Wednesday, January 12, 2011

Downton Abbey Fans - Welcome to the MOST Boring Law School Class

By special request, I have asked my ex-husband to help us understand the law of the entail, critical to the plot of Downton Abbey.  Henry is a) British, b) an attorney, c) smart, and d) the son and grandson of QCs, i.e., barristers (British attorneys who appear in court) selected to be "Queen's Counsel."  (Although, to be fair, I think Henry's grandfather took silk -- Britspeak for becoming a QC -- long enough ago that he was actually King's Counsel!)

Below are the questions I put to Henry, and his answers (modified slightly as needed).

But first, an explanation of this post's title.  One of the four classes nearly all law students take right off the bat is Property Law.  Property is anything you own, or have title to, or have a right to.  Property gets divided into:

Real property, i.e., land:
Highclere Castle, where Downton Abbey was filmed

Personal property: smaller, fungible, intangible stuff like stocks, jewelry, personal possessions, and money:
Marie-Louis Diadem (at the Smithsonian)

(Intellectual property, such as patents & copyrights, are handled in another, non-mandatory, class.)

Property Law deals with the ownership, control, and transfer of real property, but it also deals with the transfer from one party to another of all property, as through a will or a trust.  And if I'd known how vital all the archaic snippets of Anglo-Saxon property law would be to certain historical romance novels, I might have paid better attention.  But I didn't.

Here, then, is what you might want to know about the law behind the plot of Downton Abbey.  In that story, Robert, the 6th Earl of Grantham, is married to Cora, an American heiress.  His father, the 5th earl, managed to tie up the funds from their marriage so that they can't be settled on Robert and Cora's daughters, but instead must go, along with the title and the estate, to a third cousin, Matthew Crawley.  But why?  Why can't the money -- which comes from Cora's American nabob father -- go to her children?

For all of us who read historical novels, it may seem perfectly reasonable that an estate (which includes both personal and real property) may be entailed to the next male heir.  To modern sensibilities, this must seem odd, particularly the idea that such an arrangement can't be undone when the heir presumptive, Robert's cousin James, and his only son die on the Titanic.  Matthew Crawley is a complete stranger, so why does Cora's wealth go to him?

Henry doesn't know the answer, but he's got a good idea how it might work:

First off, what's an entail?
It is a limitation on the current tenant's (in our case, the 6th Earl of Grantham) ownership interest in the estate.  If he owned Downton Abbey outright, he would have a fee simple.  Instead, he has a fee tail, which gives him a life interest so he can't be evicted in his lifetime, but not the right to say who gets Downton Abbey after he dies.

Okay, so how would an entail work?
The normal entail would be to "the 6th earl and heirs of his body" (meaning his legitimate biological children) or "and heirs male of his body" or "and heirs male of his body to be begotten on Cora."  When the 6th earl had no sons, the second and third of those would terminate, allowing the 6th earl to dispose of the money by will.  The first would allow a daughter to inherit, but I'm not sure if it would pass to Mary or to the three daughters jointly or in shares.
You could put in a remainder "pur autre vie", which might read something to the effect of "to the 6th earl, heirs male of his body, and failing them heirs male of the first earl."  That would produce the desired effect, and could not be broken until Matthew [who is descended from the first earl] both inherits and has an adult son as his heir apparent.
A classic entail does present a Rule Against Perpetuities problem.  I don't know how they got round that, except by special permission of the Crown.

Oh, lord, the Rule Against Perpetuities.  I don't think anyone in my Property Law class got those questions right.
Just say that it prevents someone from controlling who gets his estate long after his death.

Okay, I can work with that.  So, are we likely working with a case of a classic entail here?
I recall my father explaining to me that in practice, true entails are not usual.  What you actually have is a settlement from generation to generation.  This avoids the Rule Against Perpetuities, by binding only the current tenant and his infant or hypothetical son.  When the son reached 21, he was persuaded, usually in consideration of a substantial and immediate increase in his allowance, to resettle the estate for another generation.  The weakness of that system is that if the father dies before the son is 21, the son inherits free and clear when he is 21 (or if I apply Black's definition of the Rule very strictly, the son can be limited to a life interest, but with no further control after the son's death).  Also, if there is no son, the settlement expires, unless there is a springing interest to a cousin - in which case the cousin inherits free and clear.  You are then relying on the son or cousin to voluntarily reestablish the settlement. 
So, assume Cora's father created a settlement in favor of 6th earl, 6th earl's unborn eldest son, and springing reversion to the next heir of the earldom if there is no son who survives to majority.  That would produce the described effect.  It avoids the Rule Against Perpetuities because the springing reversion activates, if at all, no later than 21 years and 9 months after the 6th earl dies.  If you could break the reversion, then I think the settlement would fall into the 6th earl's estate, and he could will it to Mary.  

Clearly the family is not happy with the result.  What should they have done differently?
Well, that depends on what they wanted to happen instead.  Since it's Cora's father's money, a settlement in favor of Cora's children, with reversion to Cora's American family, would seem fairer to modern minds, but given that the purpose was to subsidize the earldom, the 6th earl seems to have got exactly what his father wanted.  One solution is to bump off the current countess, Cora, find a young and fertile second wife and try to have a son, but I assume that bucks too many hypos.

Yeah, we rather like Cora, and Robert likes her too.  Plus, he's too honorable for murder.  (His mother, on the other hand...) 
*dead silence*

If Mary, the eldest daughter, marries Matthew, the third cousin who has a "job" and knows what a "weekend" is, does that solve the problem?
Mary marrying Matthew would "fix" things because their eldest son would inherit the earldom and the money, and would be a descendant of the American nabob, so everybody gets what they wanted.  It matters that it's Mary rather than Sybil or Edith if, and only if, there is a settlement or entail to heirs, not limited to heirs male, and only if that has the effect of passing the money to the eldest daughter rather than to daughters jointly.  If Mary inherits by the 6th earl's will after the settlement or entail fails, then he could equally make Sybil or Edith his heiress. 

Why can't Matthew relinquish all rights to the title and estate and thus agree with Robert to break the entail?
Matthew is the heir presumptive, not the heir apparent.  Bluntly, he could be superseded as the heir to the earldom if Robert has a legitimate male heir.  Matthew's right to inherit the title and the estate are conditional, so he does not have the legal right to break the entail.  Only an heir apparent would have that right.  Only an eldest son meets the conditions of an heir apparent: direct descendant of the current title holder, male, and can't be superseded by another.

Which is a bit of a catch-22, isn't it?  If they had a male heir of Cora's American family as well as of the first earl then the money and the estate both go to the rightful person, and they don't need to break the entail.  Without a son, Cora's money goes, with the title, to this fellow no one knows and who doesn't seem to want it.  But because the earl still might have a son, Matthew can't help Robert break the entail.
Welcome to property law, where rules established in the 13th century are only now passing slowly out of favor...

Okay, so assume they go to court to break the entail.  Do they have an argument? 
Their best argument is that Cora's father was inadequately briefed by his lawyer and thus got bamboozled by the 5th earl.  But unless they can show something fishy was going on, it's unlikely that any English court would believe that an American nabob couldn't afford the best lawyers to protect his interests.

S.O.L., hunh?
'Fraid so.

Thanks, Henry.
Pleasure.

59 comments:

  1. Aha. Well, it looks like Mary and Matthew are going to hook up anyway, so everyone will be happy. Except Matthew, of course.

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  2. She *is* unpleasant, isn't she? And while we're supposed to be horrified by the way he treats the servants, of course that's just the way modern notions came across to the remnants of 19th century thinking. (I like him...)

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  3. Love this post. I hope you don't mind: I placed three quotes on my blog and then linked to you. Vic

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  4. Vic -- How sweet of you! Nope, I don't mind, and I'm pretty sure Henry doesn't either. He'd happily chat about obscure British legal conventions all day, but trust me, I won't let him. And I love your blog, Jane Austen's World. For other Downton Abbey fans, check out Vic's post on the recycling of the costumes...

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  5. I read Vic's blog and that's how I ended up here. Fascinating stuff!

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  6. Thanks to both you and Henry for this post. Fascinating stuff.

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  7. Thanks Magdalen and Henry. Now everything is 100% clear in my mind. Right.

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  8. Janet W: This is just so complicated: why doesn't it make it easier to understand entails? I guess a follow-up question for Henry would be is there anything designed by lawyers that can't be broken by lawyers. And I suppose there are million answers to that!

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  9. Janet -- I spoke to Henry this morning to tell him that Dan Stevens had tweeted about this post. Henry's response? Pure lawyer: "Oh. We should have made it clear that none of this constitutes legal advice . . . but then it was all superseded by the Real Property Act of 1925." Classic Henry.

    More seriously, yes -- the law of real property and the laws governing trusts and estates are incredibly hard to understand. Only when you put humans in these situations -- as a drama like Downton Abbey does so well -- do you begin to see why stuff like a "fee tail" actually matters.

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  10. Er ... is it sick of me to want to find out what the Real Property Act of 1925 did to English property law? And why Lord Peter Wimsey still was able to put all his real property in entail for his eldest son in Dorothy Sayers's short story "Talboys" (1942)?

    Let's take all the usual disclaimers as read, too -- it's merely legal information, not legal advice, etc.

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  11. Anonymous -- Of course it's not sick. More than one Dorothy Sayers book relies on trusts and estate law. In fact, Henry's fairly certain that Unnatural Death deals with the Law of Property Act of 1925 because that's the law that changed the rules as to who inherits when the victim dies intestate.

    So, Henry and I have agreed to read Unnatural Death and "Tallboys" this weekend and we'll do a Lord Peter and Property Law blog post early next week. You may be sorry you asked...

    Henry is very long-suffering. As he put it when he realized that his plans for a nice quiet weekend were evaporating before his eyes, "Oy vey."

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  12. I loved this post, and am enjoying how Downton Abbey flirts with so many Austen problems (though Matthew is no Mr. Collins). But--and I apologize for belaboring this, though it seems that Henry doesn't mind--I still don't understand why it has to be Mary. If the entail ties the estate to heirs male, why couldn't Matthew as presumptive heir marry another one of the daughters to exactly the same end? What is peculiar about the eldest daughter's position here?

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  13. All the legal stuff is there and fine.
    But what drove it was the need, when the titles were created, to keep the families and the estates together. That was why unentailed property was rarely willed away, even when the heir was weak or undesired. So the oldest living legitimate male direct heir got the lot.
    The nobility had to be powerful to retain their positions as supporters of the Crown, and therefore to retain the power of the country. By the Edwardian age, this had become somewhat redundant, but it prevailed until the last half of the twentieth century.
    If you understand why, it all falls into place.
    Anyway, I think Julian Fellowes is a genius, and now I begin to understand why he put all the entail stuff into the script. He's a very naughty man.
    I live in the UK, and I'm eagerly waiting for the next series of Downton. It gets better.

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  14. Mary Pat -- You're absolutely right. If Matthew inherits it all (as it seems he will do) and all that matters is that some descendant of Cora's American nabob father is also the beneficiary of his wealth, then any of the girls (I like Sybil, myself) could marry him, have his children, and satisfy the honor.

    My suspicion -- and there's no way to verify or refute this -- is that by harping on how Mary should inherit, the Lord & Ladies Grantham are merely reflecting how the situation would have been if all three children had been boys. Marius would have inherited, while Sybren and Edward would have entered the army or the priesthood. But with daughters, it's subtly different. Mary should be the first to wed, lest a younger sister show her up. And I daresay that she'll get a vague "right of first refusal" vis a vis marrying Matthew. Only if she turns him down would Sybil get a chance. But we'll see about that...

    (Of course, as we know, World War I is right around the corner. Matthew may well enlist, which will set the cat among the pigeons -- will they have to find a fourth cousin? But they can't know that's looming.)

    Lynne -- The real genius, I think, is to use the quirkiness of the entail to challenge our modern thinking about the fairness of deciding to fund a title with money that you've earned only to find that your money is going to fund some other family. That's the perspective of the deceased American industrialist, but his perspective is a) Cora's perspective, b) closest to our perspective in a modern, Capitalist economy, and c) close to Matthew's newfangled perspective. So there are enough people reflecting this particular mindset. At the same time, the Dowager Countess seems to want the same end -- that Mary inherit Downton -- because that way it's one of her progeny in charge of estate.

    That puts the earl (and the lawyer, but we hate the lawyer -- not even having the decency to stay for luncheon!) in the lonely position of believing that the larger picture, the one you've framed, matters. That the earl is the most sensitive character in the story -- just see how he worries about Mr. Bates -- is a delicious twist. We like him best and want him to be happy. If he'd been a more conventionally shortsighted aristocrat, we might not have approved of how he refused to consider his wife's (and mother's and daughter's) feelings.

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  15. Anonymous -- The reference to entailed estates in Talboys is pretty fleeting, so we cannot refine too much on it. There was no real motivation for an entail - Talboys was not a big enough estate (Did it have any agricultural land?) and had not been in the family long enough (It was bought in Busman's Honeymoon, complete with dead vendor.). However, Peter could reasonably have decided to leave all his wealth to Bredon except for an independence for the younger boys, and he could still have done that by some sort of trust or settlement, rather than by will. The main obstacle at that date was that it was becoming increasingly difficult to shield a settled estate from death duties, which could be disastrous if there was not enough liquidisable cash to pay the duties. My parents' weekend place had been an estate cottage, until a lot of the outlying parts of the estate had to be sold off in 1929 to pay death duties. That sale pretty much dissolved the manor as an agricultural unit.

    PS:- Be glad nobody had managed to drag in the custom of "Borough English", under which the real estate was inherited by the youngest son. The theory was that the father would set up his sons in some sort of trade, craft, or farms of their own, and the youngest was the one most likely not to have been otherwise established before his father died.

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  16. It is my understanding that an entail would eventually expire if not renewed. As I recall, it would last about three generations or one hundred years plus (I don't recall the exact number of years) after it was started. True, false, maybe a little? What is the legal life-span of an entail?

    Also, Lord Peter Wimsey owned a great deal of property, not just Talboys. He had invested in a lot of rental property in partnership with a Jewish friend, who administered the property. While this is not the typical "estate" it was still worth a lot of money. Also, he would presumably acquire more real estate during his marriage and might very well have acquired an estate by his death. I believe that Dorothy Sayers put that into Busman's Honeymoon, along with the discussion of whether he wanted children or not, to demonstrate that Lord Peter was, deep down, more conventional than his single life would suggest.

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  17. C. Allyn -- As we discussed above, a true entail would last until the founder's descendants became extinct, but such an entail was not easy to create. You are right that the more usual settlement would have to be renewed every 2 or 3 generations. In practice, it would usually be renewed in overlapping settlements every generation.
    The strict "Rule against perpetuities" required that the settlement must "vest" within a life in existence plus 21 years plus the duration of a pregnancy. That means there must be no conditional clauses such that you cannot name the winner within 21 years and nine months from the death of an identifiable person who is alive when the settlement is created. (The age of adulthood was 21 at that period.) So Peter when he marries can settle his estate to "my eldest son who survives to adulthood, and if there isn't one, then to X." Thus the "if" will resolve itself within 21 years and 9 months after Peter's death, even if Peter dies at the instant of conception. Peter can put conditions on how eldest son or X can use the estate, but Peter cannot specify who gets the estate after eldest son or X, and he cannot restrict what that later person can do with the estate. However, if Peter creates the settlement after his son Bredon is born, then Bredon is now a life in existence, so the vesting limit is 21 years and 9 months after Bredon's death. Thus, Peter can settle it on Bredon and then Bredon's eldest son who survives to adulthood, and if there is no such son then to X. But if Bredon dies without children, X is probably Bredon's hypothetical younger brother, and you lose the extra generation. So whether it lasts for two generations or three depends on exactly when and in what terms it is created.
    (Note: this is the classical situation. I have not analyzed the Law of Property Act 1925, the Settled Lands Act 1925, or the Administration of Estates Act 1925 in enough detail to be sure quite how thoroughly they loused this scheme up. My impression is that they made it harder to tie things up, but not impossible.)

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  18. Hey, Henry -- I assume you aren't watching Downton Abbey :-( so let me fill you in on the latest legal (non-)developments. The Dowager Countess has had the deliciously sneaky thought that the lawyer she should have consulted was Matthew, the heir presumptive. He, alas, has not been able to find any legal grounds on which to challenge the entail, but mentions that a private bill in Parliament would only work if "the estate were in trouble."

    As you know, we've had the absolute power of Parliament drummed into us recently, but could you explain what the difference is between what Parliament *can* do as a matter of law and what it *might* do as a matter of probability? Because I keep thinking there are things it simply would never have done, including a "taking" of the property rights lawfully belonging to an heir presumptive...

    Meanwhile, Mary is pissed off because why should she inherit, which I am finding more and more ironic because she shows no interest in the actual estate at all. Which turns all of the "but as it's Cora's father who made this money, so why shouldn't it go to Cora's own child" arguments on their head. Cora's father made that money (admittedly on the backs of cheap, exploited labor but still...) and had a choice what to do with it. Mary wants to inherit despite having done nothing to merit such a windfall. What's wrong with this picture? (That last one is a rhetorical question.)

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  19. Janet W: My esteemed friend, didn't you mean to write "Mary is pissed off because why shouldn't she inherit?" and I'm getting pissed off because where are the writers (writer?) coming up with these ludicrous plot twists and turns. A Turkish nobleman shows up dead -- oh that's so very likely -- heavy sarcasm -- on on twitter someone said they had read it had happened. Well, is Fellowes going to weave in every unlikely "it happened" happenstance? Mary would have been just as ruined, with just as much blackmail fodder, if she'd made out with him in the summerhouse.

    And now those fine legal brains think they'll petition parliament. Not to sound unenthusiastic about American legal prowess, but that sounds like the sort of idea someone who didn't understand British mores would come up. You know, if Cora had imported a fine lawyer from Manhattan to help her out. The thought that a British barrister or solictor (which is Matthew anyway?) would come up with that seems so absurd to me. Do you know I was listening to NPR and one of their silly fun shows was mocking laws still on the books in this little burg where the radio show was appearing -- The PentaSpinsta law or something -- it is illegal for 5 spinsters to live together. How often do you think the cops come to the door to make an arrest? Probably about as often as parliament passes favourably on petitions to overthrow entails (on such a weak argument that would overthrow all the earl's years of stewardship). Hate plots like that. A law on the books doesn't equal a good plot on the screen. haha, I just made that up!

    If Henry answers your question, why not start a new thread? I'll read 'im!!

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  20. The first thing you have to consider is that the Earl (because he wants the Abbey to stay with the earldom and to be properly funded) and Matthew (because he stands to inherit) may not really want the settlement to be broken, and may be too ready to admit defeat. (The Earl in his capacity as Mary's father may feel differently, and his inner conflicts could keep this soap opera going for years.:-)
    In principle, of course the King in Parliament could pass a Private Act to override the settlement, but in practice, they probably would not do so, even with the consent of all parties. Matthew was correct that if the estate was in trouble it would be much easier to justify. I've seen a couple of charitable foundations rewritten, and the usual argument is "we *need* to change this or we're about to go bankrupt".
    Absent that level of distress, I think Parliament would be very reluctant to meddle in something that interferes with private property rights.
    How reluctant? Intersting question. Magdalen and I were recently in discussion with an author who used the similar idea of a private act of parliament to change the inheritance by legitimating a pre-marital child. She cited two cases where it had been done, John of Gaunt in the 14th century and one case in the early 16th century. Unless somebody can show me a later instance, I've got to say that I agree with Matthew: it won't work. Of course there may be cases we can't find. Parliament distinguished between printed private acts and unprinted private acts. I think the basis was whether effects of the act would be of legitimate interest to a significant number of people not legally involved. (In the case I studied, an Act allowing a charity to build a new church a quarter of a mile away, and divest itself of a long-established responsibility to provide public services in its own chapel clearly affected all the congregation, so was worth the cost of printing.) A mere change in a family settlement would not be worth printing, so you would probably have to go down to the House of Lords library and do a manual search in the archive to find anything about it at all.

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  21. Ooh, a post about "Talboys"? w00t!!!

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  22. So, Henry -- do we know anything about these "unprinted acts" of Parliament, such as how prevalent they were, and is anyone allowed to report them after finding them in the House of Lords library?

    I'm thinking, of course, of non-precedential rulings in US courts -- it would be possible to figure out how often courts used that prerogative as a way to get the result they wanted without having to deal with the unhelpful fact that the law doesn't support that result. And isn't it true that there are non-precedential rulings and then rulings that aren't even to be reported?

    Or are the unprinted acts just economical ways for Parliament to get stuff done without all the palaver of printed out their work. (Wow - think what Congress could do if they didn't have to tell anyone about pork barrel legislation...)

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  23. Just thought I'd mention this, as read it earlier. Matthew doesn't have to marry any of the daughters. He'll inherit anyway, but by marrying one of the daughters he's doing a good deed by helping to keep it in the family.

    He has the independence to marry whoever he wants!

    They naturally assume Mary would be the best though, as she's the eldest - she should get first pick as it were, marry first and also because she would be the one who would have inherited if it wasn't for the being MALE problem.

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  24. As regards Acts of Parliament, I'm pretty sure the only "unprinted" ones were private acts not worth the printing. Public Acts and Measures were always printed. As regards legal opinions, we did not have explicitly "non-precedential" opinions, but I recall the editor of the RPC once saying that the judges marked the cases "To be reported" (meaning he recognized, adn probably intended, this to be an important precedent); "not to be reported" (effectively, non-precedential) or "there is no objection to this being reported" (90% of all cases).
    What are Public Measures? Remember we have an established church. It cut both ways. The Lords Spiritual got to vote on secular Acts of Parliament, and the Lords Temporal and the Commons got to vote on Church of England Measures.

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  25. Magdalen and Henry, thank you so much for this post. It has been immeasurably helpful. Though I understood the general idea of an entail, I love all the nitty gritty legal details!

    I do want to make sure I am understanding this "Rule Against Perpetuities" correctly: In the current situation, it sounds like the most recent settlement was signed when Robert and Cora were married and binds Robert to passing his estate on to a male heir. Now let's say that Robert dies in WW1 and Matthew inherits. Since he's always been heir presumptive, Robert couldn't have Matthew sign a new settlement continuing the entail. So, if Matthew then dies in WW1, would the property go to whomever he specified in his Will? And if he somehow didn't have a will prepared, would the title and property revert back to the Crown or would his mother automatically receive the property as his closest relative?

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  26. Ariadne -- A couple things. First, we don't know quite how Cora's father's will specified the money to go to her upon his death, assuming that's how she got the majority of her fortune. (There would have been a settlement at the time of the marriage to Robert, of course, and perhaps all of the millions was passed along then, but it seems more likely that it was to go to Cora upon her father's death.)

    We also don't know what sort of conveyance or contract the fifth earl (Robert's father) used to bind those funds to the estate and thus part of the entail.

    But what is clear is that Robert has already signed all the documents necessary to ensure than the entail will last beyond his death. And it's likely that Robert's already signed some conveyance that ensures that Downton Abbey goes to Matthew as a life estate, and to Matthew's son if Matthew predeceases Robert, and if there is no son, then to the next closest male descendant of the first earl.

    If Robert dies, and Matthew is alive, then Matthew has a life estate in Downton Abbey with the remainder going to whoever inherits the title. As long as that person is alive at the time that Matthew dies, he is the 8th earl and inherits Downton Abbey. But at that point, the 8th earl will need to resettle the estate so that it passes to his son only as a life estate.

    I think.

    The title and estate would only revert back to the crown if there was no male heir of the first earl left alive. Let's say that Robert's father was Quentin, and his father (the 4th earl) was Peter, and the 3rd earl was Osbert, and the 2nd earl was Nicholas, and the first earl was Montague.

    Robert's heir before the Titanic sank was James, who was Peter's only grandson. So Matthew (our current heir presumptive) must be the direct descendant of Osbert (the 3rd earl). There's no suggestion that Matthew has a brother, but there could be other male descendants in Osbert's line.

    Let's assume there aren't. If Matthew dies, the title would go to a male descendant of Nicholas (the 2nd earl). Almost certainly there's someone alive, but perhaps not. The probability that there is at least one male descendant left of the original earl, Montague, is pretty good, but titles have died out, particular when a war is busy killing off young men.

    If there are no male descendants left from Montague, the title reverts to the Crown.

    The point is, the language in the entail is specific as to gender and familial relationship; it doesn't need to be specific as to name. Robert's estate (title & property) go to the next male heir (Matthew) for life and then to the next male heir (presumably Matthew's eldest son). If Matthew dies without having made a new settlement, but his male heir was alive within 21 years when Robert died, then that person inherits, possibly free and clear of the entail.

    I think.

    (Henry -- you always sound so much more certain about these things. Care to straighten this out?)

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    1. You're assuming that Earldom always go from father to son like Robert inherited. Robert's father could have succeeded his uncle or grandfather or cousin as Robert's father was already dead. No way to tell I guess. Actually Violet mentions that her mother-in-law lived in Downton village at Crawley House rather than the Dower House which might mean Robert's grandmother wasn't the Dowager Countess and Robert's grandfather wasn't an Earl himself.

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  27. Magdalen - Thanks so much for your response. I'm not trying to be obtuse or difficult here, but I am actually still confused. Sorry!

    Henry had said in your post "I recall my father explaining to me that in practice, true entails are not usual...This avoids the Rule Against Perpetuities, by binding only the current tenant and his infant or hypothetical son...The weakness of that system is that if the father dies before the son is 21, the son inherits free and clear when he is 21... Also, if there is no son, the settlement expires, unless there is a springing interest to a cousin - in which case the cousin inherits free and clear."

    I interpreted that to mean that if Robert dies in WW1 and Matthew is still alive, Matthew inherits free and clear, but you seem to be saying in your response that whatever Robert signed bound Matthew to a life estate as well, so I'm a little confused there. It seems odd (to my modern mind) to think that Matthew as an heir presumptive can be bound by a contract signed by his cousin. I'm assuming here that they can't renew the entail with Matthew while Robert is still alive because Matthew is merely the heir presumptive and not the heir apparent, but is that a wrong assumption?

    Also, if Matthew then dies without renewing the entail, does it go to whoever he specifies in his will, to his nearest relative, to the nearest male descendant of the first Earl, or back to the crown?

    Thanks again Magdalen for allowing this discussion! I really do appreciate your patience in helping us get this straightened out!!

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  28. Ariadne -- Yup, that's just about it -- Robert's settlement can prevent Matthew from settling the property on someone other than the male heir to the title.

    Look at this way: If I loan you a book or a garden tool, you and I both understand I want it back. If I loan you a book but instead of asking for it back, I ask you to send it on to someone else, you know that you don't get to keep it.

    If I name you as the trustee to a pot of money with the instruction that you use that money to maintain my property, you similarly understand that you aren't to draw out all the money and use it to take an around-the-world cruise.

    In the most recent episode, the earl says to Lady Mary, "I'm not the owner of Downton, I'm just a custodian." He understands he has the right to live there but not the right to sell it or convey it in his will to anyone other than the next earl.

    As Henry explained above, there is the traditional form of the entail, which may (we don't know) have involved some sort of grant from the Crown and is therefore exempt from the Law against Perpetuities. But even where that doesn't exist, the more modern process of having each successive heir apparent to the earldom settle the estate on his son, or if there is no son, then to the cousin, etc., does the same job of ensuring that any fortune that has accrued from the estate.

    If the earl had died with his cousin James & James' son in the Titanic disaster, then it's possible Matthew would have inherited everything free and clear. (Henry will tell us...) But Matthew would have had a very (VERY) strong incentive to immediately settle the estate on his son, or if he had no son alive at the time of his death then on the next male descendant of the first earl, Downton Abbey so that it would continue to stay connected to the title.

    Matthew not have had to do that, and possibly he could have sold Downton (which is the only real reason I can see why he wouldn't sign settlement papers immediately).

    Which gets us back to the money -- because the only sensible reason to sell Downton (assuming you've inherited it free and clear) is because you can't afford to keep it. As long as the money's tied to the estate through the entail, each successive earl will be able to afford to keep Downton Abbey running.

    It seems clear to me, at least, that Julian Fellows has rather stacked the deck to ensure that our modern sensibilities find favor with the notion of the entail. It could easily have been characterized very differently. If Lady Mary had been a much better potential steward (or custodian) of Downton Abbey than Matthew; if he'd been a wastrel and a gambler; if she was presented as truly caring about the tenants and the treasures; if he was presented as the kind of boor who was looking forward to inviting unsuitable people to get drunk and swing from the chandeliers...well, we 21st century viewers would have been horrified that Lady Mary should be kicked out the moment her father died.

    And that's the sad part about all this. You can't really decide if the system of the entail is a good idea or not until you meet the people involved!

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  29. Magdalen, thanks for the further explanation. I think it is finally also making sense in my mind. :)

    I agree that you can't really decide if you support the entail until you know who is involved. I was always a little disappointed in Lady Mary for not be a better potential steward. I understand why that's the case, since women really were only trained to be hostesses, but my modern feminine sensibilities think it would be so much more interesting if she actually cared about the tenants and the land.

    By the way, I'm really glad I stumbled upon your blog because you have some great posts!

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  30. Ariadne --

    What a nice compliment -- thank you!

    However, if that's your best defense of Lady Mary, she's in trouble. :-)

    Her younger sister, Sybil, is already more enlightened. Matthew's mother, Mrs. Crawley, is older and more enlightened. Part of the role of the distaff side of an aristocratic family is to care more about the tenants and the estate, albeit in a particularly feminine manner.

    For what it's worth, Henry's grandmother, Amber, was at Cambridge a decade before the period of Downton Abbey, and afterward worked as a civil servant. So not *all* women of the time were as frustrated and frivolous as Lady Mary...

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  31. I don't understand why Robert isn't the next heir to the estate, as his mother is the dowager. If Robert and Cora had a son, the estate would have been passed on to him. I am very confused.

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  32. Anonymous -- Robert can't be the "heir" because the estate has already vested in him. He holds the title and is current owner of all property, real (land) and personal (money), that comprises the estate.

    But he could beget a son. The child would have to be of a legal marriage, so if Cora can no longer have children and she doesn't die and he doesn't divorce her (divorce being still a rather unpleasant business all round), then it seems highly unlikely that Robert will beget an heir apparent.

    That's why his eldest son is the heir apparent -- as long as that son is alive he cannot be supplanted as the heir to the estate. Matthew is only the heir presumptive: he can be supplanted as heir at any time that Robert has a legitimate male child.

    Not that it's relevant in Downton Abbey, where Matthew seems particularly unexcited about inheriting, but it's this very situation that gives rise to so many tepid suspense plots in historical romance novels: more bits of stonework have fallen onto more terraces just as the bachelor title holder walks by in more books, and all because the heir presumptive needs to ensure that the title passes to him and not to some child the bachelor might have if he can ever be bothered to get married.

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  33. Sorry to chip in so late here, but real property law was not my strongest class 1L year. Robert would settle the estate on Matthew, or the next male heir, be it Matthew's son or a direct male descendent of the first or second earl. Matthew would in turn have to settle the estate when he inherited (which would get him around the rule of perpetuities, correct?).

    However, what if Robert ends up not siring a son and Matthew dies in the war? In the unlikely even there is no other direct male descendent of the first earl, the title then reverts to the crown, right? Would Downton Abbey itself and all of Cora's money also revert to the Crown, or would Lady Mary inherit the money and the grand house? Would Robert be able to name his heir to the money and personal property if Matthew were to predecease him and there were no other male heirs? (I ask because I remember a curious situation where a wife inherits an estate - money and house - after her husband dies in the novel "In Pale Battalions," by Robert Goddard. The son had died in the war with no sons of his own.) Is the sort of case where Parliament would intervene (from my American perspective, it seems like the estate would be in great trouble at that point)?

    Sorry again if I'm having you rehash everything, but I'm just trying to get a handle on the law.

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  34. Wild-Blue -- I'm waiting for Henry to let me know what the REAL answer is, but my guess is that the Crown's rights pertain to the original grant of the title and the estate(s), so in the case of Downton Abbey, only the earldom and the real property would revert to the Crown.

    That would leave the personalty (money, etc.) to go to the widow, Cora, or whomever was named in the will.

    But of course this assumes facts not entered into evidence: we know that Matthew is the current heir presumptive, but not that he's the last living male in line to inherit the title.

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  35. Wild Blue-- Okay, here's Henry's take. First, if all male heirs to the first earl have died, the title goes extinct. (Which is the same as it reverts to the Crown, in that the current monarch could bestow an earldom of Grantham as an entirely new title on someone else in the future. For obvious reasons of confusion and there being no need, it's unlikely the same title would be used again, so it's a bit moot.)

    With the extinction of the title, the entail is broken or dissolved or simply ceases to be - there is no longer an heir to serve as the "tail." Parliament is no longer needed or relevant, again because there is no entail to overturn.

    If the lands were granted with the earldom, they would revert to the Crown at the same time, but Henry points out that rarely happened. What was much more common was that the first Earl of Grantham was ennobled because he owned and controlled an "earl's worth" of land.

    Thus, in your scenario the title dies out, the entail is gone, and whatever Robert's will says about who inherits his unentailed property controls the real property and personalty, including Cora's family wealth. So, presumably Cora inherits it all and then she would make a will that divvies it up however she saw fit.

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  36. Thank you, Magdalen and Henry! :) It kind of helps get everything straight in my head, even if it is an unlikely scenario. Though it would be interesting and dramatic, I can't really see Mary running Downton. She seems too immature at the moment to my mind, though I suspect we'll see a lot of growth from her this coming series/season.

    Anyway, thanks again! This is easily the most helpful and informative website I've stumbled on, researching the various things I've seen in Downton Abbey.

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  37. Hello Magdalen! I've been using your blog for research again - you really have some of the most helpful entries - and I hope you don't mind me bothering you again with a question.

    I've read both this entry and your later one about "Unnatural Death" and my question relates to both. Over there, you mentioned the Law of Property Act of 1925 and how it ended the practice of finding a living relative to inherit if the property owner died intestate. Do you happen to know whether that law affected anyone who did have a will that limited his heir to a life estate? Using Downton Abbey as the example, since Lord Grantham clearly has a will of some sort, is it safe to assume that the entail in Downton Abbey would not be broken in 1925 and Matthew would still be the heir (and would likely be limited to a life estate based on Lord Grantham's settlement papers?).

    (Apologies in advance, btw, for any incorrect terms. No legal training here, but I find all this fascinating!)

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  38. I'll admit it -- I don't know much more than the blogs already provide, so I put your question to Henry. Here's his answer:

    First, if I recall correctly our discussion of "Unnatural Death", we eventually concluded that the Law of Property Act 1925 says nothing of the sort, and Dorothy Sayers either made that bit up, misunderstood, or was inspired by an earlier proposal for reform that did not get enacted. So we think that in the event of an intestacy, even after 1925, a distant cousin could still take the estate.

    Second, even if the 1925 Act did cut off distant cousins, it would not bite until you needed a distant cousin to resolve an intestacy. If Robert died intestate, his unsettled estate would pass to his widow and daughters, no problem. (There were very strict rules about which relatives get how much of an intestate's estate.) His settled estate would pass to Matthew under the settlement, no problem.

    There was no need at that stage need to ask what happens after Matthew. But if Matthew then died childless and intestate, and there was no further settlement, then you might have a problem if Matthew's nearest heir was a distant cousin.

    Worst case scenario, a distant cousin in the male line of descent from the first earl gets the earldom, and the Duchy of Lancaster (aka the king) gets the money. Second worst case, a distant cousin in the male line gets the earldom, and a nearer cousin in a female line related neither to Cora nor to the first earl gets the money.

    However, Matthew as a lawyer should have thought of that, and either resettled the estate or made a will leaving the money to Battersea Dogs' Home.

    Henry Blanco White

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  39. I hope I'm not too late to ask -
    Do the male heirs have to be from an unbroken male line; I got the impression they did, but have not seen in written.
    When did the laws change so that a "male heir" entail was not legal, or could be easily set aside by the heir i.e given to the daughter(s), widow, or other closer relatives.

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  40. Fabulous discussion and interesting analysis of arcane laws.

    In reading through the comments, I wonder whether English law has confronted the question of whether Mary (or any daughter) changing her sex would impact the entail rules?

    Can't wait for season 2.


    Mark

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    1. I would imagine it's a no. They seem pretty big on birth and "of the blood" stuff. Heck, even an adopted son wouldn't have any inheritance rights to a title. So if a "legal son" isn't an actual son by that peerage system, guess a "legal man" isn't an actual man. That's my guess.

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  41. Never mind all that. After the Christmas special, it appears that the 6th Earl and Cora are to have "a Fenian grandchild." If it is a boy, where will that leave Matthew?

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  42. Anonymous: I gather a "Fenian grandchild" is a bigoted insult, referring to the Irish heritage of Sybil's husband. But understand we in the US haven't seen any of the second season (yet) and I have no idea when we'll see the Christmas special episode!

    In any event, even if Sybil has a dozen sons, none of them can inherit the title as Sybil is herself unable to inherit the title. There are exceptions in the case of earldoms that date so far back they can descend through the female line when the male line has died out, but it's clear that Grantham is not a medieval title.

    Mark: Fascinating question. My best guess is that the College of Arms would have to decide the matter, as it is the official arbiter of which titles go rightfully to whom. (I strongly suspect they've never had this matter arise, but it still might.) Again, pure speculation on my part, but I'd say a lot would depend on the circumstances.

    If Lady Mary had announced that she really felt she should be the Honourable Michael at some age the earl and countess could still have had a male child, that would be one thing. Oh, the matter would still have to go to the College of Arms in the end: if there was a son, then the transgendered Michael and the younger child would be in the running to claim the earldom.

    But if Lady Mary's announcement that she's always been a male in a female body comes after the heir presumptive is lost on the Titanic, then the timing is highly suspicious and I doubt the College of Arms would find in her favor.

    Finally, to Unknown (sorry about the delay): The laws that permit hereditary titles to pass only to legitimate male heirs are still enforced in the UK. However, as Henry explained above, it would be possible for the heir apparent to refuse to resettle the estate under the terms necessary to maintain the males-only policy.

    But, in consideration of the role of the College of Arms (see my answer to Mark above), I really don't know how much power an heir apparent would have to cause the title to pass to a female. (I'm guessing none.) That gets you back to the problem of some man being the earl but some woman owning all the property necessary to maintain the earldom.

    It may seem sexist as hell, but there were some powerful arguments for keeping the estate--including all the income--tied to the title.

    As for your other question, yes, the heir is only the heir if he's from an unbroken male line descending from a former earl. Any former earl will do, including the first earl.

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  43. Thanks for this. The *dead silence* paragraph made me laugh out loud.

    If you love reading about property law and estates, I highly recommend 'English Landed Society in the Eighteenth Century' by G.E Mingay. Long out of print but readily available on ABE and Amazon. It really is fascinating. What was an eye-opener for me was how burdened estates were - in the days before government pensions - with providing for pensions for extended family members and retainers. Also how purchased land was paid off off over generations i.e. generational debt. I doubt generational debt to build wealth was employed at all by the middle and working classes, which is why they stayed where they were!

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  44. This comment has been removed by the author.

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  45. (Let's try this again.)

    Jim -- Fascinating subject. If I wrote historical romances, I'd consider paying the ginormous amount ($45 and change!) they want for the Kindle version of Mingay's book.

    Luckily for me, I don't write historical romances...

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  46. Could you name an extant estate that is currently entailed and, if such an entailed estate exists, could you describe the entail?

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    1. Every British title of nobility granted by royal charter has an entail prescrning inheritance of the title and associated estate. Most recently Parliamemt changed by law the entail on the British crown by allowing female hears of Prince Wiiliam to inherit the crown

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  47. The title, land, and and property of Downton Abbey were granted in perpetuity to the 1st earl by the kingof England in the royal charter that created the earldom. The 5th earl had Cora's dowry paid to the earldom, not personally to the 5th or 6th earl. The dowry therefore falls under the ealdom's entail and is not fee simple to the individual holding the title and thereby controlling the estate.

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    1. makes more sense now...

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  48. You have share nice post with us, I really liked this post very much, Thanks for it...

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  49. Wow, this was a great and humorous read! Made easy for us "across the pond" folk. I understood there are limits of entail but not the whole picture and that there a nuances.

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  50. Any comments on the current state of the Downton estate? With season 4, Matthew is dead, has a male heir and Robert is still alive. I don't understand how the entail situation has been resolved. If Robert is alive, is he not still the caretaker? Shouldn't Matthew's (the heir apparent's) death mean that we need to find another heir apparent because Robert is still alive? Even if Matthew has a will, is Downton his to leave to his wife? Why isn't baby George the new heir , not his mother, Mary?

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    1. I'll be honest (please don't hit me) but I stopped watching a while back.

      However, here's what I know about inheritance law. Matthew was the heir presumptive. Had the Earl & Countess had a son (yes, they can't now, but the law assumes they can until he's been dead for a while), that baby boy would have been the heir apparent.

      Matthew's right to inherit the title and entailed estates resulted from his descendancy from the first earl. His son, therefore, is also a male descendant of the first earl. Thus Matthew and Mary's baby is the new heir presumptive, and could still be cut out of that inheritance if the Earl had a legitimate son.

      Mary can inherit the unentailed portions of her father's estate, and probably does if only to keep everything together for her son, the future earl. (Remember that we know--even if they don't yet--that the period between the world wars is when many large estates effectively ran out of money. Enter the National Trust, or its like.)

      What I don't know is if there is a trust for the son, such that his mother would control the purse strings until he's of a certain age. If Robert dies, the boy immediately comes into the title. But it's likely some body (the college of arms? chancery court? I'd need to ask Henry) would appoint a guardian until the boy was of legal age. It could be Mary, or it could be someone else. And it's likely that Robert will change his will to name such a guardian.

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    2. Thanks! So, technically nobody inherits much as long as Robert is still alive. Mary inherits from her late husband Matthew any unentailed portions of the estate, which really were Matthew's alrady, right? Robert still manages the entailed portion and continues to live at Downton for life. Baby George (assuming no one else in the line is born or dies or comes back from the Titanic) gets everything once he is of whatever age is stipulated someplace. Is that it?

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    3. Mary inherits immediately only what was Matthew's to leave--and that's presumably sod all (as the British would say). He didn't own much. As I understand it, he worked as a solicitor, then as the heir presumptive of the earldom (for which he was supported and given pocket money but not enough to amass a fortune of his own), then as a soldier, etc. So he probably didn't have enough to leave Mary. As the heir presumptive's mother, she's undoubtedly going to be supported by her father, the earl, unless she remarries in which case who knows what the earl will do.

      George inherits the title and entailed estate when the present earl dies...again, assuming that there's no legitimate heir born to the earl and countess. (I just can't call him Robert. It seems too forward and encroaching. Lord knows the Dowager Countess detests Americans already...)

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    4. Thanks again. I somehow like the thought of drawing the reproach of the Dowager Countess. I want you to note that I resisted referring to the presumptive future Earl of Grantham as Boy George. I am quite considerate, afterall, for an American.

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  51. Remember, Season 3 made it very clear that Matthew became some kind of equal, present co-owner with Robert. If Robert is only a custodian (as he put it), then is Matthew also a co-custodian? In other words, did Matthew acquire a legal right to determine what happens to "his" half of the entail? And now Season 4 shows that Matthew very easily sidestepped the whole entail mess by means of a Will naming Mary as his sole heiress! This makes sense only if the entail was renewable/modify-able from generation to generation, as suggested in earlier posts. There's evidence that suggests this is what's going on here -- recall that the 5th earl (Robert's father) somehow tied Cora's money into the entailed estate. Is it possible that Robert and Matthew signed some legal documents to make Matthew the present owner of one-half the entail, with the present right to give it to whoever he wanted by Will? (I'm a U.S. lawyer, so I don't understand British property law.) Sure wish there was a "legal consultant" to the show who could clear this up.

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