An entail or “fee tail” operates like a will that sets up a primogeniture system for real estate. Entail restricts the sale or inheritance of an estate and prevents the property from being sold, or left by will, to anyone other than a pre-determined heir. The primogeniture system meant the eldest son inherits the title, even if he had an older sister. Daughters couldn’t inherit their father’s title even if they had no brothers, and daughters’ sons and grandsons couldn’t inherit. The title had to pass to and through legitimate sons. A feature of Pride and Prejudice is the problems that can arise through the entailing of property.
Entailing property was an attempt to maintain the high social status of a family. A lord or other landholder left his house and land to his son “and the male heirs of his body.” ensuring that a single male descendant gets all the family’s real estate. Where the family has a noble title, the entail follows the title, so the same man gets the real estate and the lordship.
The importance that ownership of an estate had, as a source of wealth and a symbol of family status isn’t easily dismissed. A landowner was essentially a trustee with a duty to preserve their land for future generations explaining the desire for property to go only to a male heir.
An estate could lose its status by two means
1) Division. If it were divided equally between all heirs over several generations, leading to numerous smaller landholdings that didn’t meet the requirements for similar social status; and
2) Dissipation. If the head of the family were impecunious and was forced to sell his land to raise funds, and then fritter away the sales proceeds, the whole family sinks into obscurity.
Primogeniture was devised to eliminate division. Entailments were devised to combat dissipation.
Pride & Prejudice
In Pride and Prejudice Mr Bennet, the father of protagonist Elizabeth Bennet had only a life interest in Longbourn, the family’s home (and principal source of income) as the property was entailed.
Mr Bennet had no power to sell Longbourn, or gift it through his will as it was strictly arranged to be inherited by the next male heir. If Mr Bennet had fathered a son it would have passed to him, but it could not pass to any of his five daughters – Mr Bennet’s cousin as the next nearest male heir would inherit the property.
Mr Bennet’s death would mean that the five Bennet daughters, would lose their home and income. In the novel, Mrs Bennet is motivated by the desire to arrange a good marriage for each of her daughters to ensure their financial security.
Jane Austen’s brother Edward, had inherited entailed estates from Thomas and Catherine Knight, distant cousins of their father under the will of Elizabeth Knight, who died in 1737. When Thomas died in 1794 he left the estate to his wife for her life, who subsequently moved away before her death and gave up the estates to Edward. Catherine Knight’s will stipulated that Edward change his legal name to Knight which he did in 1812.
Robert Earl of Grantham has a problem; he has no sons, and an “entail” keeping any of his three daughters from inheriting his great estate and mansion: Downton Abbey. In essence, The Earl has the full use of the property during his life (a life estate) and, at the end of his life, it will pass to the closest male heir.
The Earl had a good relationship with the heir, his first cousin James Crawley, and there was even an engagement between the Earl’s oldest daughter Mary and James’ son Patrick. However, the heir and his son both perished on the Titanic. So the new heir, Matthew Crawley, the Earl’s third-cousin, once removed, thanks to the entail will someday inherit the earldom, the farmland, and Downton Abbey.
The fee tail allowed a patriarch to keep his estate intact in the hands of one male heir thereby perpetuating his family-name, wealth and power through a series of male descendants. It was a form of trust whose trustees are replaced as they die allowing the trust to effectively continue indefinitely.
In England, the succession often appeared to be seamless from patriarch to patriarch, due to the baptism of the eldest son and heir with his father’s Christian name for several generations.
In Brideshead Revisited the entail ended with the current Lord Marchmain allowing him to leave his estate to his eldest daughter Julia bypassing his eldest son and presumptive heir. When asked if she would accept it Julia replied
‘Certainly. It’s papa’s to leave as he likes.’
In Downton Abbey catastrophe was averted when Roberts eldest daughter Mary married Matthew, who subsequently died, but not before providing a son George – a new heir to the Earldom although via his Father and not his Maternal Grandfather.
Although Fee tail was abolished in 1925, entailed estates may still exist if they were created before this date, however, no new fee tails can be created as of 1996.
In general, the Rule against perpetuities at common law provides that an interest in real or personal property is void if it vests later than 21 years after the death of everyone alive (including unborn children) at the time the gift was created.
All State and Territory jurisdictions in Australia except South Australia have retained the Rule but have modified it in different ways by statute, mostly specifying a maximum perpetuity period of 80 years.
It is more accurately described as the rule against remoteness of vesting for it is not a rule against interests that last too long but rather against interests that vest too late. As we saw yesterday if a gift in a will violates the Rule against Perpetuities, the court will simply strike that gift and transfer the subject of the gift as if the will had not mentioned it.
Matt is a real estate lawyer and although he is a bit uncomfortable about admitting it (and tries to live a relatively middle-class life) is one of the descendants from the union between a white settler and a native Polynesian princess in the 1840s. The family tree stretches back to the earliest white settlers in Hawaii.
As trustee for the family trust, whose principal asset is an unspoiled tract of land on Kauai, Matt is mindful that due to the rule against perpetuities the trust is expiring in seven years. He feels pressure from his cousins who want to cash out by selling the land that will make them all multimillionaires however Matt feels troubled that he might betray a 150-year-old legacy.
At the King family meeting, the majority of the cousins wish to sell the land, Matt decides against this and wants to look for a different solution to the problem posed by the rule against perpetuities. Several of the cousins tell a resolute Matt that they will take legal action if the property isn’t sold. Similarly, how will Matt prevent the land from being developed during the trusts final seven years?
If the cousins take action for breach of trust and Matt is found to have breached his trustee’s duties it would take a sizable amount in legal fees and delay any sale by the length of the case.