“He Was Eager That I Should Break the Entail”: What the Blazes Is an Entail?

As part of our June meeting, your Gazetteer researched the inheritance issue behind the crime in “The Priory School” (and discovered a legal pastiche while she was at it). The following is adapted from her presentation.

Entails: What Are They, and What Did It Mean to Break One?
by Janice M. Eisen

As recounted by Dr. Watson in “The Priory School,” Sherlock Holmes deduced that James Wilder, the Duke of Holdernesse’s illegitimate son, had plotted the kidnapping of young Lord Saltire in an attempt to force the Duke to break the entail on his estate and make Wilder his heir. Entails crop up in several of Holmes’s other cases: The Hound of the Baskervilles, “The Disappearance of Lady Frances Carfax,” and “The Missing Three-Quarter.” Entailment features prominently in 19th-century British fiction as well, such as the works of Jane Austen. Aficionados of Masterpiece Theater may also be familiar with entails from Downton Abbey. So it’s worth asking what an entail was, why it was so difficult to break, and why it existed in the first place.

An estate, no matter how large, soon dwindles to a patchwork of tiny parcels if it is divided equally among the landowners’ sons with each generation. Think about an estate split into 3 or 4 parts; in just a few generations, it will just be a bunch of tiny parcels.

The solution to that problem was primogeniture, the principle that the firstborn legitimate son inherits his parent’s entire main estate. (There were all kinds of possible complexities that we won’t get into here.) This idea dates back to Biblical times—see the tale of Jacob and Esau in Genesis 25—and it reemerged in feudal Europe. In England, by law all real estate passed to the eldest male descendant until 1540, when the Statute of Wills allowed landowners more control over who inherited. Primogeniture remained the legal default until 1925, and it continues to control the inheritance of titles of nobility even today. (Female children were given equal status for succession to the throne in 2015, but efforts to pass legislation to extend that equality to all peerages have failed.)

Allowing estate owners to alter their inheritance, however, meant that estates could be over-divided, as mentioned above, as well as giving rise to the possibility of inheritance disputes. There were also concerns that some dissipated spendthrift or gambler who inherited the estate might be tempted to sell it off to raise cash. So how could a man ensure that his family’s status would continue indefinitely? He established an entail (also known as a fee tail), a form of trust that legally prevented the estate from being sold or inherited by any but the eldest legitimate male heir, in perpetuity.

This was the problem faced by the avaricious James Wilder in “The Priory School.” As an illegitimate son of the Duke of Holdernesse, he was prevented by the estate’s entail from inheriting. As the Duke explained Wilder’s motives for kidnapping young Lord Saltire:

In his view he himself should have been heir of all my estates, and he deeply resented those social laws which made it impossible. At the same time, he had a definite motive also. He was eager that I should break the entail, and he was of opinion that it lay in my power to do so. He intended to make a bargain with me—to restore Arthur if I would break the entail, and so make it possible for the estate to be left to him by will. (PRIO)

Although the Duke claimed he couldn’t possibly meet Wilder’s demands, there would, in fact, have been several ways for the Duke to break the entail if he wanted to. Illegitimate children ordinarily couldn’t inherit land; however, if the Duke went through the legal procedure of “barring” [breaking] the entailment, he could then have changed his will to leave the estate to Wilder. That would, of course, have caused the scandal that the Duke was so desperate to avoid that he employed the unprincipled Wilder as his secretary. Even if the Duke had agreed to accede to Wilder’s demands, it is likely that a court would have voided the will on the grounds of coercion.

One problem frequently faced by heirs to great estates, in Victorian times and later, was lacking the means to maintain one’s land, but being barred from selling any of it to raise capital. This is the reason for the frequent appearance, in both fiction and real life, of the nobleman in search of a wealthy heiress to marry. Indeed, rich American families might bring their daughters to Europe for the purpose of marrying them into the aristocracy. (Edith Wharton depicts this scathingly in her 1913 novel The Custom of the Country.) In more recent times, high inheritance taxes have caused many of the great estates to be donated to the government.

As a non-lawyer, I don’t ordinarily go around reading the Real Property, Probate and Trust Law Journal. But in researching entails, I ran across a fascinating study of the law in the Holmes cases that involve them, as well as other adventures in which inheritance furnishes the motive: “The Game Is Afoot!: The Significance of Gratuitous Transfers in the Sherlock Holmes Canon,” by Professor Stephen R. Alton, published in that legal journal in 2011. I reproduce the abstract here:

This article presents a recently discovered and previously unpublished manuscript written by John H. Watson, M.D., and annotated by Professor Stephen Alton. Dr. Watson’s manuscript records an extended conversation that took place between the good doctor and his great friend, the renowned consulting detective Mr. Sherlock Holmes, regarding issues of gratuitous transfers of property—issues involving inheritances, wills, and trusts—that have arisen in some of the great cases solved by Mr. Holmes. This felicitous discovery confirms something that Professor Alton has long known: these gratuitous transfer issues permeate many of these adventures. Often, the action in the case occurs because of the desire of the wrong-doer to come into an inheritance, a bequest, or the present possession of an estate in land more quickly—perhaps by dispatching the intervening heir, beneficiary, or life tenant. Professor Alton has annotated this manuscript, providing extensive analysis of these issues and citations to relevant, contemporary authority in his footnotes.

Alton, Stephen R., The Game Is Afoot!: The Significance of Gratuitous Transfers in the Sherlock Holmes Canon (2011). Real Property, Probate and Trust Law Journal, Vol. 46, Spring 2011. Free PDF available.

Anyone who wishes to better understand the legal issues confronted by the Master should read Watson’s analysis and Alton’s annotations. They greatly improved the work you have just finished reading.