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From: "Kevin Richardson" <>
Subject: Re: [OEL] Land transfer on death
Date: Sat, 21 Jan 2006 14:35:13 +1100
References: <93EC899E92A38749B4B93AC4319D25B6085F4DB0@Saffron.cfs.le.ac.uk>


Thanks again for the in depth reply Matt,

If you take the following land sale as an example:

Bargain and sale by John Richardson of Thulston, gent, Frances Richardson,
widow, mother of the said John, Thomas Richardson and Edward, brother of
John, to Sir John Stanhope of Elvaston, for £110 (dated 1637)

It apears that John, his mother Frances (subject of my email about "Mrs
Richardson") and his 2 brothers all hold an interest in the same piece of
land. I am trying to understand how such a compex ownership of the same
piece of land was formalized. Of the options that you mention, succession
can be eliminated, as only the heir would have ownership, by will can be
eliminated, as there was none (only an inventory, which mentions John and
Frances). This leaves some sort of settlement agreement made prior to the
death of the father, or your last option "inter vivos transfer ".

Another interesting one:

Bargain and sale by John Richardson, senior, of Thulston, gent., and John
Richardson, junior (dated 1623)

The John senior in this document is the deceased father of John in the first
document.

I figure here that this could be a settlement agreement by John "senior" to
his son John "junior", possibly when he got married, whilst John "senior"
remained co-owner until his death, perhaps to ensure that his son could not
dispose of the land without his consent. In retrospect, this could be the
same reason that the first document shows co-owners.

Regards

Kevin
----- Original Message -----
From: "Tompkins, M.L." <>
To: <>
Sent: Saturday, January 21, 2006 12:39 AM
Subject: [OEL] Land transfer on death


> <<During the 17th century, what was the mechanism for this tranfer of
> property from father to son, if not by will.>>
>
> Hello Kevin,
>
> This is a difficult subject to summarise in just a few paragraphs, but I
> shall try. There were three main methods by which land might pass from
> one generation to the next after a death: 1. by operation of the law of
> succession, 2. by the terms of a settlement/entail, and 3. by will.
>
> 1. Succession: If someone dies without a will (ie dies intestate) then
> the law dictates who his property goes to. Until the law was changed
> sometime in the 19C (I forget the exact date) there were two different
> laws for real property (land) and personal property (goods, chattels
> etc). The laws which determined who inherited land were called the laws
> of succession, or the canons of descent. They applied automatically,
> without need for anyone to do anything, whenever someone died without
> making a will, or if he made a will then they applied to any land that
> wasn't devised in the will. Further, in certain periods it was the law
> that certain kinds of land COULDN'T be demised by will - they HAD to
> descend according to the laws of succession, whether you liked it or not
> (but for most of the modern period pretty much any land could be devised
> by will if you really wanted to).
>
> If you look in the OEL archives for Feb 2005 you'll find a posting by me
> dated 9 Feb under the subject line 'The English Common Law of
> Inheritance' in which the rules which determined who inherited land are
> set out. But beware - those rules only applied to freehold land. The
> rules which applied to other tenures were generally the same but could
> vary in some respects.
>
> 2. Settlement: Many landowners tried to control the ownership of their
> land long after their death, by entailing or settling it. This is a
> hideously complex area of law, but in essence it involved legal
> documentation (in a deed of some sort, or in a will, or even an Act of
> Parliament) which created a series of life interests. The effect was
> that the person who owned the land only owned it for his life. He
> couldn't sell it, and he couldn't devise it - when he died his life
> interest came to an end and the property passed automatically to the
> person specifed in the documentation as the next in line.
>
> 3. Will. There's no need to explain this, except to mention again that
> at certain periods some kinds of land couldn't be devised by will,
> though it was usually possible to achieve this if it was done the right
> way, legally. A posting dated 28 Oct 2004 under the subject line
> 'Baffled by IPM - leaving land by will' explains this in a bit more
> detail.
>
> 4. It's worth mentioning, for completeness' sake, that there was a
> fourth method of passing land on to the next generation - giving it to
> them before you died (called inter vivos transfer by historians and
> lawyers).
>
>
> <<I know that my Richardsons of Elvaston were large land owners, but
> land was never mentioned in their wills. Manorial records do not appear
> to have survived for that time and I am not familiar with the court
> system in those days, but would imagine it was centred arround the
> manor. Are there any other places worth checking for records of land
> transactions other than the manor records.>>
>
>
> Their land was probably mostly settled, ie subject to a settlement.
> This was the norm among the gentry.
>
> Manorial records only dealt with one sort of land - copyhold, and only
> copyholds within the manor, and not sublettings by the person who was
> the head tenant from the manor (though they will sometimes record
> changes of ownership of freeholds in the manor - but less and less after
> the 16C). The Richardsons would have owned a mix of freeholds,
> copyholds, leases. There are many places where records of freeholds,
> leaseholds, shorter tenancies can be found. Estate records are a good
> source - these are commonly deposited in county record offices, and can
> most easily be located through the A2A website, though enquiry of the
> Derbyshire Record Office might produce records which are not yet on that
> site. Freeholds are often mentioned in records of the central courts -
> for these, try the A2A website or the National Archives one.
>
> I'm sure other listers can come up with better suggestions for finding
> land records, though.
>
> Matt Tompkins
>
>
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