit property. In 1882, this principle was extended to all property, regardless of its source or when it was acquired.
Daughters were a financial burden on their families: gowns, fripperies, special tutors to “polish” their manners and accomplishments, as well as the drain of their portions upon the estate coffers. A daughter who did not marry or who did not “take” well in society became pensioners at the loss of their parents.
Needless to say, the custom of primogeniture protected and maintained families.
Charles Neate speaks of the “familial” aspect of primogeniture. “It is a hard thing for a father to have to confess and excuse his extravagance to a son, or to justify his desire for a second wife. It is a worse thing for a son to judge his father’s excuses, or to decide naturally, as head of the family, whether it is right that his father should be allowed to marry again.” [Probyn, J. W. (Editor). Systems of Land Tenure in Various Countries: A Series of Essays Published Under the Sanction of the Cobden Club. London. Cassell, Petter, & Galpin. page 403.] The eldest son’s indefeasible right to succession weakens parental authority, especially as both the fathers and the sons age.
Moreover, a widow’s fate is always tentative under the idea of primogeniture. A widow loses much with the death of her husband. A woman’s place in society is linked to her husband’s position. While her son claims his late father’s role, the widow must step aside to permit the son’s wife the role of mistress of the estate. Often such meant her removal to a smaller residence. In The Scarlet Tree (Macmillian, 1947, 16-17), volume two of a four-part autobiography, from Osbert Sitwell, the author describes his grandmother Lady Londesborough. (William Henry Forester Denison, 1st Earl of Londesborough married Lady Edith Frances Wilhelmina Somerset, daughter of Henry Somerset, 7th Duke of Beaufort in 1863.) “Not only did the old lady lose [him], but … nearly all her belongings, being obliged to pursue hereafter the dolorous manner of life decreed by tradition for an English dowager; not only were horses and carriages and grooms and gardens and houses and jewels and plate, and indeed, the whole luxurious decoration of life by which she had been so long surrounded, snatched from her at a single grab, but she also forfeited … the love of the majority of those who had pretended to be her friends. She felt, I apprehended, peculiarly desolate, though as a rule she would not admit it.”
Common law says a widow was legally entitled to a dower share or one-third of her husband’s estate after his death, for under the law of primogeniture, the husband owned only the real property, not the furnishings, etc. He could designate a higher percentage in his will, but that would be the exception, not the rule. As the dowager, she would receive one-third of the income produced by the “farm” or the rental property of her husband’s estate. This meant one-third of the rents and the income from crops grown upon the land. At the husband’s death, a mortgage or outstanding debts offset the value of real estate and other property. However, the dower’s share could not be sold until after the widow’s debt.
Under English common law, the man’s widow was entitled to a share of her deceased husband’s real estate. After the widow’s death, the husband’s will determined how the real estate would be dispensed. She had no right to sell or bequeath the land to another. Depending on the income she was provided by her dower rights and the dowry, the money and goods negotiated by the bride’s father or guardian upon her marriage, she could live well and independent or lead her days within the world of poverty.
Nancy Regency Researcher adds, ” One point the source that has not been mentioned in [the information on the “dower” is the widow could not receive dower if she received anything in the marriage settlements or the man’s will – such as a jointure of any size or any legacy whatsoever to the wife, that deprived her of her right to dower. Any settlements made in the marriage settlements or mention in a will deprived the widow of dower. She only had a chance at dower if she was left no other income. If the successor does not set it up in a legal fashion that suits both parties, then the sheriff arranges matters and is the one to give the widow her dower.
“The rules in the city of London vary somewhat as do those in Kent or where gravelkind is practiced. The rules generally only applied where there was no will. What paraphernalia belonged to the wife and what to the estate has also caused bitter controversy. Much depended on whether the widow was the mother of the successor or not. Sometimes the furniture was declared part of the hereditary estate like the pictures and could not be sold or divided up. Barristers and solicitors have been making their fortunes over wills and estates ever since they were first created.”
The Real Property Commission of 1828 was issued by King George IV to inquire into the law of England respecting real property. The Commissioners regarded the English law of intestacy as “far better adapted to the constitution and habits of this kingdom than the opposite law of equal partibility, which, in a few generations, would break down the aristocracy of the country, and, by the endless subdivision of the soil, must ultimately be unfavorable to agriculture, and injurious to the best interests of the State.” (The Solicitors’ Journal and Reporter) In other words, the Commission ruled that the land should not be divided and subdivided through generations of children and grandchildren and great-grandchildren, etc., until little was left of the original estate.
Primogeniture and inheritance plays a major role in my latest romantic suspense novel, Angel Comes to the Devil’s Keep, a 2017 Finalist for the Daphne Du Maurier Award for Excellence in Mystery/Suspense. When one brother wishes to claim the earldom belonging to the elder, murder is the least of the man’s transgressions.
Angel Comes to the Devil’s Keep [Romantic Suspense]
Huntington McLaughlin, the Marquess of Malvern, wakes in a farmhouse, after a head injury, being tended by an ethereal “angel,” who claims to be his wife. However, reality is often deceptive, and Angelica Lovelace is far from innocent in Hunt’s difficulties. Yet, there is something about the woman that calls to him as no other ever has. When she attends his mother’s annual summer house party, their lives are intertwined in a series of mistaken identities, assaults, kidnappings, overlapping relations, and murders, which will either bring them together forever or tear them irretrievably apart. As Hunt attempts to right his world from problems caused by the head injury that has robbed him of parts of his memory, his best friend, the Earl of Remmington, makes it clear that he intends to claim Angelica as his wife. Hunt must decide whether to permit her to align herself with the earldom or claim the only woman who stirs his heart–and if he does the latter, can he still serve the dukedom with a hoydenish American heiress at his side?