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Wednesday, April 10, 2019

The Birth of the Entail

My current reading has been delving rather (too) deeply into two main areas: Parliamentary law and English legal history. This post and the next will have to do with aspects of the latter. If you are already an expert in this area and find my posts amateur performances, I apologize. I am an enthusiast, not an expert, so this isn’t aimed at you.

Let us begin our story in 1284, with a legal dispute between Hugh Deen and Simon of Londonthorpe. Hugh’s father William, had given a gift of land in Grantham to Alan of Winwell and his wife Cecily (in Baker’s version; Brand’s version has her name as Avice). Although it is not very clear in the records, Cecily was probably William’s daughter. William Deen’s gift was conditional: the land was given to Alan and Cecily Winwell and to the heirs begotten of their bodies. Upon failure of such issue, the land was to revert to William or his heir.

In law, this sort of gift, usually to help a newly married couple set up in life, was called a maritagium, a marriage gift. Typically, in making such a gift to his daughter, the donor’s intent was to provide for her and her offspring from the marriage; it was also his intent that the land not end up being inherited by strangers who were not of his blood. Hence, upon failure of issue, the gift would revert to the donor or his heirs instead of passing to the daughter's spouse and possibly his offspring from a subsequent marriage, or else alienated by him. Also, if he had simply given a gift of lands to her unconditionally, by law, as a married woman (or "femme covert") the land would have become alienable by the husband. Making the gift conditional was supposed to keep this from happening

In the law of the time, if the wife died before the husband, and they had issue at some point (even if the issue did not survive them), the husband was entitled to retain possession of whatever lands belonged to his wife in fee for the remainder of his life, before it passed to her heirs. This was called the right of curtesy. Here is Fleta on this point (Bk. III, c. 11):

“And although mention may be made in a gift that the land is given to such-and-such a man in marriage with such-and-such a woman, the property given is, however, the freehold of the wife’s and not the husband’s, since he has nothing but the custody of it, with his wife, until the freehold [in this case, a life estate] accrues to him by the curtesy of England.”

He could not alienate it, nor could his children from a subsequent marriage inherit it. There was however, some question as to whether the lands held by the wife through such a gift were held in fee. It’s an important question from her husband’s point of view: if they were seised in fee (i.e. owned outright), he could hold them for life by right of curtesy after her death. If, however, the wife was not seised in fee of the gifted lands, then after her death they would revert to the donor. Fleta seems to imply that the former is the case; the wife is seised of gifted lands in fee, having at least a life estate that will pass to her heirs, and so the widowed husband may continue to hold by curtesy. There seems to have been, however, some disagreement on this, at least prior to 1285.

To return to Deen v. Londonthorpe (1284). At their deaths, Alan and Cecily Winwell had no living issue, and the land passed to whoever was Cecily’s next legal heir. To cut a long story short, it ended up in the hands of Simon of Londonthorpe and his wife Isobel. As the heir of William Deen, the donor, Hugh Deen, sued them on a writ of formedon, specifically, formedon in the reverter. This was a legal action brought by a donor or his heirs for the return (reversion) of a gift upon failure of some condition of that gift, for instance, failure of issue or alienation against the intent of the donor.

(The term “formedon” comes from Old French forme don, from the Latin forma dona, “form of the gift”.)

According to Hugh, the form of his father’s gift required the land to revert to him or his heir (i.e. Hugh himself) should the Winwells die without issue. However, the wording here is ambiguous. Does “die without issue” have the narrow sense of “have no issue alive at the time of death”, or the broader sense of “never had issue”? There is no disputing that if Alan and Cecily had issue living at their deaths, that issue would inherit. The question is, what happens in the case where the Winwells outlived their children?

Simon’s lawyers, Pageman and Arnisby, argued that, contrary to the wording of the plaintiff’s writ, the Winwells did at some point have a son and a daughter, and therefore had issue. The writ therefore is premised on a factual mistake and should be void. They also argued that the issue having died before their parents is irrelevant because, supposing a point in time when the issue were still alive, at that time, Alan and Cecily would have had issue of their bodies living and therefore could have lawfully alienated the lands. In other words, at that point in time they had gained a freehold by fulfilling the condition of the gift, and this freehold staid with them after their children were dead.

Regarding the first part of this defense, that the plaintiff’s writ of formedon made the false claim that Alan and Cecily did not have hairs of heir bodies, the judge shoots this down:

“SAHAM. The writ says that they died without heirs begotten of their bodies, and does not say that they had no heir of their bodies (as your argument supposes).”

In other words, Saham, J read the writ as making the narrower claim that Alan and Cecily did not have heirs of their bodies at the time they died, which is presumed to be factually correct. Therefore, on this count, the writ is valid.

At this point, Deen’s lawyer, Fishburn, makes the following argument: Neither of the Winwell's children, while their parents were alive, could claim the inheritance. Therefore, the children were never heirs, and could only have become so at the moment they survived their parents, which never happened. During their lives, the children had no title to pass on. Therefore, contra the terms of the original gift, Alan and Cecily failed to have heirs begotten of their bodies. Therefore, the gift ought to revert to the donor’s heir, Hugh Deen.

It is here that the judge interjects with the following terse and enigmatic remark:

“SAHAM. Say something else.”

It is not immediately clear to whom he is speaking. If to Fishburn, it is equally unclear whether he’s speaking approvingly or disapprovingly. In other words, he could either be reacting to Fishburn’s argument with either (i)  “Interesting… go on, I’m listening” or (ii) “Terrible argument. Hopefully you have something better.”

However, Brand’s translation of Saham’s remark is “Answer over” (respondeat ouster, “let him make further answer”), thus implying that he is actually speaking to Simon’s lawyers, requiring them to offer something in response to Fishburn’s argument.

And it is here that Pageman, for the defendant, responds with his trump card. It turns out, you see, that Alan and Cecily did have a daughter named Alice who outlived them and took up the inheritance, alienating a part of it (to Simon?). Judgment for the defendant.

It was rather a neat ending, at least for for the defense, but unfortunately for us, it lacks resolution of a core issue. If it had instead been the case that Alan and Cecily lacked living heirs begotten of their bodies at theirs deaths, we would like to know which of the following two positions justice Saham would have favoured:

1.    Alan and Cecily had no heirs of their bodies begotten. Therefore, by the form of the gift, the land reverts to the donor, or to his heir Hugh Deen. Neither Alan nor Cecily could alienate the land, and any such alienation (e.g. to Simon of Londonthorpe) was unlawful. Nor can Alan continue to inhabit the lands by curtesy should Cecily outlive him, because the latter was not seised in fee (though this latter point is disputable).

2.    Alan and Cecily had children who all died before them. At some point though, while the children were alive, Alan and Cecily did have heirs begotten of their bodies, and therefore they had satisfied the condition of the gift, thereby gaining a freehold. The gift was complete. The donor and his heirs no longer had a right of reversion, and Alan and Cecily could alienate the land as they saw fit, or else it would pass to whoever ended up being Cecily’s lawful heir. Meanwhile, if Cecily died before Alan, Alan could continue to hold the land by curtesy until he died.

From the record, it seems like, up until Simon’s lawyer played his trump card, justice Saham was perhaps leaning towards the first position. However, for whatever reason, the tendency up to the time of this case in 1284 was that courts were increasingly leaning toward the second position. They were more often favouring an (over)literal interpretation that seemed to ignore what was thought to be the clear intention of the donor and the form of the gift itself. People who wished to make such conditional marriage gifts were rightly becoming hesitant to do so, because there was no guarantee their wishes would be observed by the courts.

It was felt that legislation was required. This came in 1285, in the form of c. 1 of the Statute of Westminster II, called De Donis Conditionalibus (“Of Conditional Gifts”). It enacted that the donees cannot alienate the gift, regardless of whether they have issue, or whether or not said issue survives them. It explicitly made the first position, above, the law of the land, protecting both the intentions of the donor and the interests of the donee’s descendants. If issue survives, issue inherits, by the form of the gift. If not, it reverts to the donor or his heirs, again by the form of the gift. Naturally, this implies the need for two different writs of formedon (“form of the gift”).

Remember, before De Donis there was already a writ of formedon in the reverter, which Hugh Deen used in his attempt to recover the reversion of the gift to the donor. Now, in addition, De Donis also offered a writ of formedon in the descender specifically for descendants of donees to recover alienated lands. As long as descendants had an action of formedon against the donees, the donees were prevented from alienating, and could have at most a life estate. This was essentially the birth of the entailed estate — which underpinned the first season of Downton Abbey.

However, it became settled law that such a conditional gift could only bind for three generations of descent before it would be inherited in fee simple.

And incidentally, justice William de Saham's career ended in 1290 when he was convicted of judicial misconduct.


The author of Fleta, writing in the 1290s, seems to contradict himself on the subject of De Donis. Of the statute, he writes (Bk. II, c. 9),

“If a gift should be made to someone, with his wife, ‘to have and to hold, to him and the heirs whom they lawfully beget between them’, it follows that the donor wishes such heirs to succeed as are within [both] paternal and maternal inheritance, to the entire exclusion to their other heirs more remote. And that the intention of the donor should be observed appears clearly by this statute.”

All fine. However, in a passage only a few paragraphs further down, the author writes that in making a gift,

“if you say thus, ‘I give such-and-such an amount of land with appurtanances to have and to hold to you and your heirs, if you shall have heirs of your body’, and if I should beget such heirs, even though they should fail, nevertheless other heirs of mine, however remote, will succeed me ad infinitum, because the condition has been satisfied. But before they are begotten the property given to me will be simply a freehold [i.e. a life estate] and after my death it will revert to you as the donor…”

The former passage reflects the post-De Donis position favouring Hugh Deen, while the latter passage seems to be a relic of the pre-De Donis period, favouring Simon of Londonthorpe. How do we reconcile this contradiction?

It is possible that the author of Fleta slipped up. The work is a sort of crib and commentary on an earlier author, Bracton, and so after correctly stating the post-De Donis law, perhaps he accidentally left in the contradicting passage from Bracton that states the earlier law.

The context of the passage is this: Fleta/Bracton was making a point about the formal language of the conditional gift. If the gift says (i) “I give such-and-such an amount of land with appurtanances to have and to hold to you and your heirs, so that [ut] you shall have heirs of your body”, the gift passes an absolute estate to the donee without condition. Whereas, if the gift says (ii) “I give such-and-such an amount of land with appurtanances to have and to hold to you and your heirs, if [si] you shall have heirs of your body”, the “if” represents a condition, which as soon as met, passes the estate to the donee. It does shed a little light on the seemingly counterintuitive pre-De Donis interpretation of  the conditional gift.


ANONYMOUS. Fleta (Vol. III: Book III and Book IV). London: H. G. Richardson and G. O. Sayles (trans.). London: Selden Society, 1972, pp. 14-15, 20.

BAKER, Sir John. Sources of English Legal History: Private Law to 1750 (2nd edition). Oxford: Oxford University Press, 2010, pp. 47-48.

BRAND, Paul (ed.). Earliest English Law Reports, Vol. III: Eyre Reports to 1285. London: Selden Society, 2005, p. 110.

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