Abeyance
Encyclopedia
Abeyance is a state of expectancy in respect of property, titles or office, when the right to them is not vested
in any one person, but awaits the appearance or determination of the true owner. In law, the term abeyance can only be applied to such future estates as have not yet vested or possibly may not vest. For example, an estate is granted to A for life, with remainder
to the heir of B. During B's lifetime, the remainder is in abeyance, for until the death of B it is uncertain who is B's heir. Similarly the freehold of a benefice
, on the death of the incumbent, is said to be in abeyance until the next incumbent takes possession.
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, he or she can claim the dignity as a matter of right, and the abeyance is said to be terminated. On the other hand, the number of prospective heirs can grow quite large, since each share potentially can be divided between daughters.
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 if the petitioner holds less than one-third of the claim.
This doctrine is a seventeenth-century innovation, although it is now applied retrospectively for centuries; the seventh Baron De La Warr had three surviving sons; the first died without children, the second left two daughters, the third left a son. By 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; in 1597, the grandson of the third son claimed the title and its precedence. In 1604, the Baron le Despencer
case was the 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, to the benefit 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. Abeyance has never applied to earldoms, and the only baronies have been called out of abeyance.
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 thirteenth century, and the abeyance has yet to be terminated. The only 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 (briefly) the earldom of Cromartie
.
Titles in the Peerage of Scotland
cannot go into abeyance. In Scotland, the eldest sister is preferred over younger sisters; sisters are not considered equal co-heirs.
It is common, but incorrect, to speak of peerage dignities which are dormant (i.e. unclaimed) as being in abeyance.
For example, abeyance was used as a settlement method in a Canadian lawsuit involving the University of Victoria Students' Society
(UVSS), the BCCLA
, and a campus pro-life to whom the UVSS denied funding to. 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 pro-life 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 pro-life 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.
Vesting
In law, vesting is to give an immediately secured right of present or future enjoyment. One has a vested right to an asset that cannot be taken away by any third party, even though one may not yet possess the asset. When the right, interest or title to the present or future possession of a legal...
in any one person, but awaits the appearance or determination of the true owner. In law, the term abeyance can only be applied to such future estates as have not yet vested or possibly may not vest. For example, an estate is granted to A for life, with remainder
Remainder (law)
A remainder in property law is a future interest given to a person that is capable of becoming possessory upon the natural end of a prior estate created by the same instrument...
to the heir of B. During B's lifetime, the remainder is in abeyance, for until the death of B it is uncertain who is B's heir. Similarly the freehold of a benefice
Benefice
A benefice is a reward received in exchange for services rendered and as a retainer for future services. The term is now almost obsolete.-Church of England:...
, on the death of the incumbent, is said to be in abeyance until the next incumbent takes possession.
Peerage law
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, he or she can claim the dignity as a matter of right, and the abeyance is said to be terminated. On the other hand, the number of prospective heirs can grow quite large, since each share potentially can be divided between daughters.
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
Collusion
Collusion is an agreement between two or more persons, sometimes illegal and therefore secretive, to limit open competition by deceiving, misleading, or defrauding others of their legal rights, or to obtain an objective forbidden by law typically by defrauding or gaining an unfair advantage...
, the peerage has been in abeyance for more than a century, or if the petitioner holds less than one-third of the claim.
This doctrine is a seventeenth-century innovation, although it is now applied retrospectively for centuries; the seventh Baron De La Warr had three surviving sons; the first died without children, the second left two daughters, the third left a son. By 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; in 1597, the grandson of the third son claimed the title and its precedence. In 1604, the Baron le Despencer
Baron le Despencer
The title Baron le Despencer has been created several times by writ in the Peerage of England.-Creation:The first creation was in 1295, when Hugh the elder Despenser was summoned to the Model Parliament. He was the eldest son of the sometime Justiciar Hugh le Despenser , who was summoned in 1264 to...
case was the peerage abeyance ever settled; the second was at the Restoration
Restoration (1660)
The term Restoration in reference to the year 1660 refers to the restoration of Charles II to his realms across the British Empire at that time.-England:...
in 1660. Most subsequent abeyances (only a few dozen cases) were settled after a few years, to the benefit 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. Abeyance has never applied to earldoms, and the only baronies have been called out of abeyance.
It is entirely possible for a peerage to remain in abeyance for centuries. For example, the Barony of Grey of Codnor
Baron Grey of Codnor
Baron Grey, of Codnor in the County of Derby, is a title in the Peerage of England. Sir Henry Grey, grandson of Richard de Grey and who saw military service under Edward I, was summoned to Parliament by writ in 1299...
was in abeyance for over 490 years between 1496 and 1989, and the Barony of Hastings
Baron Hastings
Baron Hastings is a title that has been created three times. The first creation was in the Peerage of England in 1295, and is still 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...
was similarly in abeyance for over 299 years from 1542 to 1841. Some other baronies became abeyant in the thirteenth century, and the abeyance has yet to be terminated. The only titles other than a barony that have yet gone into abeyance are the earldom of Arlington and the viscountcy of Thetford
Baron Arlington
Baron Arlington is a title in the Peerage of England. In 1664, it was created for Sir Henry Bennet, younger brother of John Bennet, 1st Baron Ossulston, with a special remainder allowing it to descend to male and female heirs, rather than only male heirs, as was customary with most peerages...
, which are united, and (briefly) the earldom of Cromartie
Earl of Cromartie
Earl of Cromartie is a title that has been created twice, both times for members of the Mackenzie family. This branch of the family descends from Sir Roderick Mackenzie, whose elder brother Kenneth Mackenzie was created Lord Mackenzie of Kintail in 1609 and was the father of Colin Mackenzie, 1st...
.
Titles in the Peerage of Scotland
Peerage of Scotland
The Peerage of Scotland is the division of the British Peerage for those peers created in the Kingdom of Scotland before 1707. With that year's Act of Union, the Kingdom of Scotland and the Kingdom of England were combined into the Kingdom of Great Britain, and a new Peerage of Great Britain was...
cannot go into abeyance. In Scotland, the eldest sister is preferred over younger sisters; sisters are not considered equal co-heirs.
It is common, but incorrect, to speak of peerage dignities which are dormant (i.e. unclaimed) as being in abeyance.
Peerages called out of abeyance
- 1426: Baron CamoysBaron CamoysBaron Camoys is a title that has been created twice in the Peerage of England, both times by writ. The first creation came in 1264 when Ralph de Camoys was summoned to Parliament as Lord Camoys...
, called out of abeyance after 413 years. - 1455: Baron CromwellBaron CromwellBaron Cromwell is a title that has been created several times in the Peerage of England. The first creation, which was by writ, was for John de Cromwell in 1308. On his death, the barony became extinct. The second creation came in 1375 when Ralph de Cromwell was summoned by writ to Parliament as...
, called out of abeyance after 35 years; again in 1923 after 426 years. - 1481: Baron MowbrayBaron MowbrayBaron Mowbray is a title in the Peerage of England. It was created by writ for Roger de Mowbray in 1283. It was held for a long time by the Mowbray and Howard Dukes of Norfolk. The title was united with the Barony of Segrave in 1368, when John Mowbray, 1st Earl of Nottingham and 5th Baron Mowbray...
, called out abeyance after 2 years; again in 1878 after 100 years and 3 monthes. - 1496: Baron Grey of CodnorBaron Grey of CodnorBaron Grey, of Codnor in the County of Derby, is a title in the Peerage of England. Sir Henry Grey, grandson of Richard de Grey and who saw military service under Edward I, was summoned to Parliament by writ in 1299...
, called out abeyance after 493 years. - 1508: Baron de RosBaron de RosThe title of Baron de Ros of Helmsley is the most ancient baronial title in the Peerage of England. The title of Baron de Ros of Helmsley is the most ancient baronial title in the Peerage of England. The title of Baron de Ros of Helmsley is the most ancient baronial title in the Peerage of England....
, called out of abeyance after 4 years; again in 1806 (after 119 years), in 1943 (after 4 years) and in 1958 (after 2 years). - 1542: Baron HastingsBaron HastingsBaron Hastings is a title that has been created three times. The first creation was in the Peerage of England in 1295, and is still 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...
, called out of abeyance after 299 years. - 1602: Baron StrabolgiBaron StrabolgiThe title Baron Strabolgi in the Peerage of England was drawn out of abeyance in 1916; whether it ever existed before then is open to serious dispute. Complete Peerage declines to list it, on the grounds that it did not exist before the twentieth century; their coverage ends with the death of Queen...
, called out of abeyance after 314 years. - 1604: Baron le DespencerBaron le DespencerThe title Baron le Despencer has been created several times by writ in the Peerage of England.-Creation:The first creation was in 1295, when Hugh the elder Despenser was summoned to the Model Parliament. He was the eldest son of the sometime Justiciar Hugh le Despenser , who was summoned in 1264 to...
, called out of abeyance after 143 years; called out again in 1763 after 7 months and in 1788 after 7 years. - 1616: Baron FurnivallBaron FurnivallBaron Furnivall is an ancient title in the Peerage of England. It was originally created when Thomas de Furnivall was summoned to the Model Parliament of 1295 as Lord Furnivall. The barony eventually passed to Thomas Nevill, who had married the first baron's descendant Joan de Furnivall, and he...
, called out of abeyance after 31 years. - 1646: Baron Ferrers of ChartleyBaron Ferrers of ChartleyThe title Baron Ferrers of Chartley was created on February 6, 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...
, called out of abeyance after 35 years. - 1660: Baron WindsorBaron WindsorThere have been several titles created in the name of Windsor.The first was that of Baron Windsor, in the Peerage of England, created by writ of summons in 1529 for Sir Andrew Windsor of Stanwell...
, called out of abeyance after 18 years (the length of the English Civil WarEnglish Civil WarThe English Civil War was a series of armed conflicts and political machinations between Parliamentarians and Royalists...
); again in 1855 after 22 years. - 1677: Baron Ferrers of ChartleyBaron Ferrers of ChartleyThe title Baron Ferrers of Chartley was created on February 6, 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...
after 31 years. - 1721: Baron ClintonBaron ClintonBaron Clinton is a title in the Peerage of England. It was created in 1298 for John de Clinton. The peerage was created by writ, which means that it can descend through both male and female lines. The first Baron's great-great-great-grandson, the fifth Baron, fought on the Yorkist side in the Wars...
after 29 years - 1734: Baron CliffordBaron CliffordThe barony of this name has been in abeyance since 1858 – for the baronies with similar names that remain extant see Baron Clifford of Chudleigh and Baron de Clifford----...
after 5 years; (again 1776 and 1833 after a year) - 1764: Baron BotetourtBaron BotetourtThe title Baron Botetourt was created in the Peerage of England by writ of summons on 19 June 1305. It became abeyant in 1406, was recalled from abeyance in 1764 for Norborne Berkeley. However, it became abeyant again on his death in 1770...
after 358 years; again 1803 after 21 years. - 1780; Baron Willoughby de EresbyBaron Willoughby de EresbyBaron Willoughby de Eresby is a title in the Peerage of England. It was created by writ in 1313 for Robert de Willoughby of Eresby Manor, near Spilsby, Lincolnshire. The fourteenth Baron was created Earl of Lindsey in 1626. His great-grandson, the fourth Earl and seventeenth Baron, was created...
after a year; again in 1871 after a year. - 1784: Baron Howard de WaldenBaron Howard de WaldenBaron Howard de Walden is a title in the Peerage of England. It was created by writ of summons, by Queen Elizabeth I for Admiral Lord Thomas Howard, a younger son of the 4th Duke of Norfolk, in 1597. The title was reportedly granted for the Admiral's role in the defeat of the Spanish Armada in 1588...
after 96 years.
Settling litigation
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
University of Victoria Students' Society
The University of Victoria Students' Society , founded in 1963, is a student society that represents all undergraduate students at the University of Victoria...
(UVSS), the BCCLA
British Columbia Civil Liberties Association
The British Columbia Civil Liberties Association or BCCLA is a non-government organization in British Columbia, Canada dedicated to the preservation, maintenance and extension of civil liberties and human rights in Canada....
, and a campus pro-life to whom the UVSS denied funding to. 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 pro-life 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 pro-life 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.