Terms of settlements
Freehold estates could descend (be passed on) in one of two ways:
- 'Fee simple'. There were no limitations on this estate. It could pass to any descendent (sons, daughters or grandchildren), or to collateral relatives (brothers, sisters or cousins)
- 'Fee tail'. Estates in fee tail were deliberately limited to descend only to specified people. They were 'entailed'.
The most usual fee tail was 'tail male'. This limited the descent to the legitimate male heirs 'of the body' of the owner, i.e. sons and grandsons of the owner's marriage.
'Tail general' was similar, but included females. However, males would still take precedence over females. That meant that a younger son would inherit before an elder daughter. This type of fee tail is the one used today by our Royal Family. The daughters of Prince Andrew (born 1960) are higher up the line of succession than the son and daughter of Princess Anne (born 1950).
In the simplest settlement, an estate would be granted
to A and his heirs, to the use of A for his life
This meant that A was the tenant for life and was entitled to the annual profits of the land. However, he could not sell without the permission of his heirs, because they would expect to inherit after A died.
A more complicated entailed settlement could be as follows. The preferred descent of the estate is paragraph 1. If the conditions in paragraph 1 did not happen (e.g. if the proposed beneficiary died), then the descent in paragraph 2 would take effect, and so on:
1. To the first son of the marriage, and the heirs male of his body (i.e., the eldest grandson)
2. To the second son of the marriage, and his male heirs
3. To the third, fourth, fifth etc. son of the marriage and his male heirs, in order of seniority (i.e. male heirs of the eldest surviving son take precedence over the heirs of subsequent sons)
4. To the sons in order, as above, but with a remainder to their heirs in tail general, allowing female descendents of the sons to inherit. A 'remainder' is an estate which may exist in the future if certain conditions are met - in this case, if all the sons die without having any male heirs
5. If there are no sons at all - to the daughters of the marriage, to inherit as 'tenants in common'. This was the usual way that females inherited under common law. They would each take an equal share of the estate. If they married, their share of the estate would become the property of their husband
6. Ultimate remainder to the 'right heirs' of the tenant in possession, i.e. his heirs as determined by common law
The terms of settlements and entails were guaranteed by having trustees involved. Trustees were usually lawyers or family friends.
The word 'use' appears extensively in settlements. A 'use' is another word for a 'trust'. A use was created when one person conveyed land to somebody else in trust for a third party. So, for instance:
A conveys a piece of land to B, to the use of C
In this example, B is the trustee (sometimes called the 'feoffee to uses'), and C is the beneficiary.
Most settlements were slightly more complicated than this, and aimed to create a second use. After 1536, the presence of two or more uses served to split the land between the trustees who held the legal estate, and members of the family who held various equitable estates. The aim was to prevent one family member holding both the legal and equitable estates (i.e. the fee simple) and therefore being able to sell the land.
The most common form of family settlement was as follows. A is the landowner, B is the trustee, and C is A's eldest son:
A conveys to B, to the use of A for his life, and then to the use of C for his life, with remainder to the heirs of C's body
This settlement means that A holds only a lifetime interest in the land. He can lease or mortgage it, but only during his lifetime. He cannot sell it, because C expects to inherit, and therefore has an equitable interest. When A dies, C will come into possession of the land for his own lifetime. After C dies, it will pass to C's son, daughter or other heir. The land is therefore 'tied up' for two generations to come.
If A made a settlement like this on his marriage, before he had any heirs, any remainders would be 'contingent remainders' - remainders dependent on something which has not yet happened. The people to whom the land would ultimately come had not yet been born. Because the children did not exist, this entail could be broken by the tenant for life. Therefore, in order to keep the estate intact, 'trustees to preserve contingent remainders' would probably be appointed in the settlement.
Family members could be provided for by annuities - annual payments raised out of part of the estate. It was common for the heir to be granted an annuity to be paid until he succeeded to the estate. The prospect of an annual income was the inducement for the heir to join in the re-settlement of the estate.
An annual allowance granted to the wife during her husband's lifetime. This was her own money which she could use as she liked, although until 1870 it was administered by trustees. The amount of pin money payable to the wife was stated in their marriage settlement.
Jointure or Dower
This was a provision made by the husband's family in case the wife was widowed, to be held by her during her lifetime. There was a common-law right for a widow of one-third of her late husband's estate. Sometimes the provision took the form of a house and property set aside for widowed family members (a 'dower house'). Because the provision was promised at the start of the marriage but only came into effect years later, perhaps when the family had got into financial difficulties, dower provision could be a big financial burden. It was also possible for two dowagers to be in receipt of their dower money or property at the same time. If a father and son had both died young and their wives had outlived them, the grandson would be responsible for maintaining his mother and grandmother.
Portions were usually allocated in settlements for younger sons and daughters who were not expected to inherit the main estate. Portions were a lump sum payment which would be released to them on reaching the age of 21 (sons), or on reaching the age of 21 or on their marriage, whichever came first (daughters). Until the lump sum was paid, the interest was paid annually to trustees, and was sometimes used to pay for the children's education or start them off in a career.
The marriage portion was a lump sum consideration paid by the father of the bride at the time of the marriage settlement. The amount paid as a consideration was an important part of the marriage negotiations.
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