ust in case you were curious, there’s one other thing you need to know about entailed property. Remember how I told you that you could suffer a common recovery to break an entail?

One giant exception: Not in Scotland. In Scotland, you were pretty much stuck with an entail.

I haven’t verified Ireland, but I suspect the same is true. Why? For other reasons, completely unrelated, I was trying to figure out what crimes worked a corruption of the blood. (Translation: There are some crimes that were so bad, that you couldn’t pass your property on to your heirs if you were convicted. Treason, most notably. In the US, forfeiture of property by corruption of the blood is basically unconstitutional).

In any event, it turns out that corruption of the blood could be worked by conviction for sodomy. The Second Earl of Castlehaven screwed his male page and was convicted. His heir lost his english title, that of Baron Audley, but held onto the Irish title.

Update to add one thing:  Keep in mind that when I use words like “convicted” in connection with felonies, the end result is not something like, “you go to jail for a few years.”  It’s the noose.  Or the axe.  Corruption of blood is very, very bad.  It’s like the uber-death penalty.  Because not only do you die–and you do–and not only is your head placed on a pike for everyone to spit on–which it might well have been–but your crime not only dishonor s you; it dishonors your entire family to the point that you can’t pass anything on to them.

o. You have a daughter. And you want her to live reasonably well. But you don’t know who she’ll marry, and a husband could leave her destitute. What do you do?

At law, everything the wife has is the husband’s. But that is something that is only true at law–note the preposition. I don’t say by law, because in Regency England, there’s more than one way to skin a cat. You can skin a cat at law. Or you can skin a cat at equity. The courts of Chancery were the courts of equity. And so what people did–almost entirely–was settle property on the daughter–that is, give her the property conditionally, with the property being held in trust by trustees.

Here’s a relatively simple case from 1703. The eldest son of Baskervile was supposed to marry Mrs. Reyner, a widow (the High Court of Chancery doesn’t mention whether Mrs. Reyner was a virgin widow, but we’re romance authors–we’ll assume so. )

Thus, in Baskervile, the parties had agreed to give up property “for the use of defendant Richard Baskervile for life, without impeachment of waste, then charged with 250l per ann. free from all taxes to the defendant Jane for life, for her jointure; remainder as to the whole to the children of the marriage as therein mentioned; remainder to the right heirs of the said defendant Richard forever.” Whew! What just happened?

In other words: the husband gets the property for the duration of his life. “Without impeachment of waste” means that if he screws it up–bad planning, selling off furniture in the estate–they can’t go after him. Then his wife gets the property if she’s still alive. She doesn’t get all of it; she just gets 250 pounds per year. When she dies, their joint children get it, but if they don’t have any children, it goes to the heirs of her husband.

That was easy. But what was the holding point? The wife’s family didn’t actually have the property in question. You see, the property had been settled in the wife’s prior marriage and so was “lodged in the hands of trustees to be invested in lands, and settled on Reyner & ux [his wife] for life, remainder to their issue, remainder to her children by any other husband, remainder to the heirs of Reyner.” The trustees wouldn’t (in fact, couldn’t) budge. Even though his wife had the property settled on her for life, the new husband couldnt touch it, because it was lodged in the hands of trustees, to be invested in lands. Not to be paid out at 520l per year. (There are other problems, too.)
So what’s a girl to do? Well, Lady Strathmore (this was in 1789) had a brilliant idea. She personally owned huge properties. She was engaged to a man–one Mr. Grey. Mr. Grey allowed her to convey her many properties, both real and personal, to trustees “for her sole and separate use, notwithstanding any future coverture.” Because Mr. Grey consented before marriage, this would have been enough to effectively make the property hers–NOT his.

Lady Strathmore got into problems, though. You see, shortly after conveying all her property to trustees, one Mr. Bowes fought a duel with a newspaper editor over Lady Strathmore’s honor. This was very romantic, and so Lady Strathmore married Bowes. Bowes didn’t know that Lady Strathmore had conveyed all her property into a trust, and the general rule was that if a lady conveyed her property into a trust for her separate use shortly before her marriage, without telling her husband, the conveyance was fraudulent. Lucky Lady Strathmore got off, though–she’d never intended to deceive Bowes, because she hadn’t really planned on marrying him.

So there you have it: married women can’t own separate property at law. But as a matter of equity, other people can own property for married women. So women who wanted to protect their separate property set up trusts (or had trusts set up for them by their fathers), which specifically stated that the property was “for her sole and separate use, notwithstanding any coverture.” (Courts were very, very strict about this: you had to make it very clear you intended it to be for her separate use aside from marriage.)

Oh; and all this had to be done before she got married.

But do you want to know the best part?  Suppose our dear friend the Lady Strathmore decided she really, really wanted to give up her separate property to Mr. Bowes.  Could she?  Answer: No.  Because once she conveys it to the trustees, it’s not hers any longer.

he book I’m working on is not called legalese for nothing.  Among other things, there’s an inordinate amount of legalese–and legally related facts–in it.  The research makes my head spin.

So today’s post is a random question.  I’d like to hear your answers.  I’ll answer the question sometime later on this week, but for now, I’d like to hear what you have to say.  This is something that has tripped up a number of romance authors, including some who do meticulous research.

As most of you are aware, before the late 19th century reforms, married women had no legal personality separate from their husbands.  If she owned property when she married–if she made money while married–it belonged to her husband.  Assume we’re in the time period before the reformation of the law.
Could a married woman own separate property?

And now let me rephrase the question:  At law, could a married woman own separate property?
*evil grin*

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.

‘m reading D.H. Lawrence again. He comes from around the same part of England as my hero, and I’m trying to capture a feel for rhythm once again. The problem is that Lawrence is — how shall I say this — not very romantic.
Take this poem:

Intimates

Don’t you care for my love? she said bitterly.

I handed her the mirror, and said:
Please address these questions to the proper person!
Please make all request to head-quarters!
In all matters of emotional importance
please approach the supreme authority direct!–
So I handed her the mirror.

And she would have broken it over my head,
but she caught sight of her own reflection
and that held her spellbound for two seconds
while I fled.

Would you want that man to be your hero?

‘ve converted my progress meters to page-count bars on the right. I tend to write very loosely, for whatever reason, and so I’ve decided to go by page count instead of word count. Yay.

Plus it makes it looks like I’ve done more. In reality, I really only have a few scenes to write in Book One, and then it’s revision time. As for Book Two–the progress bar is about right at 25%. I’ve gotten through 20% of the plot, and I’ve written 5% of the nonlinear scenes.

Yes, this is all futile. So, what mathematical tricks do you employ to make it look as if you’ve made progress? And do you manage to fool anyone?

  really thought I knew the basics of how Book 2 was going to work. I had an idea of what happened first, what happened next, the two climactic points in the book. I knew what the heroine was like, and the hero had a minor, but rather important role in Book 1, and so I knew him too.

But I felt like I should start a little before I went through the major planned revision pass on Book 1–the one that will tie up all the loose little ends, and finish a few of the quieter chapters. Because if I needed to make any drastic changes, I’d like to know now rather than later.

Good thing I did that, because Book 2 as I’d envisioned it just wouldn’t work. Chapter one wouldn’t write, so I figured I’d write one of the scenes I imagined leading up to the Black Moment. And I did. And . . . I got the thumbs down from the critique partner, and we talked and I figured out that the hero was just not going to work in this story. I could change him a little bit, but not a lot. He had too much in common with the heroine, and he’d never be able to make her realize that she was just a little spoiled. Which she is. Because the hero was just a little spoiled, too.

Sir Barely-Appearing-in-Book One then stepped in. I knew nothing about him when I started writing the first chapter (except that in the original version of Book One, he was married–oops–not anymore!). I just knew what he was going to do. And he was just brilliant at it. He was so brilliant that I knew what he was going to do next, and so my heroine showed up at his office–yep, this one’s not a lord, either–and offered to hire him. She was supposed to hire him. It would have thrown them together for chapters and chapters. Except . . . .

Except he absolutely refused to go along, the damned stubborn man. He fought me every step of the way, insisting at every turn on his independent and pride. Every word she spoke rankled him, as it must have done. And so he tossed her out of his office. It was . . . so right.

In any event, Oliver has taken locution lessons, and can usually pass as a gentleman. But he’s from Leicester–a city I chose because Richard Armitage is from Leicester, and he claims to have used his native accent in “North and South,” and so I shall have to remind myself of what it sounds like by listening to him speak over and over again (grin)–and it creeps out from time to time. While trying to figure out how to describe the speech, I came across this incredible site:

(Whoops: Here it is: http://www.bbc.co.uk/voices/)
These recordings are obviously modern, but they’ll give you an idea of rhythm, cadences, vowel sounds. It’s absolutely stunning in scope. For the most part, if your characters are members of the ton, they’ll be talking the “proper” English that we all know and recognize. But if you need a little color, this is a great place to start. Certainly better than dialect websites that classify isoglosses and nurse/square mergers, none of which your characters will think about in speech.

‘m getting to the point in the book where I need to be very careful.

Why?  Because stupidly I have refused to think about this book as a whole, and as I’ve been working on it, I’ve figured out four sequels.  Two of them are–for me at any rate–plotted pretty thoroughly.  So in wrapping things up, I kind of need to make sure that some things end right where they should.

The long and short of it is that I’ve started a tiny bit of work on the second book, which actually has a title–it started as a title, believe it or not, which is shocking–but which I’m calling “Unmarketable work containing Inordinate Legalese,” or “Legalese” for short.  It, too, now has a progress bar.  This is just so that I feel like I’m making actual progress, when I am, in fact, revising the same scene over and over again.