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Entails: The Longbourn Dilemma

 By Barry S Richman, author of The Scarred Duchess


Mr Bennet’s property consisted almost entirely of two thousand a year, which, unfortunately for his daughters, was entailed, in default of heirs male, on a distant relation.

--Pride and Prejudice, Chapter 7

 

The fear of Mr Bennet’s death, which would result in the Bennet ladies losing their standing in the gentry and becoming homeless—thrown into the hedgerows--is a continuous thread throughout Pride and Prejudice. It is written of fifteen times within the novel and mentioned by inference and insinuation many more. Let’s cover some background of entails and their respective restrictions.

 

Throughout history and into the Regency era, England practiced primogeniture, a law that mandated real estate be passed down to the eldest son, even if he had an older sister. A first-born son would carry the family name into following generations; second and subsequent sons were less important but not wholly worthless. Daughters would surrender their surnames and assets upon marriage. If provisions were not made during the patriarch’s lifetime, the widow and other children had only the mother’s jointure, monies brought to the marriage by the bride and usually excluded in a marriage settlement. As this was the customs of the times, it was not legally enforceable without legal precedence.

 

Under historic English law, the common legal mechanism—fee tail (or entail)—was a type of trust that limited the sale or inheritance of real estate. This meant that the inheritor could not sell or will the property to another person, but instead it would automatically pass down to a predetermined heir as specified in the trust document. This practice was mainly used to enforce primogeniture, where the eldest son would inherit all of the family’s land and titles.

As early as the Middle Ages, wealth was passed down as land. Multiple children living to their majority, which was not uncommon, would dilute assets to zero value over one or two generations. Entails were established to preserve the estates intact and in perpetuity. This changed a few hundred years before Jane Austen’s time, when the duration of a fee tail was lawfully mandated to have a finite end. This did not change the reason, only the need for an entail to be renewed by future generations. By the Regency era, the duration of a newly established entail would usually last for the living generations plus one generation as yet unborn.

 

Suppose, for example, that a family desired to continue the protection of their estate holdings with an entail. At that time, there was a living grandfather, father, and son. The family could establish an entail that lasted for those three living men and add the unborn son’s son as the final heritor. When he came of age, the entail would end, allowing a new entail to be put in place, if the family so chose. And they commonly chose to do so. Why? Entails were put in place to protect the estate from negative consequences of division between numerous family members and waste—the spending away of the income and assets through frivolity.

 

When first Mr Bennet had married, economy was held to be perfectly useless, for, of course, they were to have a son. The son was to join in cutting off the entail, as soon as he should be of age, and the widow and younger children would by that means be provided for.


The male inheritor did not have actual estate ownership. He could neither sell it in whole or in part nor could he do anything that would lower the value, which included the inability to leverage the asset through a mortgage. Rather, the inheritor was designated as a tenant for life. He did not truly own the estate but received the benefits of lifelong occupation of the manse and receipt of the estate-generated income.

 

Keep in mind that entails, while enforced through standing laws, were set up by the family themselves. So, although an entail to heir’s male was detrimental to the female descendants, the tool was entered into voluntarily by their male protectors. Who in the Bennet line would have created an entail and further demean their female line? Was it a grandfather? A great uncle? Mrs Bennet speaks to Mr Bennet on this very subject:

 

“I can never be thankful, Mr Bennet, for anything about the entail. How could anyone have the conscience to entail away an estate from one’s own daughters, I cannot understand; and all for the sake of Mr Collins too! Why should he have it more than anybody else?”

 

Mr Bennet’s indolence is mentioned twice, and with enough added insinuation that had options existed to challenge the entail, he well might not have. Regardless, the male heritor entail on Longbourn was typical of the times, but not all fee tails were designated solely to heir’s male. A non-gender biased fee tail is illustrated later in the book during when Lady Catherine de Bourgh explains why her daughter, Anne, will inherit Rosings. She says to Elizabeth: “Your father's estate is entailed on Mr. Collins, I think. For your sake,” turning to Charlotte, "I am glad of it; but otherwise I see no occasion for entailing estates from the female line. It was not thought necessary in Sir Lewis de Bourgh’s family.”

 

In the 15th century, lawyers devised an elaborate legal procedure which used collaborative lawsuits and legal fictions to ‘bar’ a fee tail, the ‘common recovery’. This concept allowed a family to remove the restrictions of fee tail from land and to enable its conveyance in fee simple.


In the 17th and 18th centuries the practice arose whereby when the son came of age (at twenty-one), he and his father acting together could bar the existing fee tail, and could then re-settle the land in fee tail, again on the father for life, then to the son for life and his heirs male successively, but at the same time making provision for annuities chargeable on the estate for the father’s widow, daughters and younger sons, and most importantly, and as an incentive for the son to participate in the re-settlement, an income for the son during his father's lifetime. This process effectively evaded the law against perpetuities, as the entail in law had been terminated, but in practice continued. In this way an estate could stay in a family for many generations, yet emerged on re-settlement often fatally weakened, or much more susceptible to agricultural downturns, from the onerous annuities now chargeable on it.

The Fines and Recoveries Act of 1833 made it easier to break a fee tail arrangement by allowing the holders of such property to submit a disentailing document that would release them from its conditions. This replaced the common recovery, as once an assurance was officially registered, a fee tail then converted to a fee simple.

 

Jane Austen’s novels provide valuable insight into the social and economic realities of life under the system of entails in England’s Regency Era. With her death in 1817, she missed by a mere sixteen years the opportunity to write of inheritances passing unencumbered and entails no longer requiring to be bypassed by long, drawn out legal wrangling.

 

Sources:

 

"Primogeniture, n.". OED Online. September 2019. Oxford University Press. https://www.oed.com/view/Entry/151368

Maureen B. Collins, "The Law of Jane: Legal Issues in Austen’s Life and Novels", Persuasions On-line 38.1 (Winter 2017).

Heirs & Successes, October 2015. https://heirsandsuccesses.com/2015/10/25/pride-prejudice-entailed-land/‘Pride & Prejudice & Entailed land’, October 25, 2015

Biancalana, Joseph. The Fee Tail and the Common Recovery in Medieval England 1176–1502 (PDF). Cambridge University Press


Image Sources (all public domain):

BBC

Woolley & Wallis

Thomas Beach, Thomas Tyndall with Wife and Children, 1800

C.E. Brock, Pride and Prejudice Illustrations

Otto Erdmann, The Reading of the Will

 



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