Legal Genealogy: A Trust: Its Impact on Women and the Clues They Give

This blog in part follows on from last weeks on wills. These documents often created trusts, entities which can shed light on a family’s history. Not only can they name family members, state their relationships to each other, trusts often set out the assets included giving a researcher a window in to the family’s lives. As will be seen below they can give the researcher serious clues as to the family dynamic, the view of women and the success of a marriage.

An example of what could be mentioned includes the tools of a trade. For example, a will, from my own research, of James Moore French, a watch and chronometer maker who left his tools on trust to his son for ten years. In such an instance the son can then be researched through Trade Directories or Livery Company records. Addresses of properties might be given which can be searched to see if a family member resided there or sold it by searching through newspaper advertisements. If the will is silent as to the destination of the family main residence it might indicate that the property had been settled separately outside of the will.

So what is a trust?

A trust is a device where two or more people can have an interest in property at the same time. The trustee legally holds the assets for the benefit of the beneficiary and the trustee has to act in accordance with the terms of the trust for the benefit of the beneficiary. For example, a will could state ‘I bequeath to X to hold on trust the following assets for Y for life and on their death to Z absolutely’. Thus during X’s life they benefit from the income of the assets and can reside in any property in the trust but on their death it all passes to Z. X has no say in the destination of the trust assets.  This can be quite complex and sometimes the assistance of an experienced legal genealogist could help.

Trusts were an important tool to families who wished to arrange the succession of their assets or control settlements to be made when their daughter married. Who will forget the discussions in Downton Abbey regarding the entail or Jane Austen’s Pride and Prejudice where Mrs Bennett bewails “I cannot bear to hear that mentioned. Pray do not talk of that odious man. I do think it is the hardest thing in the world that your estate should be entailed away from your own children...” The Bennett daughters needed to marry men who could provide for them as on their father’s death the house and money would pass to a distant male heir.

This protection of assets by using trusts was the preserve of the well to do, who firstly had assets worth protecting and secondly, could afford the necessary lawyers.  Spinsters were the only females who could have any property rights: the stark choice between independence or a family. Often, the spinster would be ill provided for, left as a relict to be housed by a sympathetic family member or used as unpaid extra domestic help.

A few made a life for themselves, as Sarah French did in the early 1800s becoming the family financial backbone fending off her brother’s creditors. She ran her own home, and played stonewall with the creditors for decades. Protector of two nieces, she clearly did nothing to enhance their marriage prospects as neither married until their late thirties. Whilst a marriage settlement protected the woman it also became a block to potential marriages. The prospect of a settlement with little money could render the woman a spinster for life. These two nieces were handicapped by their father’s indebtedness, Sarah who potentially could have helped appears not to have done. The execution of a will by another aunt settling a house on each of the nieces seems to have been the act which oiled the wheels. Even though the houses were not inherited until after their marriages the prospect would have been sufficient and this coupled with an undertaking from a kind brother to forgo his inheritance made the marriage deal possible. Bitterness towards this unmarried state lingered with one niece who as an elderly aunt remarked to Charlotte Despard “Better any marriage at all than none”.[i]

Women before the Married Women’s Property Act of 1882 had no right in property after marriage; it all became the assets of their husband, in effect they legally merged with their husband. The marriage settlement evolved to protect them and the family’s assets through the use of a trust which meant the bride would be granted an interest in the assets for life. Thus as she did not own the property and it was in the trust it could not legally become her husband’s on marriage.  However, any trust requires trustees and a settlor, often the bride’s father so her destiny remained in the hands of the trustees and the settlor and thus women’s finances were still in the control of men. However, it did protect her and the family assets from a husband who turned out to be a wrong un as they could not run off with the loot. Often the only time the bride would have any say in the destiny of the assets would be on the execution of her will when she would have the power to decide where the settled assets went on her death.

Women were therefore potentially left with little choice but to marry to avoid the fate of being destitute on the father’s death. The irony of the trust is that the very the existence of a trust that settled everything on for example a brother could lead to this destitution but on the other hand they could very well be protected by a trust made on marriage. The husband’s will would frequently leave everything to his wife, but only for life with the children being the ultimate beneficiaries after she had died. Her life interest would often be stated to cease if she should ever remarry, or in the worst case scenario all was left to the eldest son, leaving the widow destitute, and again being treated as a chattel of in this instance her son. Effectively, she became a lodger in her own home.

One will, recently researched, went one stage further. The testator had married for a second time following the death of his first wife. The second marriage produced a daughter. When the testator died he left everything to the children of his first marriage including the family home. His second wife was left a very modest sum as an annual allowance. She was a widow with a very small child and homeless. So little was the annual allowance that she was forced to move hundreds of miles across the country to live with distant relatives for the rest of her days.

Trusts can be a vital genealogical tool but each document needs to be carefully read to ensure the relationships are correctly understood. If you are surprised that a legacy was left to a particular person reread it again and see if the recipient was in fact a trustee. Place your research in the wide family context and see if it makes sense.

 

 

 

 

 

 

 



[i] Andro Linklater An Unhusbanded Life