AN INSIGHT INTO PROPERTY AND TRUST LAW

The initial research into any family can be akin to collecting stamps, sourcing the ancestor and then lovingly entering them into your family tree, but as time goes on the desire goes beyond merely collecting names to wondering who they really were. Context is what makes family research a never ending quest: are there career similarities; have your paths crossed over the divide of centuries?

Often, census returns for England will give a street name and number. A quick hunt on google maps and instantly you are walking the same street, looking at the very doorstep on which your ancestors stood. Even the street name alone or one nearly will gives you a sense of the past. This obviously works better in urban areas although this can mean the street has been demolished or bombed and the landscape no longer looks like it did in the past.

What is more difficult to research is houses out of the urban area. The surrounding area may reveal agricultural roots but does not give context to families not connected to the land. The French family, a family from my own personal research, moved from urban London to the rural calm of Kent in the early nineteenth century. The house remained in the family for at least three generations which gave an indication that the family was financially well circumstanced but when did it leave the family and why? What was the history of the family and this house?
Wills can be a good source of information relating to houses. The will of the first family member to own the house, Fleming, did not mention the house and in fact his financial affairs were not wound up, probated, for a staggering twenty years. His son John did not appear to have lived at the house but no sale notice could be found in newspaper archives. Census return searches showed occupants that were not family members but over thirty years later the 1851 census return records Fleming’s grandson living in the house.
[1]
 
This case serves to demonstrate one of the methods by which land could be held. All land is either held freehold or by lease. The former means the land is owned outright by the person named on the title deeds; the latter means that the person holding the lease can occupy the land but has no right of sale for they do not have the freehold. Freehold land can be held in fee simple, fee tail or for life. Fee simple is the most straightforward and it is how most people in England own their houses in other words they are free to dispose of it as they wish. Freehold land for life is exactly what it states the person owns their interest for the duration of their life and can in their lifetime “dispose” of it, but the new holder only holds it for the duration of the life of the giver.
Thus
A grants to B land for B’s lifetime

B grants to C the same land but this right ceases on B’s death

The land then reverts to A who during all this time is deemed to have a fee simple in reversion that is he is the ultimate holder of the freehold which he can do as he wishes with once it has reverted to him.

The final type, fee tail, is how Fleming and his successors were holding the family house. Fleming settled the land on his son, John and his heirs. This meant that whatever happened the house was protected to be passed on from generation to generation. Therefore Fleming did not need to mention it in his will as it was already settled on his son. This kind of omission from a will can be a clue that this type of settlement exists. It meant John could lease out the house which explains why occupants were not relatives but he could not dispose of the house. This turned out to be sound move on Fleming’s part as further research revealed that John was not particularly adept with money. A court case regarding his debts recording that he was “living in Bruges in embarrassed circumstances”. The settlement of the land protected the house from John’s creditors as it was legally destined for his son, William, Fleming’s grandson who was indeed living there in 1851.

Such dispositions are where the law of land and trusts in England cross over as it is the law of trusts that protects these land transactions, a trust would be created where in this case Fleming would have the right to live in the house until his death then his son John for life and then his son William who would be known as the tenant in tail. Usually what happened was that as soon as the tenant in tail became of age at twenty one his father would request that the land be resettled again ensuring that the land would be held and passed onto a great grandson of the original settlor. Thus starting the protection process all over again.

John was in financial difficulties and it would have been perfectly possible for him to apply to bar the entail himself thus placing the freehold in his hands and the disposal of the house would presumably have resolved his financial difficulties. To do this he would have needed the consent of the trustees and ideally his son, William. John’s will makes it clear in a codicil that people who are sadly unnamed had made his life difficult. It seems that someone was resistant to this course of action perhaps believing that John would only have run himself into more financial difficulties.
​
It is clear by William’s residence in 1851 that the entail was not barred. He did not take up occupation until nearly twenty years after his father’s death benefitting instead from the rental income. This is in part explained by a naval career and his settling in Scotland following his marriage to a girl from Glasgow. When a tenant left in the 1840s he tried to sell the house but without success. The advertisements for its sale and ones in later years found in newspaper archives. Comparison of newspaper articles and subsequent attempts to sell the house in the later 1850s reveals that he moved south to Kent with the intention of developing the land surrounding the house as the acreage diminishes overtime. As he did not either barr the entail or resettle, on his death in 1855 the house was sold bringing to a close over fifty years in the same ownership.
Sadly many land documents have been lost either binned or the bundles broken up and sold. Those that do remain can be a mine of useful information listing names, family relationships. These used alongside family wills can prove a fascinating insight and shed light on the family context.
 
 


[1] https://www.eda.kent.ac.uk/school/news_article.aspx?aid=803

---