Saturday, April 02, 2016

Question from Kris - Abeyance and inheritance in Elizabeth's reign


I have a couple questions about abeyance and inheritance of titles/lands in Elizabeth's reign.

The short story is, I need a female to be holding land, but not the title that goes with the land. I've been operating as if the title has been in abeyance for hundreds of years, but I could be wrong, & want to check what I'm doing.

If a title went into abeyance because there were no male heirs, the property would have been passed down to the female(s) heirs, correct? Issue/heirs of that female line would continue to inherit the land, but not the title? How would those land-holders have be referred to? Lord/Lady? If so, of what were they lord/lady? Were they still considered noble? Allowed "honorary" titles?

What if there were NO heirs? How would the land get distributed/held in that case? Was it still "in abeyance"? Something else, w/ diff legal connotations? Or was the title (and land?) just subsumed back to the Crown, to be redistributed at will?

Thank-you so much!!



PhD Historian said...

You raise an extremely complex issue that has no simple answer. Apologies in advance again, as a very lengthy multi-part response is required.

First, the entire question hinges on the nature of the title and when/how it was created. You state that your story is set in the Elizabethan period, but the supposed title was created “hundreds of years” before then. That would presumably place the creation to sometime before, say, 1300? A handful of titles in that early period were not actually “created” in the sense of letters patent being issued to a specific individual by the Crown, but were instead created through the issuance of a series of writs of summons to a succession of several parliaments. Thus two or more successive male heads of a major landowning family (Man #1 to parliament #1, then after his death his brother to parliament #2, then #1’s nephew by another brother to parliament #3 as the heir to #2’s property) might be summoned solely by virtue of the extent of their landholdings, and not because of any pre-existing title. But the series of writs could themselves subsequently be used by the family to assert a right to a baronial title. It was rare, but not entirely unheard of. And this is actually a fairly plausible scenario for your story, since such titles may fall into abeyance for lack of male heirs. That is, when no male survives to inherit the barony, the title is instead “shared” by any direct female sibling co-heirs of the last male holder of the title (e.g.: two or more daughters or sibling-granddaughters or sibling- nieces of the last male holder of the title, but not by females born of different fathers [cousins]). It is then up to the family and the sibling co-heirs to petition the Crown for termination of abeyance and settling of the title on just one of the several female claimants. Petitions for termination of abeyance were often very costly to pursue, and the outcome was never guaranteed, so families often elected not to pursue them. But if only one female direct heir survives, without siblings, she gets the title without abeyance.

As for inheritance of the property while the title is in abeyance: As you know, English common law gave preference to male primogeniture. The eldest male issue gets everything. But if there is no male issue, English common law stipulates that the estate, whether it is in land or moveable goods (chattels), is divided equally among any female issue. This would of course split the estate among several heirs, diminishing its cumulative value. In your scenario, with no termination of abeyance having been pursued despite the passing of “hundreds of years,” it seems likely that the original estate would have been so extensively subdivided as to be rendered negligible. You would need to come up with a plausible way in which the title might remain in abeyance for lack of male issue, but the land itself would *not* be divided among two or more female issue in each of several successive generations across those hundreds of years. This will be extremely difficult to invent.

For example, if Baron John Smith dies and leaves two daughters, the barony passes into abeyance, but the two daughters split the estate equally. Jane Smith marries John Doe and they have a son who becomes heir to his mother’s share of John Smith’s estate. Why would he not pursue a termination of abeyance, as the first heir-male to John Smith? Logically, it seems he would. Jane’s sister Susie also marries and has a son. Then the two cousins become rivals for their grandfather’s title. OR, if both Jane and Susie have only daughters, the estate may become further subdivided until a male is eventually born and survives to adulthood.

PhD Historian said...

Any descendants of the last titleholder beyond the first generation who inherit all or part of the original estate but who do not inherit the title itself would be known as simply Master or Mistress X, unless they happen to have some other honor or title (e.g.: knighthood, baronetcy) conferred on them, separate and distinct from the original title. They were not considered noble, and there were no honorary titles. The single exception to this rule would be the daughters of the original holder, who might be styled “Lady.” But those daughters’ own sons and daughters would not have claim to any further honorific.

If I may suggest two possible “outs” to escape some of this confusion:

Firstly, any landholder may of course create a will. Everything above assumes the landholder died before he could create such a will, itself a very common occurrence since death was so often sudden and owing to violence or disease. And prior to roughly the 1400s, inheritance was more often handled by feudal custom and by common law than by written wills. With a will, it is entirely acceptable legally for the testator (the person making the will) to create an entail that limits inheritance of the property to an individual female heir. For example, Baron John Smith may have 5 surviving daughters and no sons, but it is perfectly possible for him to stipulate in his will that the vast majority of his land and property should go to only one daughter ... any of the 5, regardless of order of birth. He can even stipulate that the property will continue to be inherited by just one of however many females there may be in successive generations until a male heir is born to inherit it all. This is known as a comital entail. Basically, the one female heir in each generation is a legal caretaker until a male descendant is born and survives to adulthood and can claim the inheritance.

Secondly, it was not completely unheard of for a title to remain in abeyance for several generations, until some male descendant acquired sufficient property in his own right (and quite apart from the lands formerly associated with the title) and could afford to pursue termination of the abeyance. That distant heir may succeed in acquiring a title last held by some long-dead ancestor, but the fortune to support the title would be derived from his own lands. He would not and could not claim the lands formerly held by the last titleholder.

If a titleholder and/or landholder dies without any heirs whatsoever, however distant (a rather rare occurrence!), then the title becomes entirely extinct and the lands revert to the Crown. Titles do become extinct, and do so with surprising regularity. But those titles are almost always at or above the rank of Viscount and involve restrictions placed on the inheritance by the letters patent of creation. Those letters patent usually restrict the title to “heirs male of the body” of the person for whom the title was created.

Lara said...

Posting on behalf of PhD Historian because the last part got cut off thanks to Blogger's reply character limit :

Letters patent of creation can and sometimes do include “special remainders” that allow the title to pass to a collateral descendant, however. The TV show Downton Abbey offers a perfect example. The Earl of Grantham had only three daughters, none of whom could inherit the earldom. Instead, the Grantham title would have passed by special remainder to Lord Grantham’s (Robert Crawley, played by Hugh Bonneville) first cousin James Crawley and then to James’s son Patrick. But James and Patrick died in the sinking of the Titanic, so a very distant cousin, Matthew Crawley, descended from Robert’s great-grandfather, became the heir via a special remainder established by that great-grandfather. Of course, Matthew eventually married Lord Grantham’s daughter Lady Mary, and they had a son. When Matthew died in a car accident, his and Mary’s son became Lord Grantham’s new heir ... to both the title and the entire landed estate. Upon Lord Robert’s death, Mary and her eventual husband Henry Talbot would have become trustees, not owners, of the estate for their son, the new Earl of Grantham. And not only did the Grantham special remainder allow for inheritance of the title by some non-lineal descendant (brothers, uncles, cousins, etc), it also tied the landed estate to the title: whomever inherited the title also inherited the land. But that link had to be spelled out explicitly by the remainder; it was not automatic. In reality, titles were and are often inherited by a distant heir (heir male general) and the lands by a more direct descendant.

However, these special remainders are a modern invention. They were rather rare in the Elizabethan period, and all but unheard of in the period in which the title in your story was created, i.e., “hundreds of years” before the Elizabethan period. You are going to have a very difficult time placing a title in abeyance for several generations while simultaneously keeping the landed estate intact as it passes through a succession of female heirs, IF you want the story to be historically accurate.

And there is still one more complication, this time in the form in which the land was actually held by your character-family. English landholding is a labyrinth of conditions, ranging from tenancy to leasehold to fee simple absolute. In the Elizabethan period, there was a clear legal distinction between “owning” a piece of real estate and “possessing” that same piece of real estate. The “owner” was very often the Crown, which put the property out to tenancy, to leasehold, or to some other form of possession that benefited both the owner and the possessor. Outright ownership, called ‘fee simple absolute,’ was relatively rare in the Tudor era. Instead, persons with the right to possess certain properties held that right only because someone higher up the property ladder had conferred it on them. A piece of land might be owned by the Crown, but possession granted to Noble A, who then let it out on long-term leasehold to Lesser Noble B, who in turn granted possession to Gentryman C via tenancy. Gentryman C could confer his tenancy to his heirs, and Lesser Noble B could likewise confer his lease to his own heirs, etc. So does your character-family have ownership by fee simple absolute (rare), possession by leasehold (more common), or possession by tenancy (even more common)? One possessor, especially if that possessor is a person of noble rank and wealth, might possess dozens of estates all over the country and by each of the many forms of landholding. It would have been all but unheard of for any nobleman to have outright fee simple absolute ownership of large amounts of real estate, since doing so posed a serious threat to the Crown. For historical accuracy, your character-family needs to possess more than one estate in more than one county and have that possession by more than one means, ranging from outright ownership to basic tenancy.

Kris said...

You have been incredibly helpful, PhD Historian! And thank-you, Lara, for copying out the remainder of the message. I'm printing this all out to read on paper, and work it through it in my mind, and I may have a follow-up question or two, if you're up for it.

Let me share my basic scenario, to see if anything occurs, then pose a few questions that popped up as I read your notes.

I have a woman holding a castle. It has just been taken over by rebels. The original plan of the rebels was to send her away, but now, the hero wants to keep her there, for obvious romance-y reasons. His rebel cohorts still want her sent away.

So, what I need is a person in residence at a castle, w/ some rights to be there (i.e. not a guest) but someone you should, ostensibly, NOT want to marry, i.e. she’s not the heiress.

The only reason I can think of is that the land/property has been separated from the title. And so I’m trying to understand the intricacies of how inheritance of land/property can be at odds with/separate from inheritance of title. i.e. the woman may have held the castle, but she has no other (legal) value.

Basically, I *think* I need to separate title from property/castle.

Widow…? If need be, I CAN make her the heiress, but I’d rather not. Thus, my contortions.

One question that occurred as I was reading your example of Downton Abbey: sounds like the title can be separated from the property WITHIN family, (“titles were and are often inherited by a distant heir (heir male general) and the lands by a more direct descendant.”) But that still assumes the property-inheritor are within-family. Can title & property ever be sundered entirely, between different parties?

Curious....And if that were to happen (or actually, even if the 'split' is within family)...what happens when someone DOES come forward & successfully claim the title? If he gets the title, would he also get the land/property? Does the land/property stay with the folks who have been holding it all this time, passing it down, or do they get kicked out? Or does title-holder have to establish a new ‘home base’ for his title? Something else?

I can make the property ownership be whatever works best. The property & castle are on the Irish marches, so I was hoping a fee simple arrangement would be plausible (if that ends up being best for the story). I’m assuming more leeway was granted in such cases, sort of “yes, please, take this land, subdue these people, just get the job done" mentality. Especially back in the…well, I can make the barony be established whenever needed, straight back to when the Anglo-Normans first went over, in mid-12th c.

You'd mentioned the 'will' idea. I'd love to make the property inheritance a ‘will’ issue—the land is left by will. I think I was under the impression this would be difficult. For instance, I felt so surprised when I leaned Kenilworth Castle was passed down by will. So, you're saying property may have once been attached to a title, but that it can be separated? Or is the 'will' idea only going to work for land/property unconnected to to a title?

That said, I *think* possessor/tenancy-inheritance arrangement will work just as well as a will, I just need to think it through.

So helpful, thank-you!


Kris said...

I knew I should have waited until I could read your notes on paper, PhD. I have done so now, & I see your reply addressed several of the questions I had in my follow-up reply. Specifically, the title-holder, when he reappeared, would have no claim to the property that has since been held by other descendants ("He would not and could not claim the lands formerly held by the last titleholder.") Basically, it's now a title without land. Which, I assume, is the reason the will idea could work; I'd thought the lands were legally 'attached' to a title, but I can see I was wrong.

I'm assuming that if a title-holder died without male issue, the attached land/property would never be granted to a non-family member while the abeyance was in force, correct? B/C that would mean there were no female heirs at the time of the title-holder's death, & that would make the title extinct, not put it in abeyance, correct?

Are there any other reasons a title might be put in a legal/official limbo *like* abeyance? Say, treason? I know title & lands are forfeit, but those titles & land were sometimes regranted to heirs, weren't they?

Thanks again for your thoughtful & helpful reply.

A quick clarification question on the issue of forms of address: would landholders never be addressed by subordinates/social inferiors as 'my lady'/'my lord,' simply bc s/he was the lord of the manor, although not a 'titled' lord?


PhD Historian said...

I am happy to try to help you as best I can, Kris, but I must preface my response by saying that, as a trained historian, I am seldom called upon to deal with fiction and imaginary scenarios. So I may have a little difficulty wrapping my head around what it is that you are trying to accomplish in terms of storyline.

One potential solution to your problem might indeed be, just as you suggested, to make a widow of the lady-possessor. It was not uncommon in the Tudor period for male property owners to stipulate in their last will and testament that the widow should hold what is called a “life interest” in one or more of the deceased male’s estates. Such life interest could even be granted when there was, in fact, a male heir at hand. For example, when Thomas Grey, 1st Marquess of Dorset died in 1501, he left a life interest in most of his estates to his widow, 40-year-old Cecily Bonville Grey. Grey’s eldest son, also named Thomas, became 2nd Marquess of Dorset, upon his father’s death, but he did not “enter into” (gain possession of) his deceased father’s estates until 1529, fully 28 years after his father died and only about 18 months before his own death. During those 28 years, his mother Cecily did remarry, to Henry Stafford, second son of the 3rd Duke of Buckingham. And because English common law stipulates that a woman’s property passes into the control of her husband upon marriage, Stafford gained control over not only Cecily’s dower estates (the lands she held in her own right) but also over any lands in which she held a life interest. The 2nd Marquess eventually appealed to the Crown to prevent Stafford from dissipating the lands left to his mother, both as dower estates and as life interest. Then, despite all that difficulty, the 2nd Marquess immediately did the same thing himself: he left a life interest in all his estates to his own wife, Margaret Wooton Grey. When the 2nd Marquess died in 1531, his eldest son Henry became the 3rd Marquess of Dorset, but Margaret remained in possession of all of the estates. Henry Grey was instead supported by the Duke of Suffolk for almost 10 years thereafter, until about 1541, by which time Henry Grey was 24 years old, had been married for about 5 years, and was already the father of two daughters.

So if your heroine is a young widow and her deceased husband has left to her a life interest in some particular property, she would have possession (but not ownership), even if she had an adult son who inherited the deceased husband’s title (or a daughter who did not/could not inherit the title). And because any widow who remarried might, under English common law, lose personal control over her possessions to her new husband if she remarried, she might strongly prefer *not* to remarry. That, too, was not uncommon. Widowhood gave women many legal rights that were not shared by women who had never married or who were still married. That is, widows were something of a unique class legally. And many women held onto that widowhood status and refused to remarry, specifically in order to maintain a degree of legal independence.

PhD Historian said...

Can titles and property “ever be sundered entirely, between different parties?” Titles must always remain within a given family. Depending on the specific title and the stipulations put in place when the title was created, it can be limited to direct “heirs male of the body” (passing only from father to son to grandson, etc), to “heirs male general” (to son #1, then to son #2 if son #1 dies childless, etc), to “heirs of the body” (passing only to sons and daughters, grandsons and granddaughters, with men before women), or “heirs general” (any heir descended from the original holder of the title, whether male or female, but with preference given to males). Titles do not ordinarily pass out of the family line into some other family. The Smiths cannot inherit a title originally held by the Joneses unless the Smiths are somehow also descended from the individual Jones who first held the title.

As always, there are exceptions, of a sort. It is possible for a title to *appear* to pass to a “new” family line via a female non-heir. Back to Margaret Wooton Grey: Her son Henry Grey married Frances Brandon Grey, eldest surviving child of Charles Brandon, Duke of Suffolk. Charles Brandon had had three sons by two wives, but those sons all pre-deceased him. Thus upon Charles’s death in 1545, his heirs were his two surviving daughters, Frances and Eleanor. The dukedom of Suffolk became legally extinct for lack of heirs male of the body; daughters Frances and Eleanor could not inherit the ducal title. But in 1551, Henry Grey, husband of Charles’s eldest surviving daughter Frances, was created Duke of Suffolk *in his own right.* That is, the decision was made to name his dukedom after the title that his wife might have inherited had she been male. Make sense? It is confusing, I know. It is not uncommon for lay-people to say in such circumstances that the person “inherited” the title “in right of his wife,” but this is usually incorrect, at a technical legal level. Instead, the title is newly created (re-created) with a bit of a nostalgic nod to the wife’s family. Nonetheless, there were instances in which a man *did* receive a title “in right of” his wife, but those titles are almost always baronies and were usually a secondary title (the man held some other title of higher rank and in his own right).

As I noted in my first set of responses, successfully claiming a title out of abeyance does *not* include the property formerly associated with the title, at least not normally. The successful claimant must instead “establish a new ‘home base’ for his title,” as you put it. The lands remain with the family heirs; they are *not* “kicked out” and the new claimant does *not* get those lands. But again, titles are never claimed out of abeyance by poor people with no land. The only persons who might pursue such a claim are already rich enough in lands to be able to afford the very expensive process involved. They already have a “home base” of their own, and are merely seeking a title to give the family a greater level of prestige. Seeking terminations of abeyance is virtually always all about the title itself, not the lands.

Another word of caution: Setting your story in Ireland introduces a whole new set of problems, since Ireland was governed entirely separate from England until 1800. While English parliamentary *statute law* was used as a guideline and precedent for Irish parliamentary statute law, English unwritten *common law* did not always appertain in Ireland. You would need to make your details consistent with the forms of property and inheritance law that prevailed in Ireland from the 12th century until the end of the period in which your story is set.

PhD Historian said...

Yes, property can be separated from a title. But again, it all depends on the specific title and the specific property and whatever legal strategies a family may have put in place to protect both the title and the property. Today, most property held by a titled family is vested in trusts, so that the land cannot in fact be separated from the title without considerable legal maneuvering. Even the actual holder of the title (e.g.: the current Duke of Northumberland, the Earl Spencer) cannot sell off or otherwise alienate chunks of property from the dukedom without the consent of a board of trustees. Both of those men recently auctioned off large amounts of moveable property (mostly paintings, sculpture, and furniture), but both did so only with the consent of the trustees that manage the estates (the Northumberland Estates Trust and the Althorp Trust). Again, these conditions are part of an “entail” set up at some point in the past by a titleholder who was keen to protect the property from any future titleholder who might be a wastrel or otherwise irresponsible with managing money and need to sell property to pay personal debts. Such trusts and entails were occasionally seen in the Tudor era, but they did not become common until a century or more later. But nowadays, most property in the UK that is associated with a title of nobility is held and managed by a trust, not by the individual who holds the title.

Lastly, I must re-emphasize that it would be exceedingly uncommon, even unheard of, for any one person to hold just a single estate of the size and the value of a “castle.” Rather, persons of sufficient status to possess/own a castle were virtually always sufficiently wealthy to own multiple estates, even multiple “castles.” So your lady-heroine needs to own/possess LOTS of property, estates both large and small, in addition to the “castle” at the center of your story. Margaret Wooton Grey’s life interest extended to almost 100 properties, for example.

PhD Historian said...

"...if a title-holder died without male issue, the attached land/property would never be granted to a non-family member while the abeyance was in force, correct? B/C that would mean there were no female heirs at the time of the title-holder's death, & that would make the title extinct, not put it in abeyance, correct?"

Another level of complication, unfortunately. If the land is tied to the title through an entail (if the title and land must be inherited together), and if the letters patent of creation limit the title itself to heirs male (whether of the body or general), and if a titleholder dies without male issue, then the title becomes extinct. Female issue can still inherit the land, ordinarily, but not the title. Abeyance occurs only if there is no clear heir to the *title* and affects only titles, not land.

Off the top of my head, I cannot think of any reason why any title would ever be put in “legal limbo.” They are either active, or extinct. The situation you refer to in which a title is forfeited as a result of a conviction for treason but later “regranted” to the heirs is actually called “restoration.” I could be wrong, but I believe these are actually re-creations of the title but with precedence maintained as though the title had never been forfeited and extinct. A case study might make this a little clearer.

In 1572, Thomas Howard, 4th Duke of Norfolk was executed for treason and the ducal title was forfeited. Howard had three sons, and those sons inherited lands from their mother that were part of her personal property and familial inheritance. But they did not inherit any titles from their father. None of them became the 5th Duke of Norfolk. One did become the 1st Earl of Suffolk, but that was a new creation for him specifically. Another inherited the title Earl of Arundel through his mother. Almost a century passed, then in 1660 the 4th Duke’s great-great-grandson was “restored” as 5th Duke of Norfolk. Because there had been no Duke of Norfolk for at least four generations, the title was really simply “recreated” for a member of the same family that had previously held it. BUT, the age of a title establishes precedence for the holder of that title. The older the title, the greater the seniority and greater the precedence enjoyed by its holder. It may seem silly to those of us who are not part of such rarified circles, but in England in the 16th and 17th centuries, precedence was everything. Greater precedence meant being able to get closer to the monarch, literally, especially in public ceremonials. And that ability to get closer was a source of great pride for many. So, when a title is “restored,” it is actually simply recreated but with the seniority and rights of precedence left intact as though there had been no lapse. The 5th Duke of Norfolk enjoyed the same seniority and precedence he would have had if he had been the 4th Duke’s son and actually inherited the title directly, without four ancestors in between. And to my knowledge, the 5th Duke did not receive any new grants of lands at his restoration to the title. If I am not mistaken, the granting of lands at the time of the creation of a title and specifically to support the title pretty much died out early in the 16th century, during Henry VIII’s reign. After that, most persons being granted a new title already possessed sufficient lands to be worthy of the new dignity.

PhD Historian said...

“Would landholders never be addressed by subordinates/social inferiors as 'my lady'/'my lord,' simply bc s/he was the lord of the manor, although not a 'titled' lord?” In actual practice, the English were (and to some extent still are, perhaps) fond of using honorifics that are not technically valid. It’s part-and-parcel of English politeness, I suppose. Workplace bosses and superiors are still sometimes referred to by subordinates as “governor,” even though that boss is not actually a governor in the usual sense of the term (he is not an appointed or elected Governor). “Governor” is, in that setting, almost a genteelism. And the same no doubt happened at a local and informal level among tenants of a manor. The landlord might be addressed as “milord” or “milady” out of respect for their higher social status, even if they did not hold any title of nobility. But they would never be addressed in that manner by their own social equals or superiors, nor by persons of roughly equal rank. The hyper-polite use of “milord” and “milady” occurred primarily when there was quite significant dissimilarity in rank.

PhD Historian said...

I misspoke above in my discussion of heirs male of the body vs heirs male general. The examples I gave in parenthesis for those two categories are both actually for heirs male of the body. An heir male general is more complicated. To return to the Downton Abbey example, Robert 6th Lord Grantham had no heirs male of the body; he had only daughters. Matthew Crawley was his heir male general because Matthew was descended from the 3rd Earl of Grantham who created the entail tying the lands to the title, but Matthew was from a different branch of the family (descended from a younger son of the 3rd Earl). Mary and Matthew's son was Matthew's heir male of the body and Robert's second heir male general. Heirs male of the body occur in a direct line of descent. Heirs male general can cross over into another branch descending from a single common ancestor (grandfather, great-grandfather, etc).

Kris said...

Hi PhD!
So very sorry for my delay in replying--this is the 3rd time I've come by to leave a comment, and then I head off, and check back a few days later, and realize it never posted, so I try again. I've realized it's my browser--I use one sometimes that won't execute the command to send for some reason. Or at least I hope that's the problem. Hoping 4th time's a charm!

Wanted to say a heartfelt thank-you for all your time and thoughtful attention to my question. Your information convinced me I needed to drop the abeyance issue--at least for this story--& that helped a lot. There were many directions I could have gone, and narrowing them down is a huge part of loosing my creativity.

Thanks again for all your time!


PhD Historian said...

You are very welcome, Kris.