Recently, one of my author friends sent me her Work in Progress manuscript for me to comment on what she had written to that point. She and I often bounce ideas off each other. Although beautifully written, making me sorry not to be more eloquent in my word choices, the initial plot possessed a major flaw from an historical standpoint. Her heroine runs the family estate in the absence of her father, who has passed, and the notion that her brother has gone missing—or, rather, the military cannot account for him being absent, after a major battle. The story takes place some two years after the end of the Napoleonic War, and she has heard nothing of her brother’s demise or a possible act of cowardice.
My friend’s story is one I have read “before,” meaning this is a relatively common plot line in Regency-based novels. I used something similar in one of my JAFF (Jane Austen Fan Fiction) vagaries. In Where There’s a FitzWILLiam Darcy, There’s a Way, Elizabeth Bennet returns earlier to Longbourn from Rosings Park, than in the original novel, because she has received a letter announcing the death of her dear father, Mr. Bennet. Having often imagined that Mr. Bennet’s love of his second daughter had him sharing something of the running of Longbourn with Elizabeth, I have her struggling to keep the estate afloat until Mr. Collins arrives to assume control of the property. Even so, I was cognizant that such a situation would not be accepted in the Regency. Quite quickly, Darcy arrives, having been pressed into service by his aunt, Lady Catherine de Bourgh, to act in Mr. Collins’s stead until she can employ a new clergyman for the living at Rosings. If you are interested, that particular plot line discusses what can and cannot be inherited by the females of the family. Moreover there is a WILL (notice the title) that provides some solace for the Bennet females.
However, that is not the subject of this piece. What was incorrect about my friend’s plot line?
Generally speaking, a woman would not have been left to manage an entailed estate. Instead, a group of predetermined trustees would have assumed that role. In the running of any estate, there were many legal documents, contracts, tenant agreements, purchases for the running of the estate, selling goods produced upon the estate (wheat, wool, etc.), paying taxes, paying tithes, etc., which required a male to sign the papers. (Some of you may recall that in my novel, A Touch of Scandal: Book 1 of the Realm Series, Lady Eleanor Fowler had her father, in the month’s leading up to his demise, sign blank pages when he was conscious enough to do so. Therefore, she could create the necessary documents to keep the estate running until she could convince her brother, Brantley, to return home and assume the dukedom. Please note, be that as it may, I added a cousin who would inherit if Brantley Fowler did not return to claim the peerage, which would keep everything legal. In fact, Eleanor knows where to discover her brother. It is simply a matter of convincing him to return to a place he despises.)
If a peerage is in question, as it was in my example above, it would go dormant, if there was a question as to whether the one to inherit was dead or not. The property could not go to another until it could be proven that the one to inherit, as in the case above, Brantley Fowler, was dead. Bran was the former duke’s only son. If no such proof existed, a “committee” of trustees would run the property and its subsidiaries with the next male in line (the cousin mentioned above) in charge, but always it was with the understanding that the property had to be turned over to the legal son, if said son made an appearance.
Nowadays, we think a person is presumed dead if he cannot be located within seven years, but that was not the case during the Regency. Much of the court’s rulings over such a matter was determined by the efforts to locate the lost/missing person. It could be a year or two or go on indefinitely. Even if there was a younger brother and the lady was acting in his stead until he reached his majority, the situation would not be a go. Once the father died, an estate descended to the oldest son, unless a will said otherwise. If that oldest son was declared dead, the question would exist as to whether or no he had time to sire a legitimate son before he died. The younger might be allowed to assume the responsibilities, but he would not be the “owner” until the eldest is proven dead beyond a reasonable doubt, and it is proven the eldest did not sire a legitimate male child.
A property, like that of Mr. Bennet in Pride and Prejudice, which was under an entailment, was different from a peerage. Someone could be named to assume charge of the property as manager for the “supposed” owner, but only as a life tenant (meaning the property could not be inherited by that “manager’s” sons) and only until the court decided that the current occupant could continue in that role, even if a legitimate heir of the other man shows up. The peerage (dukedom, earldom, barony, etc.) stayed dormant until it could be proven the oldest son was dead. The peerage could remain dormant forever.
Are you confused? Could not a woman be able to assume the estate? Here is part of the gobbledygook that makes this even more bewildering.
Though the lady being female had a definable impact on her ineligibility to run the estate, the main reason for her not being permitted to do so was the lack of legal authority to act in her brother’s stead, whether her older brother is declared dead or not. Even if there was a younger brother who had reached his majority, he would also lack the legal authority to run the estate. Her being female was both a Society-restrictive (frowned upon) problem and a legal one. If she had had the legal authority to act in her brother’s place, she could have hired a good manager who could execute the necessary transactions in her name.
Except for the fact that as quickly as the father dies, the executor has the legal right to see to the legal matters associated with the estate, and her land steward no longer can assist in that matter unless employed by the new executor. The woman could have the right to remain at the estate until she marries, but, without the oversight of an executor, she had no legal right to to sell anything, not even the crops or goods produced by the cottagers, nor could she pay anyone from estate funds (servants) if she did not hold some sort of power of attorney.
Are there other scenarios that could work in this plot line? Keep in mind the property cannot be entailed upon the eldest for any of these situations to work.
- If the eldest son made a will naming his younger brother as his heir, this might work. Even then, the eldest would have likely added restrictions to the inheritance. First and foremost, the youngest must be 21 years of age before he inherits. If the youngest is less than 21, the eldest could have appointed a friend or business associate as a co-trustee along with the sister. Perhaps, then that male trustee could have died or could have ignored his responsibilities, and then the sister could have acted in her younger brother’s stead.
- Or it might be stipulated in the eldest brother’s will that the younger could not touch the capital produced by the estate until he reaches an age, of say, 25. Then the sister could still be a trustee.
- The eldest could not have a will, but he did grant power of attorney to his sister. This would work, perhaps, if his leaving was a planned absence, such as accepting a commission in the war. This would only work if there was a power of attorney (letter of attorney). She could be running the estate under a constructive trust for the eldest brother’s benefit. If the eldest were to be declared dead, she would not have the authority to continue running it for the youngest unless the eldest brother appointed her as his steward or power of attorney.
- If the eldest brother stormed off years ago and the father recently died (as is what happened in A Touch of Scandal above), the father could have named her executor of his will and his estate if she were 21. Then she would have had the right to handle the estate for a specific period of time. [Nevertheless, in my story A Touch of Scandal, not all those restrictions were available. Lady Eleanor is but 20 when the story begins, and her father was a duke, not a member of the gentry. Those properties involved with the peerage play by different rules than say one owned by a country gentleman.]
- If the property was not entailed, her father could have left it to her to handle until the eldest son returned. Such would provide her the legal authority for contracts, etc., likely with the assistance of a good man of business, and it would also provide her many suitors hoping to assume the position of her husband, who would legally take those tasks off her hands.
- Again, if the property is not entailed, the father could have made her the executor of his will. The will could also state that she could own the property if the eldest brother did not return within a specific period of time, say 10 years or 20 years. Then the younger son would inherit after her death. Such a legal stipulation would keep the property out of the hands of her husband, if she chose to marry. If it were just she and her older brother, who had gone missing, even with the will presenting her the property, if she married, the property comes to her husband.