When property, titles, or office are without a claimant or owner
Abeyance (from the Old Frenchabeance meaning "gaping") describes a state of temporary dormancy or suspension. In law, it can refer to a situation where the ownership of property, titles, or office is not currently vested in any specific person, but is awaiting the appearance or determination of the rightful owner. This typically applies to future estates that have not yet vested, and may never vest. For example, an estate is granted to A for life, with the remainder to the heir of B upon A's death. if B is still alive, the remainder is held in abeyance because B can have no legal heir until B's own death.[1]
The term hold in abeyance is used in lawsuits and court cases when a case is temporarily put on hold.
English peerage law
History
The most common use of the term is in the case of English peerage dignities. Most such peerages pass to heirs-male, but the ancient baronies created by writ, as well as some very old earldoms, pass instead to heirs-general (by cognatic primogeniture). In this system, sons are preferred from eldest to youngest, the heirs of a son over the next son, and any son over daughters, but there is no preference among daughters: they or their heirs inherit equally.
If the daughter is an only child or her sisters are deceased and have no living issue, she (or her heir) is vested with the title; otherwise, since a peerage cannot be shared nor divided, the dignity goes into abeyance between the sisters or their heirs, and is held by no one. If through lack of issue, marriage, or both, eventually only one person represents the claims of all the sisters, they can claim the dignity as a matter of right, and the abeyance is said to be terminated.[1] On the other hand, the number of prospective heirs can grow quite large, since each share potentially can be divided between daughters, where the owner of a share dies without leaving a son.
A co-heir may petition the Crown for a termination of the abeyance. The Crown may choose to grant the petition, but if there is any doubt whatsoever as to the pedigree of the petitioner, the claim is normally referred to the Committee for Privileges. If the claim is unopposed, the committee will generally award the claim, unless there is evidence of collusion, the peerage has been in abeyance for more than a century, or the petitioner holds less than one-third of the claim.
This doctrine is a 17th-century innovation, although it is now applied retrospectively for centuries. It cannot be applied perfectly; for example, the eighth Baron De La Warr had three surviving sons; the first died without children, the second left two daughters, and the third left a son. In modern law, the title would have fallen into abeyance between the two daughters of the second son, and nobody else would have been able to claim it even if the abeyance were settled; however, in 1597, the grandson of the third son (whose father had been re-created Baron De La Warr in 1570) claimed the title and its precedence.
In 1604, the Baron le Despencer case was the first peerage abeyance ever settled; the second was at the Restoration in 1660. Most subsequent abeyances (only a few dozen cases) were settled after a few years, in favour of the holder of the family properties; there were two periods in which long-abeyant peerages (in some cases peerages of doubtful reality) were brought back: between 1838 and 1841 and between 1909 and 1921.[2]The Complete Peerage reports that only baronies have been called out of abeyance,[3] although the Earldom of Cromartie was called out of a two-year abeyance in 1895.
It is entirely possible for a peerage to remain in abeyance for centuries. For example, the Barony of Grey of Codnor was in abeyance for over 490 years between 1496 and 1989, and the Barony of Hastings was similarly in abeyance for over 299 years from 1542 to 1841. Some other baronies became abeyant in the 13th century, and the abeyance has yet to be terminated. The only modern examples of titles other than a barony that have yet gone into abeyance are the earldom of Arlington and the viscountcy of Thetford, which are united, and (as noted above) the earldom of Cromartie.
It is no longer straightforward to claim English peerages after long abeyances. In 1927, a parliamentary Select Committee on Peerages in Abeyance recommended that no claim should be considered where the abeyance has lasted more than 100 years, nor where the claimant lays claim to less than one third of the dignity.[4] The Barony of Grey of Codnor was treated as an exception to this principle, as a claim to it had been submitted prior to these recommendations being made to the Sovereign.[5]
It is common, but incorrect, to speak of peerage dignities which are dormant (i.e. unclaimed) as being in abeyance.[1]
Peerages called out of abeyance by year of initial abeyance
Abeyance can be used in cases where parties are interested in temporarily settling litigation while still holding the right to seek relief later if necessary. This may be considered a desirable outcome in cases where the party to the lawsuit is an organization with a transient membership and political perspective. The use of abeyance in such instances can allow such an organization to 'settle' with the party without officially binding its actions in the future, should a new group of decision makers within the organization choose to pursue taking the dispute to court.
For example, abeyance was used as a settlement method in a Canadian lawsuit involving the University of Victoria Students' Society (UVSS), the British Columbia Civil Liberties Association, and a campus anti-abortion club to whom the UVSS denied funding. The parties agreed to settle the lawsuit by holding the case in abeyance in return for the UVSS temporarily giving resources back to the club. With this arrangement, the anti-abortion club held on to its right to immediately reopen the case again should the UVSS deny resources to the club in the future, and the UVSS was able to avoid an expensive legal battle it did not have the will to pursue at the time. Thus, the use of abeyance provided the security of a settlement for the anti-abortion campus club, while preserving the student society's voting membership's ability to take the matter back to court should they choose in the future to deny resources to the club.[13]
Other court cases may be held in abeyance when the issue may be resolved by another court or another event. This saves time and effort trying to resolve a dispute that may be made moot by the other events. During lawsuits related to the Patient Protection and Affordable Care Act after the Supreme Court of the United States granted certiorari in King v. Burwell, attorneys in Halbig v. Burwell requested abeyance of that case as the matter would be resolved in King and it would be a waste of time and effort to try to resolve it in the Halbig case.[14]
Scottish peerage law
Titles in the Peerage of Scotland cannot go into abeyance, because in Scottish law the eldest sister is preferred over younger sisters; sisters are not considered equal co-heirs.
1 2 Cokayne, George Edward (1890). The Complete Peerage of England, Scotland, Ireland, Great Britain and the United Kingdom, extant, extinct or dormant. Vol.III. London: George Bell & Sons.
Look up abeyance in Wiktionary, the free dictionary.
Related Research Articles
Baron de Ros of Helmsley is the premier baron in the Peerage of England, created in 1288/89 for William de Ros, with precedence to 24 December 1264. Premier baron is a designation and status awarded to the holder of the most ancient extant barony of the Peerage of England. Before the Dissolution of the Monasteries the Prior of the Order of St John in England was deemed the premier baron.
Earl of Leicester is a title that has been created seven times. The first title was granted during the 12th century in the Peerage of England. The current title is in the Peerage of the United Kingdom and was created in 1837.
Marquess Townshend is a title in the Peerage of Great Britain held by the Townshend family of Raynham Hall in Norfolk. The title was created in 1787 for George Townshend, 4th Viscount Townshend.
Baron Strabolgi is a title in the Peerage of England supposedly created in 1318 for Scottish lord David of Strathbogie, 10th Earl of Atholl. Despite lack of evidence supporting its existence, it was called out of abeyance by the House of Lords in 1916. Whether it ever existed before then is open to serious dispute.
Baron Burgh is a title that has been created twice in the Peerage of England.
Baron Hastings is a title that has been created three times. The first creation was in the Peerage of England in 1290, and is extant. The second creation was in the Peerage of England in 1299, and became extinct on the death of the first holder in c. 1314. The third creation was in the Peerage of England in 1461, and has been in abeyance since 1960.
Baron FitzWalter is an ancient title in the Peerage of England. It was created on 24 June 1295 for Robert FitzWalter. The title was created by writ, which means that it can descend through both male and female lines.
The title of Baron Grey of Codnor is a title in the peerage of England.
Baron Clinton is a title in the Peerage of England. Created in 1298 for Sir John de Clinton, it is the seventh-oldest barony in England.
Baron de Clifford is a title in the Peerage of England. It was created in 1299 for Robert de Clifford (c.1274–1314), feudal baron of Clifford in Herefordshire, feudal baron of Skipton in Yorkshire and feudal baron of Appleby in Westmoreland. The title was created by writ, which means that it can descend through both male and female lines. The Norman family which later took the name de Clifford settled in England after the Norman Conquest of 1066 and was first seated in England at Clifford Castle in Herefordshire. The first Baron served as Earl Marshal of England but was killed at the Battle of Bannockburn in 1314. His 8th generation descendant the 11th Baron, was created Earl of Cumberland in 1525, whose grandson the 3rd Earl was a noted naval commander. On the latter's death in 1605, the earldom passed to his younger brother, the 4th Earl.
Baron Arlington is a title in the Peerage of England which was created, on 14 March 1665, for Sir Henry Bennet, younger brother of John Bennet, 1st Baron Ossulston. In 1672, he was made Earl of Arlington and Viscount Thetford, and was regranted the title of Baron Arlington, with a special remainder allowing it to pass to both male and female descendants, rather than only heirs male, as was customary with most peerages. Its territorial designation is the birthplace of its first holder Harlington, London, which was also known as Arlington.
Baron le Despencer is a title that has been created several times by writ in the Peerage of England.
The hereditary peers form part of the peerage in the United Kingdom. As of November 2024, there are 801 hereditary peers: 30 dukes, 34 marquesses, 189 earls, 109 viscounts, and 439 barons.
The British peerage is governed by a body of law that has developed over several centuries. Much of this law has been established by a few important cases, and some of the more significant of these are addressed in this article.
Baron North, of Kirtling Tower in the County of Cambridge, is an abeyant title in the Peerage of England. Its most famous holder was Frederick North, 2nd Earl of Guilford, 8th Baron North, who served as Prime Minister of Great Britain from 1770 to 1782, a period which included most of the American Revolutionary War.
The title Baron Ferrers of Chartley was created on 6 February 1299 for John de Ferrers, son of Robert de Ferrers, 6th Earl of Derby. The daughter of the 6th Baron Ferrers of Chartley, Anne, married Walter Devereux who was summoned to parliament as Lord Ferrers in her right. Their descendants became Earls of Essex and the peerage was forfeited in 1601 on the attainder of Robert Devereux, 2nd Earl of Essex, but restored to his son Robert in 1604, on whose death in 1646 the peerage fell into abeyance. The abeyance was terminated in 1677 when Robert Shirley, a grandson of one of the sisters of the 3rd Earl of Essex, was summoned as Lord Ferrers of Chartley with precedence to the original creation. In 1711, Shirley was created the 1st Earl Ferrers, but the Earldom and Barony separated at his death, the barony going to Elizabeth Shirley, the daughter of his eldest son, while the earldom went to his second son. On the 1741 death of Elizabeth Shirley, 15th Baroness Ferrers of Chartley and wife of the Earl of Northampton, the peerage again briefly fell into an abeyance that was resolved in 1749 by the death of two of the three heiresses, leaving the surviving daughter, Charlotte Compton, wife of the Marquess Townshend, as 16th Baroness Ferrers of Chartley. The barony continued, merged with the marquessate, until the death of George Ferrars Townshend, 3rd Marquess Townshend in 1855, when it again fell into abeyance between his two sisters and their heirs. It remains in abeyance.
The titles Baron Montacute or Baron Montagu were created several times in the Peerage of England for members of the House of Montagu. The family name was Latinised to de Monte Acuto, meaning "from the sharp mountain"; the French form is an ancient spelling of mont aigu, with identical meaning.
Baron St John of Basing is a former title in the Peerage of England. The family of St John of Basing in Hampshire and of Halnaker in Sussex was descended in the male line from the Norman Hugh de Port (d.1091) lord of the manor of Port-en-Bessin in Normandy who took part in the Norman Conquest of England in 1066, and was subsequently granted 53 manors in Hampshire. They had adopted the St. John surname by 1205.)
George Ferrars Townshend, 3rd Marquess Townshend, previously known by the courtesy titles of Lord Chartley and Earl of Leicester, was a British peer. His homosexuality caused a scandal and resulted in the rapid breakdown of his marriage and disinheritance by his father. He moved abroad and died at Genoa, then in the Kingdom of Sardinia, without issue.
Sarah Otway-Cave, 3rd Baroness Braye was an English noblewoman. The title of Baron Braye, originally created in 1529 for her ancestor Edmund Braye, 1st Baron Braye and abeyant since the death of the second baron in 1557, was called out of abeyance in her favor in 1839.
This page is based on this Wikipedia article Text is available under the CC BY-SA 4.0 license; additional terms may apply. Images, videos and audio are available under their respective licenses.
