o I saw a comment someone made on a friend’s contest entry, and it made me roll my eyes. It made me roll my eyes because not only was it wrong, it represented a wrong-headed view of property and inheritance in Regency times that I’ve seen so often misrepresented that I want to beat someone over the head. This is an area that I do know something about–and not just because I’ve researched it for my WIP, either!
So, here’s the beating. As a start, I’m going to use this fluff piece here, which is completely wrong in almost every single particular.
Let’s talk about entails and inheritances, rules and devises.
An entail is a legal device that has a narrow form and a broad form. Many people mix the narrow and the broad form. The narrow form of entail–which persists from generation to generation (until something like 1926, when it was converted into an equitable interest–but that’s well outside the scope of our time period)–is a legal fiction that deals with the way that land is given.

Let’s take back a step. Land is given. Who’s giving? Jump back to feudal times. Land was usually given from lord to tenant, in exchange for some service. The service might be the provision of armed men, or giving up thirty cabbages in fall, or something ridiculous like jumping over a stream or delivering a flower. As you can imagine, land under this sort of an exchange wasn’t alienable; you wouldn’t want the beefy man with four sons to give up his land to the weedy dude with only daughters is military service was what you got from giving the man the land.

This system, of course, had eroded by the time the Regency period came into play. But the bones of the system were still in play: at bottom, the state owned the land (that’s why people talk about estates going to Prinny if there’s no heir), and so if there was no heir, the state became the successor.

So what does it mean to be an heir? Now we start getting into the ways in which that stupid Romantic times blurb is wrong. First, it is simply not true that under the law of primogeniture, the eldest son always inherited the property. That was the default rule–if the father died without a will, the eldest son got everything. But in the upper classes, the father almost certainly made a will, and he was perfectly capable of giving land to younger sons. In fact, a very famous case–the Duke of Norfolk’s case, from the late 1600s, which is referenced very obliquely (but incorrectly) in that little blurb–dealt with complications that arose when the Duke of Norfolk arranged his will to give land to his second and third sons.
So you could will land to people besides the eldest son. You could will it to daughters. Wives. Younger sons. Cousins. Favorite servants. Nothing stopped you.

Nothing? Well, not quite nothing. There were two things that could stop you. One, the property might have transfers restricted. Two, you can only give away things that belong to you after death.

The entail, in the strict sense, is a restriction upon transfer. When the land was originally granted to the first owner, it was often granted with conditions. Those conditions might look like this: “To A, and the heirs of his body.” Or “To A, and his heirs.” Or “To A, and the male heirs of his body.” Or even, if you had a very poor lawyer, “To A, and his male heirs.”

So what do those mean? If land was granted to A and the heirs of his body, it was entailed. Technically, it was granted in fee tail, which means that only children of your body could inherit it. Children? Which children? Well–whoever the heir was. That heir could be female; nothing prevented it. If land was granted to A and the male heirs of his body, it could only go to male heirs.

By the time the Regency period rolled around, there was no property that was truly encumbered by this sort of entail. They’d developed what’s called the common recovery. It was truly quite simple. A friend would sue for your property. You wouldn’t object. They’d take the property–and they’d take it in fee simple, namely, without the entail attached. And then they’d give it back to you. It was very well-established by then. This kind of an entail couldn’t stop anyone who had enough money to bring a case.

So, what’s the broad meaning of entail? The broad meaning of entail was not a condition placed upon the transfer of property; it was a condition placed upon the duration of the property. So imagine I have an estate, and I want to pass to my son, and to his sons. But how do I prevent my son from squandering it all? Well, that’s easy. I give my son a life estate, and then give the remainder (the remainder is the bit that’s left after my son has had the estate for life) to his eldest son. My son’s only allowed to spend what he has. If he wants to rent his estate for life and live in Brighton, he’s free to do that. The only thing he can’t do is sell anything on his estate for longer than the duration of his life.

Well, you’re saying. Why can’t I just give my son the estate for life, and then when he dies, HIS sons the estate for life, and then when they die, THEIR sons the estate for life? Well. Now we come back to the Duke of Norfolk’s case, and the Rule Against Perpetuities. The Rule Against Perpetuities (RAP) says, in short form: You can’t boss people around that far into the future.

More specifically (and this is not quite right, sorry, but there’s details I’m leaving out), it says that a condition is invalid if it is possible for the condition to still be in force when everyone alive at the time of the grant is dead plus twenty-one years. This is the statement that RT repeats as “the law only allowed an entail to remain in effect until the grandson of the person making the entail became twenty-one.”
And that would be wrong. Because in order to make an entail while you’re alive, which is precisely what the RT article says you do, you (a) grant yourself a life estate; (b) grant the remainder for life to your eldest living male heir; (c) grant the remainder to the eldest of his living male heirs.

And that violates the rule against perpetuities. How? Imagine you are the patriarch. You grant yourself an estate for life, remainder for life to your eldest male heir. Then all your sons up and die. Luckily, you remarry, and you father a son. At the time the grant was made, this son was not alive. You die; your son inherits.

Your son lives for a very long time. He lives until everyone alive when the bequest was made is gone. He lives for thirty years after that. Thus, 21 years after all lives in being have terminated, the condition–that passes the estate to his eldest male heir–is still in force. Is this likely? No. Is this probable? No. Did courts at the time care? No–in fact, in Jee v. Audley, a court in 1787 held a somewhat similar condition invalid, on the grounds that 80-year-old parents might have had another child. Not only was it impossible for the 80-year-olds to reproduce because they were, well, 80, but at the point when the court decided the case, they were dead. Did that matter? Nope.

My points in all of this is: First, an entail is not what many think it is. Second, there is no such thing as an entail that lasts forever. Third, there was a lot more fluidity in property devises than most romance novelists think. And fourth, if you think that someone’s property devise is “illogical” or “couldn’t happen”–you’re probably wrong. It probably could. The rules were very, very flexible. Then, as now, a good solicitor could get you … well, almost anything.