Gavelkind

Simply put, possession of land equalled power. The laws of primogeniture and ultimogeniture existed to keep estates together. There were places, however, in which these laws did not apply and entirely different practices took place.

Gavelkind was a system of partible inheritance; that is, estates were not kept together at the holder's death but distributed among the heirs—excuse me, among the male heirs. It was used in Kent, even after the Norman Invasion (through special arrangement), although the aforementioned other methods of inheritance applied elsewhere in England.

The holder of the land, if he were 15 years old or older, had authority to pass on part (or all) of his land and create his own mini-fiefdom. He could divide it any way he liked in his will. If he died intestate, however, other rules applied:

• His widow, if they had no children, got half the estate (the other half went to the crown); if she remarried, she lived with her new husband's estate and lost her deceased husband's land.
• In the case of existing children, the land was divided equally among the male heirs. If a son had died and left grandsons, they would divide their deceased father's share.

Gavelkind existed in Ireland and Wales, and this may explain the name. Traditional Irish law divided the father's land among all the sons. Best guess is that it is from the Old Irish phrase Gavail-kinne, "family settlement." In Wales this was called cyfran, an ancient tradition passed down orally until Hywel Dda, a king who ruled most of Wales by the time of his death around 950, codified the legal system. Cyfran stated that all sons would inherit equally, even those who were illegitimate. This was great for the heirs, but bad for the land. It diluted wealth and power, which some might consider good and democratic, but it also increased competition among siblings whose estate was a fraction of the one on which they grew up. In 1535, the Laws in Wales Acts replaced gavelkind with primogeniture. Actions replacing gavelkind are referred to as "disgavelling."

I said I'd discuss Knight-service as well, but it deserves its own entry, so...next time?

Copyhold

Recent posts discussed practices of inheritance such as primogeniture and ultimogeniture. There was also, evolving from the feudal system, a practice that could pre-determine how real estate was passed from one person to another independent of genealogy.

Copyhold was a form of land ownership that lasted into modern times in England. Its name is simply derived from giving the landholder a copy of the land title, rather than the original deed. The legal owner was called the copyholder (even though the copy was physically held by his tenant).

Copyhold existed until the Law of Property Act of 1925, even though feudalism had disappeared by the early 1500s. As in feudalism, the tenant in a copyhold had responsibilities. These varied and could include maintenance of the land, service to the lord, or rent paid in money or goods. The tenant could have rights to natural resources such as gathering wood, or hunting on the land, and could be granted a certain number of animals allowed to graze on the common areas.

Copyhold could be passed on in two ways (of course the tenant could simply give the copy back to the lord and move away). The tenant could include the tenancy in a will, but the lord could recall the copyhold if he felt the inheritor could not fulfill the responsibilities involved. The holder, however, had opportunities to ask to "sell" it to another by arranging with the lord to return it and have it granted to another of the original holder's choosing.

There was also "Copyhold for lives." In this arrangement, the copyhold was actually granted with more than one person attached to the deed. A primary tenant would have the expected rights and duties, and upon his death it would automatically be passed on to the next in line. This created ahead of time a queue for how the land would be passed along. It was possible to change names in the succession by paying a fine to the lord, but this method made it more difficult for the original tenant to change his mind about his successor.

There were a few different systems to the west, in Ireland and Wales. Tomorrow I'll talk about gavelkind and knight-service, and then we'll move on.

Inheritance by the Youngest

We are accustomed to linking inheritance with a preference for the eldest, even without strict primogeniture involved. In New York State in 2021, if one dies intestate, their possessions are distributed equally among all members of the immediate family. Someone in the family, however, needs to be designated as executor, and the law offers the job to the siblings according to age.

There have been situations in the past, however, when the youngest member of the family had preference. The technical term is ultimogeniture, and was also known as junior right or postremogeniture.

The Bible notes that Isaac, Jacob, and David were youngest sons, as was Joseph with his coat of many colors. Hesiod's Theogony describes both Cronus and Zeus as the youngest of their respective families. There is nothing in Hebrew or Greek law that suggests ultimogeniture was practiced, but they saw some significance in being the youngest.

More recently, in Medieval England, ancient English boroughs sometimes practiced ultimogeniture. It was found in rural areas with Saxon citizens as opposed to Norman French-oriented areas where primogeniture was practiced.

No legal writing exists that explains the benefit of ultimogeniture, but we can conjecture, and that leads me to the picture I've included here. The Amish practice ultimogeniture. As each son reaches an age where he wants to start his own family and farm, the question arises of what he should do. His father, however, is still hale enough to farm, and is not going to turn his own farm over to one of his children. Arrangements are made to find land for the son. Elder sons might even go work for someone else or take on another trade. By the time the youngest son is ready to have a family and farm, the father is likely now old enough to retire and turn the farm over. (Handled properly, this can also avoid estate taxes.)

That might explain some of the historical reasoning for ultimogeniture: the simple fact that the father maintains the estate for as long as he can, the elder sons cannot wait around for him to die, and so they go off to find their own careers, and ultimately the youngest is still around when the father is ready to retire. In my own family history, a house that was owned from 1837 until the 1960s was taken over by the youngest person in each succeeding generation once the father died; the widow stayed in the home while the youngest son raised his own family there.

Ultimogeniture—which was all about transferring property from one generation to the next—did not preclude partible inheritance, the dividing of the land (making sure that elder sons got something as well). Partible inheritance was not welcome in the feudal system, where the lord wanted to maintain control over an intact estate. There was a practice, however, that allowed transfer of land rights that was not quite feudal and was not based on genealogy. Next time, I'll explain copyhold.