THE LIMITATION OF ENTAILS AND SETTLEMENTS.
SHAW-LEFEVRE has introduced into Parliament a 1.V.I Bill to restrict the power of entailing and settling land and other property, and has supported his proposal in a most able paper on the subject recently read before a meeting of the Law Amendment Society, and printed in the proceedings of_ the Social Science Association issued on April 7.
The lay public may be congratulated that a full considera- tion of the present system of Entail will thus be compelled. When in recent years this subject has been approached, the retort has too often been made that there is now no such thing as a strict entail. This is true, no doubt, to the letter, but the.assertion tends rather to q cheap professional victory over the technically uneducated than to the reasonable discussion of the.subject. Every student of English law soon learns that it is impossible to tie up an estate for a longer period than that covered by a life or lives in being at the date of the instrument effecting the settlement and twenty-one years afterwards, and that no estate can be conferred upon the un- born child of an unborn person. It is, moreover, matter of general knowledge that an estate-tail can now be barred by the execution of a simple deed followed by the observance of cer- tain formalities. But the fact still remains that a large pro- portion, probably three-fourths, of the land of this country is tied up from generation to generation, the nominal owner for the time being having only a limited estate, and being unable to sell or to exercise many of the ordinary powers of ownership. This state of things is brought about by the continued exer- cise of such powers of settlement as are allowed by law. A grant or devise can be made to the unborn child of a living person. A settlement of land, therefore, commonly takes this shape. The land is given to A, the eldest son of the settlor, for life, with remainder to his first and other sons in succession in tail, with remainder, in default of issue of A, to the settler's second son B for life, with remainder to his sons. Immediately that a son of A attains twenty-one, he may, with the consent of his father, bar the entail. In practice this is almost invariably done, and a resettlement of the estate is made ; A's son taking only a life-estate, instead of the estate-tail which he previously possessed, and the estate- tail in remainder being conferred upon his unborn son. The consequence is that the land is continually kept under limited ownership, a new fetter being added at the point at which freedom would otherwise be attained. It is said, indeed, that such a system is very different from the strict entail which ex- isted in the fourteenth and fifteenth centuries, inasmuch as it depends upon the voluntary action of a succession of owners from time to time, instead of the will of one original donor. But the difference is more apparent than real, for the persons tying the successive knots of settlement are induced to do so rather by the exigencies of their position than by a preference for the system. The father and son who are respectively tenant for life and tenant in tail of a settled estate are in this peculiar situation. Neither can sell it without the consent of the other. The father has the actual possession, but no power of disposition whatever ; he is, more- over, fettered in the management and enjoyment of the estate. The son, if he survive his father, will obtain absolute power over the property, but in the meantime he is not entitled to any income or provision from it. He is thus induced to enter into an arrangement with his father by which he may obtain an income during his father's life, and make provision
for his widow and younger children, the equivalent asked _ being the conversion of his expectant estate from an estate tail, which can be barred and give him absolute ownership, into an estate for life only. The father is interested in making such an arrangement, because he wishes to guard against the possibility of his son's being childless, and yet acquiring absolute control over the estate. To secure the family possessions to another generation is extending to his son the same measure which was meted to himself, and he naturally inclines to the view that if the interests of the family required such an arrangement in the past, they will do so in the future. No less an authority than Lord St. Leonard's, in speaking of strict settlements of land, has said that "from their very nature they lead to successive settlements." The system of entail now existing is therefore as real, though operating under different conditions, as that defeated in the fifteenth century by the ingenuity of the Common-Law Bench, and subsequently condemned in such unsparing terms by Lord Coke and Blackstone.
The evils resulting from the present system are also generally acknowledged. These may be classed under three heads,— (1), the bad effect upon the families themselves ; (2), the im- poverishment of land and neglect of the labouring classes ; and (3), the artifical prevention of the natural distribution of land. The injurious results arising in families from the very settle- meats designed to perpetuate them in dignity ands wealth- ans beginning to attract the attention of those who have the best means of knowledge. Mr. Young, the President. of the Incor- porated Law Society, a family solicitor of forty years' experi- ence, in his inaugural address delivered at the Annual Provincial Meeting of the Society at Oxford last, year,
speaks thus of entails It admits of question whether it is for the benefit of the country generally, or even of the owners of landed estates as a class, that entails should prevail so extensively as they do in England. This prevalence assumes that the majority of a generally educated class are improvident and incapable of doing justice to the estate and their families, and for the sake of the spendthrifts and their families hampers the much more numerous elms, a,s I venture to estimate them, of the reasonably prudent proprietors and their families. Nor does the entail protect the spendthrift himself. He can and does still squander his life-interest ; and the estate itself, under such circumstances, is likely to be neg- lected. This may last for thirty years or more, and what damage may accrue during that period to those coming after him for whose benefit the entail has been created!" There is, in fact, this radical defect in the system, viewed from the point of view of the family, that while a limited estate only is given to the son of the settlor, whom the latter knows and can probably trust implicitly, absolute power is conferred upon an unborn grandson, whose character cannot be fore- told. If the father who is tenant for life dies before his son attains twenty-one, the latter may, on reaching that age, by executing a disentailing deed, obtain complete control of the property, and sell or squander it as he pleases. The same result occurs if the son refuses to join his father in resettling- the property, and survives him. The prin- ciple of parental control is thus entirely abrogated, and ths absence of such control, coupled with the certainty of inheritance, if the parent is outlived, leads, often to the squandering of estates by the expectant heir before he has attained possession. Money-lenders are on the look-out for such victims, and the borrower has no adequate conception of the effect of his acts. Mr. Lefevre gives some startling figures on this head. The value of the son's reversion of a property of £10,000 per annum when the son is twenty-one and the father forty-five is only £15,000. A debt of £5,000, which, as Mr. Lefevre observes, appears trivial to the future possessor of £10,000 a year, will therefore eat ,up a.third of the estate. When to these incidents of settlement is added the constant accumulation of charges upon the property for portions for younger children, and often for debts, it may be well con- ceived that Mr. Young's verdict would be confirmed by many members of the class for whose benefit the system, is exclu- sively maintained. But the evil effects of entail upon the land which is the subject of it and the labourers who till the land are more serious. The owner for the time being is only a limited owner. He cannot sell or lease except under-express statutory powers, the exercise of which involves expense. If he expends money on improvements, except under the sanction of the Inclosure Commissioners, he is at his own cost benefiting the reversioner. Often, even if he were willing to do this, he is prevented, either by absolute want of means, or by the laudable and natural desire to provide for his younger children by saving from his present income. Every penny he expends in improving the estate is so much taken out of the pockets of those who are already, perhaps inslificiently provided for, and given to the eldest son. The statutes passed to remedy these evils have had but a very limited operation. In the Report, drawn by Lord Salisbury, of a recent Committee of the House of Lords, it is stated that what has been accomplished in the way of improvement is only a small fraction of what still remains to be done, and authorities are quoted for the propo- sitions that only 3,000,000 acres out of 20,000,000 re- quiring drainage have yet been subjected to that pro- cess, and that of the requisite improvements of all kinds only one-fifth has yet been accomplished. The reasons assigned for this are that landowners dislike the interfer- ence of a public body such as the Inclosure Commissioners, and that improvements cannot be carried out so as to re- munerate the tenant for life. The case cannot be more suc- cinctly stated than in the following passage of Lord Salisbury's report :—" The case for Parliamentary consideration lies in this, that the improvement of land, in its effect upon the price of food and the dwellings of the poor, is a matter of public interest ; but that, as an investment, it is not sufficiently lucrative to offer much attraction to capital, and that there.,
fore even slight difficulties have a powerful influence in arrest- ing it." The question of labourers' cottages alluded to in this passage is indeed most serious. It is admitted on all hands that they cannot be made a lucrative investment. If, however, landowners had the absolute control of their estates, they would, it is believed, recognise the duty of providing proper dwellings for those employed upon their land. But as limited owners, their sense of responsibility is diminished, and they are unable to take any step of the kind without inflicting considerable loss upon themselves and those for whom they are most anxious to provide.
Upon the third question, whether the distribution of land is affected by the existence of entails, there is more difference of opinion. Mr. Lefevre considers that they operate in this respect in three ways,—by artificially maintaining pro- perties intact after they have become encumbered to such an extent that they cannot be advantageously adminis- tered, and would naturally ba sold, and probably dispersed in the process ; by restraining the fathers of families from dividing their land amongst their children ; and by so compli- cating title, by permitting a variety of interests to be carved out of the same property, as to make the transfer of land costly, and thus to discourage small purchasers. It is undoubtedly the fact that, from whatever cause it arises, land, as distinguished from houses and villa-holdings in the neighbourhood of towns, is now being aggregated in a few hands. The recent Domesday Book offers a striking proof of this, when carefully analysed, and the country was recently congratulated on the fact by Mr. Froude. From a curious abstract of the possessions of the Peers, extracted from the new Return, and published last autumn in the Scotsman, it appears that one-fifth of the land of the three countries is owned by 450 Peers, the average holding of each being 15,000 acres, exclusively of building- land, mines, or wood-land ; and it will not be disputed that the number of Commoners whose estates rank with those of the Peers is very large. Moreover, it would not be difficult to instance numerous rural parishes which, fifty years ago, were held mainly by small freeholders, copyholders, or lease- holders for lives, and which are now entirely absorbed into the hands of the local magnate. It will hardly be contended that this tendency should be encouraged by an artificial system of settlement, if that system is shown to be injurious in other respects. And it will also probably be admitted that, in so far as such a system operates at all to prevent the natural play of economic laws, it is to be deprecated.
The remedy which Mr. Lefevre proposes for the evils arising from entail is to restrict all settlements to that form which is generally adopted in settling personal property. These settle- ments have for their object, not what is generally understood by the founding of a family, but the protection of wife and children against the possible misconduct or misfortune of a husband. Property is not therefore tied up to a particular child, but usually a power is given to the parents who are in receipt of the income of the trust-fund to distribute the capital after their death amongst their children in such mode as they think fit, even to the total exclusion of one or more. The parental control over the children is thus maintained. Unless there be only one child, no child is sure of inheriting anything from his parents. He may for misconduct be disinherited entirely, or his share may be reduced to the smallest limits. Thus the dangers which have been pointed out as arising to the family of the settlor are obviated. There is no risk of a child who is unworthy succeed- ing to that absolute power over the family property which was denied to his father, nor can a son raise money upon his expect- ancy, that being entirely contingent upon his parent's will. Moreover, the settled property being itself divisible, need not be burdened by successive charges for younger children. To ensure his object, Mr. Lefevre proposes that in future no settlement (whether directly, or by means of trustees) on un- born children should be valid, unless full power is reserved to one or both of the parents of such children of selecting and apportioning the property amongst them. He further abolishes estates-tail, and gives trustees or tenants for life of settled estates the fullest power of sale without application to the Court of Chancery, providing that the proceeds may be in- vested in any way sanctioned by the Court of Chancery for moneys under its care, or may be applied in the erection or permanent improvement of buildings, including labourers' cottages, or otherwise in the permanent improvement of the land which is in the same settlement as that sold.
The passing of such a measure as that proposed would certainly meet, to a great extent, many of the objections at
present existing to the entail of land, while the moral effect of prohibiting that particular kind of settlement which is so nearly akin to a strict entail would probably in time pro- duce a considerable change in the habit of mind existing amongst large landowners on the subject. For the sake of consistency, the Legislature should at the same time assimi- late the law of inheritance in the case of land and in that of personalty. This proposal has been already made repeatedly to Parliament, and will again be brought forward. Objection has been taken to it, on the ground that intestacy as to land is rare, and that to make so great a change in theory to meet so slight a practical inconvenience is not the wont of English legislation. The introduction of Mr. Lefevre's measure, at- tacking, as it does, the more potent element in the custom of primogeniture, while at the same time it leaves every great landowner perfectly free to make an eldest son, if he thinks fit, will meet this objection, and must lead to a full consideration of the whole subject.
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