QUESTION FROM A READER: I have read in some stories where a gentleman is made a peer through the death of the title holder. A will is then produced indicating that in order to keep the fortune and lands the new title holder must marry, produce offspring or meet and overcome some obstacle or goal. Is this just a tool of fiction, or were such stipulations actually placed on an inheritance? 

ANSWER: I wish there was a straight forward answer without all the layers of “What If,” but I shall attempt to explain as best I can. Like you, I have read those books as well. The first part of my answer is usually the conditions can only be attached to money or something portable like a casket of jewels. Land is treated differently and has different  requirements and any condition except the death of issue was frowned upon by the courts for land. Those stipulations were made, and still are. However, they could only apply to unentailed property. 

However, one can do what one wants with money and attach all sorts of conditions to it, as long as a recipient is named to receive the money, if the first beneficiary does not fulfill the condition. The usual conditions relate to marriage as conception of a child is considered left to God. A condition will be declared invalid if it appears to be hindering the beneficiary from marrying, but not if it just says the person cannot marry one specific person or a member of a family. Conditions set have been that the person marry with the approval of the trustee of the money or else the money goes to another. Or that the person marry within a year, or not marry a hussy, or not marry a member of some family. If the beneficiary violates the condition then the money goes to another. Quite often the one with the money wants the money to go to the remainder man but feels obligated to leave it to the first beneficiary so puts conditions on the money that the beneficiary will not or cannot meet.

This is one area of the law where judges have a great deal of discretion within the parameters of precedence.

However, peerages, entailed lands, settled lands and any property dealt with by a previous will, testimony, or deed usually cannot be handled in this way. No condition can ever be placed to keep the  next in line from inheriting a peerage title.

A person can place conditions on the disbursement of his estate, and that stipulation could be challenged in the courts and still be upheld. If, however, you are talking about assets and property that are entailed to a title, that is a different kettle of fish, for it is not the personal property of the deceased, but is entailed to a title granted by the Crown and as such, is not the deceased’s. The laws of inheritance take precedence over any personal dislikes or the like.

QUESTION #2: What if an elder son could not be found? Given that my hero’s family has good reason to believe he is dead, would his younger brother have already been confirmed to the title? If so, could that confirmation be undone now that the hero is back?

Any inheritance (land and other assets) would be put in trust to be run for the heir until he could be found. Any inheritance due to others via a will would be distributed as per the will. The title would not go to anyone until the government had absolute, irrefutable evidence of his death and proof that he had no legitimate issue. Once that evidence was received, the title would go to the younger brother. If, after all that, the elder son turned up alive, he would still be considered dead as far as the title was concerned. Once a title was given to someone, it was never taken away unless he was convicted of treason or murder. Then it goes to the government and nobody has it. The only way an absent elder son could receive the title is if it remains in limbo until he returns and he is properly identified. The younger brother cannot use it — and cannot even use a courtesy title that was not already his.

The standard of proof for death in peerage cases is higher than in just ordinary cases. When one Napier brother was thought killed in battle, his brother was given letters of administration to his estate. When the brother survived and returned, all was restored as it had been. 

However, once a peerage was given, it could not be taken back. If the next brother put in a petition to be named the peer, and if his brother’s death was assumed, and he received the peerage, and then the brother returned, The House of Lords could not take it from one man and give it to the other, unless the new peer had not yet taken his seat in the House of Lords. 

However, all real and personal property that was supposed to go to the allegedly deceased brother would be returned to him. So one would have the land, etc., and the other the title. 

If the House of Lords had approved the younger brother for the title, it might just suggest to the King that he create a title for the one thought dead. Big legal mess. Everyone wanted to avoid such confusion. 

Property and money can be returned, but a peerage could not so the House of Lords and the King usually took their time deciding such cases. It was easy enough to have a title go dormant, and it was the safest means to solve a difficult situation.