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Gender and Well-Being Interactions between Work, Family and Public Policies

COST ACTION A 34

Second Symposium:

The Transmission of Well-Being: Marriage

Strategies and Inheritance Systems in Europe (17th-20th Centuries)

25th -28th April 2007

University of Minho Guimarães-Portugal

Please, do not quote without author’s permission

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Providing well-being to their parents: the role of female inheritors and non inheritors

Margarida Durães1 University of Minho

margaridad@ics.uminho.pt

Abstract

Minho’s hereditary patterns follow two opposite sets of rules. The law established the

equality of all descendants but the contract over the lands forbade its division. Peasants were

obliged to create strategies that would avoid dividing the land but simultaneously providing

an equal inheritance. This was possible by using the inheritance laws and the testamentary

succession and especially by adjusting the law to each family’s interests and needs. This

article explains how practices changed this unequal system, managing to go around the law

and to favour the surviving spouse or female children that the law excluded from succession

and heritance.

Minho is a densely populated region where the possession of land is still a symbol of power

and social prestige and where all the peasants have a small plot of land, which is used to

support all family. In this region, the equality between all the heirs seems to be the main

principle for all the family, social and economic organization.

This principle is still today respected by most families. Over the past centuries before the

welfare state, however, the principle of equality between legitimate heirs underwent

adaptation which aimed at the well-being of each family.

1 Assistant Professor (Professora Auxiliar) in Contemporany History in University of Minho since 1979. In 2001, she presented her PhD thesis entitled: “Succession and inheritance. Laws, practices and behaviours in Braga’s countryside (18th and 19th centuries)”. As a researcher in Rural History, Family History and Women History, she wrote several articles that have been published in different journals at a national and international level.

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Thus, the main goal of this article is to analyze inheritance practices implemented in the

eighteenth and nineteenth centuries in order to formulate an property transmission model

which first intended to guarantee peasant widows’ and peasant unmarried women’s well-

being but above all this model secured the health and retirement assistance of the family

elderly.

1 – The sources

For this study, we made use of the wills left behind by the inhabitants of twelve rural

communities of Braga, the majority of whom were small land-owners, as the contracts

“aforamento em vidas” indicated.

In this way we have established a sample of 1372 wills that cover the period between 1720

and 1820. The complete documents include a religious component as well as some

information on succession and inheritance (Durães, 2000:52-57).

During the 18th and 19th centuries, wills still indicated religious concerns, notably people’s

concern for the future of their soul. Despite this concern, wills assumed another important

function: organizing the family’s economic and social life after the death of one of its

membersi. From this moment onwards, a will became a whole unit with an essential

component, that which connected salvation and proper property partition. By analysing this

set of information, it is possible to give a picture of people’s mental representations of death,

to outline the behaviours that established the family’s organization as the systems of

succession and inheritance, and to acknowledge the strategies adopted by the testator to

continue managing his house after his death (Rodriguez, Moline-Bertrand, 2000).

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But who were the testators? Though various social and professional groups of Minho’s rural

society were represented, our sample highlights the prevalence of female and peasant wills.

This is quite unique Europe. Indeed Minho’s women wrote wills more often than men, as the

data in table 1 shows (Durães, 2000: 70-76).

Table nº 1: Distribution of wills by the testator’s sex and civil status (18th and 19th centuries)

Single % Married % Widowers % TOTAL % Men 111 31,8 317 51,8 158 38,4 586 42,7

Women 238 68,2 295 48,2 253 61,6 786 57,3 TOTAL 349 100 612 100 411 100 1372 100 Source: Archive of Braga’s District. Parish Registers. Wills’ Books of 12 parishes of Braga’s rural area.

All women contributed for this overrepresentation of female wills. Widows and single women

without heirs were more numerous to write wills than men in the same situation. The

proportion of married women was the same as men in the same civil status. This situation was

exceptional but it has also been found in other regions of Portugal (Roque, 1982: 20). This is

the result of demographic factors as well as economic, social and psychological factors.

Among the demographic factors it is necessary to consider the influence of mortality,

migrations and female celibacy.

Although there was a higher number of male births, more boys died during childhood than

girls. This created an unbalance between the male and female population, which was

intensified in later years with migration (Amorim, 1987: 335-337). This unequal relation

between the number of adult men and women of the same age explains partly women’s higher

representation. Indeed they were numerically greater than men in the last years of their lifeii.

Furthermore, it was necessary to be over 14 and to be economically autonomous to write a

will. This helps to understand why wills were written in an advanced phase of life, when the

natural selection of heirs had already taken effects (Cruz, 1970).

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From a demographic point of view, female over-representation also justified high permanent

celibacy. In general, single people possessed a patrimony available after their death. In the

absence of legitimate heirs, these unmarried men and women used wills as a way to distribute

their riches but also for the salvation of their soul, sometimes spending their entire fortune for

it.

The mentioned demographic factors indeed explain the female over-representation or the high

number of celibate people. However, they do not provide enough information to understand

the behaviour of widows and married women. For these, it is mainly in “the cultural tradition

and in the interiorization of social roles, inside and outside the family”iii that we can find the

reasons for the number of wills.

Widowers wrote wills mainly to set aright their house and to avoid any kind of conflicts

between the heirs. Widows for their part wrote wills in significant number as a result of their

higher life expectancy. Besides, after the death of their husband, they used wills to reinforce

their role in the family and they gained more power and social prestige. Since widows became

the head of the house, they used the power to make their will to choose their successor

(Durães, 2000: 81).

Married women wrote wills as often as men of the same civil status for legal reasons indeed

but above all for economic, social and sentimental motives. Until the Civil Code of 1867 it

was common that husband and wife expressed their last spiritual wishes in the same

document. They also appointed “each other” as the main heir and beneficiary of the

patrimony. They also mutually attributed the “reserves and usufructs” of the totality or the

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main part of the agricultural incomes. The main aim of this act was to guarantee the

subsistence and well-being of the surviving spouse.

In the rural area and especially in peasant families, the writing of a will was one of the

moments that widowed or married women used to express their social identity, in the same

way as men did in the same situation. In this way, women reflected attitudes in their peasant

society, in the way their behaved and perceived life and death.

2 – The results

Whatever the content of the will was, it could not contracdict the law or else it was null and

void. Therefore it is necessary to outline the main clauses of the succession law in order to

better understand Minho peasants’ inheritance practices.

For our period of study, it is necessary to outline the judicial principles of the state written

law. At the birth of the nation, the customary law served as an auxiliary law but then it

gradually became less used. In the 18th century, the state law prevailed over all aspects of the

political, social and economic life. The rules that created the inheritance law were in force

after the publication of the first royal compilations (Ordenações).

Thus in Portugal, as in all countries under Roman influence, the inheritance law was based on

two main criteria: family and property. Since these were the heart of all institutions, they were

particularly sensitive to the social, economic and juridical changes. The two main criteria,

family and property, however, evolved in the course of time and were applied in different

ways, depending upon the importance of the different succession systems. When the family

criterion guided the inheritance rules, the necessary or legitime succession prevailed; when

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property prevailed over the other criteria, testamentary succession in its different forms

determined the rules over social and economic reproduction (Amaral, 1945; Costa, 1996).

Ancient Portuguese laws were the set of rules that defined the main principles that ruled

succession and inheritance. This set of rules was based upon family critiria. Here appeared

the principles of equality between the heirs-at-law, the sacredness of the legitime, the

definition of the extra share or terço, the indication of the three succession lines (descendants,

ascendants, and collaterals) and the nomination of the spouse to a position which made

inheritance inaceessible (beyond the tenth degree relatives). In these regulations, there was no

formal difference between succession and inheritance. Both were shared between the heirs-in-

law. However, one could benefit from the extra share if de cujus had written an act agreeing

upon it.

These rules however only applied to the inheritance of free or partible goods such as personal

estate. The contact estates (vinculados) like leased properties could not be divided because

they were under a different set of rules. In these regulations, the main aim of the succession

and inheritance law was to keep undivided the property and the agricultural exploitation.

Property defined the rules for succession and inheritance to which the family was subordinate.

These rules imposed single inehritance, the primacy of the surviving spouse over other

successors, thye primacy of male heirs over female heirs and the oldest children over the

youngest ones. Finally, inequality between the heirs was established. In these regulations,

succession and inheritance became two different processes. Succession was individual and it

was followed by a universal or a beneficed inheritance or rarely by an equalitarian one.

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Minho’s peasants had to adapt to these two sets of rules. On the one hand, the rules which

imposed the unbreakable legitime and the equal partition of patrimony between all heirs, on

the other hand, the indivisibility of leased properties and single succession. While the

inheritance rules imposed equality between the heirs-in-law though one could be favoured

over the others and receive the extra share (terço), the succession rules over leased property

imposed impartibility, all to be attributed to one single successor.

We felt a need to distinguish the concepts of succession and inheritance on the one hand, and

patrimony and agricultural exploitation on the other. In this context, succession must be

perceived as the transmission of statutes, duties, rights and roles to be carried out within the

domestic and social community while inheritance signified the transmission of rights over the

goods that constituted the patrimony. The patrimony was the set of agrarian goods as well as

all goods that were part of the family’s material wealth. The agricultural exploitation

comprised the whole agrarian patrimony but it could also be a part of the inheritance’s

material goods.

Keeping in mind that our sample was socially characterized mainly by peasants’ lessees, who

had to satisfy two sets of judicial laws over the material estate, partible and impartible, and

that these rules made a clear distinction between succession and inheritance, we have tried to

construct a systematised model with these ideas to be added to the previously mentioned

models. This systematised model should enable us to perceive the logic behind the

transmission of material goods which has revealed to be complex since their early

implementation.

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Table nº 2: Distribution of ways to succeed and divide the patrimony according with the testators’ sex and civil status

Men Women Single Married Widower Single Married Widow TOTAL

Universal Inheritance 101 98 110 206 68 159 742 Beneficed Inheritance 2 46 27 1 63 50 189 Equalitarian Inheritance 3 19 20 9 12 34 97 Spouse Heir - 133 - - 138 - 271 Spouse Usufructuary - 20 - - 14 - 34 Legacy 5 1 1 22 - 10 39 TOTAL 111 317 158 238 295 253 1.372 Source: Archive of Braga’s District. Parish Registers. Wills’ Books of 12 parishes of Braga’s rural area.

By analysing Table nº 2, we can say that the testators of our sample chose mostly the single

succession system, together with universal or beneficed inheritance. From the 1372 testators

that designated the form of succession and division, 54,1% chose to name a single successor,

to whom they offered the totality of the partible and impartible estate. Besides, 13,8% decided

to name a single successor and heir but they donated only one “third” of he available share of

the partible goods. Finally, only 7,1% stated that after paying the necessary expenses and

some possible debts, they wished to equally share the rest between all the descendants.

And contrary to what we expected, these behaviours were not exclusively those of

peasants’lessees and not only caused by the judicial rules. When we analyzed testators’

succession and inheritance practices, those of whom we knew the social status, we found out

that single succession and universal inheritance clearly had primacy.

The figures thus reveal the prevalence of an unequal hereditary system that privileged a single

heir and excluded all the others from succession and inheritance. However, these figures

should be more closely analysed in order to discover the multiple conditions that were

associated with this system and reduced its effects. In this way, looking at how much the

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heirs were charged for this succession practices, we can understand better the systems of land

transmission. Indeed, despite inequality, heirs tried to be fair (Wall, 1998). In some cases, the

costs were quite high and difficult to pay with only the heirs’ incomes especially when the

property was small. The main costs for the universal and beneficed heirs were: provide money

for the deceiced person’s salvation, dowries or legacies from the legitime, simple legacies,

usufructs, pensions and debts.

The expenses for funeral or for salvation reached about 50% of the total costs for the

universal heir, in our sample, and 62% for the beneficed heirs. These heirs were responsible

for the payment of theses expenses except when the surviving spouse received all assets in

usufruct. When this happened, the spouse became responsible for paying all the expenses

relative to the succession and the inheritance.

Table nº 3: Costs for the main heir and the beneficed heir

Source: Archive of Braga’s District. Parish Registers. Wills’Books of 12 parishes of Braga’s rural area.

First and foremost, the way salvation was secured was by constituting a set of goods and

services that the heir had to arrange for the testator’s burial: the shroud and exhibition of the

corpse, the religious ceremonies, and the funeral meal (ARAÚJO, 1997:98). When the

deceiced person rested in peace, a new phase started with masses given in the intentions and

the devotions of the deceased, donations distributed the donations to the institutions or people

named in the will (priest, poor, shelters, convents). Adding all the costs of these acts, the

Main Heir % Beneficed Heir

% TOTAL %

For the soul 687 46,9 166 61,9 853 49,2 Legacies/Legitime 203 13,8 14 5,2 217 12,5 Legacies 246 16,8 43 16,1 289 16,7 Usufruct 153 10,4 6 2,2 159 9,2 Debts 177 12,1 39 14,6 216 12,4 TOTAL 1.466 100 268 100 1.734 100

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universal or beneficed heirs of our sample ended up paying an expense that could reach from

the 10.000 reis for a humble care to 30.000 reis, for a first-rate care, without ostentation

though.

The named heirs also had to pay the legacies from the legitime or the dowries given to the

descendents excluded from succession and inheritance. However, only 13,8% of the named

heirs were obliged to comply to these payments. Three reasons explain this non-compliance:

- Firstly, the legacies from the legitime were only for direct descendants, given

that the children were considered compulsory heirs. Considering that many were unmarried or

married and widowed testators without any descendants, the universal heir was not obliged to

pay the legacies from the legitime but he had to pay other expenses such as pensions and

usufructs.

- Secondly, the heirs that did not receive the usufruct strait away, despite being

named, were also not obliged to pay the above-mentioned costs. In this case they were the

responsibility of the usufructuaries.

- Thirdly, in this sample, there was a significant number of wills which indicated

that dowries and legacies from the legitime had already been paid by the parents, when the

children married, were ordained or emigrated. In these situations, the will was used to

officially name the successor and heir and to declare the other descendants as “paid and

satisfied of the possible legitime”.

The desire to “help” the ones that had left the house, to give to each one of the descendants

“his or her part in money” or the obligation to “give to the brothers their share after reducing

all expenses” are expressions repeatedly used in the studied wills. These expressions indicate

that the choice and nomination of a universal successor/heir was not done for free. To prove

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the importance of this issue in the succession acts, we have found 103 wills that provide the

composition and sums of money that had been given.

Table nº 4: Composition of the descendants’ legacies from the legitime paid by the successors and universal heirs

MALE FEMALE TOTAL % Money 144 183 327 68,4 Clothes 4 24 28 5,9 Household linens 2 26 28 5,9 Jewelleries - 18 18 3,8 Furniture 4 10 14 2,9 Safes 10 27 37 7,7 Beds 1 5 6 1,2 Animals 1 4 5 1,0 Lands 3 4 7 1,5 Tools 1 7 8 1,7 TOTAL 478 100%

Source: Archive of Braga’s District. Parish Registers. Wills’Books of 12 parishes of Braga’s rural area.

These sums “when conveniently calculated … could really be favourable” to the interests of

the excluded heirs. “In fact, the inheritance parts were only available after the death of the

parents and demanded the participation of the debts and expenses. On the contrary, the

monetary compensations were clear of debts and expenses and were usually paid for when the

children left the house to marry” (Brandão, 1994:246).

On table nº 4 we can see that most part of the legacies from the legitime were in money,

clothes, household linens, jewelleries and safes where it was possible to keep precious things.

By giving these objects in advance, it was possible for the “peasants’ daughters to marry

someone with an identical social status”.

Therefore, it was mainly for their single daughters that testators offered considerable sums of

money as well as other goods of significant value, which all together made up the dowry.

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Minho’s peasants invested more in the female members of the family than in the male ones,

becase the daughters did not have other possibilities to settle down comfortably but through

marriage. But this behaviour created other disparities between the heirs who were excluded

from a share of land.

Table nº 5: Distribution of the legacies from the legitime in money paid by the successors and universal heirs

MALE % FEMALE % TOTAL % < 10.000 reis 21 14,7 16 8,9 37 11,4 10.000 – 20.000 rs. 25 17,5 28 15,6 53 16,4 20.000 – 60.000 rs. 55 38,5 66 36,7 121 37,5 60.000 – 100.000 rs. 7 4,8 11 6,0 18 5,6 > 100.000 rs. 35 24,5 59 32,8 94 29,1 TOTAL 143 100 180 100 323 * 100

Source: Archive of Braga’s District. Parish Registers. Wills’ Books of 12 parishes of Braga’s rural area. * In four cases the amount of money is unknown.

The main purposes of the legacies from the legitime were to finance marriage, priesthood,

replacement in another employment and emigration. Not all descendants could live in the

house so as to keep the agricultural exploitation undivided. The logic of the whole system of

land partition was to help the members of the family excluded from inheritance when parents

were still alive. When this happened, the peasant families tried to provide for their

descendants depending on their resources. This helped to avoid future conflicts between the

named successor/heir, who had to pay high expenses, and the excluded heirs who otherwise

became economically dependent.

To illustrate this situation there are about one hundred wills in our sample where testators

named their descendant to inherit the land, outlined what had been given to the other children,

and stated whether they were happy or not. The descendants that had already left their father’s

house, with a financial help from the family, had three possibilities or options:

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- Firstly, they were totally excluded from the parents’ will and forbade to claim

their compensation from the heir;

- Secondly, they were not excluded but the parents’ will suggested that they had

already been compensated and were satisfied. The will also mentioned a set of reasons to

punish them in the case they did not accept their parents’ decision;

- Thirdly, they could claim their share but all that they had previously received

from the parents was deducted from their share of the legitime, which was calculated only

from the partible goods and after they had paid all the expenses and debts. To sum up, all was

used to discourage the claims of the descendants who had already left and were established

outside the father’s house.

The named heirs also had to pay the legacies. In general, legacies were used to pay services

and to show teatators’ affection and friendship towards their families and friends, as well as to

distribute some personal objects to those who deserved them.

The testators without descendants or compulsory heirs were the ones who most often used this

legal assistance to share their patrimony. Therefore, we can find the legacies in the wills of

unmarred testators as well as childless married or widowed testators. However, it is also

possible to find testators with children. They used legacies to increase the legitime of the

non-successors and help reducing the disparities between heirs, to express gratitude to the

ones that had helped through sickness and in aging or to protect the descendants with physical

weakness.

Nevertheless, the main beneficiaries of these legacies were nephews and nieces, the brothers,

godsons, relatives in general, servants and neighbours. These donations were similar to the

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legacies from the legitime and included small amounts of money, clothes, household linens,

jewelleries, safes, animals (bees, sheep, oxen), weapons, crops, agricultural and viticultural

tools, weaver’s looms, images of saints, lands’ rents, salaries, some small properties

(enclosures, hills, plots, gardens) or the liberty of some slaves.

We can say however that it was not because of the above-listed legacies that the

successors/heirs were overcharged. Usually legacies were paid with goods from the house or

with lent money. The heirs’inheritance could be somewhat reduced because of legacies yet

the expenses were not so high as the legacies from the legitime, which really reduced the size

of the inheritance and could even force the heirs to debts.

Legitimes and legacies were sometimes followed by usufructs and pensions that aimed to give

some help to unmarried and widowed relatives. Imagining the difficulties that could arouse

between the named heir and his close family, the testator usually tried to ensure that all had a

house to live in and enough to survive. For this, he would donate them several small

secondary buildings, or a room in the main house, land for kitchen-gardening, or other

purposes, as well as a part or the totality of the usufruct over the inherited property.

The surviving spouses and descendants were the ones who most benefited from these benefits,

especially before receiving the legitime and if they were still single. But the childless testators

also worried about the survival of the relatives or people they particularly affectionated

because they had lived together or they had been treated with kindness or assisted through

sickness and oldage. This explains why usufructs and pensions were given to sisters and

brothers, ascendants, nephews and nieces, maids and even to one slave.

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In addition to all these obligations, the named heir also had to pay the testator’s debts. The

wills helped revealing the reality about money shortages in these rural communities but how

common these were in other Minho’s regions. Everybody owed money to everybody.

Parishioners, priests, merchants, craftsmen, lessees, farm managers, renters and day-labourers

were some of the social groups that had run into debts or had lent money to others who in turn

had run into debts or had lent money from others.

After the testators’ death, most of the heirs had to make accounting for what they were

entitled to receive and pay in order to collect the amounts of money that was owed to them

and with it they paid the testators’ debts. However, in our sample, very few testators (147)

refered to the amount of the debts and to the name of the creditors. Despite the incomplete

information, we can argue that mainly men declared the existence and the amount of their

debts. Women were less inclined to declare debts and when they did, they were mainly small

debts (65%). Women were not the ones who contacted debts the most in the rural world. On

the contrary, they were the main creditors. Since these women possessed some savings, which

they had received from the legitime, dowries and legacies or from their work, their family and

neighbours asked them to borrow some money. Besides women, some landlords, renters,

pharmacists, surgeons, masons, blacksmiths and carpenters were also creditors of small

amounts of money. The creditors of large amounts of money were the descendants with no

succession rights, brothers and relatives, brotherhoods, clergymen, merchants and the

Misericórdia (charitable institution).

Information on debts and credits indicate that people in the rural communities were

permanently indebted. Foremost, they revealed the difficulties these people had to pay their

debts. Some of these debts were transmitted through generations by wills.

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Table nº 6: Distribution of the universal and beneficed heirs’ debts Amount MEN WOMEN TOTAL % < 5.000 reis 9 6 15 10,2 5.000 – 10.000 rs. 8 4 12 8,2 10.000 – 30.000 rs. 23 22 45 30,6 30.000 – 50.000 rs. 15 16 31 21,1 50.000 – 100.000 rs. 17 7 24 16,3 > 100.000 rs. 13 7 20 13,6 TOTAL 85 62 147 100 Amount of Debts 5.570.795 rs. 3.451.481 rs. 9.022.276 rs.

Source: Archive of Braga’s District. Parish Registers. Wills’ Books of 12 parishes of Braga’s rural area.

After his nomination, the main or universal heir had several tasks to fulfil as paying the debts,

giving the legacies, paying the pensions, distributing the usufructs, giving the legitime to the

other descendants and taking the necessary care for the salvation of the testator’s soul.

Therefore, we can conclude arguing that being chosen to succeed and inherit the family’s

agricultural business had more symbolic advantages than material ones. The heir inherited the

rights over the house and the agricultural land, the animals and the agricultural tools, the

saved and future crops as well as the personal estates. But the price to pay was usually much

higher than the profits he received and made. Besides the personal estates, however, the heir

inherited a name, a place in the community, the prestige and power and this inheritance could

not be bought. That is why the named heir had symbolic advantages over the other

descendants. But we need to know who among the named successors the possible heirs were.

The testator was partly free to decide to whom he would donate his patrimony but the law

imposed some restrictions in order to protect the closest members of the family. It is because

of these legal restrictions that family ties guided the various ways material and symbolic

patrimony was distributed in the peasant society.

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After analysing table nº 7, it is clear that the children were most often chosen by the testators

(44,4%) followed by the surviving spouse (26,7%) and collateral relatives (22,6%).

However, after taking a closer look at the data, we can see that the married testators first

preferred their surviving spouse and second only their children (Guimarães, 1986: 557-560).

This preference was even more common when the spouses who were named universal or

beneficed heirs, were also the usufructuary of the totality or main part of the exploitation’s

incomes. That is why wills were mostly used by the surviving spouse, the woman generally,

in the peasant society. Nonetheless, the inheritance practices hide the reasons for these

choices, which remain unknown today. We still cannot perceive the image and the role of the

spouse in the peasant society. It is necessary to analyse the different expressions and the

content of the wills in order to get a picture of married women’s role in the peasant family.

Table nº 7: The heirs’ choice and the family ties according with the testators’ sex and civil status (18th and 19th centuries)

Men Women Single Married Widower Single Married Widow

TOTAL

Not mentioned 1 - - 5 - 1 7 Direct descendants 7 125 145 22 97 213 609 Spouse - 181 - - 185 - 366 Ancestors 5 1 - 4 2 - 12 Collaterals 48 4 2 109 4 10 177 Uncles/Aunts - - - 1 - - 1 Nephews/Nieces 37 4 6 59 6 20 132 Godsons 1 - 1 2 - - 4 Other relatives 4 1 1 5 - 3 14 Without consanguinity 8 - 3 31 1 6 50 TOTAL 111 318 158 238 295 253 1.372 Source: Archive of Braga’s District. Parish Registers. Wills’ Books of 12 parishes of Braga’s rural area.

The testators chose women as main heirs and successors because of their wisdom, their

experience, and their ability to cultivate, rule and manage the agricultural exploitation, which

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made them the most efficient administrators (Durães, 2000: 376-385). In difficult moments

when the survival and the well-being of the family were at risk, matrimonial confidence and

solidarity were revealed in the testator’s last will, prompted by the sign of early death before

his wife. To her the testators trusted the management of the house, assured that she could

secure the economic survival and the well-being of the family. The married testatrix had a

similar behaviour. When death affected them before their spouse, they generally chose the

husband to run the agricultural exploitation that they owned.

Therefore, married men and women did not test only because they were married but more

importantly because they had children, in order to name someone who would inherit the rights

and duties stated in the renting contract. In this way, 36,5% of the testators who named direct

descendants as heirs were married testators, 58,7% were widowed testators and 4,8% were

unmarried testators.

All the descendants were present in the wills because the law forbade their exclusion at the

time of succession and inheritance. They were considered as compulsory heirs so that the

Portuguese judicial system did not allow exclusion except in some exceptional cases. For this

reason, the testators were usually very careful when they indicated and named the

descendants. In general, they named them by birth order, starting from the oldest one to the

youngest one. They mentioned their marital status, their residence, and whether or not they

had already left their father’s house. In the latter case, they mentioned the date of departure

and the destination, the compensation the family had paid (if any), whether they were satisfied

with their compensation or not, whether they had received a dowry or not, when they had

received it, its value, and whether they had the right to receive additional compensation or

not. All this was declared because it was necessary to reach some agreement and to see who

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had already been helped or not. In this way, they wished to avoid inequalities and secure the

well-being of those who remained in the house under the authority of the named heir or

successor.

Among all the descendants who was the one chosen to be the universal or main successor/

heir in the peasant house?

As we can see on table nº 8, the testators of our sample did not feel obliged to donate their

patrimony to the first-born child nor to the male descendants. Among the descendants who

were chosen as the main successor and heir (in 41,4% of the cases), the first-born son (in

38,7% of the cases) had a small edge over the first-born daughter (in 25,5% of the cases).

However, if we consider only the sex of the descendants, ignoring birth order, female

descendants (in 48,2% of the cases) had as great a chance to be advantaged as male

decendants (in 51,8% of the cases). This trend appeared through the period that we have

analysed, and it allows us to reaffirm and to understand the important role that Minho’s

women played in the family and in the peasant economy. In Minho, the female descendants

were not excluded from succession, unlike in other regions where the written law had been

influenced by Roman law (and therefore were favorable to male inheritance, generally first-

born male inheritance). Indeed women enjoyed the same rights to succession as men.

While the state law indicated that men should be preferred over women in the succession, in

reality the opposite happened and women were chosen over men by parents who used

testamentary succession to name women as their successors. The testators, who chose a

woman to be their main successor and heir, justidied their decision in the following way: to

guarantee their protection through old age, to express gratitude for the affections and services

21

given through sickness or to compensate for the salaries that should have been paid earlier for

the work done in the house through the years. The chosen woman could be a daughter or a

granddaughter for those that had direct descendants, and a sister or a niece for those without

children.

Table nº 8: The choice of a successor in the universal and beneficed inheritance

(18th and 19th centuries)

Testators with Children Testators without Children

Universal

InheritanceBeneficed

InheritanceUniversal

InheritanceBeneficed

Inheritance

TOTAL

Spouse 75 40 196 33 344 First-born male 172 21 - - 193 First-born female 103 24 - - 127 Male 47 7 - - 54 Female 49 43 - - 92 Youngest Child male 6 6 - - 12 Youngest Child female 12 9 - - 21 Grandchildren 7 2 5 - 14 Collaterals - - 153 1 154 Ancestors - - 12 - 12 Uncles/Aunts - - 1 - 1 Nephews/Nieces - - 117 1 118 Others - - 54 2 56 For the soul - - 4 - 4 TOTAL 456 130 557 59 1.202

Source: Archive of Braga’s District. Parish Registers. Wills’ Books of 12 parishes of Braga’s rural area.

To sum up, all succession and inheritance strategies for Minho peasants to transmit their

houses followed two opposite sets of rules. On the one hand, the General Law of the

Kingdom, and on the other hand the legal rules that defined property succession and which

were dominant in this region as a result of the forms of land exploitation adopted by the

landlords.

22

The General Law of the Kingdom has always proclaimed that the descendants had equal

rights to inheritance and reaffirmed the sacredness of the legitime. The best way to have

access the land was by contracts and these followed a set of rules that determined the

succession and forbade the division of the rented lands. Because of this, Minho peasants

elaborated a set of strategies that secured equality, indivisibility and protection through old

age and sickness. The first two objectives, equality and indivisibility, were fulfilled using the

rules of the inheritance law and testamentary succession. The guarantee of protection through

old age was obtained as people had the freedom to write a will. This legal act has always

been one of the major characteristics of the national inheritance law, only the available quota

varied from wills to wills.

Depending on interests and the needs of each family or social group, the judicial system was

modified by a set of practices of which succession and inheritance were two different

processes. It was possible to inherit the management of the house, its name, its status and its

place within the community, its titles, the respect and the work that went with it, but also the

debts and expenses for descendants’ compensations. Besides, it was possible to inherit the

real estate (allodials) or its value (lands with contracts in lives) and the partible goods

(furniture, clothes, jewelleries, money, working tools, animals, etc).

Even though the Laws of the Kingdom relegated the surviving spouse to the group of non-

compulsory heirs, he or she was usually named the main heir or at least the usufructuary of

the whole or a large part of the agricultural exploitation’s incomes. These laws also privileged

the male heirs and relagated women to a secondary position. Parents however always tried to

place women at an equal level with their brothers and in some circumstances, female

descendants were even preferred to male descendants. The Laws of the Kingdom not only

23

established equality between the compulsory heirs but they also forbade the division of rented

properties. As a consequence, landlords always found ways to conciliate these two principles,

though they seemed incompatible at first sight. Thus, we can state that practices prevailed

over the law. The latter was not forgotten or set aside but they were only avoided when

specific family circumstances demanded and allowed it.

However, when the liberal reforms were imposed in the course of the nineteenth century, it

became more difficult to continue these practices. With the confiscation of ecclesiastic

property, peasants were given the opportunity to regain their rights and unite the practical

domain with the property real domain. The foundations of the seigniorial regime were

however destroyed and in the same way the judicial regime of land exploitation was

transformed. Most of the agricultural exploitations that were leased became free properties

upon which the General Law of the Kingdom was applied, particularly those of inheritance

and succession. Minho’s agricultural exploitations experienceda period of division and

dispersion enhanced by the economic difficulties caused by the system of single succession/

universal heir, by the rise of demographic pressure and mainly by the cultural system

dominant in Minho, where the possession of land was the most important element of prestige,

social and economic power. From this moment onwards it became more difficult to persuade

heirs to accept money in exchange for their parcel of land.

In this manner, with the liberal reforms the equalitarian practices soon prevailed despite single

inheritance and the universal heirship, but this became more rare and difficult to maintain.

However, these practices continue to exist in the Portuguese society as publications in the

various social science disciplines testify.

24

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