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...)
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.