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What do actors Benjamin Whitrow and Hugh Bonneville have in common?
The answer is they’ve both played heirs of entail in possession. Whitrow was nominated for a BAFTA for his portrayal of the long suffering Mr Bennet in the BBC’s 1995 production of Pride and Prejudice, while Bonneville was Robert, Earl of Grantham in Downtown Abbey.
You’ll recall, no doubt, there was nothing either Mr Bennet or Lord Grantham could do to prevent their homes being inherited by distant male relatives (the unctuous clergyman Mr Collins in P&P and the looked down noses at middle class cousin Matthew in Downton) to the exclusion of their beloved daughters. Nor could they sell the properties and leave the money to their families. That was because Longbourn, the Bennet family home, and Downton Abbey were both entailed estates. That’s another of these legal things that doesn’t exist anymore but used to be massive – big enough, indeed, to have featured so prominently in some of the most popular period dramas ever. So let’s have a look and see what entails were all about in Scotland.
The paradigm property
Before we do, though, it’s important when thinking about the law of heritable property (land and buildings, the Scottish equivalent of real property: heritage for short) to understand the typical property the law assumes as its paradigm.
Today, that would probably be an urban house which its owner – usually a couple – bought from a stranger, live in themselves (as opposed to renting out) and are likely to sell to another stranger during their lifetime. But when thinking about historical property law concepts like entails, it’s critical to rid yourself of that image and picture instead the paradigm property of centuries prior to the 20th. This was a rural country estate of several hundred acres at least, belonging to a single individual (usually a man) and all let to tenant farmers except for the mansion house and home farm (called the mains in Scotland). Only by keeping a property like that in mind does historical law make any sense.
Primogeniture
Until 1964, the default rule for succession to heritable property when the deceased had not made any alternative arrangement was male preference primogeniture.
To understand how that worked, look at the family tree below in which M is for males and F for females:-
If M2 had not had any sons (or they and their issue had all predeceased him) and only had daughters (F1 and F2), then they would succeed to his heritage jointly in equal shares. Women succeeding jointly like that were called heirs portioners. The oldest sister took the principal house on the property exclusively. They shared the rest of it jointly until one of them (or one of their descendants) applied to the court to have the property physically divided between them.
Special destinations
The rules just described were the default but it was possible for the title deeds to a property to contain some sort of variation of them called a special destination.
The simplest special destination was the exclusion of heirs portioners – in other words, when the succession opened to sisters (F1 and F2 in the event that their father had been predeceased by his sons M4 and M5 and the former’s issue), it was the eldest sister alone who succeeded to all of the estate, not just the mansion house. This was important in days gone by to preserve family estates intact and prevent them being split up.
Another, and even more common, variation was to exclude female heirs altogether. This was important to keeping estates in the family and prevent them going to the families of the husbands of heiresses. In this case, the property was said to be destined to heirs-male and this precluded the succession, not just of women, but even of men related to the deceased through a woman. Look at the family tree above again and imagine that the deceased’s (M2’s) sons had either never existed or had, along with M4’s sons (M8 and M9), predeceased him. Imagine also that both his daughters, F1 and F2, had predeceased him such that his only descendant is M7, the son of his elder daughter. If his property is destined to heirs-male, M7 cannot succeed because he is connected to the deceased through a woman (and will have his father’s surname). Instead, the succession will open to M2’s younger brother, M3 (or, if he has predeceased M2, his son, M6).
A further variation which was also common was a destination to the heirs of the body of a certain person. So supposing M2 in the family tree held property destined to him and the heirs of his body, that meant that only his descendants could succeed to it and nobody else. Thus, if M2 had been predeceased by all of his descendants, the succession would not open to his younger brother or nephew or niece (M3, M6 & F3). A further refinement, heirs male of the body is self-explanatory.
It was possible to combine special destinations together. For example “to M2 and his heirs-male, whom failing to his heirs whomsoever, excluding heirs portioners the eldest heir female always succeeding without division”. What also happened quite commonly was to exclude a branch of the family from the succession, for example a younger sibling who had married a wealthy heiress and thus had no need of the family inheritance.
How did you get a special destination applied to your property?
You had to resign it back into the hands of its feudal superior and ask him to re-grant it to you by a deed called a charter of resignation and novodamus (‘new grant’) containing the desired destination.
Nomenclature of heirs
The individual entitled to succeed to a deceased’s heritable property was called the heir-at-law. That expression was equally apt whether the heir was identified under the default rules or a special destination but where the context required a distinction between them, the heir under a special destination was called the heir of provision and the heir under the default rules was called the heir of line. Heirs of line in succession to each other are referred to as the deceased’s heirs whomsoever. The heir (whether of line or of provision) who is for the time being the owner of the estate is the heir in possession.
The heir apparent was an heir (whether of line or provision) who was bound to succeed so long as he survived the heir in possession – typically an eldest son. The heir presumptive was an heir who would succeed so long as nobody was born closer in propinquity. Thus, a daughter or sibling of the heir in possession is only ever an heir presumptive because a son (who would be heir apparent) could, in theory (be it ever so unlikely in practice due to his or her age or whatever), be born to the heir in possession at any time before his death. In the context of the succession to the throne where the same rules applied, Prince Charles was the late queen’s heir apparent as her eldest son. But she was only ever King George VI’s heir presumptive as he could, in theory, have had a son who would, under the rules that applied at that time (they’re different now), have displaced her as heir to the throne.
Entails
It must be emphasised that a special destination did not give the heir of provision any guarantee that he would in due course succeed. The heir in possession remained entirely at liberty to bequeath the property elsewhere or sell it during his lifetime to a stranger. Another commonly occurring scenario in which an heir of provision’s expectation might be defeated was by the heir in possession contracting debt and his creditors foreclosing on the property and forcing its sale.
To give heirs of provision greater protection, therefore, the practice arose of adding clauses forbidding the heir in possession from alienating the estate during his lifetime, altering the succession to it on his death or contracting debt. Sometimes these prohibitory clauses were fenced (note the jargon) with clauses irritant and resolutive the intention of which was that, if the heir in possession contravened any of the prohibitions (for example by trying to sell the estate), the transaction would be null and void as far as the third party involved (purchaser or creditor) was involved and, furthermore, the contravening heir in possession would forfeit his right to the estate which would pass immediately to the next heir of provision.
This combination of special destination coupled with prohibitory clauses fenced with clauses irritant and resolutive was called an entail (the old Scottish word is tailzie pronounced “tay-ley”) but there was doubt about how legally effective they were beyond the special destination itself until an Act of Parliament in 1685 declared that entails were fully valid as intended according to their terms provided three conditions were met:-
1. There had to be a special destination. You couldn’t have an entail to your heirs whomsoever, only to a specific subset of them. (Merely excluding heirs portioners so that the eldest heir female succeeded without division was not sufficient.)
2. There had to be the three cardinal prohibitions, as they were known – against lifetime alienation, altering the line of succession and contracting debt. Other prohibitions or conditions were permissible (see below) but if any one of the cardinal prohibitions was missing, then it wasn’t a valid entail. They also had to be fenced with the irritant and resolutive clauses.
3. It had to be registered in a special register called the Register of Entails. The point of that was so that prospective lenders and purchasers would know who/which properties not to bother transacting with.
Prohibitory clauses in an entail (the three cardinal ones and any extra ones present) were also known as the fetters of entail and heirs of provision under entails are called, unsurprisingly, heirs of entail (sometimes heir of tailzie and provision). The heir of entail in possession was the owner for the time being of an entailed estate.
Name and arms clauses
A common condition of entails in addition to the three cardinal prohibitions was a name and arms clause. This required the heir of entail in possession to bear the name and coat of arms of the entailer (he who created it). That was important when the succession opened to a woman – her husband had to adopt her surname in order that their eldest son would be able to succeed in his turn and continue the family name.
What if the heiress’s husband was himself the heir of entail in possession of another entailed estate with a name and arms clause? Simple – he just adopted both names (that’s how double barrelled names came about) and quartered his arms with his wife’s. That wasn’t always possible, though, for sometimes the name and arms clause required the heir in possession to bear the entailer’s name and/or arms only.
Case study 1 – the Hunters of Hunterston
This came up in the case of the Hunters of Hunterston. The estate now best known for its nuclear power station had been in the Hunter family for about 500 years when its owner created an entail with a name and arms clause in 1810. In 1880, the succession opened to a daughter married to a Mr Weston. She called herself Mrs Hunter-Weston and quartered the Hunter arms with the Westons’. An aunt who was the next but one heir objected that this was a breach of the name and arms clause but the court ruled against her on the basis that the clause only said the heir in possession had to bear the Hunter names and arms, it didn’t say (as it might have done) that he/she had to bear them alone and with no other names or arms.
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| Hunterston Castle - picture credit James Brown |
If land had been granted by its feudal superior to (for example) “X and the heirs-male of his body” and, upon X’s death, there were no such heirs, then, logically, the land ought to have returned to the superior. But it didn’t, it went to the Crown as ultimus haeres, even when the Crown wasn’t the superior.
To prevent this result, special destinations in entails almost invariably had tacked on at the end of them words such as “… whom all [i.e. the heirs of entail] failing, to the heirs whomsoever [i.e. the heir of line] of [the entailer]”. If the succession opened to the heir of line due to there being no more heirs of entail, at that point the entail and its prohibitions flew off and the last heir of entail in possession became at liberty to dispose of the estate as he pleased – he was said to own it in fee simple which is the expression for the ownership of land free of the fetters of entail. But rather than let it pass to an heir of line connected through a female relative and thus of a different (that relative’s husband’s) name and family, an heir of entail in possession with no heirs of entail would often look for a distant male kinsman of his own name and entail the estate on him and a new special destination (series of heirs) connected with that kinsman. This is what happened early in the 18th century to the estates of the Earl of Cassillis.
Case study 2 – the Kennedy inheritance
In 1698, the chief of the Kennedys, John, 7th Earl of Cassillis, conveyed his estate of Cassillis (I think that’s pronounced ‘Ca-SILL-iss’ but am prepared to be corrected on that) near Maybole in Ayrshire to his eldest son, Lord Kennedy, and the heirs-male of his body; whom failing to his (the earl’s) second son, Charles, and the heirs-male of his body; whom failing to his third son James, and the heirs-male of his body; whom failing to anyone nominated in writing by the earl; whom failing to anyone nominated in writing by Lord Kennedy; whom all failing to the heirs whomsoever [i.e. the heir of line] of Lord Kennedy. The feudal conveyancing solemnities were duly observed by the earl resigning the estate back to his feudal superior, the Crown, who regranted it to Lord Kennedy by a Crown charter of resignation and novodamus containing a special destination in favour of that series of heirs and the usual prohibitory clauses against alienation, contracting debt or altering that line of succession fenced by the clauses irritant and resolutive declaring any breach null and void as far as any purchaser, lender or alternative heir was concerned and terminating the right of any heir of entail in possession who breached them. And finally, the deed was registered in the Register of Entails.
Lord Kennedy died in 1700 while his father was still alive and he was succeeded in the estate by his (Lord Kennedy’s) eldest son, another John, who also became the 8th Earl of Cassillis when his grandfather died the following year, 1701.
The 8th Earl died in 1759, childless. He had been predeceased by both of the next people called to succeed by the entail, his uncles Charles and James. They had also died childless and as neither his grandfather, the 7th earl, nor his father, Lord Kennedy, had exercised their reserved right under the entail to nominate another heir, the entail was at an end and he would be succeeded as owner of Cassillis Estate by his heir of line who was his first cousin once removed (grandson of his father’s sister), William Douglas, the Earl of March & Ruglen. Loath to see the estates which had been in the Kennedy family for nearly 400 years pass to a Douglas, a few months before his death Lord Cassillis made a new entail in favour of his nearest male kinsman, his fifth cousin (descendant of his great x4 grandfather), Sir Thomas Kennedy of Culzean (‘Cuh-LANE’) and the heirs male of his body, whom failing various other heirs. Lord March challenged this, seeking to uphold the 1698 entail (which, if it was still valid, he, March, would be the next heir under) but the Court of Session upheld the principle that, if the succession under the special destination in an entail opened to heirs whomsoever, the entail was at an end and the last heir was entitled to dispose of the property as he saw fit. (If, having executed his new entail, Lord Cassillis had, contrary to expectation, had a son, then the 1698 entail would have revived and the new one been null and void.)
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| Cassillis Castle - picture credit Arjayempee |
Entails had been great at preserving noble families’ estates intact through many generations but in the second half of the 18th century that was no longer the public interest imperative it had been in the 17th. This was now the era of agricultural improvement – improving land to make it more productive in order to meet the increasing demands of the market for food from expanding industrial cities. But the fetters of entail frequently prevented the owners of entailed estates from participating in the new methods of land management now in vogue so, from 1770, a series of statutes was passed progressively watering the effects of entails down. Unusually for British statutes, some of these were named (informally) after their sponsors. Here is a list of edited highlights:-
1770 – ‘Montgomery Act’ – allowed heirs of entail in possession to grant longer leases to tenant farmers than would otherwise have been allowed without breaching the prohibition against alienation. This was to encourage the tenants to invest in improvements to their farms.
To encourage the development of planned villages, 99 year leases of house plots became permissible and this Act also allowed small parts of entailed estates to be exchanged (‘excambed’ in Scottish legal jargon) for parts of neighbouring estates of equal value without that being a contravention of the prohibition on alienation. That was because estates often had irregular boundaries and/or disjoined outlying parts so it assisted modern management methods to rationalise boundaries with neighbours by way of such excambions.
Finally, the Montgomery Act addressed the following syndrome. Think of Mr Bennet in Pride & Prejudice: why would he spend his own money – his daughters’ dowries – improving Longbourn for the benefit of Mr Collins? Accordingly, if an heir in possession spent money improving an entailed estate, his heirs other than the next heir of entail could claim three quarters of it back from the next heir of entail in instalments over up to twelve years. (The heir in possession making the improvements was presumed to take the benefit of the other quarter during the remainder of his own lifetime.)
1824 – ‘Aberdeen Act’ – at common law, a widow was entitled to a liferent of a third of her late husband’s heritage (in other words, to be paid a third of the rents for the rest of her life). This was known as terce but entails frequently excluded terce. Those that did sometimes provided for an allowance to widows nevertheless but these were often expressed in terms of sums of money which had been rendered inadequate by inflation. Thus the Aberdeen Act allowed every heir of entail to grant his wife an annuity during her widowhood of up to a third of the free rent of the estate. (In the more rarely occurring case of a widower, it was a half of his wife’s heritage at common law and the Aberdeen Act provided for a half as well.)
Children other than the heir-at-law (be he/she heir of line or of provision) had no right at common law to any sort of inheritance out of their deceased father’s (or mother’s) heritable property. Parents frequently made provisions for their younger children by way of sums to be paid out of their heritage after their deaths but the heritage being entailed prohibited that. Some entails nevertheless allowed heirs in possession to make such provisions but, again, these were often expressed in terms of sums of money which had been rendered inadequate by inflation. The Aberdeen Act therefore allowed provisions to younger children by way of capital sums equal to one year’s free rent per child up to a maximum of three. These could be paid by the next heir of entail in possession (usually the beneficiaries’ older brother or their nephew) in instalments out of the rents of the estate.
Between these provisions for widows and younger children and claims in respect of Montgomery Act improvements, the demands on the rents of an entailed estate could pile up. So the Aberdeen Act provided that they could never reduce the remaining rent below two-thirds – as necessary, the claims would have to be paid off in smaller instalments over a longer period.
1836 – ‘Rosebery Act’ – further liberalised the rules about lengths of leases that could be granted (up to 21 years, 31 for mining leases) and excambions that could be made with neighbouring estates without infringing the prohibition on alienation.
1848 – ‘Rutherford Act’ – upon the narrative that “the law of entail in Scotland [had] been found to be attended with serious evils, both to heirs of entail and to the community at large”, this Act allowed an heir of entail in possession to disentail the estate completely (i.e. become its owner in fee simple). In certain circumstances, the heir in possession required the consent of the next three heirs or, in other circumstances, of his heir apparent alone to disentail. (These various circumstances when consents to disentail were required are too complex and tedious to go into here but, they became less frequently occurring as time passed.)
An heir in possession could also now sell (or gift), mortgage, lease (without restriction as to length) or feu (grant perpetual building leases) subject to obtaining the same consents (if any) as were necessary to disentail the estate.
1875 – Entail Amendment Act – in those situations where the heir of entail in possession required the consent of the next three heirs to disentail the estate, although the Rutherford Act didn’t say so explicitly, the next heirs were perfectly entitled to demand a sum of money from the heir in possession as the price of giving their consent.
Case study 3 – Benholm Estate
Consider the example of Benholm Estate between Montrose and Stonehaven in Kincardineshire. In 1877, its heir of entail in possession, Baroness de Virte (a Ross-shire MacLeod married to the splendidly titled Jean Thomas Antoine Leopold, Baron de Virte de Rathsamhausen de Ehenweyer), wanted to disentail it and needed the agreement of the three next heirs being her only child (daughter) and her (the baroness’s) two younger sisters. The estate was worth £31,100 in fee simple (i.e. its owner not being bound by the fetters of entail) but the baroness’s life interest in it was worth only £9,320. The three next heirs have it in their power to unlock £21,780 for her (the difference between the fee simple value (£31,100) and the value of her life interest (£9,320)) so they could jointly demand half of that as the price of their co-operation. That would be £3,630 (about £300,000 in today’s money) for each of them.
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| Benholm House and Tower - picture credit Graeme Davidson |
1882 – Entail Amendment Act – the first heir was also now obliged to consent to disentail provided he was compensated on the same basis as the second and third heirs. From now on, therefore, the disentailing of an estate could never be prevented by anybody although it might be necessary to pay the first three heirs compensation in lieu.
1914 – Entail (Scotland) Act – no new entails could be created.
By now, the circumstances in which an heir of entail in possession had to compensate heirs in order to disentail the estate were becoming rarer and rarer and in this climate what finally did for entails in the 20th century was that subject dearest to the hearts of landowners: tax.
The introduction of Estate Duty in 1894 involved the death duties on an estate like Benholm jumping from 1% of its value to 4.5% (and potentially as much as 8% for the biggest estates). By 1919, the duty on Benholm would have been 13% (40% for the biggest estates) so avoiding that became an imperative. The way to do it was to have estates held in discretionary trusts for the benefit of members of the family but with no one of them having any absolute right to it. The idea was that there would be a tacit understanding that the trustees would hold the estate for the benefit of the person who would otherwise have been the heir of entail in possession but, as he had no legal right to that, there was nothing belonging to him at his death to attract tax. Anyhow, this was all totally inimical to entails so they dropped like flies in the first half of the twentieth century.
All proposals to disentail or exercise any of the other various statutory powers in relation to entails had to be advertised in the Edinburgh Gazette. So by way of an unscientific statistical analysis, I searched the Gazette for the term “heir of entail in possession” and the numbers of results over time were as follows: 1900-25 – 695; 1926-50 – 189; 1951-75 – 38; 1976-2022 – 1 (in 1976). Recommending the abolition of all remaining feudal aspects of landholding in 1998, the Scottish Law Commission concluded “there must be few, if any entails still in existence” (para 9.13, page 127) hence they felt justified in recommending that any remaining simply be abolished. This was achieved by section 50 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 providing that all land (if any) remaining subject to an entail would be automatically disentailed on 28 November 2004. (The Law Commission noted that, pursuant to the complex rules on the subject, for an heir of entail to be entitled to compensation consequent upon this statutory disentailment, the heir in possession would have to have been born before 1914. To cover the unlikely event of there being any such cases, the Abolition Act provided for the compensation to remain payable so long as it was claimed by 28 November 2006.)
Case study 4 – Glorat Estate
What may have been Scotland’s last entailed estate – the last one mentioned in the Edinburgh Gazette – is Glorat Estate between Lennoxtown and Milton of Campsie in south west Stirlingshire. The heir in possession who applied to disentail it in 1976 was Miss Elizabeth Gloriana Stirling (the middle name was that of her American great-great grandmother who was mother to sixteen children) and the estate had been in her family ever since 1508. That year, it was granted by its feudal superior, the Earl of Lennox, to Miss Stirling’s direct ancestor, William, younger son of John Striveling (as the name was spelt then) of Craigbernard, with a special destination to William’s heirs male of his body, whom failing to his younger brother, Walter, and the heirs male of his body, whom all failing back to their father, John of Craigbernard and his heirs whomsoever.
In fact, Glorat passed down through the heirs male of William’s body, from father to son, for eight generations until it arrived in the mid 18th century at Sir James Stirling, 3rd Baronet of Nova Scotia of Stirling of Glorat. He being childless, he entailed the estate in 1765 on his first cousin, Sir Alexander (who was the next heir male of the body of the original William anyway). That entail, we may infer from the fact that Glorat was inherited in 1949 by Miss Stirling, the eldest of three sisters, was to the heirs male of Sir Alexander’s body whom failing his heirs female excluding heirs portioners, the eldest succeeding without division. As an heir in possession born after 1848 under an entail dating from before that year, she was entitled to disentail Glorat without needing to compensate any next heirs (she had two younger sisters, so likely them, or one of them and/or their children).
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| Glorat House - picture credit Ron Shephard |
In the early 1800s when Pride and Prejudice was set, there was no mechanism by which Mr Bennet could have disentailed Longbourn in favour of his daughters but I’ve seen the premise of Downton Abbey, set in the first quarter of the 20th century, criticised for being unrealistic in that Robert, Earl of Grantham, could by then have disentailed the estate to allow his eldest daughter, Lady Mary, to inherit it. Could he, though?
I can’t speak for the English law on entails so we’ll need to pretend Downton was in Scotland (or assume the English law was similar to the Scottish which it is likely to have been). Anyway, Robert Grantham could indeed have disentailed the estate had it been in Scotland but the question is whether he’d need to pay any disappointed heirs of entail compensation for doing so and, if so, how much that would be? Could he afford to disentail Downton, in other words?
It depends on the date the estate had been entailed. If that had been before Robert was born, he would have been able to disentail without having to pay any of the next heirs compensation. But if it had been entailed after he was born, he’d need to pay compensation to the next three heirs. How much would that be?
The compensation is the value of the heir’s expectation of inheriting the estate. As I said before, I don’t understand how actuaries put a figure on that but the Benholm case gives us a precedent. There, the heir-presumptive’s expectation of inheriting was valued at 37.5% of the fee simple value (i.e. owner not bound by the fetters of entail) in the circumstances that the heir in possession was a woman in her sixties (so there was no chance of her having a son who would block the heir-presumptive daughter’s succession) and, once she succeeded to the estate, the heir presumptive would be able to disentail it without paying any next heirs compensation. By contrast, the chances of cousin Matthew, the heir-presumptive to Downton Abbey, inheriting it are slimmer because there’s still the possibility of Robert having a son who would block Matthew’s succession. Robert’s also younger than the Benholm heir in possession meaning Matthew has to live longer to succeed him which will nudge his expectation downwards. If we assume Matthew was born after the entail meaning he’d be able to disentail the estate without having to pay anyone any compensation, then I’m guessing his compensation might have been in the 10-20% range of its fee simple value. (The compensation to the second and third heirs would be negligible – about 2% between them.)
So, Robert disentailing Downton Abbey in order to bequeath it to Mary was definitely doable even if it might mean selling off a couple of farms occupied by cap-doffing tenants to raise the cash to buy Matthew out.
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