Special Remainders


Reference was made in an earlier passage to special remainders.  This is the term applied to those clauses in Letters Patent which regulate the descent of a peerage and provide for its passing in directions which are a variation from the normal.


The Crown has not unrestricted freedom in this matter.  Its action is governed by usage and by statements of the law on the subject which have been made from time to time in decisions of the House of Lords arising out of peerage claims.  Nevertheless the latitude allowable is pretty wide.  There have been numerous instances throughout the centuries. Generally it has been resorted to when a direct male heir has been lacking and it has been desired to perpetuate the honour through the female line or through a brother.  But there are a number of instances of other kinds.


A case which illustrates both reasons is to be found in the Dukedom of Northumberland.  The male line of the famous Percy family, of which the gallant "Hotspur" was a member, died out with the eleventh Earl in 1670, when all his honours became extinct.  His only daughter, Elizabeth, after two previous marriages which bore no issue, married the sixth Duke of Somerset, and thus carried the Percy inheritance to the Seymours.  Their son, the seventh Duke, was summoned to Parliament by writ as Baron Percy (erroneously, as it happened - in the mistaken belief that an old Percy barony was vested in his mother), and after his succession to the Seymour honours, was created Earl of Northumberland and Baron Warkworth, with special remainder, failing male heirs, to his son-in-law, Sir Hugh Smithson, baronet, of an old Yorkshire family.


But this Duke in turn left only a daughter, another Elizabeth, so that the Percy inheritance was again carried by an heiress to still another family in the course of three generations.  When the Duke died, the daughter became Baroness Percy and her husband Earl of Northumberland and Baron Warkworth.  He was afterwards created Duke of Northumberland and thus started the present Percy line, for his own patronymic was dropped.


That illustrates one reason for a special remainder.  But among the peerages collected by the former baronet was also the Barony of Lovaine, which was conferred with a special remainder in favour of his second son.  This second son duly succeeded and his son became also Earl of Beverley.  Thus two lines of peers sprang from the Percy-Seymour-Smithson unions.  (Not, however, for long.  In less than a century the senior line failed and the Beverley branch succeeded to all the honours.)


Another instance of special remainder in favour of a second son is that of the Earldom of Cromartie, of which mention has already been made.


Modern instances of special remainders are not rare.  The viscountcy bestowed on that famous soldier Lord Wolseley, when it became obvious that he would not be likely to leave a male heir, was duplicated with a special remainder in favour of his daughter.  Similar provision was made in the case of Earl Roberts in similar circumstances.  That third great military figure, Lord Kitchener, never married, and his honours went by special remainder to his elder brother. The latest instances are those of Earl Mountbatten of Burma, whose titles go to his elder daughter and her male issue, and in default to his second daughter and her male issue; and Marshal of the Royal Air Force Lord Portal of Hungerford, whose barony - conferred under the Coalition Government - will pass to his daughter.  But not his viscountcy - conferred under the Labour Government.


Princess Arthur of Connaught holds her Dukedom of Fife and Earldom of Macduff by just such a special remainder.  When her father married Princess Louise, King Edward VII's daughter, he was Earl Fife (not, it will be noticed, Earl of Fife), Viscount Macduff and Baron Braco - all in the peerage of Ireland, although he was a Scot! - and Earl of Fife and Baron Skene in the peerage of the United Kingdom.  On his marriage he was created Duke of Fife and Marquess of Macduff in the peerage of the United Kingdom.  But all these honours were limited to the male line and would, in fact did, expire on his death.  When, therefore, fourteen years later, it was clear that the advent of a male heir was unlikely, he was created Duke of Fife and Earl of Macduff afresh with remainder to his daughters and their issue.  It was to these titles that Princess Arthur succeeded on his death in 1912.


It should be noted, however, that except in rare cases (again the Cromartie Earldom is an example) this ability by means of special remainder to transmit through the female line is restricted to the first instance.  Once the lady has succeeded, the succession to the title follows the normal course of "heirs male of the body".