by Mike Fitton
Mike Fitton is a resident of Bracebridge and an honorary member of the MPSGG. He is very knowledgeable on English research and has spoken at many of the club meetings.
An ancestor of yours has died in the 16th century owning some farmland in southeast England. Interestingly enough, the land was on the border of three counties, and included a piece in each county. You have found a Will leaving everything to his wife and two daughters. However, on tracing the land inheritance, it was inherited by his sons! Not only that, the eldest son got all the land in one county; the youngest got all in another; all of his sons shared equally in the land in the third county; What does this mean?
At that time, there were two sets of rules for inheritance. Land was the source of most wealth, so the most stringent rules were for land. Movable things apart from land were called personalty, and were the subject of different rules, and less under the control of the state.
Let’s deal with personalty first. The very earliest rule said that when a man died, his personalty was to be split into three parts. The first part was owing to his overlord, usually the Lord of the Manor. The second part was delivered to his wife and children. The remaining third belonged to the Church, which used it to pay his debts, say masses for his soul, and help with some charitable purpose.
Rules change. The Lord’s part shrank so that he received only the best horse or cow, or a cash payment known as a heriot. The Church did not want the job of paying debts and supervising the rest, so it encouraged people to leave instructions on how it was to be disposed of. Finally, the rules became that the wife got one-third, the children one-third, and the deceased could say what was done with the remaining third, called the "dead part." Before 1300, it was usual for a person to say on his deathbed what was to happen with his dead part. The Church would then use its moral powers to enforce his wishes. As people became more literate, and owned more personalty, the person’s wishes concerning the dead part were written down, and this document, officially called a Testament, was required to be filed with the Church authorities, together with a promise by a person appointed to carry out the Testament, the executor. These are the earliest probates of the documents, which we call Wills. You will find that most surviving ones date from after 1300. The rules changed again. Even before 1300, the Church was allowing men in southern England, in the Province of Canterbury, to dispose of all personalty, not just the dead part, in a Testament. In northern England, in the Province of York, the two-thirds and the dead part rule continued and was known as the Custom of York. It continued until 1692, after which a Testament could dispose of all personalty.
Why do I refer to a man making a Testament? Isn’t this sexist? Exactly. Until the 19th century, all of a married woman’s property belonged to her husband, so most Testaments were by men. A few Testaments were made by widows or unmarried women, but not many because marriage was considered a socially necessary condition.
Now let’s talk about land, or realty. The rules in most places, except for a few special boroughs, were simple. The eldest son inherited all of it. This was called primogeniture, and the idea was to keep wealthy estates together, in one ownership. In places, a separate custom called Borough English or ultimogeniture, required that the youngest son inherit all the land. Same general principle, with the interesting addition that since the youngest son was often under age, the King or local Lord got to keep the estate profits until he became an adult. There was third system in Kent, called gavelkind. Without going into a complex explanation, I will just say that all the sons inherited gavelkind land equally.
What if there were no sons, but only daughters? In all cases, the daughters inherited equally. Since they almost always married, the estate was chopped into equal shares and added to the holdings of their husbands. The family name and wealth disappeared.
There was little room for written instructions in this system. Land went to the official heir or heirs automatically. In addition, the heir received heirlooms. These were things considered part of the land, and included pumps, fixed tables and benches; animals, fish and birds within the land; deeds and charters and the chest holding them; church monuments and tombstones; and any flags, coats of arms, and other signs of honour. The word ‘loom was an old word meaning tool, so the heirlooms were the tools necessary to accompany the land inherited by the heir. In later times, when cloth making was important, the cloth-making tool or loom was also an heirloom. In 1540, the Statute of Wills finally said that a person could make a Will dealing with inheritance of land. Usually, a person disposed of all of his property in the same document, so it became his last Will (for realty) and Testament (for personalty).
The ancestor in southeast England must have had gavelkind land in Kent, Borough English land, and land subject to the ordinary inheritance rules. If he had died without sons, his daughters would have inherited the land, and you would probably have assumed that they inherited because of the Will. You would have missed out one of the interesting puzzles of early land law.
This article first appeared in the November 1995 newsletter, Volume 11 - Number 2