There are many ways to commemorate Jane Austen’s 250th birthday this year, but one surprising (and fun) way is to let Professor Jane Austen prepare you to take the bar exam.Footnote 1 Austen readers unwittingly learn law and legal principles surrounding several areas, especially in domestic relations, as well as in wills and estates.Footnote 2 Basic rules from these areas of law seem to appear in every one of Austen’s novels. Some scholars have noted, “Not only does she subtly offer basic universal rules of […] law, but she offers them with a savory richness of understanding not only their importance but also their complexity.”Footnote 3
This brief essay reviews basic legal rules and legal analysis by efficiently using fact patterns from four of our professor’s novels: Mansfield Park, Sense and Sensibility, Pride and Prejudice, and Emma. By applying the standard IRAC method of legal reasoning to each,Footnote 4 this essay will undeniably endeavor to teach admirable bar preparation. General rules of American law will be used and applied throughout, although the legal rules and principles of Regency England that have a precise bearing on the fact pattern will be explained as well. Can there be any more amusing way to prepare for the bar exam? One hardly knows. Shall we make a start?
Estates in Land and Future Interests
Much of what a first-year law student would need to know about real property and personal property, those assets that make up an estate, can be gleaned from Professor Austen in numerous scenarios, but this passage from Mansfield Park fits our purposes perfectly. In viewing Sotherton, the Rushworth family estate, “with all its imperfections” as the professor notes,Footnote 5 we discover hidden treasures of legal rules necessary for bar exam passage and law practice.
Property
Fact Pattern
Mrs. Rushworth proposed […] showing the house. […] The whole party rose accordingly and under Mrs. Rushworth’s guidance were shown through a number of rooms, all lofty, and many large, and amply furnished in the taste of fifty years back, with shining floors, solid mahogany, rich damask, marble, gilding and carving, each handsome in its way. Of pictures there were [an] abundance, and some good, but the larger part were family portraits, no longer anything to anybody except Mrs. Rushworth, […].
The situation of the house excluded the possibility of much prospect from any of the rooms; […]. Every room on the west front looked across a lawn to the beginning of the avenue immediately beyond tall iron palisades and gates.
Having visited many more rooms than could be supposed to be of any other use than to contribute to the window tax, and find employment for housemaids, […] Mrs. Rushworth submitted; and the question of surveying the grounds […] was beginning to [be] arrange[d] [as they visited the terrace, the wilderness, and all the grounds].Footnote 6
Assignment
Discuss the legal issues involved in the Rushworth property.
Issue
Whether assets of real property and personal property make up the value of one’s estate when future interests of each are at stake.
Rules
Rule 1: Real property is land and all that is built upon and attached to the land, with rights and duties that run with or transfer with the land.Footnote 7
Rule 2: Personal property is everything else that is not real property.Footnote 8 Furniture, even if “furnished in the taste of fifty years back,” along with pictures, family portraits, and even those “no longer anything to anybody” but the family, are all personal property.Footnote 9 While they may be located in the house on the land, these items are personal property, with value in themselves, separate and apart from the real property.Footnote 10
Rule 3: The real property value is assessed by location, size, usage, outdoor beauty, and prospect or view.Footnote 11 The assessed valuation determines the real property tax on any estate.Footnote 12 Some jurisdictions tax by these factors. Others may tax, for example, as the professor illustrates here, by the number of windows.Footnote 13
Rule 4: Real property jurisdiction is determined by the rule of the situs, or the location of the property.Footnote 14
Rule 5: Jurisdiction over personal property upon the death of a decedent is determined by the domicile of the decedent.Footnote 15
Analysis
“Throughout her novels, Jane Austen lauds and endorses those who make good economic use of their property, while mischievously teasing those who hold their property more for spectacle,” as might be the case here regarding Sotherton.Footnote 16 Here, real property is all the property attached to the Sotherton estate. It will be valued for taxation, both during the lifetime of the Rushworth owners and when and if the estate is transferred to heirs in the future. Similarly, the personal property contained in the mansion house of Sotherton will be considered part of the estate and taxable upon valuation. Jurisdiction over these taxes is determined by the location (or situs) of Sotherton, possibly located in Suffolk, England, while the valuation and taxation of the personal property will be determined by the domicile of Mrs. Rushworth at her death, which will most likely be Sotherton, possibly in Suffolk, England (but our professor never reveals that in Mansfield Park).
Conclusion
The assets of real property and personal property in the Sotherton estate will be taxed as both present taxable interests and also as future interests when transferred with the estate upon the death of the Rushworth owner.
Inheritance
While reading our professor’s novels, which are often detailed with accounts of inheritances and their implications for the lives of her characters, it might be comforting to know that very few people actually die in her stories.Footnote 17 One important such death is explained in the following fact pattern, which inspires law students taking Wills, Trusts, and Estates to learn numerous rules for their future licensing and practice from this opening passage of Sense and Sensibility:
Fact Pattern
The family of Dashwood had long been settled in Sussex. Their estate was large, and their residence was at Norland Park, in the centre of their property, where for many generations they had lived in so respectable a manner as to engage the general good opinion of their surrounding acquaintances. The late owner of the estate was a single man who lived to a very advanced age, and who for many years of his life had a constant companion and housekeeper in his sister. But her death, which happened ten years before his own, produced a great alteration in his home; for to supply her loss, he invited and received into his house the family of his nephew, Mr. Henry Dashwood, the legal inheritor of the Norland estate, and the person to whom he intended to bequeath it. In the society of his nephew, niece, and their children, the old gentleman’s days were comfortably spent. His attachment to them all increased. The constant attention of Mr. and Mrs. Henry Dashwood to his wishes, which proceeded not merely from interest, but from goodness of heart, gave him every degree of solid comfort which his age could receive; and the cheerfulness of the children added a relish to his existence.
By a former marriage, Mr. Henry Dashwood had one son; by his present lady, three daughters. The son, a steady, respectable young man, was amply provided for by the fortune of his mother, which had been large, and half of which devolved on him in his coming of age. By his own marriage, likewise, which happened soon afterwards, he added to his wealth. To him, therefore, the succession to the Norland estate was not so really important as to his sisters; for their fortune, independent of what might arise to them from their father’s inheriting that property, could be but small. Their mother had nothing, and their father only seven thousand pounds in his own disposal; for the remaining money of his first wife’s fortune was also secured to her child, and he had only a life interest in it.
The old gentleman died; his will was read, and like almost every other will, gave as much disappointment as pleasure. He was neither so unjust, nor so ungrateful, as to leave his estate [to] his nephew; but he left it to him on such terms as destroyed half the value of the bequest. Mr. Dashwood had wished for it more for the sake of his wife and daughters than for himself or his son; but to his son, and his son’s son, a child of four years old, it was secured in such a way, as to leave to himself no power of providing for those who were most dear to him, and who most needed a provision, by any charge on the estate, or by any sale of its valuable woods. The whole was tied up for the benefit of this child […].
Mr. Dashwood’s disappointment was at first severe; but his temper was cheerful and sanguine, and he might reasonably hope to live many years, and by living economically, lay by a considerable sum from the produce of an estate already large, and capable of almost immediate improvement. But the fortune, which had been so tardy in coming, was his only one [for] twelvemonth[s]. He survived his uncle no longer; […].Footnote 18
Assignment
Discuss the legal issues and implications of the death of the elder Mr. Dashwood.
Issue
Whether a will can determine the disposition of property when its application of terms ousts the current tenants from the home of the decedent and leaves the dependent women of the family destitute.
Rules
Rule 1: Estates can be passed in three ways: 1) by will, 2) by will substitute (such as a deed, a trust, or a jointly held asset), or 3) by intestacy (default rules of the jurisdiction generally based on family relationship).Footnote 19
Rule 2: A testator (someone who makes a will) has the right of freedom of disposition—to dispose of their property as they see fit—without obligation to anyone else, even their children, except for a spouse and taxes.Footnote 20 “In death, […] parents are not necessarily obligated to provide for their children […] as children have no right to inherit from their parents, unless their parent makes that choice expressed in some sort of estate planning tool.”Footnote 21 Caregivers also claim no right to inherit based on their care of the testator.Footnote 22 Spouses in America today, however, may retain some interest in an elective share against the estate based on the rules of the US state jurisdiction, as well as some personal allowances and personal property set aside.Footnote 23
Rule 3: Property transferred by will can be left in fee simple, a life estate, or any other way that the testator dictates.Footnote 24
Rule 4: A legal life estate grants only a possessory interest in an estate for the life of the life tenant.Footnote 25 That life tenant is responsible for property maintenance, insurance, and taxes, but their interest is merely possessory and dies with them at their death. A life tenant has no part of the estate to pass on to his or her heirs.Footnote 26
Rule 5: A will is valid upon execution and effective upon the testator’s death.Footnote 27
Rule 6: An estate can be left to a minor child and will be held in trust for that child until they reach the age of majority.Footnote 28
Rule 7: If no will to the contrary is left by the testator, then the law of primogeniture prevailed in Regency England, transferring an estate to the firstborn or eldest son of the decedent.Footnote 29 The law was fixed during that era.Footnote 30
Rule 8: A marital share at death, as previously stated, allows a spouse to retain some interest in a share against the decedent’s estate based on the rules of the US state jurisdiction, as well as possibly some personal allowances and personal property set aside.Footnote 31
Analysis
Per the terms of the older Dashwood’s will, Mr. Henry Dashwood held merely a life estate interest in Norwood, meaning he had only the right to live there for the duration of his life; he could not have left the estate in any form to his wife and daughters since he only held a life possessory interest, which ended upon his death. The result was that Mr. Henry Dashwood had limited freedom of disposition. The estate he enjoyed during his lifetime was now left solely for the benefit of a firstborn grandnephew from his previously deceased uncle. He had nothing to leave his wife and daughters when he died.
From this passage, we can quickly deduce that Regency England had no elective share rules; indeed, Mrs. Dashwood had no access to an elective share in that era when her husband died. In every state of the United States, however, she would currently have access to some level of statutory support or an outright share of her decedent spouse’s estate, precisely because her husband had left her nothing. The result of these rules working in harmony during Regency England, however, left the Dashwood women in poverty. Neither Dashwood’s wife nor his daughters were left any bequest in old Mr. Dashwood’s will, except a few thousand pounds, the meager interest of which they were expected to live on for the rest of their lives, which was settled upon the marriage of the now-widowed Mrs. Dashwood. Women, generally, only received their inheritance in a marriage settlement (a subject covered in the next section).
Conclusion
In Regency England, based on the testator’s freedom of disposition and a lack of spousal protections, a will could determine the disposition of property, even if its application of terms ousted the current tenants from the decedent’s home and left the family’s dependent women destitute.
Family Law
The very first sentence of our professor’s most famous novel contains almost all law students need to know about family law in Regency England: “It is a truth universally acknowledged, that a single man in possession of a good fortune, must be in want of a wife.”Footnote 32 Rules regarding family relations and family connections are a common thread that runs through all of Professor Austen’s novels,Footnote 33 and historians have shed some light on this unique thread. For example, Lucy Worsley has stated that a “well-ordered Georgian family” would “interfere in the matrimonial affairs of its young people to an extent that would seem quite extraordinary today.”Footnote 34 In addition, Claire Tomalin has noted the “stinging sense of humiliation at any idea of being paraded in the marriage market.”Footnote 35 Add to this a few notions of law that other scholars have identified: “[T]he law would try to protect […] young girls with statutory rape laws, privacy concepts, and various other child protections,” particularly in marriage.Footnote 36 Many of these aspects can arise on a bar exam.
Marriage, Marital Contracting, and Marital Property
Our professor’s work reveals that “[m]arriage incentives are pervasive in a relationship where matrimony is a possibility. From the benefits of property ownership, possession, and use, to spousal support, the legal and economic incentives govern decision-making.”Footnote 37 Thus, the rules for marriage validity, marital contracting, and marital property mattered a great deal.
Fact Pattern
Imprudent as a marriage between Mr. Wickham and our poor Lydia would be, we are now anxious to be assured it has taken place, for there is but too much reason to fear they are not gone to Scotland. […] Though Lydia’s short letter to Mrs. F. gave them to understand that they were going to Gretna Green, something was dropped by Denny expressing his belief that W. never intended to go there or to marry Lydia at all […].Footnote 38
[…] [I]f you are willing to perform the engagement which I have ventured to make on your side, I hope it will not be long before they are [married]. All that is required of you is to assure your daughter, by settlement, her equal share of the five thousand pounds secured among your children after the decease of yourself and my sister; and, moreover, to enter into an engagement of allowing her, during your life, one hundred pounds per annum. […] I am happy to say there will be some little money, even when all [these] debts are discharged, to settle on my niece, in addition to her own fortune. If, as I conclude will be the case, you send me full powers to act in your name throughout the whole of this business, I will immediately give directions to Haggerston for preparing a proper settlement.Footnote 39
Assignment
Discuss the legal issues surrounding Lydia’s elopement with Wickham.
Issue
Whether a marriage and its marital contract are valid when various formal and substantive requirements of marriage are not met, such as minimum age, and when the contract itself is negotiated on behalf of the minor who is a party to the marriage, to accommodate her would-be husband’s financial needs.
Rules
Rule 1: A marriage is valid if entered into according to the formal requirements of licensingFootnote 40 and solemnization.Footnote 41
Rule 2: A valid marriage must meet certain minimum requirements of entry, which include monogamy (being married to only one person at a time), the parties being of minimum age, and the parties being unrelated by consanguinity or affinity.Footnote 42 US states have various methods for protecting against abuses of these minimum requirements, such as setting a minimum age for marriage at eighteen, or allowing for earlier marriage at sixteen with parental consent.Footnote 43
Rule 3: A marriage validly entered into according to the jurisdiction where it is performed is valid everywhere.Footnote 44
Rule 4: “A common law marriage is one that can take legal effect without a ceremony or a license when two people otherwise capable of marrying agree to live together, exclusive of all others, holding themselves out as husband and wife.”Footnote 45 Only a few states in America today recognize common law marriage due to the evidentiary problems that arise when the testimony of its participants differs.Footnote 46
Rule 5: Marital property is all property legally and beneficially acquired during marriage, regardless of how title is held.Footnote 47
Rule 6: Separate property generally falls into four categories: 1) property brought to the marriage and not commingled with marital property; 2) personal injury claims; 3) inheritance; and 4) gifts to one spouse.Footnote 48
Rule 7: A marital contract must be voluntarily entered into by the parties with full disclosure, and it must be in writing, signed by the parties, to be in compliance with the Statute of Frauds.Footnote 49
Rule 8: Parties to a marriage must mutually consent to marry each other.Footnote 50
Rule 9: Marriage fraud occurs when the agreement between the two parties is based on one person’s persuasion of the other with misleading information.Footnote 51
Rule 10: Spousal support in marriage is mutual and reciprocal regardless of gender roles, and it is an important compensation in divorce. In some US states, adultery can bar spousal support in divorce.Footnote 52
Rule 11: Sexual intimacy prior to a minimum age can be criminally charged as statutory rape.Footnote 53
Analysis
Here, Lydia was fifteen years old at the time she and Wickham ran away from Brighton to London, making her too young to consent to her own marriage in her home jurisdiction. Based on promises from Wickham, she expected they would be married in Gretna Green, Scotland, where the marriage rules did not require parental consent for an underage woman to marry. However, her would-be husband, Mr. Wickham, actually had no intention of marrying Lydia, which effectively amounted to marriage fraud or fraudulent inducement to marry.
Further, Lydia and Mr. Wickham’s relationship did not amount to a common law marriage because even though they lived together, exclusive of all others, Wickham’s refusal to pursue matrimony precluded Lydia from holding herself out as married. However, he did relent once his demands for greater marriage incentives were set out, including payment of his debts, which were promptly discharged per the written marriage settlement contract signed by both parties, which met all the requirements of a marital contract. Mr. Bennet now consented to the marriage because Lydia and Wickham had lived in secret together before marriage, creating a family scandal. The situation now required a marriage to salvage the Bennet family’s social standing. Wickham’s early intimacy with Lydia, a fifteen-year-old girl, would otherwise have constituted statutory rape. Upon marriage, the marital settlement entitled Lydia to some level of support in the event of a divorce or if Wickham died. As this author and a co-author have previously noted, “Laws and social norms tend to place limited controls on individual behavior.”Footnote 54
Conclusion
A marriage that began with statutory rape and marriage fraud took place with all the formal and substantive requirements of marriage. A marriage settlement contract was negotiated on behalf of Lydia, the minor party, with her father’s consent to accommodate Wickham’s financial requirements.
A Child’s Best Interests
Austen’s very high value of children was apparent even when she was mischievous about it. Indeed, “[w]hile Jane appreciated and esteemed children, she did so with a thorough understanding of their position legally, and their needs, value, and worth economically.”Footnote 55 Professor Suk-Young Chwe posits that children were a part of Professor Austen’s strategic thinking, as “when a child appears, it is almost always in a strategic context. Children are often pawns or bit players in an adult’s strategic actions.”Footnote 56 The following fact pattern proves these points while offering a stimulating bar exam problem.
Fact Pattern
From the expense of the child, however, [Captain Weston] was soon relieved. The boy had, with the additional softening claim of a lingering illness of his mother’s, been the means of a sort of reconciliation; and Mr. and Mrs. Churchill, having no children of their own, nor any other young creature of equal kindred to care for, offered to take the whole charge of the little Frank soon after her decease. Some scruples and some reluctance the widower-father may be supposed to have felt; but as they were overcome by other considerations, the child was given up to the care and the wealth of the Churchills, and he had only his own comfort to seek, and his own situation to improve as he could.Footnote 57
Assignment
Discuss the legal issues surrounding the child, Frank, and his parents.
Issue
Whether a parent can exchange his or her legal rights of parentage for a child’s best interests when one parent has died and another set of parents wishes to transfer their goodwill and fortune to a child in need.
Rules
Rule 1: Legal rights and duties of parenthood include the right to direct the upbringing of one’s children.Footnote 58
Rule 2: Parental rights are guaranteed until the parent is unfit as demonstrated by clear and convincing evidence of abuse, neglect, or abandonment,Footnote 59 or their parental rights have been terminated voluntarily or by judicial act.Footnote 60
Rule 3: A fit parent is presumed to be acting in the best interests of his or her child.Footnote 61
Rule 4: A natural parent’s voluntary relinquishment of his or her child, also known as giving that child up for adoption, may be in the child’s best interests.Footnote 62
Rule 5: Upon the death of one natural parent, the other assumes full custodial and legal rights of their child and assumes duties to that child.Footnote 63
Rule 6: Adoptive parents must qualify with a court of proper jurisdiction to adopt based on various statutory factors that would provide for the best interests of a child.Footnote 64
Rule 7: An open adoption allows for the child’s continued relationship with his or her natural parents while residing with the new adoptive parents, by mutual agreement of the parties.Footnote 65
Rule 8: The Best Interests of the Child doctrine is the legal standard applied anytime a child is involved with the law.Footnote 66
Rule 9: Marriage can make a tangible difference in child poverty, often fulfilling the Best Interests of the Child doctrine.Footnote 67
Rule 10: An adopted child inherits from his or her adoptive parents as a natural heir.Footnote 68
Analysis
Here, the widowed Mr. Weston found it challenging to care for his son, Frank, in his deceased wife’s absence, making sense to him to do what was best for little Frank, thus allowing him to be cared for and raised by his in-laws, the Churchills. They qualified as potential adoptive parents because they possessed wealth, status, and the opportunity to provide for the best interests of two-year-old Frank. This, along with Mr. Weston’s voluntary consent to a potential adoption, created an heirship interest, which would leave Frank the Churchills’ sizeable estate. Furthermore, by agreement with the Churchills, Frank could continue to have a relationship with his natural father, making this an open adoption.
Conclusion
A parent can exchange their legal rights of parentage for a child’s best interests when one parent has died and where another set of qualified parents wishes to provide for that child through adoption.
Conclusion: Lessons for today?
As Jane Austen turns 250, law students have an opportunity to make bar preparation a special tribute and, dare we say, a fun way to honor Jane Austen, as they unwittingly learn legal rules and legal principles surrounding several areas of law, particularly wills, estates, and domestic relations.Footnote 69 Although this brief essay has only considered four scenarios, basic legal rules from these key areas of law seem to appear in every Austen novel.Footnote 70 And using an IRAC format, Professor Austen explains the law like no one else can. Indeed, there can be no more entertaining way to prepare for the bar exam than with Professor Jane Austen.
