The Law of Inheritance in Medieval England


Allstedt Castle catching the early morning sun / Photo by Andreas Vogel, Wikimedia Commons


The rules of common law inheritance, or primogeniture, were largely settled by the end of the thirteenth century.


Edited by Matthew A. McIntosh / 07.26.2018
Historian
Brewminate Editor-in-Chief


Inquisition Post Mortems (IPMs) are documents concerned with the inheritance of land. That inheritance normally took place in accordance with the principles of the common law, but sometimes according to grants or settlements that were designed to modify those principles in favour of various family members. The IPMs are a very important source of information on the changing ways in which estates were settled and inherited in medieval England; equally, some appreciation of the law relating to inheritance and conveyancing is necessary for a full understanding of the documents themselves. Here is a short introduction to these issues.

Common law and customary descent

The rules of common law inheritance, or primogeniture, were largely settled by the end of the thirteenth century. [1. Various summaries of these rules are available, for example A. W. B. Simpson, An Introduction to the History of the Land Law (Oxford, 1961), 53-60.] Precedence went initially to a dead person’s issue descendants, in preference to collaterals such as siblings or aunts. Within the same generation of descendants, men were favoured over women, but only the eldest male inherited. If there were no male issue, then any daughters inherited together as co-heiresses. However, a deceased descendant, who had themselves had issue, was ‘represented’ by that issue. Thus, the son of A‘s deceased eldest son had priority over A’s living younger sons, and indeed the daughter of a dead eldest son had priority over a surviving younger son. But the son of a dead elder daughter ‘represented’ or stood in place of that daughter and thus inherited jointly with any surviving younger daughters. Thus John Hadley of London had two heirs at his death, his daughter Katherine and his grandson John (CIPMxix.723-7).

There were some customary exceptions to these rules. Most commonly occurring in the IPMs is the Kentish custom of gavelkind, in which lands were partible among male heirs. Less frequent are references to the customary descent of lands by manorial custom or borough custom, which often favoured younger over elder sons (ultimogeniture) (e.g. CIPM xix.941-2)

When a dead person left no descendants, the hunt for heirs turned to their collaterals: their father’s or mother’s issue, their grandparents’ issue, and so on. Within each of these lineages, the above rules again applied: brothers inherited before sisters, uncles before aunts, and so on. Land that had been inherited from a person’s mother or father had to descend to a blood relative of that mother or father. Preference was given to males over females as above in tracing back these descendants. Collaterals of the ‘half blood’ were excluded.  This meant that if a tenant died seised without issue, but with a sister and a half-brother (i.e. sharing only the parent from whom the inheritance came), the sister although female would inherit. All of a person’s children, though, were issue of the whole blood, so on the death of the father it was his eldest son even by  a second marriage who was preferred to a daughter by his first marriage. Only once a descendant had inherited did the exclusion of the half blood operate.

Many IPMs illustrate these canons of inheritance in operation. By far the most common succession was from father to son or, failing a son, to a daughter, but occasionally the trawl for heirs was quite extensive, as Michael Hicks shows elsewhere on this site.

Descent by entail

The statute De Donis Conditionalibus (‘of conditional gifts’) of 1285 gave legal definition and support to gifts of property that were designed to modify common law rules of inheritance by eliminating collateral heirs. Such grants, made to a person or persons and their lineal heirs, were known as entails and created a fee tail (feodum talliatum, meaning a restricted fee). Such grants could be in tail general, to the issue of a person’s body, or tail special, the issue between a person and a specified husband or wife. Both tail general and tail special could be further limited to male or female issue. Entails could also specify remainders in the event that an entail failed through lack of heirs. Thus lands granted to and his heirs male might remain, if A died without issue, to and his heirs male, then to and his heirs male, and so on. (Alternatively, grants could be made for life, with remainders in tail.) When all entails and remainders failed, the property returned or reverted to the common law heirs of the grantor. For most of the fourteenth century, limitations on alienation were held to endure until the fourth generation for the heirs in the entail and in perpetuity for the reversioner; in the 1420s grants in fee tail came to be interpreted as enduring in perpetuity. [2. J. Biancalana, The Fee Tail and the Common Recovery in Medieval England 1176-1502 (Cambridge, 2001), 106-40] At roughly the same time the legal device of the common recovery developed as a way of breaking or barring entails: such recoveries are referred to quite frequently in the IPMs from Henry VII’s reign. [3. For a detailed account, see Biancalana, 250-351; more briefly, Simpson, Introduction to the History of the Land Law, 118-29.]

Often a tenant’s heir in tail was not their common law heir: Richard de la Pole, for example, held Grafton (Northants.) in tail male with remainder to his (younger) brother Thomas; since he died without heir of his body, Thomas inherited. The advowsons of Bugbrooke and Grafton, in the same county, which were held in fee simple, descended to Richard’s common law heir, his (elder) brother Michael (CIPM xviii.336). Sometimes IPMs recorded the entails, sometimes only the common law heir, even if there was nothing for him to inherit.

The use

Still greater freedom of alienation was provided by the development of the use. [4. J. M. W. Bean, The Decline of English Feudalism (1968), chs. 3-6; J. L. Barton, ‘The Medieval Use’, Law Quarterly Review 81 (1965), 562-77.] Lands were granted to a person or (more usually) persons, the feoffee(s) or feoffee(s) to use, who were instructed to hold them for the benefit (or ‘to the use’) of another party. This beneficiary was known as cestui que use and the feoffees could be instructed to act in his interests in various different ways, such as paying debts, or administering the lands on behalf of under-age descendants, granting them the lands themselves when they came of age. As this indicates, these arrangements also had the advantage of denying feudal incidents to the crown (or indeed to other feudal lords), since when one joint tenant died his interest passed to his fellow tenants, and these tenants could create new feoffees if their numbers became low. The courts protected the interests of feudal lords by determining that when an enfeoffment was purely collusive – when feoffees had been instructed to enfeoff a tenant’s heir when he came of age – the feudal lord could sue for wardship. But this applied to a small number of cases and seems rarely to have occurred. A statute passed in the parliament of 1489-90 legislated that feudal lords could have wardship of enfeoffed lands, and the associated heirs, if the cestui que use had not made a will at the time of his death; if the heir was of full age, he would pay relief to the lord. For this reason IPMs from the 1490s and later frequently record the existence of such wills.

The title of cestui que use was not recognized at common law, since the feoffees had actual seisin of the lands and were regarded as tenants at law. (The beneficiary’s rights were only protected by the court of Chancery.) For this reason estates which had been granted to feoffees may not appear in IPMs, since the former tenant no longer had title. In practice, grants to feoffees frequently are described, but they usually appear as grants ‘in demesne as of fee’, rarely naming the beneficiary or describing the terms of the use. Such is the case, for example, with John Cornwall, lord Fanhope’s enfeoffment of Ampthill and other manors in Bedfordshire, described in his IPM of 1444 (CIPM xxvi.202); only later litigation reveals that the feoffees had been directed to sell the estate to Ralph lord Cromwell. [5. S. J. Payling, ‘The Ampthill Dispute: A Study in Aristocratic Lawlessness and the Breakdown of Lancastrian Government, EHR civ (1989) 881-907  at 885 n. 2.]

Uses relating to lands held of the crown were subject to royal oversight, because grants of such land had to take place with royal licence. (If such a licence was not obtained, the lands, after 1327, would be confiscated and only returned on payment of a fine.) Inquisitions often note whether or not such licences had been obtained. Inquisitions may also contain information about whether the necessary formalities had been observed when lands were enfeoffed – whether seisin had been properly delivered, and whether the grantor’s tenants had attorned to the grantee (that is, formally recognized him as their new lord). As noted above, after the statute of 1489-90, inquisitions frequently give details of the wills made by beneficiaries of uses. Indeed IPMs provided important opportunities for royal investigation of uses, although it is still unclear how frequently and how thoroughly such opportunities were taken.

An example

The estates of the Beauchamp earls of Warwick illustrate these different forms of inheritance. [6. For what follows see in particular M. Hicks, Warwick the Kingmaker (Oxford, 1998), ch. 3; id., ‘The Beauchamp Trust’, BIHR 54 (1981) 135-49; ‘Descent, Partition, and Extinction: the ‘Warwick Inheritance’, BIHR 52 (1979) 116-28] Earl Thomas (d. 1369) settled his estates in tail male to prevent inheritance by the daughters of his deceased eldest son Guy and so they descended to Richard Beauchamp, earl of Warwick (d. 1439). He had three daughters by his first wife, Elizabeth Berkeley, and a son and daughter by his second wife, Isabel Despenser. According to the entail, the Beauchamp estates descended to his son Henry, duke of Warwick (d. 1446), but at Henry’s death without heirs male, no male issue of Thomas I remained. Of the various remainders specified in Earl Thomas’s original entail, only that to the right heirs of the earl remained in force, and the inheritance passed to Henry’s daughter Anne, who died a minor in 1449. On Anne’s death there was some uncertainty about should happen. Her inquisitions post mortem apparently took the view that Earl Thomas’s entail had failed and that Anne was seised in fee simple. Her heir was therefore Anne, Henry’s sister, since Richard Beauchamp’s three much elder daughters by his first marriage were excluded by the law of the half blood. These IPMs may well have been orchestrated by Richard Neville, ‘Warwick the Kingmaker’, Anne’s husband. Other documents imply that all four daughters of Richard Beauchamp were regarded as co-heiresses, presumably claiming as the right heirs of earl Thomas. Ultimately however the elder sisters had to settle for much less.

Henry and his daughter Anne were also heirs to the Despenser inheritance of his mother Isabel. On Anne’s death this did not pass wholly to Henry’s sister Anne, however. It was partitioned between her and George Neville, the son of Isabel’s daughter  Elizabeth (elder half-sister of Anne) who had died in 1448 and who he therefore, as we have seen above, ‘represented’. Although there has been some uncertainty about the reasons for this, one explanation is that the Despenser inheritance was held in fee tail general. Both Anne and Elizabeth/George were the bodily heirs of Isabel Despenser according to the entail and so the exclusion of the half blood did not apply.

Excluded from all this was a group of manors which Richard Beauchamp conveyed to feoffees in 1425, some of which the earl could dispose of freely, others of which were entailed, but whose descent to heirs could be postponed. In his will of 1437 the earl directed that the manors were to pass variously to his younger son (should he have one, as he did not in fact), elder son and daughters. However this was only to take place after conditions had been fulfilled. These conditions related to his burial, funeral masses and religious endowments and in particular to the construction of the famous Beauchamp chapel at St Mary’s, Warwick

Conclusion

How reliable are the statements about inheritance and succession in the IPMs? Jurors and/or escheators can have had relatively little trouble, in many instances, in identifying a tenant’s common law heir (although, to be sure, there are cases when the jurors claim ignorance or are mistaken). Conversely for information on entails and enfeoffments jurors and escheators are likely to have been more reliant on the information presented at the inquisition, which was not always reliable and was sometimes partial. For example, the descent of manors of the Heriz family in Nottinghamshire and Derbyshire had been settled in tail by a final concord of 1325 and, in contradictory terms, by another final concord of 1385. IPMs dealing with the manors, taken in 1429, recited only the fine of 1385, bolstering a weak claim to the manors made by Ralph lord Cromwell. [7. S. J. Payling, ‘Inheritance and Local Politics in the Later Middle Ages: The Case of Ralph, Lord Cromwell, and the Heriz Inheritance’, Nottingham Medieval Studies 30 (1986) 67-96 at 71-2.]

Such cases remind us that IPMs can be complex documents in which the interests of the crown, the escheator, and the heir (or the claims of conflicting heirs) can all be represented. But while IPMs do not provide a neutral or comprehensive picture of how land descended in late medieval England, they nevertheless remain one of the most important sources for analysis of the descent of land [8. Bean, Declinepassim; S. J. Payling, ‘Social Mobility, Demographic Change, and Landed Society in Late Medieval England’, EcHR 45 (1992), 51-73]. IPMs have been used to trace the development of the use and the popularity of entails, but such analysis has concentrated on the period before 1399. The online publication of the IPMs for 1399 to 1447 will provide important insights into succession to estates in the first half of the fifteenth century, and the extent to which landowners used entails and enfeoffments to bend the rules of common law inheritance.


Originally published by the Inquistions Post Mortem: Mapping the Medieval Countryside – Properties, Places, and People under a Creative Commons Attribution-NonCommercial-ShareAlike 2.0 UK: England & Wales license.

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