Regency Inheritance Law

Today’s research question:

Under what circumstances could a Regency-era parent withhold their child’s expected inheritance?

I note that in the Jane Austen canon, Mrs. Ferrars Senior “settles all her money irrevocably upon one of her sons” when the other declares his intention to make a marriage his mother disapproves of.

On the other hand, Mr. Wickham famously seduces Georgiana Darcy, “his object being her fortune,” which seems to indicate Mr. Darcy could not cut his sister off financially if she married without his approval. Unless he could, but Wickham was betting he wouldn’t?

My guess is that the terms of the inheritance matter a great deal. If Georgiana Darcy was left so much by her parents, to her by name, to come to her when she came of age or married, Darcy couldn’t do anything? But if the late Mr. Ferrars left all his money to his widow for her lifetime, she could disinherit a child if she wanted to? Something like that?

If anyone knows for sure or could point me to an appropriate website, I would greatly appreciate it.

 

Comments (5)

Adam Strong-MorseJanuary 31st, 2017 at 1:00 pm

This gets pretty complicated. Here’s the basic rule as I understand it in the Regency Era: If a parent owns property outright (i.e. owns property in fee simple, what we think of ordinary ownership, and has actual legal ownership, not an equitable estate like a trust or whathaveyou), they can dispose of it roughly however they want upon their death through a will. There are probably some requirements to provide some inheritance/support for a surviving widow (but that might be a later innovation), and because of coverture (the doctrine at the time that gave a man control over his wife for lots of legal purposes) the ability to own property in fee simple was essentially limited to 1. unmarried or widowed women or 2. men, so a married mother is unlikely to have control over property like this. But a will could by the time of the Regency Era do lots of the sorts of things we might expect people to do with a will: leave some money and the land to one child, leave some money to another child, perhaps disinherit another child, perhaps leave money or assets to a grandchild or nephew or favored friend or servant, etc. So if Mrs. Ferrars Senior owns assets in fee simple, she could disinherit a son by will.

But! Lots of assets, especially among the wealthier classes, are not owned in fee simple. Lots of them are instead in various forms of trust–for example, Darcy’s father might well have conveyed Pemberley and most of his other assets to a trustee in trust for himself for the rest of his life and then in trust for Darcy during Darcy’s life. Then, when he died, Darcy does not formally inherit the estate–instead, he becomes the beneficiary of an equitable interest in the estate. Alternately, Darcy might have received legal ownership of the estate, but as a life estate (only until he dies), with the remainder (the ownership of the estate after he dies) in trust for his children (and in want of his children, perhaps to Georgiana’s children). There are lots of other structures possible here. So, when Mrs. Ferrars Senior “settles her money irrevocably upon one of her sons,” she’s probably establishing a trust for that son–because if it were by will it would not be irrevocable. And Georgiana’s fortune is probably an inheritance that the terms of the will or trust established by her father gave to her–whether as a trust, or in actual fee simple ownership–and thus if the terms of the trust give her husband access to the money, or at least the income, Darcy can’t change the terms of the trust to take it away from her, because it’s hers (or in trust for her), not his. And that makes sense, because a father with an income from land of 10,000 pounds per year might want to make sure that all of his children would have comfortable lives, while also preserving the family’s status and power by keeping most of the assets in one line. So setting up a set of trusts that provide the younger children (or daughters) with say 1,000 pounds per year would protect their interests, and mean that they would get to have rich and comfortable lives, while leaving the bulk of the estate to (or in trust to) the eldest son would mean that the estate remains rich and that the grandchildren will still be rich people with influence and status, instead of gradually dividing up the estate until God forbid someone might actually have to work for a living.

Trusts could also be used to largely replicate, albeit for shorter terms, a true entail. An entail at law was ownership by A “and the heirs of his body” or more typically the fee tail male to A “and the male heirs of his body.” Property held in fee tail could not be sold or devised by will, because it was entailed to the next generation–the only person who could inherit was the son of the holder, or the grandson if the son were dead, or the grandson’s uncle (the younger son of the original owner, etc.) if the grandson died, or so forth. But over time, clever legal workarounds developed so that entails could be broken (at some cost in legal fees), so by the Regency Era, my understanding is that true fee tail ownership was basically gone–except of course that that remained common for how noble titles were inherited, with most created by granting a title to A “and the heirs male of his body.” (Some noble titles have other remainders, and some very old ones were inherited purely through acts of law, through a system where sons inherit ahead of daughters, even older daughters, but a daughter with no brothers could inherit and pass the title on to her children.)

But people still wanted to create the perceived advantages of fee tail ownership: that it guaranteed that the wealth of the family, especially its land, would remain united and would not be dissipated by a spendthrift heir. So they would set up complicated structures of trusts to create an effect like the old fee-tail system, but limited in time (because of a rule that I’m not going to get into called the Rule against Perpetuities) and created by trusts instead of by the legal category of ownership. So Mr. Bennet might have received control of his estate by becoming its trustee, for his benefit for life, and then upon his death to be conveyed in fee simple to his heirs male, or failing those to the heirs male of his grandfather–which turns out to be a cousin, because he had no sons. Or he might have received a legal life estate, but with the remainder to the heirs male of his grandfather (or whatever).

So yes, the terms of the inheritance are everything. How did somebody decide to structure their ownership? What terms did they apply? Is it in trust or in legal ownership? Etc. And the details get very, very complicated.

David KudlerJanuary 31st, 2017 at 3:59 pm

What he said.

An entailment — a stipulation or limitation — of the family trust was why Mr Bennet couldn’t pass Longbourn along to his daughters.

Timebound?

HeatherJanuary 31st, 2017 at 4:07 pm

David – yep!

Adam – thank you! I am not at all surprised you know.

It sounds as though I could structure the inheritance however I like. So if I want my seventeen-year-old heroine’s parents to be able to disinherit her when she climbs out her bedroom window and runs off to Gretna Greene, they can; if I want her to have the money, I specify it was left in trust to her (by a maternal grandfather, perhaps?) and her parents can’t cut her off.

I might ideally like something where the trust specifies she receives the principle when she comes of age. It sounds as though that would be possible under the system you describe. The maternal grandfather settles some money on the mother, then sets up a trust for the mother’s heirs, principle to be divided among them when the youngest turns 21? If the grandfather does not specify male or female, and the only heir is female, that means she gets the lot when she turns 21 and her parents can’t stop it, but she and her new husband are going to have an uncomfortable 4 years first. Does that sound possible to you? Because that would be ideal for the situation I want to write.

Adam Strong-MorseJanuary 31st, 2017 at 4:53 pm

So, I’m not an expert on the rules of the time, but in general: yes, that’s a perfectly plausible trust. That sort of arrangement is common today, where someone might set up a trust for their minor children but provide that when the children come of age (which might be 18, or 21, or whatever) they get access to the principal. (Incidentally, that’s “principal” not “principle”.) One additional minor complication: you don’t actually have heirs until you die (that’s why Prince Charles is the heir-apparent of Queen Elizabeth, not technically the heir of Queen Elizabeth). So, if the mother is still alive, the law won’t want to acknowledge that she’s had all the children that she will have. So a trust that said that it’s for the benefit of “the children of Jane, to be divided evenly among them when the youngest of them reaches the age of 21,” it creates a problem: do we have to wait until Jane dies? In the eyes of the law, Jane could have additional children at the age of ninety. (There are even a whole set of named examples of weirdness that can cause trusts to go awry or be invalid, like the unborn widow and the fertile octogenerian–these mostly come up in the context of the Rule against Perpetuities, which I won’t go into unless specifically asked.) There are rules that deal with this sort of thing, but the more you specify the details, the easier it is to get it wrong. But a scenario where the trust was established when everyone involved was a small child avoids any of those complications (and it could well have included other children who didn’t live to adulthood). Or it might have been a trust just for her benefit.

But yes, that scenario seems very plausible to me, as a non-expert who knows something about the subject.

HeatherJanuary 31st, 2017 at 5:09 pm

Thank you!

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