Inheritance or ‘succession’ plays an important part in English society. It concerns the devolution of property and it may also designate a property itself. I have previously mentioned how fiefdoms, set back in feudal times, continue to play their part today. Examples of these inheritances are in the Royal Duchies and in the Crown lands. Freemen in England and Wales inherit freedom through their hereditary rights.
Succession of property rights is a branch of common law that distinguishes between descent and distribution of an estate. Generally, property rights cannot occur unless goods are recognised as belonging to individuals rather than to groups.
Historically, there are different systems of inheritance. ‘Entailment’ refers to the restrictions on property, limiting inheritance to an owner’s lineal descendants, or to a particular class thereof. Feudal in origin it is applied to prevent property from being broken up and descending in a female line.
Property (and rights) was usually inherited by male primogeniture (the ‘nearest male to the owner’). Therefore, it normally descended to the eldest son. There are exceptions to this in the applications of customary ‘Borough English’ of which more later.
Records of admissions to borough freedom in both York and London, by patrimony, only began in the late fourteenth century. Entry into borough freedom (property rights) could be obtained in four ways, by right of inheritance, by purchase or by gift, and by apprenticeship. ‘Honorary Freedom’ of the Borough does not convey with it any legal rights, titles or responsibilities other than a ceremonial role at civic functions. The award is not created by birth or inherited by descendants of an honorary freeman.
Law of inheritance
Inquisition post-mortem (IPMs) are documents concerning the inheritance of land, in accordance with the common law. Although, they sometimes relate to grants or settlements, designed to favour family members. IPMs are a source of information for the research of medieval estates.
The rules of common law inheritance, or primogeniture were settled by the thirteenth century. A dead person’s issue descendants were given preference over collaterals. Normally, it was only the eldest male that inherited. Failing a male heir, daughters inherited together as co-heiresses.
A deceased descendant who had issue was ‘represented’ by their issue. Some customary exceptions occurred in IPMs. In the Kentish custom of ‘gavelkind’, where land was partible among male heirs. Less frequent are the customary descent of lands by manorial or borough custom, which often favoured younger over elder sons (ultimogeniture). Collaterals of the ‘half-blood’ were excluded.
NB. Most common law states inheritance law allowing a surviving spouse to claim one-third of the deceased spouse’s property. In 1660 the ‘Abolition of Feudal Tenures Act’ changed original law, to abolish restrictive practices. The owner of property has complete liberty to dispose of his property by will.
NB. Inheritance is the practice of passing a ‘property’, titles, debts, rights and obligations upon death of an individual. An heir is only determined on the death of the deceased. In modern law, the terms inheritance and heir refer exclusively to property by descent.
The Custom of Borough English
This is where customary descent of lands or tenements in some places, come to the youngest son, or if the owner have no issue, to his youngest brother. The custom can vary in different manors. It can be confined to sons and did not extend to alternative preferences or to daughters. These rules appear to have originated in isolation under the Anglo-Saxons until the influences of Norman law. In Nottingham there were two tenures, ‘Burgh Engloyes’ and ‘Burgh Frouncoyes’. Tenements of an ancestor seised in Burgh Engloyes ‘ought to descend to the youngest son and all tenements in Burgh Frouncoyes to the eldest son as at common law.
My theory is that the early copyhold tenements in a borough were considered so valuable to the resident families that they stretched the tenancies by making the youngest male issue the recipient. Thereby protecting their family homes. As property ownership moved on, things were different. It is generally assumed that it was Simon de Montfort who, in 1255, as a ‘favour to all burgesses’, granted that in future the eldest sons should be the heirs of their father. However, the custom of Borough English continued on in a wide variety of places.
If a man owning houses within the City of Gloucester died intestate, up until recently, his youngest son and not the eldest succeeded to the property. This custom has prevailed in a similar way, in Leeds, Durham, Nottingham, Stafford and Stamford. It was generally accepted in the counties of Sussex, Suffolk, Essex, Norfolk, Middlesex and a part of Somerset. It has previously existed in a scattered way in most other counties. There are no similar examples of this custom anywhere in the ancient laws of Wales.
NB. Important to the subject of ‘entitlement’ through inheritance is that since 1976, under the Adoption Act, adopted children are to be treated in law as legitimate. The admissions to Borough Freedom through inheritance has been entirely dependant upon local customary practices.
An example of a modern approach to gain Hereditary Freedom of the City of Leicester can be seen here:
Legitimacy of Succession
The customary right of admission to borough freedom, through patrimony, would normally require an assurance of legitimacy through ‘wedlock’.
A modern approach to this law may well disregard the necessity of ‘Wedlock’.
- The 1976 Legitimacy Act does not appear to offer any relaxation of the custom. As it states nothing in this Act shall affect the succession to any dignity or title of honour or render any person capable of succeeding to or transmitting a right to succeed to any such dignity or title. Section 1 refers to void marriages, i.e., incest etc. The Legitimacy Act rather concentrates upon legitimisation by marriage.
- The Family Reform Act 1987 appears to have removed all legal distinctions between children born to married or unmarried parents.
- Relaxation by the LDED&C (Democracy) Act 2009 has allowed the bypassing of the necessity for continuous succession, (however, there must be a bloodline) and to allow daughters to be dealt with as previously with male progeny.
An interesting case, prior the Municipal Corporations Act, 1835, involving Gild Membership.
In 1408 the Borough of Nottingham had ruled that a ‘bastard’ was not entitled to sue as a burgess. The plaintiff was a prenuptial bastard. The status of the bastard, daughter of Walter Dyer, cloth trader and freeman of Wells, Somerset. One of the five ways of obtaining freedom of Wells was by marriage with the daughter of a burgess.
It was unclear that the daughter had to be legitimate. In 1425, Peter Boghyor, alias Tankard, the husband of Dyer’s bastard daughter, was admitted as a freeman following the usual admission process for a ‘stranger’ which included a fine of ten shillings, but it was recorded, that in the event, that the muniments proved he had the freedom of the borough because he married the bastard daughter of Walter Dyer.
In this instance, marriage to a bastard was not viewed as an impediment to Gild membership. However, we must today, consider that before extinguishment by the 1835 Act. It had, at that time, been possible to purchase freedom and the ‘stranger’s fine’ may, in effect, be such an action and this clouds the example of this case.