Definitions

gavelkind

gavelkind

[gav-uhl-kahynd]
gavelkind [M.E.,=family tenure], custom of inheritance of lands held in socage tenure, whereby all the sons of a holder of an estate in land share equally in such lands upon the death of the father. Most of the lands in England were held in gavelkind tenure prior to the Norman Conquest in 1066, and the custom of dividing lands among the male heirs is still preserved in parts of England, notably the county of Kent. This system of inheritance of lands is to be contrasted with borough-English and primogeniture.
Gavelkind was a peculiar system of land tenure associated chiefly with the county of Kent, but found also in other parts of England. Its inheritance pattern bears resemblance to Salic patrimony and as such might testify in favour of a wider, probably ancient Germanic tradition.

In Kent all land was presumed to be held by this tenure until the contrary is proved, but some lands have been disgavelled by particular statutes. It is more correctly described as socage tenure, subject to the custom of gavelkind. The chief peculiarities of the custom were the following:

  1. A tenant can alienate his lands by feoffment at fifteen years of age.
  2. There is no escheat on attainder for felony, or as it is expressed in the old rhyme, "The father to the bough/The son to the plough."
  3. Generally the tenant could always dispose of his lands by will.
  4. In case of intestacy the estate descends not to the eldest son but to all the sons (or, in the case of deceased sons, their representatives) in equal shares. Every son is as great a gentleman as the eldest son is. It is to this remarkable peculiarity that gavelkind no doubt owes its local popularity. Though females claiming in their own right are postponed to males, yet by representation they may inherit together with them.
  5. A wife is dowable of one-half, instead of one-third of the land.
  6. A widow may be tenant by courtesy, without having had any issue, of one-half, but only so long as she remains unmarried. An act for commuting manorial rights in respect of lands of copyhold and customary tenure contained a clause specially exempting from the operation of the act the custom of gavelkind as the same now exists and prevails in the county of Kent.

Gavelkind was one of the most interesting examples of the customary law of England; it was, previous to the Conquest, the general custom of the realm, but was then superseded by the feudal law of primogeniture. Its survival in this instance in one part of the country is regarded as a concession extorted from the Conqueror by the superior bravery of the men of Kent.

Gavelkind in Wales

This was a species of tribal succession, by which the land, instead of being divided at the death of the holder amongst his sons, was thrown again into the common stock, and redivided among the surviving members of the sept. Under Welsh law on a landowner's death the land would be divided equally among all his sons, including illegitimate sons. The equal division amongst children of an inheritance in land is of common occurrence outside the United Kingdom.

Gavelkind in Ireland

See main article Gavelkind in Ireland

References

  • Robinson, On Gavelkind
  • Digby, History of the Law of Real Property
  • Pollock and F. W. Maitland, History of English Law
  • Challis, Real Property.

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