Those of us who write JAFF are very familiar with Mrs. Bennet’s fears of being driven into the hedgerows after Mr. Collins takes over Longbourn in Jane Austen’s Pride and Prejudice. Though Mr. Bennet had not left behind a debt-ridden estate, he could have, and such would have been Mr. Collins’s lot. Total we will speak of property. On Friday, we will look at wills.
In many Regency novels, either the hero inherits an estate/title that is deep in debt, not of his making, or the heroine’s father has died and left his family destitute, due to his gaming debts or his poor investments. Both situations play well into the hands of a skilled author of Regencies, and, although they are somewhat cliché, that does not mean a reader will not enjoy the twists and turns all over again. However, of late, I have noted on several of the Facebook groups that people are confused about a particular plot point that mentions a debt-ridden inheritance. Therefore, I am taking on the topic today.
Property could be tied up by entails, previous wills, marriage settlements, deeds, and other conditions accompanying a deed—we usually speak of all of these as being “entailed” property, but each could have a different line of descent. For quite a long time real property could not be devised by a person’s last will and testament, but had to be done by deeds or other means of transfer.
As a general rule for fiction writers, if property was not otherwise tied, it could be left to someone by a will. If there was no will, all the property would either be disposed of according to the various deeds and settlements and entails tying it. The rest would be disposed of according to the laws of distribution in intestacy.
First, one must realize that there is actually a rule against perpetuity law (a restriction saying the estate cannot be taken away from or given away by the possessor for a period beyond certain limits fixed by law) which addresses an entail that lasting more than the three lives (generally the grandfather who is the holder of the entailed property, his first born son, and his first born grandson) plus twenty-one years. Keep in mind that an entail can be renewed when the original owner’s son (meaning the first born son), as described above, becomes the grandfather, the original grandson becomes the father, and there is a new grandson.
The common rule against perpetuities forbids instruments (contracts, wills, and so forth) from tying up property for too long a time beyond the lives of people living at the time the instrument was written. For instance, willing property to one’s great-great-great-great grandchildren (to be held in trust for them, but not fully owned, by the intervening generations) would normally violate the rule against perpetuities. The law is applied differently or not at all, and even contravened, in various jurisdictions and circumstances. Black’s Law Dictionary defines the rule against perpetuities as “[t]he common-law rule prohibiting a grant of an estate unless the interest must vest, if at all, no later than 21 years (plus a period of gestation to cover a posthumous birth) after the death of some person alive when the interest was created.” At common law, the length of time was fixed at 21 years after the death of an identifiable person alive at the time the interest was created. This is often expressed as “lives in being plus twenty-one years.” (Wells Law Blog http://wellslawoffice.com/2011/05/remember-the-rule-against-perpetuities/)
Another point to keep in mind is that property and peerages followed different rules of inheritance, so customarily matters were set up so that the family seat went along with the title.
Property was disposed of through deeds, marriage settlements, and wills. Trusts were established to hold property for the benefit of the real owners. The rules of descent and distribution of these trusts could be set up any way one wanted-—within reason, of course. If property was disposed of by a settlement that was in force for the three lives in being + 21 years (as described above), at the end of that time it would need to be resettled by creating a new entail. That is what many did. If the property was not resettled, or dealt with in a will, it descended by through PROPERTY LAWS, not by LAWS GOVERNING PEERAGES. As long as the property went from father to son or from grandfather to grandson along with the title, all was well. However, if there suddenly was no male heir in the direct line, other provisions were established for disposing of the property. The title might go to a cousin twice removed, but the property could even go to a daughter or the offspring of a daughter.
Male heirs were preferred only because males, especially of the gentleman class, did not want the property to go to another family. Though daughters have as much family blood as a son, when a daughter married (at least, up until the 1870’s) her property came under the control of her husband. Her son would belong to a different family then.
The laws of descent and distribution and inheritance of real estate are complex. It should be remembered that property and peerage have different rules of descent. The family seat can be separated from the title. Property cannot be extinct though titles could be. Property was rarely forfeited to the Crown due to lack of heirs. Usually it was due to a criminal action.
The entail prevented a wastrel from selling off the family estate to pay his debts. An entail was defined by a deed of settlement (or) a strict settlement. The heir customarily received the land for his use ONLY in his lifetime. His rights ceased to exist upon his death.
Originally, many attempted to entail their properties until the end of the world, so to speak. However, the law would not permit “infinity” to stand. In practice, an entailed property only remained so until the grandson of the land owner making the settlement became of age at 21 years. Then, the heir could sell or give away the property. So, theoretically, the entail only held the land through the first and second generation of land owners. However, a little coercion often secured the land for future generations.
Most land owners (and their sons) held no other financial employment. If the property owner’s son wished to keep his “allowance,” he agreed to sign a new deed of settlement, which would assure the property remained in the family for the next two generations, etc., etc. This legal practice offered the landowner to see his property remain in tact for the “infinity” his family duties required.
Sometimes we read where the aristocrat decides he does not want the property, but the law says otherwise. The title and the property are his. He can leave the country and never claim them, but they are his, and no one else has the right to have them as long as he is alive. If the property is entailed, it usually has trustees who hold it until the gentleman dies or he decides to claim it. They and the executors could deal with the debts. However, usually, the debts to the small shopkeepers are not so great that they cannot be paid from the estate coffers.
The executor was supposed to see about paying all the legitimate debts. These were debts on which the stamps were affixed and fees paid. If the deceased had mortgaged the property, the company could continue the mortgage. If the property were entailed, it took something like an act of Parliament to foreclose and sell it. Gambling debts could not be legally enforced unless they were processed as legal loans and stamped and all fees paid.
Only registered debts like mortgages and those on which the stamps and fees had been paid were legally enforceable. The law of the time said an heir was only liable for debts to the sum of the assets he inherited. Most mortgages could be continued, just by paying the interest. As I said above, much of this depends on whether the land was settled or not— deeded to another, entailed, passed by settlements—as to what happened to it. If the man inherited by entail, then he was stuck with the property and the debt. If by will and deed, he could refuse to accept the inheritance and let it be as though the man had died intestate. Then the solicitors would be involved and go looking for the heir while the executor dealt with the creditors.
If the man discards the gambling debts, he could work out a payment to the small creditors and work with the major ones. Most debts will not be signed and sealed ones. Usually it was only some debts, such as mortgages which were so considered. On the other hand, some mortgages of the time ran for a century. It depends on the time of year—rents and such will usually be paid at Michaelmas, which is income.
The book An Open Elite: England 1540 – 1880, by Lawrence and Jeanne Stone, contains a bit of information on debt-ridden estates.
An Open Elite? sets out to test the traditional view that for centuries English landed society has been open to new families made rich by business or public office. From a detailed examination of the landed elites of three counties between 1540 and 1880, the authors come to radical new conclusions about the landed classes. They describe the strategies of marriage and inheritance evolved by older families to preserve their position, and establish that the number of newcomers was always relatively small. The resulting work is a major reassessment of the social, economic, and political history of England since the Reformation.
***This abridged edition of what was immediately recognized as a major work of historical scholarship was first published in 1986 and is now available in Clarendon Paperback with a new foreword by Lawrence Stone.
Mr. Joshua Williams, a barrister at Lincoln Inn (1845) in his Principles of the Law of Real Property says, “In families where the estates are kept up from one generation to another, settlements are made every few years for this purpose; thus, in the event of a marriage, a life-estate merely is given to the husband; the wife has an allowance for pin-money during the marriage, and a rent-charge or annuity by way of jointure for her life, in case she should survive her husband. Subject to this jointure, and to the payment of such sums as may be agreed on for the portions of the daughters and the younger sons of the marriage, the eldest son who may be born of the marriage is made by the settlement tenant-in-tail. In case of his decease without issue, it is provided that the second son, and then the third, should in like manner be tenant-in-tail; and so on to the others; and in default of sons, the estate is usually given to the daughters; not successively, however, but as ‘tenants in common in tail,’ with ‘cross remainders’ in tail. By this means the estate is tied up till some tenant-in-tail attains the age of twenty-one years; when he is able, with the consent of his father, who is tenant for life, to bar the entail with all the remainders. Dominion is thus again acquired over the property, which dominion is usually exercised in a re-settlement on the next generation; and thus the property is preserved in the family. Primogeniture, therefore, as it obtains among the landed gentry of England is as customonly, and not a right; though there can be no doubt that the custom has originated in the right which was enjoyed by the eldest son, as heir to his father, in those days when estates-tail could not be barred.”
A person could not inherit gambling debts. Those are debts of honor incurred by the person doing the gambling, so basically a vowel being held by a gentleman who passes is no longer collected. A son might feel he wants to clear his father’s debts of honor to preserve his father’s name, but a more distant relation might not feel the same urge.
Also, a title cannot be debt-ridden, meaning a barony, earldom, marquisate, etc., does not include the debts. The estates might be encumbered by mortgages or might have been drained of resources so that they need cash in order to become productive again, but that fact does not affect the inheritance of a title. There is also the possibility that the title might show up without estates to support it. No land, during the Regency era, meant “the gentleman” had no way of making money, other than his going into trade or investing…or gambling.
If you want to read up on entailed property and mortgages (and fee tail), I might suggest The Practice of Conveyancing from William Hughes. You can read it at this link [Note this series has more than one volume.]:
Other Posts on My Blog Regarding Inheritance That Might Prove Helpful:
Bride Inheritance? A Cultural Allowance for a Widow or a Means to Control Property?
The Common Practice of Primogeniture in Regency England
Discussion of Land Inheritance
The Effects of Primogeniture on Family Dynamics
Gavelkind, Inheritance in Opposition to Primogeniture
Inheritance and Illegitimate Heirs
Oh, Give Me Land, Lots of Land (or) the 19th Century Entail
Peerage, Abdication, Inheritance, and Questions of Legality
Primogeniture? Collateral Relatives? The First Laws of Inheritance…
Primogeniture and Inheritance and the Need for a Widow’s Pension in Jane Austen’s Novels
Every Woman Dreams... 
Wow! Regina, you sure have done an incredible job a researching a confusing topic, at least from my point of view. This will be a great post to come back to when I need clarity.Thanks. Jen
Glad you found it useful, Jen.
This is a great post–I particularly like the source you cite — Principles by Williams. Law treatises contemporaneous to Regency/Victorian times are by far the better sources because there are many points of property and peerage law then that are super different from those of the present.
I am developing a non-fiction piece on inheritance, primogeniture, etc., that I hope will be picked up by a publisher. I am always deep in reading law treatises. I appreciate your comment.