The taxing problem of inheritance in Downton Abbey

I curled up on the couch last night with my husband and a glass of wine, thoroughly excited to indulge in another exciting season of the award-winning PBS series “Downton Abbey” As usual, Maggie Smith’s biting remarks did not disappoint.

I found myself quickly sucked into the Crawleys’ money woes again, apparently brought about by some iron-fisted estate planning coupled with some bad investments (and possible breach of duties by a trustee in taking such a huge investment risk at the direction of Lord Grantham…but that’s for another post). The drama surrounding Cora’s fortune derives from a feature of property law that I have not thought about since my first year of law school–or possibly when studying for the bar exam–but since it’s such an integral part of the story (and isn’t explained all that well in Season 1), I thought I’d geek out and do a little post on it.

In the first season, viewers were introduced to the Crawley family the day after the sinking of the Titanic, and are told of the resulting death of the cousin whom the eldest Crawley daughter, Mary, was planning to marry. who went down with the ship. Much of the first season is built around The Right Honourable Robert Crawley, Earl of Grantham, and his wife, The Right Honourable Cora Crawley, Countess of Grantham, trying to find a suitable husband for their single daughters. However, this is about more than parents trying to meddle in their children’s lives. This is about the Crawley’s wanting the Grantham Estate to stay in the family. You see, the Grantham Estate was devised to Lady Grantham with a specific type of “fee tail,” and as a result, the estate can only pass to a male heir. Now that their sons are dead, the Crawleys have no male heir to inherit the estate. Consequently, because much of the Crawleys wealth is tied to their real estate, the Crawley’s realize if they can’t find a husband for their daughters, most of the family wealth will be taken from their daughter’s upon the parent’s death.

Even though the producers and writers have done a good job of developing the story, because fee tails are extremely rare in the United States (they were abolished most everywhere, and are only legal in 4 states – MA, ME, DE, and RI), much of the audience may be left wondering what a fee tail is, and how it could possibly require a male heir. Well, here’s your answer.

In the early thirteenth century, property transferred to “Adams, and the heirs of his body” was construed to grant something called a fee simple conditional. Generally speaking, this effectively gave a life estate to Adams if Adams had no heirs at the time of the transfer. Then, upon Adams’ death, if he never had children, the property reverted back to the person who transferred the property to Adams (known as the “devisor”). However, the minute Adams had a living heir, Adams was treated like he owned the property in fee simple – in other words, he had complete ownership rights and could do anything he wanted with the property. Once Adams died, the property passed to his heirs. However, courts required Adams’ heirs to be bound by any contract Adams entered regarding that property. As a result, even though the person who gave Adams the property clearly wanted Adams’ heirs to also benefit from the property and to be able to use it in whatever way they saw fit, this intent was defeated by Adams if he signed a contract allowing someone else to have use of the property after his death because Adams’ heirs were required to honor that contract too.

As a result, English Parliament passed a statute called “Westminster II” and created laws trying to destroy Adams’ ability to defeat the devisor’s intent. After the passage of Westminster II, the statute redefined what happens when the phrase “to Adams and the heirs of his body” is used. After the statute, the type of property rights construed by this language became known as a “fee tail” or “entail.” Effectively, after Westminster II, these words created a life estate in any living descendant of Adams, and prevented the estate from ever leaving the family so long as heirs of Adams were alive. The rights of Adams were similar to outright ownership, but were slightly limited in that Adams couldn’t cause the property to be bound to any use that would remain effective on his death. Because outright ownership was referred to as a “fee simple,” and because this was meant to be a restricted version of fee simple ownership, this type of property right became known as “entail” (property rights in fee simple had been entailed) or “fee tail.” As time went on, these devises were tailored to meet the desires of property owners. For example, one variation of the standard fee tail stated “to Adams and all the male heirs of his body.” As a result, if your family inherited property with this type of fee tail, you needed to produce a male heir in order to keep the property in your family. Without a male heir, the property went back to the original devisor. It appears this is the kind of ownership that was passed to the Crawley’s, and that’s why they are so concerned about getting one of their daughters married off!

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