It is commonly believed that women could not inherit estates, land in particular. Even a webpage at www.pemberley.com which attempts to explain the working of inheritance to confused Jane Austen readers states that, though they could inherit, it would be as a last resort. 1 Wrong! The eldest child, male or female, was heir or heiress. 2 Indeed, despite popular belief, women could inherit estates. In fact, it has been shown that, statistically, there is about a twenty percent chance that a man will have only daughters 3 ... Common law 4 held that if there were no children (and there is a twenty percent chance of this, too) 5 , estates passed on to the closest relation of the father, men taking precedence over women. 6 All this taken into account, twenty-five percent of all estates went to women 7 -- this is what should show, if common law were all there were to it. Take a look at a study of the creation of titles under James I: with no interference, twelve percent of inheritances went to or through women. 8 This compares nicely to the thirteen percent of all inheritances from 1540-1780. 9 Though entitled, by law, to around a quarter of all estates, women inherited no more than the bare minimum. 10 Why would fathers want it this way? Simply put, they did not want the family name, and more particularly the family name in connection with their house and land to be lost. All devices to give the father more control of the inheritance of his estate were designed to save the family name and (if applicable) title.
It has been said by the inheritance historian Eileen Spring that, since the twelfth century in England, common law had put women right after men in the order of importance for inheritances. 11 It seems, though, that decisions were still made on a case-by-case, not set-law-following, basis 12 and that those lords who made decisions on how an estate should be passed on would have treated women in some way differently. 13 3 Over the next century or two, laws became more standardized. Looking more closely at the important system mentioned earlier, an heir or heiress was looked for in these places, in this order: eldest child, eldest descendant, the collateral males in the father's line, the collateral male's eldest descendant, collateral females, and finally the collateral female's eldest descendant. 14
Sure, women could be right at the top of the line of inheritance. But, if a girl inherited an estate, the family name in association with that house and land would die, being replaced by her husband's. In the words of a contemporary, "An ancient estate should always go to a male. It is mighty foolish to let a stranger have it because he married your daughter." 15 So, over the centuries, aristocrats in England worked for freedom as far who was to inherit estates was concerned.
I.
First came the entail. "Entail" means to interfere with the natural path of inheritance. The basic idea here is that if a man gives away his estate before dying,
16
in a sort of advance inheritance, he doesn't have to worry about everything going to a woman as it would in common-law inheritance (because he can specify it be sent to a man).
17
There were complex problems with the entailing system; historians (Spring and the medieval culture historian S. F. C. Milsom) aren't sure what exactly happened. At any rate, entailment laws were altered so that by the fifteenth century, entails were barrable.
18
II.
The entail by itself had failed as a means by which fathers could have complete control over who inherited their estates, and a new device was in order... this device was to be the strict settlement, which confusingly became known as an "entail," the older entail-by-itself becoming known as the "simple entail."
19
With the strict settlement, entails were settled at a man's marriage. The entail laid out in the strict settlement would account for the possibility of there never being a son, and also set aside an annual sum for the support of the potential widow and younger unmarried children.
20
More than anything else, the fathers of these marrying men worried that somehow, despite everything, the land could fall into the hands of a woman. Daniel Pool, who studied British society of the eighteenth century, claims that sons' entailing their land away to unborn daughters was a significant problem -- he writes that in order to counteract this, fathers could threaten to suspend their now-marrying boy's allowance (after all, this would have been the only money entering the pockets of a young aristocrat) unless the estate were entailed in the deed of settlement (the piece of paper carrying out the strict settlement) to a male (he gives no example).
21
It cannot be true, however, that this was frequently a problem: the young land owners would most likely have just as much interest in being followed by a man as elder landowners would. After all, they were brought up in a society which would stop at nothing to keep a piece of land connected with a particular family name. K. B. McFarlane sums up the thoughts of the time: "It is not surprising that means were sought to enable those threatened to avoid such a disaster [as having an estate]...go out of the family's possession."
22
III.
The last and most extreme device for controlling inheritances was the "use." As the strict settlement was to a deed of settlement, so was the use to a will. Wills are extremely powerful tools for controlling succession... Whereas simple entails and the entail of strict settlement merely sent the course of succession to a different branch of the family tree, the will allowed the English gentleman to pass things on to anyone at all. The use also permitted (perhaps this is where its name came from) the landowner to live on and to "use" the estate, although it already belonged to someone else
23
(remember that the entail, strict settlement, and use are put into effect before the landowner's death, to avoid the common-law rules of inheritance). In 1536, Henry VIII created the Statute of Uses, which outlawed the practice. He underestimated the determination of his subjects, whose protests led, in 1540, to the will-legalizing Statute of Wills; the gentry knew the importance, which their king did not consider, of the ability to pass an estate on to someone who would perpetuate the family name.
For centuries, this was a worry for many landed fathers. A real example of the preference of males over females with the goal of keeping an estate under the same family name, is that of Sir Edward Filton. On his deathbed in 1643, this man found himself heirless and had to send off to Ireland to find another Filton. 24 To his own seven sisters, he said, "I would rather settle my estate on Ned Filton the bonny beggar than on any of my sisters or their children." 25
Jane Austen also provides us with numerous examples of the trials of inheritance. It plays a role in Northanger Abbey, Sense and Sensibility, Lady Susan, and Persuasion. Best is Pride and Prejudice, an excellent study in the use of entails to see the continued life of familial control over an estate. Here, the Bennets live at Longbourn, due to the workings of a complex and unexplained "entail" (in fact a strict settlement) 26 in which a relation leaves his estate to Mr. Bennet instead of to his own son, Mr. Collins. Mr. Bennet has five daughters, so upon his death the estate will pass back to Mr. Collins, and the widowed Mrs. Bennet will have to share a small amount of money with those of her daughters unmarried. 27 Mr. Collins' father, no doubt, would not have minded that the Bennet women would have to live on nothing for the rest of their lives: trusting that the Bennets and Collins' are closely related (Mr. Bennet calls the young Mr. Collins "cousin" 28 ), the family name would continue to run Longbourn.
There is much more to Pride and Prejudice than the simple facts, and much arises from the Bennets' situation. It was, however, just another example of a family trying very hard keep an estate under a single family name for all time. Women (until only very recently) gave up their last names with marriage, and so it follows that as early as 1220, "the king's court [had] no hesitation in affirming that the son of a dead son is to be preferred to living and married daughters: 'quia...ipse est de masculo, consideratum est quod...majus jus habeat in terra illa.'" 29 This familiamony (a new word) lasted for centuries. Over time, various actions were taken to accommodate the landowners' desire to leave their land to other men: first, the entail diverted inheritance, then the strict settlement was used to do this in advance, and finally the use brought on our modern age of wills. It would not be surprising, despite modern equality, to find some of this mentality lodged in the minds of the most upper class English. The teaching of our ancestors are hard to forget.
2. Eileen Spring, Law, Land, and Family: Aristocratic Inheritance in England, 1300 to 1800. Studies in Legal History, ed. Thomas A. Green (The University of North Carolina Press. Chapel Hill, 1993), 9.
3. Ibid, 10.
4. Common law, as opposed to law created by some judicial body, finds its roots in common practice. Henry Campbell Black, M. A, Black's Law Dictionary (West Publishing Co. St. Paul, Minn, 1983), 144.
5. Spring, Law, Land, and Family, 10.
6. A. W. B. Simpson, A History of the Land Law, 2nd ed. (Oxford, 1986), 56-63, cited in Spring, Law, Land, and Family, 11.
7. Ibid, 12.
8. Peter Laslett, The World We Have Lost, 3rd ed. (London, 1983), 239, cited in ibid, 15.
9. Lawrence Stone and Jeanne C. Fawtier Stone, An Open Elite? England 1540-1880 (Oxford, 1984), table 4.2, cited in Spring, Law, Land, and Family, 15.
10. Spring, Law, Land, and Family, 15.
11. Ibid, 9.
12. S. F. C. Milsom, "Inheritance by Women in the Twelfth and Early Thirteenth Centuries," On the Laws and Customs of England, ed. Morris S. Arnold, Thomas A. Green, Sally A. Scully, and Stephen D. White (The University of North Carolina Press. Chapel Hill, 1981), 60.
13. Ibid, 62.
14. A. W. B. Simpson, A History of the Land Law, 2nd ed. (Oxford, 1986), 56-63, cited in Spring, Law, Land, and Family, 11. It is interesting to note that sisters would actually share the inheritance -- the origins of this law are obscure.
15. Boswell's Life of Johnson, Oxford ed. London: 1904, cited in Spring, Law, Land, and Family, 19.
16. Spring, Law, Land, and Family, 28.
17. Ibid, 28.
18. That is, they could be dissolved at any point. Ibid, 29.
19. Ibid, 33.
20. Ibid, 35.
21. Daniel Pool, What Jane Austen Ate and Charles Dickens Knew: From Fox Hunting to Whist--The Facts of Daily Life in Nineteenth-Century England (Touchstone. New York, New York, 1993), 92.
22. Spring, Law, Land, and Family, 23. Also note that added pressure was put on the peers: Titles passed from male to male, and a title was nothing without land. Ibid, 20.
23. Ibid, 30.
24. Victor Stater, Duke Hamilton is Dead! A Story of Aristocratic Life and Death in Stuart Britain (Hill and Wang, a division of Farrar, Straus and Giroux. New York, 1999), 68.
25. Ibid, 69.
26. Spring, Law, Land, and Family, 33.
27. "Jane Austen" at http://www.pemberley.com/janeinfo/pptopic2.html#entail [January 2, 2000]
28. Jane Austen, Pride and Prejudice (Scholastic Inc. New York, 1962), 63.
29. S. F. C. Milsom, "Inheritance by Women," 69.
Spring's book is one of the only in depth studies of English inheritance laws.
Black, Henry Campbell, M. A. Black's Law Dictionary. St. Paul, Minn: West Publishing Co, 1983.
Boswell's Life of Johnson, Oxford ed. London: 1904.
"Jane Austen: Pride and Prejudice -- Notes on Education, Marriage, Status of Women, etc." Available at http://www.pemberley.com/janeinfo/pptopic2.html#entail [January 2, 2000]
Laslett, Peter. The World We Have Lost, ed. 3. London: 1983.
Milsom, S. F. C. "Inheritance by Women in the Twelfth and Early Thirteenth Centuries," On the Laws and Customs of England, Morris S Arnold, Thomas A. Green, Sally A. Scully and Stephen D. White, ed. Chapel Hill and London: The University of North Carolina Press, 1981.
Pool, Daniel. What Jane Austen Ate and Charles Dickens Knew: From Fox Hunting to Whist--The Facts of Daily Life in Nineteenth-Century England. New York, New York: Touchstone, 1993. Explains the meaning and some of the effects of the entail, and compares it to the other common practice of primogeniture.
Simpson, A. W. B. A History of the Land Law, ed. 2. Oxford: 1986.
Spring, Eileen. Law, Land, and Family: Aristocratic Inheritance in England, 1300 to 1800. Studies in Legal History, Thomas A. Green, ed. Chapel Hill and London: The University of North Carolina Press, 1993.
Stater, Victor. Duke Hamilton is Dead! A Story of Aristocratic Life and Death in Stuart Britain. New York: Hill and Wang, a division of Farrar, Straus and Giroux, 1999.
Stone, Lawrence, and Jeanne C. Fawtier Stone. An Open Elite? England 1540-1880. Oxford: 1984.
Wrigley, E. A. "Fertility Strategy for the Individual and the Group," Historical Studies in Changing Fertility, Charles Tilly, ed. Princeton: 1978.