Inheritance and Wills
INHERITANCE AND WILLS
INHERITANCE AND WILLS. For the overwhelming mass of the population, both rural and urban, early modern material life was anchored in the ownership of fixed capital assets, above all land and buildings. The perpetuation of society depended upon the transmission of these assets from one generation to another, making inheritance (together with marriage, for which inheritance was usually an implicit, and in some cases an explicit, requirement) one of the essential social processes in early modern Europe. Inheritance also had significant, though equivocal, implications for patterns of demographic growth and long-term economic change. Relative to its importance, early modern inheritance remains a subject about which we know embarrassingly little. The prescriptive rules of postmortem succession, codified with increasing frequency from the sixteenth century across the entirety of Europe, have been well studied. At the same time, it has become obvious not only that formal norms were heavily modified by actual practice, but also that postmortem succession was normally only the final stage of a more drawn-out process of generational replacement.
The classic point of reference for the analysis of European inheritance customs is the issue of partibility. Nineteenth-century investigations of peasant inheritance customs in western and central Europe divided the continent into regions of partible inheritance (East Anglia and Kent, Aragon-Castile, Italy, the French Riviera, northern France, the Low Countries, and much of Rhineland Germany) and impartible inheritance (most of the British Isles, Catalonia, southern France, northeastern and southeastern Germany, Austria, and Scandinavia), although there was considerable small-scale regional variation. The historicity of this division is uncertain. It can certainly be dated back to c. 1550–1600, but in some impartible zones like Upper Swabia there is clear evidence of partibility during the later Middle Ages. At least among the European aristocracy (whose inheritance practices are admittedly only an uncertain guide to the customs of commoners), there was a definite drift toward impartibility during the sixteenth century, a trend underscored by a burgeoning legal literature on the practice and ethics of unigeniture (inheritance by a single heir). The reasons for the partibility/ impartibility division are less clear. There is considerable truth to the suggestion that impartibility was usually a product of strong feudal overlordship (and the attendant pressure to preserve the integrity of rent-paying units) in regions of arable agriculture, but this is hardly a universal association.
For all the attractive simplicity of the partibility/impartibility division, the reality on the ground was much more complex, and the seemingly stark opposition of the two regimes was in practice mitigated by a host of qualifications. Systems of partible inheritance often explicitly advantaged one heir over the others, a custom known as préciput in northeastern France. Even in Normandy, the "egalitarian" obligation to return any premortem endowment to ensure the absolutely even division of family property at the parent's death was modified by the exclusion of daughters from inheriting land. Conversely, impartible arrangements in both England and Germany typically required the heir to buy out or otherwise compensate the other siblings ("yielding heirs," as they were often called in Bavaria) for their exclusion from the family farm. Most inheritance systems, in other words, attempted to strike a balance (often at the expense of the weaker members of the kindred, especially women) between security and equity, between preserving an ancestral property and providing the foundation for the next generation of kin.
Partibility and impartibility are thus best understood as the poles of a continuum of strategies for the regulation of household formation in conformity with the socioeconomic context. Impartibility, however modified, tended to limit the creation of new households by restricting access to property, which helps to explain the spread of such inheritance practices during the demographic surge of the sixteenth century. Partibility imposed fewer restrictions on household formation, and in the case of the German territory of Lower Saxony, it has been demonstrated that regions of partible inheritance experienced significantly higher rates of population growth than regions of impartibility. Variations in inheritance customs had similarly divergent implications for household structure. Despite the overall dominance of nuclear households in early modern Europe, impartible inheritance often led to an extended phase of the household's life cycle, with either a retired parent living with the principal heir (as in central Europe), or with a number of brothers co-owning an undivided ancestral property (as in Italy or southern France). Regions of partible inheritance were less likely to evince this pattern, as the facility with which children could establish independent households militated against coresidence.
The recognition that postmortem transfers from parent to child were only one facet of the dynamics of inheritance has in recent years redirected scholarly attention to other aspects of the nexus between kinship and property, in particular to the property rights of widowed spouses. In many regions, especially in urban areas, the property brought by each spouse to a marriage was merged indivisibly, so that in the event of one partner's death, an irreducible fraction, and sometimes the entirety, of the property devolved upon the survivor (in some regions this merger only took place if there had been issue from the marriage). In some areas (for example, England) the widow's estate was an interest for her lifetime only, but in many places on the continent (for example, Wallonia) a widow could remarry in situ and effectively disinherit the children from the first marriage. Allowing as it did for the inheritance (albeit temporary, in some cases) of property by women, this widespread custom of "conjugal community" was a characteristic feature of European inheritance practices, marking them off sharply from customs in sub-Saharan Africa and many parts of Asia.
Given the complex and drawn-out nature of generational replacement in early modern Europe, the will turns out (ironically) to be a much less important instrument of inheritance than might be expected, especially outside of cities. In continental Europe the peasant will was more important for the registration of pious legacies than for the disposition of land. In much of Germany, this latter allocation was normally accomplished by premortem conveyance, while in northern France, a householder was explicitly forbidden to dispose of more than a fraction (one-third in Picardy, Artois, Touraine, Anjou, Maine, and Brittany; one-fifth in the Paris Basin, the Beauvaisis, the Nivernais, and the Orléanais) of his property by will, with the kindred retaining an inextinguishable claim to the remaining "reserve." Even in southern France, where a Roman Law regime contributed to a more absolute conception of private property, the customs of Gascony and Aquitaine prohibited the alienation of more than a fraction of the testator's property (in Languedoc, however, a testator was free to convey his property to whomsoever he wished). The most important exception to these restrictions on testator freedom was England, where a long tradition of individualistic property rights was enshrined in the 1540 Statute of Wills, which for the first time legalized the conveyance of land by will. Nevertheless, the theoretical power of an English father to disinherit his children was only rarely resorted to in practice.
See also Family ; Gender ; Law ; Property .
Sabean, David. Kinship in Neckarhausen, 1700–1870. Cambridge, U.K., and New York, 1998.
Seccombe, Wally. A Millennium of Family Change: Feudalism to Capitalism in Northwestern Europe. London and New York, 1992.
Govind P. Sreenivasan
"Inheritance and Wills." Europe, 1450 to 1789: Encyclopedia of the Early Modern World. . Encyclopedia.com. (January 21, 2019). https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/inheritance-and-wills
"Inheritance and Wills." Europe, 1450 to 1789: Encyclopedia of the Early Modern World. . Retrieved January 21, 2019 from Encyclopedia.com: https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/inheritance-and-wills