Inheritance and Property
Inheritance and Property
Inheritance practices, associated as they are with death and with survival of family, name, and estate, reveal the main-springs of human behavior at a time when people face their transitory nature. Approaches to this human necessity may be as various as the social groups they emanated from. Detailed studies may trace Latin, Celtic, German, and other influences, but they always reveal an extreme diversity of behaviors. In Brittany, for example, two communities, only ten miles apart, developed different inheritance customs.
Systems of Transmission
Comparative research on the subject is recent. To mention only France, it began with the ethnological approach of Claude Lévi-Strauss, who, beginning in 1949, explored the major role of family strategies. It continued with the historical and geographical comments of Emmanuel Le Roy Ladurie (1976) about Jean Yver's 1966 study of inheritance customs and with Pierre Bourdieu's sociological research, which opened new perspectives on birth order.
Two family transmission systems have been identified. The first one is more or less egalitarian, favoring kinship but resulting in divided up estates; the second one favors one privileged heir–male or female–and is apt to secure continuity for the house but is inegalitarian. Under both systems, transmission of family prestige and assets from a given generation to the following one is at stake.
Another feature of interest, illustrating the desire to provide a heir for the family when no satisfactory offspring is available, is adoption. Statutes of adoption are as revealing of the mental and social factors governing inheritance as are the legal provisions governing estate transmission.
Inheritance practices were modified much less as a result of legal change than of demographic, economic, and social change. This confirms that these practices were deeply rooted in custom rather than in written law. It also explains why perturbations in the social climate, favoring, for instance, regional or overseas migrations of children, affected traditional family courses much more than did any legal clause. It may also explain other changes that took place when the legal basis stayed stable, such as the changing status and growing authority of women (as mothers and widows) in the Pyrenean family.
More or Less Egalitarian Inheritance Systems
Analysis of notarized property transfers and of land markets suggests clearly that so-called egalitarian societies did not shirk complex adaptations if they would result in smallholdings of reasonable size. Some big landowners developed ad hoc matrimonial strategies to avoid dividing up their land, but no child's share was reduced to zero. In many European societies, girls often got only movable property, leaving their brothers with the land and the means of production. In all Scandinavian countries, males inherited a property worth more than that which girls inherited–usually double the value.
There were pretensions to egalitarianism, as, for example, in Brittany according to a custom, written in 1539, which did not allow for any privilege to any child. Even an advantage given to a child before the death of the parents had to be compensated for in the global succession. But Breton peasants were seldom farm owners, so inheritance only concerned movables, which were easy to divide up. Things changed when land came to be more commonly owned. Then the firstborn was privileged by being given a choice of the share he or she would take.
Many European rural areas practiced transmission of land, lease, or movables without gender or birth order discrimination. In those cases, marriage contracts were not necessary since marriage was not directly tied to succession and use of inherited assets. However, conflicts between brothers and sisters could appear when the successor delayed the agreed-upon payments after the succession was settled. This kind of egalitarian system did, in the end, help impoverish a population, especially in periods of population growth such as the nineteenth century.
At the beginning of the Industrial Revolution, the areas of egalitarian transmission were those where tenant-farming was predominant. But even then, some flexibility was possible since fathers were entitled to make a will. Not all fathers did, but those who did had to trust their notary's ability to accommodate their wishes to the law.
Inegalitarian sharing out appeared as the result of a unified written law, theoretically inherited from Rome but very intricate when concrete sharing out had to be practiced: Who would be privileged? The males more than the females? The firstborn? The heir mentioned in a will? The boy or girl who had already received some share before the parents' death, thus being beneficiary of a preciput, or advantage? It would be simplistic to ignore the coexistence of local customs with written law.
Endowing a girl when she married or entered a convent was a common way to exclude her from a later sharing out. It was also used in countries that practiced egalitarian transmission, such as Normandy. Some old rights restricted the capacity of women to inherit even more than the dowry system did. The future of a family was reputed to be threatened when it depended on the female line: The saying "Girls mean the end of the father's family" (Julien, p. 441) was held to be true in more places than just eighteenth-century Provence.
Although so commonly mentioned in discussions of royal or feudal successions, the law of primogeniture was not frequently referred to in the legal documents. In France, it appears only in some customs of the Basque country and the surrounding Pyrenean valleys. But the father was entitled to choose his heir, and he usually chose the firstborn child, giving him a preciput by donation or will. It was rare for a family to wait until the head of the family died to fix the conditions of succession. Arrangements were usually made in the children's marriage contracts.
What happened when the father died before expressing a choice depended on custom. In seventeenth-century New York City, colonial parents could circumvent the laws of intestate succession and bequeath property according to their own desires, ignoring the English custom of primogeniture. But Pennsylvania and New England law allowed the eldest son a double portion of both real estate and personal property if there was no will, while granting his siblings only a single share, although most wills show equal grants to all sons. The Statuts de Provence gave Provençal sons equal shares of the patrimony, without consideration of birth order, reserving for the girls a "legitimate share" (a very reduced one) depending on the number of children in the family. When they were only two, the boy received five-sixth, the girl one-sixth. For two sons and one daughter, each boy received fourninths and the girl one-ninth of the family assets, which was much less than the amount of the dowry she usually got when marrying. Such strategies involved some psychological and legal subtlety, since the interest of fathers was not to give rise to conflicts among the children. These inegalitarian customs were not limited to colonial North America and southwestern Europe. Giving a preciput was common in Picardy, Wallonia, and Luxemburg, contrasting with the strong egalitarian Flemish systems.
For all the countries with inegalitarian transmission systems, the French Civil Code of 1804, proclaiming equality in matters of family succession, created disruptions. But it allowed advantaging one of the children (up to one-third of the succession if there were two children, one-fourth if there were three, etc.), and it drew attention to the risk of land division, so that we now read it more as a compromise inherited from Parisian custom than as a revolutionary proclamation. The Code generated reactions that give the historian an opportunity to evaluate the resistance local customs posed to written law. For instance, as early as 1814, the German jurist Friedrich Karl von Savigny developed his thesis contrasting popular practice and law. Decades later, Frédéric Le Play, observing how traditional customs endured alongside the law, advocated a social reform enhancing the traditional custom of the stem family (when, at each generation, the married successor stays in residence with his parents in the family house) as an antidote to the harmful ideas of revolution, progress, land division, and proletarianization.
The influence of the French Civil Code was felt in many countries, including Spain and its American colonies, where majorat, the "right to inherit assets …under the condition that these assets would be kept in full and perpetually in the family" was suppressed in 1841 (Clavero, p.391). Social reality, contrary to what Le Play had predicted, actually helped this change: In stem family regions of Europe during the nineteenth century, the number of single people of both sexes who could not marry for want of a proper dowry led to a growing number of illegitimate births as the church lost most of its capacity to control sexual behavior; younger brothers and sisters refused to work in the natal house as unpaid servants; and after the 1860s, in the European middle uplands, from Norway to the Balkans and across all Mediterranean countries, young people, especially boys, began to dream of a better life in the big cities or abroad, which often left only the lastborn child in the natal house, or girls more than boys. This transition to ultimogeniture is attested to in many places after the 1880s, as heiresses more often than heirs became farm heads.
The role of heiresses in Western Europe societies has been underestimated until recently. Historians and sociologists have long noted that heiresses were the main transmitters of family behavior models. But the fact that they happened to secure continuity for the house (be it the farm or the urban business) when it was needed was often considered nothing more than a deviation from the general model. But they did transmit, and the evidence is statistical: about 30 percent of family transmissions followed a female line (in the Pyrenees, Scandinavia, and in Austria) as early as the seventeenth century. And the proportion of inheriting females grew over time, eventually affecting more than half the inheritances in the parts of western Europe that were affected by emigration.
Replacing Missing Children or Missing Parents
The hazards of the family course and events, especially when life expectancy was short, generated many cases of missing children or missing parents. What happened, then, when a couple had no surviving child to inherit (and to take care of them in their old age)? Would they adopt?
Philippe Ariès writes, "It would be a distortion to interpret the attitude of traditional societies as one in which the child did not exist, did not count. On the contrary, he was physically necessary for the reproduction of a society that scorned adoption" (1980, p. 645). This suggests that Western societies valued blood filiation more than adoptive filiation. European societies had forsaken ancient practice, which considered adoption a standard method of transmission. In ancient Greek societies, adopted individuals were mainly male kin, whom the adoptive parents, deprived of a male descendant, adopted either during their lifetime or through a will.
In traditional western Europe, adoption did not play the same role it did in non-European societies, where adoption is not only a way to cope with demographic hazard but also an opportunity to integrate into one's family children born outside its social group, either native or foreign. Christianity seems to have preferred blood ties and direct transmission to legitimate or legitimated children, thus separating itself from many other societies known for their large circulation of children. In Asian societies, for example, adoption is recurrent and even desirable, so much so that the Japanese son-in-law becomes a true adopted son as soon as he enters the house. Adoption in Japan is essentially a substitution of ancestors. The adopted person must from then on worship his adoptive ancestors. In contrast, children entering a foster family in Europe are expected to behave respectfully, but they remain a member of their family by blood, even if at a young age they consider themselves members of their "milkfamilies."
Taking Charge of Underage Orphans
The problem of missing parents (or underage orphans) was a recurrent one in the Western European and was subject to regulations emanating from ecclesiastic and civilian authorities–all the more so since, due to short life expectancy, orphanhood was common. Fostering orphans was generally delegated to somebody in the family–often the surviving parent in the case of semi-orphans–who would be designated as a guardian or curator subject to the control of a family council, sometimes with addition of an officer of the law. But fostering orphans day after day was one thing and preserving the patrimony another: How could dispersion of the family patrimony be avoided when the children were underage and had to be fostered?
Before the redaction of customary laws– that is, before the sixteenth century–the orphan's fate, at best, was sealed in a deed authenticated by a notary: a close family member received lease and guardianship, collecting the income of the orphan's real estate, acceding to ownership of the personal estate, and pledging to "feed, educate and maintain" the child, who in turn had to "serve" him or her. We sometimes find in such written deeds a provision that the child would receive back his or her real estate upon coming of age, with the condition that the income and personal estate had been sufficient to refund to the lessor his or her fostering expenses. The final and not surprising result was that the patrimony as a whole was more often than not absorbed in unverifiable expenses. The guardianship system may not have been that bad for the lessor, since we often note competition between candidates to care for one child or to "purchase" him or her for a certain time, although the theoretical aim of this competition was to secure maximal protection for the orphan's patrimony.
The institution of a family council, which would be in charge of naming and controlling the guardian, was not automatic. In fact, one finds evidence of such a council only when the orphan's interests were deemed worthy of specific attention–for instance in case of remarriage of the surviving parent or when the orphan became heir to an uncle or grandmother. Family council members were male kin plus the mother or grandmother if they were alive, and sometimes also male neighbors. They supervised fostering until the orphan reached age fifteen, when he or she usually could begin to earn a living.
Candidates to guardianship took into consideration the orphan's gender and age: a girl's work was thought to be of less value than the boy's; furthermore, the lessor would have to give her a trousseau when she married (but not a dowry, since that was a part of her patrimony). The younger the child, the later he or she became able to serve the lessor– that is, to repay the costs of fostering. To preserve the child's patrimony, the lessor inherited the child's labor.
What were these children: temporarily adopted children, boarders, or simply small servants? They could go on living in familiar surroundings, but they were "eating their personal estate and the income of their real estate" (Desaive, p.1987), with some hope of recovering their landed property. Only deep indigence could justify selling part of the orphan's patrimony–usually some badly maintained dwelling–and indigence was very often the case for widows who wanted to keep their children at their side. Widowhood meant a lower standard of living, so a widow had to promise the family council to take care of her children and to protect their portion of the patrimony whose usufruct she obtained.
It could happen that the guardians nominated by the family councils for these fostered children would be childless, so that fostering would be close to adoption, in fact if not in law. A Polish judicial writ from the district of Grabovice, dated 1729, says, "If it happens that a couple dies, whose husband is a farm-hand in the service of a peasant, it is the duty of the peasant to bring up their children. If a childless neighbor offers to take one of them at his home, he shall be allowed to" (Kula, p. 953). Taking in orphans was often one element in a strategy of family reproduction: Orphans filled the place of missing children and went where their hands were the most useful and where they had also a chance to become heirs as legatees through a will. There was therefore no need for adoption.
Preindustrial Fostering of Children
The orphan advancing in age represented a value which grew in relation to the value of his or her patrimony. According to Witold Kula, the European peasant saw the child as a charge until age ten; between ten and eighteen, the child's work more than covered the expenses of fostering. The work of boys and girls, however, was held to have different value and different seasonality, but a child of either sex had some prospective economic value, even in the absence of any patrimony.
If not abandoned and if not dependant on a community, the orphan child was transferred to the house of his guardian, foster parent, or "purchaser." His or her trustee–a childless aunt, an unmarried uncle–might choose this child as a beneficiary for the transmission of some assets, possibly adding in the registered will some provisions defining mutual and reciprocal commitments. The child might also be placed with some relative or neighbor (when at least ten years old) as a young apprentice or servant. This pattern of circulation of young children in the society can only be understood in the context of the family network: the young girl servant was more often than not a niece, a cousin, or a relative of some kind in the household where she served.
A family network was evidently what was missing when children were abandoned. Churches had cared for them since the earliest times and endeavored to find them substitute households. But at the end of the seventeenth century, in urban western Europe, the newly created hospitals had to deal with an increasing number of children who were abandoned at birth. While these children were taken care of, the administrator of the hospital looked for a foster family which would associate Christian hospitality with an anticipation of the gains the labor of the child would generate. For centuries, such placements were a constant in child welfare. When surviving infants were placed in foster families, the institution paid a pension that stopped as soon as the children reached age seven, at which age they were supposed to work and serve.
New conditions appeared with the beginning of industrialization, around 1800. Throughout Europe, textile manufacturers used child labor, which was cheap. This opened another way to foster children: to exploit them. Most of the nineteenth century was a painful period for abandoned children. The church was still a force, but it was no longer the mighty institution it had once been, present in all sectors of public life, rural or urban. The state, however, did not yet coordinate the random efforts of communities to deal with abandoned children.
See also: Abandonment; Bastardy; Family Patterns; Fertility Rates; Foster Care; Siblings.
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