In his 1926 essay "The Structure of Wuthering Heights", C P Sanger examined the legal aspects of Wuthering Heights and how Heathcliff is able to gain possession of both the Heights and Thrushcross Grange. The relevant extract is reproduced below.
The rest of Sanger's essay can be read on this page.
I now come to the final problem. Heathcliff schemed to set all the property of both the Earnshaws and the Lintons. How did he do it? Emily Brontë clearly had a considerable knowledge of the law. We know the source of George Eliot's use of a base fee for the plot of Felix Holt. We do not know the source of Jane Austen's unerring grasp of the law of real property; but she lived among people who had settled estates and could easily have obtained it. But how Emily Brontë acquired her knowledge I cannot guess. There is also this difficulty. Wuthering Heights was written in the eighteen-forties. It was published in 1847. But the period of the tale is from 1771 to 1803. The Inheritance Act of 1834, the Wills Act of 1837, and, I think, the Game Act of 1831, had changed the law. Did Emily Brontë apply the law at the time she wrote or that at the period of the tale? In one case, as we shall see, she used the earlier law.
Novelists sometimes make their plots depend on the law and use legal terms. But they frequently make mistakes and sometimes are absurd as Trollope is in Orley Farm. What is remarkable about Wuthering Heights is that the ten or twelve legal references are, I think, sufficient to enable us to ascertain the various legal processes by which Heathcliff obtained the property. It is not a simple matter. There was a fundamental difference between the law of land (real property) and that of money and goods (personal property).
Let us begin with Wuthering Heights. The Earnshaws were farmers and not likely to have their estate settled. The property had been in their family since 1500. We may take it then that Mr. Earnshaw was owner in fee-simple, that is in effect absolute owner, of Wuthering Heights, and was not likely to have possessed any investments. It is more likely that there was a mortgage on the house and farm. On Mr. Earnshaw's death the land descended to Hindley as his heir-at-law. There is no mention of a will. The personal property, which, probably, was only the farming stock and the furniture, would go equally to his children, Hindley and Catherine, subject to the payment of his debts out of it. On Catherine's marriage Edgar would have become entitled to her personal property. Now Hindley drinks and gambles away all he has, and at his death the property is mortgaged up to the hilt. Heathcliff we find is the mortgagee. The personal property would also be liable to the debts. So that Heathcliff is mortgagee in possession and, for practical purposes, owner of all the Earnshaw property except any personalty that had gone to Catherine. This is all fairly simple; but it is more difficult when we come to the Linton property. They were landed gentry; they had a park, they had tenants. Mr. Linton, and Edgar after him, was a magistrate. Such people, generally, had a settlement of their land, and we find, in fact, that Mr. Linton had settled it by his will. To understand what happens it is necessary to go into the intricacies of real property law and to look at the pedigree.
I must explain very shortly the law of entails. What is called an estate tail is an estate which descends according to the following rules: (1) Males are preferred to females; (2) males take in order according to seniority of birth, but females take equally; (3) descendants represent their ancestor. In case of a conflict between them, rule (3) prevails. A tenant in tail of full age in possession could by means of a fictitious action (for which a deed was substituted by the Fines and Recoveries Act, 1833) bar the entail and obtain the fee-simple, which practically amounts to absolute ownership. By his will a testator could settle his land on living persons for life, but could not give life estates to the children of such persons who were not alive at the testator's death. Consequently, if he wanted to tie up his estate as long as possible, he gave life estates to such of his descendants as were living at his death, followed by estates tail to their children.
Now the settlement made by Mr. Linton's will must have been as follows: The estate was devised to Edgar, his only son, for life, then to Edgar's sons in tail; Edgar's daughters were passed over in favour of Mr. Linton's daughter, Isabella, who, presumably, had a life interest with remainder to her sons in tail. This is the usual form. Thus on Edgar Linton's death, Linton Heathcliff became tenant in tail in possession during the few weeks he survived his uncle. As a minor he could not bar the entail. It is most improbable that he had an estate in fee-simple; that would have been too unusual. Isabella might have had an estate tail instead of a life interest. This is most improbable, but if she did, her son, Linton Heathcliff, would have become tenant in tail by descent, so the result is the same. Heathcliff claims the property—by what right? Ellen Dean says that he claimed and kept the Thrushcross Grange estate in his wife's right and in his son's also. She adds: "I suppose, legally at any rate, Catherine, destitute of cash and friends, cannot disturb his possession." She is quite right in her suspicions. Even if Isabella had had an estate tail, or even an estate in fee-simple, Heathcliff would not have had any right as husband to an estate for life—the estate known as an estate by courtesy—because Isabella was never in possession. And even if, which to my mind is not possible, Linton Heathcliff had had an estate in fee-simple, his father would not have been his heir before the Inheritance Act, 1833, because it was considered unnatural that an inheritance should ascend directly; and, as Ellen Dean knows and states, Linton Heathcliff as a minor could not dispose of his land by will. There is no difficulty as to the personal property. Whatever Isabella had Heathcliff got by marrying her. There was no Married Women's Property Act in these days. They eloped, so there was no question of a marriage-settlement. Edgar Linton had saved out of his rents to make a provision for his daughter, Catherine. When dying he decides, in order to prevent Heathcliff getting at them, to alter his will so as to settle them on Catherine for life and then for her children. The attorney for whom he sends is, however, kept from going by Heathcliff, and Edgar dies before his will is altered, so the money passes to Catherine and then to her husband, Linton. He, though a minor, could (before the year 1838) make a will of personalty. He is induced or forced to do so, and leaves it all to Heathcliff.
Thus, at Heathcliff's death, the position seems to be that he has acquired all the personal property of both families: he is mortgagee in possession of Wuthering Heights, and is, though wrongfully, in possession of Thrushcross Grange, which he has let to Lockwood. He thinks of making a will but does not do so. What then happens on his death? He has no relations, so that his real property will escheat, and his personal property will go to the Crown as bona vacantia. What then becomes of Hareton and Catherine who, when the tale ends, are to be happily married on New Year's Day, 1803? At one time I thought this was the climax of the tragedy. These young people, ill-educated and incompetent, were to be left destitute. But that would be going too far. Catherine, as you will see from the pedigree, is the sole living descendant of Mr. Linton. In some way or other, I need not go through the various alternatives, she must have become entitled to Thrushcross Grange, which is plainly by far the most valuable property. Heathcliff had been mortgagee in possession of Wuthering Heights for eighteen years, but this was not long enough to obtain an absolute title by adverse possession. Hareton, as Hindley's heir, would be entitled to the equity of redemption. Now if Heathcliff, who managed well, properly accounted for his profits during the eighteen years as he could be made to do, it may well be that they were sufficient, if he was charged a proper occupation rent to pay off the mortgage. So that Hareton would get the house and land unencumbered or, at any rate, only slightly burdened. The persona property was comparatively unimportant, and we can only hope that the Crown did not insist on its rights, if it knew of them, or that if it did insist, the happy couple could buy out the Crown's claim out of the rent which Lockwood, as we know, paid.
C P Sanger