Inheritance law in the Grand Duchy of Lithuania

Belyaev Mikhail Petrovich ORCID: 0000-0002-5912-1048 PhD in History Associate Professor, Department of Jurisprudence, Russian University of Cooperation 141014, Russia, Moscow region, Mytishchi, Vera Voloshina str., 12/30 babek-han@mail.ru

Elyazyan Anna Shagenovna ORCID: 0000-0003-0708-7455 PhD in Sociology Acting Head of the Department of Jurisprudence, Associate Professor, Department of Jurisprudence, Russian University of Cooperation 141014, Russia, Moscow region, Mytishchi, Vera Voloshina str., 12/30 elyazyan.77@mail.ru

The subject of the study is the legislation and customary law of the Grand Duchy of Lithuania regulating hereditary legal relations. The study of the history, including the history of state and law, of the post-Soviet countries is of great scientific interest. The focus of attention of domestic legal historians is mainly on the problems of the history of the state and law of Russia and foreign countries. This article is based mainly on the research of modern Belarusian and Ukrainian legal historians. The methodology of developing the topic of this work includes general scientific and special research methods, including dialectical, historical-legal, comparative-legal and systemic.

The transfer of a set of property rights as a result of a person's death to other persons is called inheritance. In Ancient Russia, the order of inheritance was regulated by customs, which had certain peculiarities in different lands. The norms of customary law have been in effect for quite a long time, especially in relation to ordinary people, for example, the right to inherit real estate after the death of a father by a younger son or in the absence of sons to daughters and others. Even then, inheritance was distinguished by law and by will. Written monuments of ancient Russian law (for example, the international treaty of Polotsk, Vitebsk, Smolensk principalities with the "Riga and Gotha coast" in 1229, etc.) also contained separate rules of inheritance law.

Since the 15th century, there has been a tendency in the Grand Duchy of Lithuania (hereinafter – ON) to increase the role of legislative and doctrinal sources of law. When codifying legislation, canonical, ecclesiastical, Roman, Magdeburg law is actively used, which, together with customary law, acquires the character of auxiliary (subsidiary) sources of law.

Inheritance law developed as a separate institution of civil law under the influence of general socio-economic changes in feudal society, directly related to the formation of the class division of society. In this regard, the hereditary rights of representatives of different estates had certain differences. In the common land charters, it is traced how the foundations, the order and the limits of inheritance of property by the emerging gentry estate are gradually being formed ^{[2, p. 4]}.

Inheritance requires a certain blood relationship of people and is closely related to marital and family relations, which were influenced by the clergy. The direct heirs are persons who, together with the testator, have formed a family: children, wife, parents. The family principle underlies the inheritance of property in Roman law, and it existed in customary law. As social relations developed, the weaker the communal ones became, the stronger the blood ties. Initially, the right of inheritance belonged to a limited circle of relatives, but later the circle of heirs expanded ^{[3, pp. 70-71]}.

The order of inheritance of property in the prosperous period in the INCL was regulated by customary law, which had its own peculiarities in various lands. From the written sources of law that have come down to us, we see that the heirs of the first stage were the sons. Married daughters who lived separately from their parents were not included in the circle of heirs (they received their share as a dowry when they got married). The unmarried daughters of the testator had the right to a part of the property, the amount of which was determined by custom or the will of the parents ^{[2, p. 9-10]}.

Female persons inherited only in the absence of male descendants. If there were men, they did not receive a share in the inheritance, but a certain part of the property (veno) to ensure their future position. Gradually, this order begins to lose its importance. The property assigned to the daughters is sometimes indicated as an inherited share. Based on tradition, theoretically, the wife's hereditary rights were not recognized, but a widow could receive all or part of the property from her late husband. The father who married his daughter off not only had to provide her with a dowry, but also require his son-in-law to secure her a dowry. Usually, the veno recorded twice the amount of money that a woman contributed to her husband's house, but not more than a third of her husband's entire property (the so-called "widow's table"). Although the law provided for the preservation of real estate in male hands, it made an exception for the widow, allowing the issuance of wills for the lifetime use of the property by the widow. As a rule, parents did not receive their children's property. Only in the absence of heirs in the future did this become possible ^{[3, pp. 71-72] [9, p. 164]}.

The legislator of the INCL, in an effort to establish a general rule of law throughout the territory of the state, was forced to take into account customs when folding national written law. The Gorodelsky graft of 1413 stated that children cannot be deprived of their father's inheritance, and at the same time consolidated the principle that maternal property has a status. These provisions subsequently formed the basis of statutory legislation.

The institution of inheritance in the CCL was formalized in parallel with the formation of the nobility class and was actually its material support. They became gentry mainly by birth and as a result of the gift of nobility. During this period, especially in the late XV-early XVI centuries, the nobility demanded legislative consolidation of the disposal of real estate. The different legal status of feudal landholdings ("kupleniny", "fatherland", "holding") caused differences in the inheritance of real estate. In addition, it was necessary to take care of the fate of the testator's daughters ^{[3, p. 72]}.

Since the 14th century, the cities of the Russian Federation began to receive urban self-government on the basis of Magdeburg law. At first, it concerned only the German population, and then it extended to all citizens. The heirs under Magdeburg law were both the sons and daughters of the deceased. If there were no legitimate heirs or they did not accept the inheritance within a certain period, the property was considered extortionate and was spent on the needs of monasteries and the city. In private-owned cities, two thirds of the property was inherited by law to children to ensure their duties in favor of the owner. In the case of inheritance by will ("testamentum"), certain formalities had to be observed. A spiritual will was drawn up in writing, signed by the testator and his attorney (executor of the testator's will) or a priest. Then, the will had to be witnessed in the judicial authorities ^{[7, p. 21]}.

Along with customary and written law, judicial practice also influenced the formation of the institution of inheritance. It was often the court decision in a particular case that was the basis for the consolidation of a new rule of law in the law.

So, in January 1509, Adam Mikhailovich, Nikolai Butkevich and Jan Zychilo filed a lawsuit against the widow of Pan Alexander Monkgirdovich in the court of the Grand Duke and the Panov Rada. The plaintiffs' wives were nieces of Pan Alexander. Since there were no direct heirs, the nieces claimed the inheritance of the deceased along the side line. However, Pan Alexander gave one of his estates to his wife, and on the second he wrote down a veno for her. Thus, the widow alone owned all the real estate of her deceased husband, and, according to the plaintiffs, disposed of it to the detriment of the interests of close relatives. The Grand Duke and the Pan-Rada, considering this state of affairs unfair, satisfied the claims of the plaintiffs. At the same time, on the basis of this decision, a charter (resolution) was adopted, which read: "From now on, if I wanted to write down my name on my name, then I should write down my name on my name not on the whole name, but only on the third part of my name of everything, both fatherland and service." Further, the charter regulated in sufficient detail the procedure for the disposal of widowed property, as well as the hereditary rights of children to the specified property. The text of the charter was the basis for Article 1 of Section IV of the Statute of 1529 ^{[15, pp. 89-90]}: "A widow who remains in her widowhood has a veno and adult sons from her husband, must remain only with her veno, and sons must be admitted to all parental estates and property and must perform zemstvo service. If she does not have a veno from her husband, she must receive an equal share in jewelry and movable and immovable property in everything with her adult children"^{[12, p. 228]}. 

Another decision of the Grand Ducal Court in a specific case had an impact on the content of the First Statute of the INCL. In February 1529, the Grand Duke and the Pan-Rada considered the case of dividing the estates of Pan Litavor Hrebtovich between his widow, Pani Jadwiga and children. Mrs. Jadwiga sought to allocate an equal share with her children in the division of her deceased husband's land. At the same time, she referred to the decision of the Grand Duke and the Panov Rada, adopted in 1522 in the case of Pani Alzbeta, widow of the governor of Vilna Nikolai Nikolaevich Radziwill, and asked "that she be judged with the same right as Yesmo and Panei voivodinoi Vilna tale." Then in 1522 the court decided to divide all the lands of Nikolai Radziwill into four equal shares for the widow and three sons. As follows from the materials of the case of 1529, at the same time, in 1522, the charter and the zemstvo charter regulating the inheritance rights of unmarried widows were adopted. In this case, the widow received equal shares with the children. On the basis of this charter, the Grand Duke satisfied the requirements of Mrs. Jadwiga Hrebtovich. This norm was subsequently fixed in art. 3 sec. IV of the Statute of 1529 ^{[15, pp. 89-90]}: "If a woman were married, had children with her husband, and her husband would not write her down and died, then she, remaining a widow, should receive an equal share of estates and property with her children and should remain on this share for life, if she wanted to be a widow, and the children should not take away this share from her; and if she wanted to get married, she should leave her share to the children..." ^{[12, pp. 228-229]} 

In the INCL, inheritance law took shape as a legal institution as a result of the consolidation of relevant norms in the Statute of 1529. It pays considerable attention to inheritance. The previously adopted regional and all-Russian charters, first of all, of the Grand Dukes Vytautas, Kazimir, Alexander, as well as customary law and judicial practice, were summarized. The First Statute clearly establishes the order of inheritance of gentry property: as a general rule, sons inherited parental property, and sons and daughters inherited maternal property in equal shares. The heirs by law were children, then brothers and sisters, and then the parents of the deceased. The Statute established a rule regarding which children could not be deprived of property after the death of their parents, except in cases where they committed treason. There were other exceptions to the general rule. A girl who married without parental consent not only lost the right to a dowry, but also lost the right to inherit maternal and paternal property, even if she was the only daughter (sect. VI, art. 11). If the son insulted the father, the latter had the right to deprive him of the right of inheritance with the consent of the authorities. In this situation, if the father had one son, then two parts of the property passed to relatives, and he could dispose of the third part at his own discretion. In similar cases, the mother could also remove the daughter from her part of the inheritance. The first Statute did not allow the deprivation of the right of inheritance through a spiritual record ^{[2, p. 12]}; ^{[3, p. 72-73]}; ^{[5, p. 10]}; ^{[6, p. 375]}; ^{[7, p. 19]}; ^{[10, p. 477]}.

A girl who got married "on someone else's land" was deprived of the right to own real estate, but the part of the property that was due to her was assessed and transferred to her in a monetary amount. The property passed to other children or "those to whom it is close" (Sec. IV, art. 9). Children who committed the murder of a brother or sister in order to seize an inheritance were deprived of the right to inherit and were punishable by death (section VII, art. 15). The rights of sons and daughters to inheritance were generally different, since it concerned the military service of the owner of the estate and, in particular, in the difference between parental and maternal property. The law took more care of the testator's sons. Daughters usually received property as a dowry. The statute defined the right of daughters to 1/4 of the property, and even if there was one son and many daughters, they all had the right to the same 1/4 part (Sec. IV, art. 7). In the event of the death of one of the heirs, his share passed to his brothers. Maternal property is also "a sister has an equal share between brothers" (Sec. IV, art. 12). The heirs of the will could receive no more than 1/3 of the property (Sec. I, art. 15), but by law it was required to obtain permission from the local administration (Sec. I, art. 17). The first Statute also guaranteed the burghers the right to make a will, which actually equated the burgher with the gentry ^{[3, p. 73]}; ^{[5, p. 11]}.

The law regulated the rights of widows in relation to inherited property. If she did not have children, she could "sit on the third part until she got married," and if she did not get married, own property for the rest of her life. The other two parts of the property (and after her death, all the property) passed to "her husband's relatives" (sect. IV, art. 2). This applied to those widows who did not have a vein. Another status was for "revered" widows, where the husband's property was the material support of the wife's dowry. Due to the fact that the dowry became the common property of the family, there was a need to return it in case of divorce. The law obliged the father to take care of the safety of his daughter, recording in her favor a part of her husband's property (sect. IV, art. 8). As a rule, the husband transferred to his wife no more than 1/3 of his property as a veno. After the death of her husband, the "venated" widow had the right only to "live in Vienna" (Sec. IV, art. 2) ^{[3, p. 74]}.

The Statute of 1566 significantly supplemented and developed the provisions concerning the regulation of inheritance law in connection with the permission of all feudal lords to dispose of real estate. He clarified and supplemented the rules governing the inheritance of maternal and paternal property. Upon inheritance of the mother's property, as under the Statute of 1529, it was divided equally. Regarding the paternal inheritance, the Statute of 1566 made some additions. In particular, only legitimate children had the right to inherit their father's property.

Under the influence of humanistic ideas, a progressive norm was written into the Second Statute, according to which children from several marriages received equal rights to parental property ^{[2, pp. 12-13]}. At the same time, the different size of the dowry paid to the mothers of these children was taken into account. In this regard, the sons made a preliminary calculation among themselves, after which they divided the inheritance. In the event of the death of one of the brothers, part of the inheritance passed to the other brothers. Daughters inherited parental property only in the absence of sons ^{[3, p. 74]}.

The Statute of 1566 did not exclude from the rights to inherit real estate those girls who married foreigners. The law contains only the requirements that the husband should live in the principality on his estate and be obliged to serve military service for its possession, even though his wife did not record this property to him. The Statute of 1566 completely repeats the provisions of the First Statute on the loss of the right to receive inheritance by girls who married without the consent of their parents, and in their absence - without the consent of brothers or relatives and authorities. If a girl or a widow of gentry origin marries a man from a simple class, they lose all their property, which passes to relatives. However, those who have received an inheritance must provide such a woman with financial assistance. In addition, widows and girls who married a man from the common class lose their veins and lose all property. If a widow marries a second time earlier than six months after her husband's death, she also loses her vein (Sec. V, art. 12). The second Statute also regulated the inheritance of property in the absence of children. In this case, the parental property passed "by the sword", i.e. to the closest relatives of the husband, and the maternal property - "pa kudzeli" - to the relatives of the wife (Sec. III, art. 13, 14) ^{[3, p. 75]}; ^{[10, pp. 477-478]}.

The Statute of 1566 for the first time allocated wills to a special section "On testaments", although aspects of this legal institution are regulated in other sections. If there were no heirs by law and by will, the property was recognized as extortionate and transferred to the state treasury. Such a norm was introduced in the INCL for the first time ^{[7, pp. 19-20]}.

The Second Statute most fully set out the rules concerning unworthy heirs. In art. 7 of Section VIII "On Testaments", the grounds for disinheriting legitimate heirs by their parents were indicated:

– if the son raised his hand against his father or forcibly took away his estate;

– the children committed an attack on the life of their father or caused him a "significant injustice";

– children accused their parents of committing crimes out of anger or hatred, not for the public good;

– the children refused to vouch for their parents when they were in prison or did not want to bail;

– the daughter led a dissolute lifestyle, did not marry until the age of 25, despite the fact that her parents wanted to marry her off and gave her a dowry;

– the children refused to take care of their mentally ill parents;

– the children refused to buy their parents out of captivity;

– the children professed a heretical creed and do not want to return to the bosom of the Christian religion ^{[4, pp. 63, 65]}; ^{[13, pp. 353-354]}.

The deprivation of the sons of the right of inheritance could be done in the presence of a representative of the authorities. The latter should listen to the statement made, check its basis and then write it down in the appropriate book ^{[10, p. 479]}: "However, for this reason, the father cannot even deprive his son of any property recorded to him by will before those reasons, or which of them, he will declare to the government and write down in the books" ^{[13, p. 354]}. These provisions of the Statute of 1566 influenced the specifics of the regulation of inheritance in some provinces in accordance with the Code of Laws of the Russian Empire of 1842 ^{[4, p. 65]}; 

According to the Second Statute, the hereditary rights of burghers who lived in cities not endowed with Magdeburg law were limited. Unlike the gentry, the burghers of these cities could freely bequeath only a third of their movable property, and two thirds went to their children. If the philistine was childless, then this part passed to the feudal lord. The movable property of the burghers was mainly tools. The legislator, guided by the economic interests of the state, tried to stabilize the economic sphere, as a result of which entire dynasties of artisans and others were formed. If they had no children, then these two thirds of the property remained to the landowner anyway. In the grand ducal cities, the property of a philistine who died and left no heirs was transferred to the state. The purpose of this restriction was the care of the Grand Duke for the proper administration of duties of the unprivileged estates, which included the bourgeoisie. Consequently, it can be argued that the hereditary rights of burghers under the Second Statute are significantly limited, which indicates the dominant role of the gentry in the state ^{[5, pp. 11-12]}.

In the Statute of 1588, the issues of inheritance law received a more complete settlement. In the INCL, inheritance by law occurred in the absence of a will and in accordance with a certain order of the circle of relatives. First of all, the heirs were children, brothers, sisters, then the parents of the deceased person, and then other blood relatives. The law spoke rather vaguely about inheritance in lateral lines, calling them "offspring and descendants" (section III, art. 7). In the presence of sons, daughters received only a quarter of the value of the property, regardless of their number. They inherited their mother's property in equal shares with their brothers. After the death of her husband, the wife received no more than a third of his property for life. The heirs were considered to be the children or relatives of the husband in the male line ("by the sword"). The dowry of the wife in the event of her death, if there were no children, was returned to her family (sect. V., art. 19). Restrictions on women's rights to inherit their husbands' estates, as well as restrictions on the ability to disinherit children, were associated with the feudal obligation to perform military service and field a certain number of soldiers (section III, art. 17) ^{[2, p. 14]}; ^{[3, p. 75]}. However, as noted by Russian researcher T. I. Pelipenko, widows "were obliged to employ a certain number of servants, uniforms and horses" ^{[9, p. 170]}. If the testator died "without descendants, close descendants and heirs of his own," the property became extortionate and passed to the Grand Duke. Thus, the Statute of 1588 unified the order of inheritance of extortionate property on a national scale ^{[2, p. 14]}.

For the first time, the Third Statute regulates the order of inheritance of property acquired jointly in marriage, if the spouses did not have any property before. "Then, with all the property, the wife will have the rest." If they did not have children, such property was completely transferred to the surviving spouse. If they had children, 2/3 of the property passed to them, and 1/3 to the widow. After the death of childless spouses, the property was inherited by their relatives in equal shares (section V. art. 21) ^{[2, p. 14]}; ^{[3, p. 76]}.

Section VIII of the Statute of 1588 regulates the issues of inheritance by will: who has the right to bequeath real estate, how the testamentary record is drawn up, who should be present, in which cases the will is considered illegal, etc. Special attention was paid to the validity of the will of the testator and his legal capacity at the time of making the will. The main thing is the authenticity of the testator's will and his legal capacity at the time of making the will. In this regard, the most important condition for the reliability of testamentary records was the requirement to comply with a certain form. The beginning of the testament (the invocation of the Holy Trinity, etc.) indicates that the right of inheritance in its historical development was influenced by the church. The need to establish the authenticity of the will caused much higher formal requirements for them than for other transactions. Therefore, the legislator attaches great importance to the notarial form, although he also recognizes the home form of wills, which requires the presence of witnesses. The law establishes rules that are aimed at preventing the forgery of a will, for example, warns against making amendments, attributions, erasures and other things. A will that did not meet the necessary conditions could be appealed in court. The testator could at any time make a new will, which also needed to be executed properly. None of his promises about the immutability of his will were legally binding. In the case when the testator wrote several wills, the time of their manufacture was determined and the latter was recognized as valid. Only heirs could legally challenge wills ^{[2, pp. 13-14]}; ^{[3, pp. 76-77]}.

The law specifically stipulated who did not have the right to bequeath property: minors, persons deprived of liberty by court order, monks who were captured, household servants, the mentally ill (they could bequeath their property only after recovery), exiled and deprived of honor. The last two categories also could not acquire property by will. Those who were in captivity and the household servants could acquire property under the will only after receiving personal freedom. The law allowed free and unfree ordinary people to leave a will for only a third of their property. The remaining two thirds were inherited by children under any conditions (a mandatory share). The property that remained after the death of childless people was considered to be extortionate. It passed in parts into the ownership of the feudal lord (if the deceased was a serf) or the community (if the deceased was a free man). In the Third Statute, in the interests of non-Catholics, "heresy" was eliminated as a basis for disinheriting ^{[1, p. 85]}; ^{[8, p. 14]}; ^{[11, p. 130]}; ^{[14, p. 193]}.

The freedom to make wills primarily concerned movable property. The Statute of 1588 provided for the possibility to freely bequeath also purchased real estate that was not part of the family estate. A prerequisite for making a will was the presence of a priest or witnesses who were trustworthy. The statute also fixed some restrictions on the disposal of immovable family property, as well as on property acquired jointly in marriage (R. V., art. 2, 21, etc.). The nobleman had the right to bequeath to outsiders no more than a third of his father's and mother's estates, and the rest was to become the property of children or other legitimate heirs. An exception to this rule was made if the property was bequeathed to the Grand Duke. The restriction of the feudal lord's right to bequeath all property to outsiders, bypassing his legitimate heirs, contradicted their right to freely dispose of real estate. Under the pressure of the development of commodity-money relations, the legislator was forced to allow the gentry to participate more freely in various monetary transactions and at the same time sought to preserve the legal basis of feudal land ownership. The law speaks about how the testamentary record was drawn up, who should have been present at the same time, lists the grounds for invalidating the will, etc. The Statute regulates cases of emergency making of wills ^{[2, p. 13]}; ^{[8, p. 14]}; ^{[14, p. 194]}.

During the XVI century. there was a tendency to equalize the status of all types of land holdings, the institution of ownership was formed, which was most fully reflected in the Statute of 1588. Inheritance law under this Statute acquires such characteristic features as development and progressivity. Thanks to the latest achievements of European legal science and judicial practice, the institute of inheritance by law is being improved and is gaining more and more theoretical regulation. The process of development of hereditary legal relations according to the law follows the path of expanding the individual powers of subjects of inheritance law (especially the gentry), unification of the order of inheritance of immovable property ^{[2, p. 14-15]}.

According to a number of Belarusian scientists (Golubeva L. L., Dovnar T. I., etc.), during the XVI century. in the INCL. "the bourgeois institution of property was formed, which was most fully reflected in the Statute of 1588" ^{[2, p. 14]} In relation to hereditary relations, one cannot agree with this provision. VKL was a feudal state. According to the form of government, it was a class-representative monarchy. Each estate had its own rights, duties and privileges. Bourgeois law presupposes formal equality. The hereditary rights of the gentry, burghers and peasants were different. Therefore, there is no reason to talk about bourgeois legal institutions.

The formation of the institution of feudal property and the inclusion of real estate in trade turnover became the basis for the further development of hereditary legal relations, which was reflected in the Statutes of the INCL. In the Statute of 1588, inheritance law already acts as a certain sub-branch of civil law with a more complete and detailed regulation of all aspects of hereditary legal relations, with regulation of the rights and obligations of subjects of law, with clear regulation of issues of inheritance of property by law and by will, with special protection of women's hereditary rights, with the allocation of the so-called jointly acquired marital property of spouses ^{[2, pp. 15-17]}.

So, in the development of inheritance law in the INCL, several trends can be identified. Firstly, it is an expansion of the circle of heirs. If in the prosperous period only children were heirs, then the Third Statute already allocates four lines of heirs. Secondly, these are the limited hereditary rights of women, which, nevertheless, have been increasingly expanded mainly due to the abolition of a number of restrictions. For example, inheritance restrictions for women married to foreigners have been lifted. Thirdly, the inheritance law of the Russian Federation was of a class character and was closely related to conditional feudal land ownership. Speaking about the relevance of the issue under consideration, it should be noted that the study of inheritance law can serve to improve domestic civil legislation. Of particular interest in this regard are the legal norms concerning "unworthy heirs". A number of provisions can be borrowed, for example, on the deprivation of the right to inheritance in connection with the commission of immoral misconduct.   

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