Cut-and-dried? Not on your life. Primogeniture, or the “law” governing inheritance, even in its basic form could prove elusive to the most determined lawyer. “Primogeniture among males, equal shares between females, a son always preferred to a daughter, a daughter to a brother or other collateral. For the fief to retain its coherence, it was thus essential that its proprietor, if not childless, should have at least one son or, failing sons, not more than one daughter.” (see K.B. McFarlane’s “The Nobility of Later Medieval England”). Easier said than done! Sorting out the details got messy very quickly.
According to McFarlane, approximately 25% of all noble families failed in the direct male line in every generation. So according to the laws of inheritance, any daughters would be next in line, even if there was a male nephew, for instance, or a surviving brother, known as collateral heirs. When the inheritance went to an heiress, the line would be passed to her husband—an unfortunate outcome, needless to say. A famous example of this was the Beauchamp inheritance. When in 1446 the Earl of Warwick died with no male heir, his lands and title passed on to his daughter who died in infancy; after that the earldom passed on to his full sister, married to Richard Neville who was already Earl of Salisbury—and later known as the Kingmaker. If there were multiple daughters, they would split the inheritance. In the case of Richard Neville, he had no sons—only two daughters, the elder married to George Duke of Clarence and the younger to Richard Duke of Gloucester, the future Richard III. George became next Earl of Warwick through Isabella, then was executed, passing the title to his son Edward Plantagenet. Imprisoned in the Tower of London at age 10, Edward spent the rest of his life there and was executed in 1499, at which point the line became extinct.
If the father had a big family, naturally he would want to take care of younger sons and daughters, notwithstanding the legends of the younger son driven from home to seek his fortune. In the case of royalty, the younger sons often were often made earls, or dukes—and married to an heiress, if possible. And of course there was sometimes a situation where a younger son was preferred over the direct heir. What was a man to do? What’s important to the study of primogeniture is to know that property could not be devised by a will, as we know it today. According to McFarlane, “If a landowner died, his heir inherited; if he wanted to benefit his younger children he had to do it in his own lifetime.” Most people did not want to divest themselves of their lands à la King Lear, so this was not a common option.
Clever aristocrats soon found a way around this restriction: the estate tail. What happened here is that the grantor would surrender his fief as a “conditional gift” to his king, his immediate lord, or a group of friends. Then he would receive it back “on terms different from those governing ordinary inheritance”. He no longer owned the fief in “fee simple” (by definition unconditional); he held it in “fee tail”. This way he could cut out the direct heir, or possibly his daughter in favor of collateral heirs (or any other situation—even bastardy). If women were excluded altogether, or at least until all male descendants were extinct, this estate was called “tail male” or “entail”. The entail was irrevocable and perpetual, even if the principal changed his mind before he died. No one could alter it. However, in the legal interest of the direct heir, entails usually reverted back to the head of the family if there was a total failure of male heirs in the cadet branches after three generations.
Slightly more adaptable was another legal device known as the use. A man would grant his lands, “or any part of them, to a number of his friends, usually called his feoffees, to hold to his use as long as he lived and to dispose of when he was dead in accordance with his last will.” (McFarlane) For all intents-and-purposes the grantor was now a tenant for life rather than owner of the estate. The use had the added advantage that an underaged lord who inherited was not subject to a wardship in his minority—hence, it was a bit of a tax dodge, since wardships had a monetary value. A disadvantage was that the feofees had to be trusted implicitly; if they acted fraudulently or in disobedience, there was little established recourse for the wronged party.
By the end of the fourteenth century, “tail male” became ingrained and extended to earldoms as well. An added bonus, by the way, is that an estate held in “fee tail” could not be forfeited for treason. Ultimately this new freedom to bequeath land had its own consequences: too many unsustainable cadet branches weakened the line. Primogeniture reasserted itself around 1500, though many permutations continued to exist.