Gavelkind - Definition - Law Dictionary Home Dictionary Definition gavelkind

Definition :

Gavelkind. A mode or rule of descent by custom abolished by the Administration of Estates Act, 1925, s. 45(1)(a), in the case of all deaths after 1925 except in regard to entailed estates, and descent from a person of unsound mind, as provided by s. 51 (ibid.), and see (English) L.P. Act, 1922, 12th Sched. (1)(d), and Re Price, 1928 Ch 579. The word is derived from the Saxon word 'gafol,' or, as it is otherwise written, 'gavel,' which signifies 'rent' or a 'customary performance of husbandry works'; accordingly the land which yielded this kind of service, in contradistinction to knight-service land, was called 'GAVELKIND' that is 'land of the kind that yields rent.' Lambarde (Perambulations of Kent, Edn. 1656, p. 585) first advanced and promulgated this supposition, which does not seem to be sufficiently comprehensive since 'gavelkind' does not necessarily denote land subject to rent, in opposition to the opinion of Lord Coke, who traced the word to 'gave all kinde' 'for the custom giveth to all sonnes alike,' which, until then, was generally received, Co. Litt., 140 a.

Gavelkind land descended in the right line to all the sons equally, being an exception to the law of primogeniture. In default of sons, it descended to the daughters in the ordinary manner.

It is to be remarked that though females, claiming in their own right, were postponed to males, yet they might inherit together with males by representa-tion. 'If a man have three sons and purchase lands held in gavelkind, and one of the sons dies in the lifetime of his father, leaving a daughter, she will inherit the share of her father; yet she is not within the words of the custom, inter h'redes masculos partibilis; for she is no male, but the daughter of a male coming in his stated jure representationis.'

This custom extended also to the collateral line, for it has been resolved that where one brother dies without issue, all the other brothers shall inherit from him; and in default of brothers their respective issue shall take jure representationis. But where the nephews succeeded with an uncle, the descent was per stripes and not per capita; and so from the nature of thing it must be where the sons of several brothers succeeded, and uncle surviving, for though in equal degree, they stood in the place of their respective fathers.

The partible quality of gavelkind extends also to estates-tail, for if a person die seised in tail of lands held in gavelkind, all his sons shall inherit together as heirs of his body.

Since the 1st January, 1834, the half blood inherit, for the (English) Inheritance Act, 1833 (s. 9), applied to land of every tenure (s. 1).

This Act and the (English) Law of Properties Amendment Act, 1859, s. 19, still govern the descent to the heirs in entail. As to the question who are the heirs in tail in gavelkind, see (English) Law of Property Act, 1932; Re Price, 1928 Ch 579; (1929) 2 Ch 400.

The other special customs of this tenure were: (1) a wife was dowable of one-half, instead of one-third of the land; (2) a husband would be tenant by the courtesy, whether there be issue born or not, but only of one half so long as he remains unmarried; (3) gavelkind lands were not liable to escheat for felon, the maxim being, 'The father to the bough, the son to the plough,' although they were for treason or want of heirs (see 33 & 34 Vict. c. 23, abolishing escheat or forfeiture for treason and felony); and (4) an heir in gavelkind at fifteen years could make a contract and sell his estate for money; but the livery upon the feoffment (the only assurance which could be adopted) had to be made by the heir in person; for, being under age, he could not, by the Common Law, appoint an attorney.

Conveyance of the legal estate by feoffment is now abolished (English) Law of Properties Act, 1925, s. 51. An infant cannot hold a legal estate [(English) Land Charges Act, 1925, s. 1(6)]. If an infant's estate is in possession in fee simple or for a term of years absolute, the estate becomes settled; see S.L. Act, 1925, s. 1, and INFANT.

Gavelkind, before A.D. 1066, was the general custom of the realm; the feudal law of primogeniture superseded it. It was retained in Kent, because, according to the historical legend, the Kentish men surrounded William I. with a moving wood of boughs, just after the slaughter of Hastings, and for that service obtained a confirmation of their ancient rights.

By 34 & 35 Hen. 9, c. 26, all gavelkind lands in Wales were made descendible to the heir according to the Common Law. This could only be effected by Act of Parliament. Gavelkind was met with occasionally, in a modified form, in copyholds.

Prima facie all land in Kent was gavelkind, except such as is disgavelled by particular statutes (which should always be noticed in transactions relating to Kentish property); and as to such land the custom is never pleaded, but is presumed, and the Courts take judicial notice of it, 1 Mod. 98. Consult Robinson on Gavelkind.

A species of socage tenure arising in land that has descended equally to descendents soon, Black's Law Dictionary, 7th Edn., p. 690.