Surprise Heirs: Illegitimacy, Patrimonial Rights, and Legal Nationalism in Luso-Brazilian Inheritance, 1750-1821 - Vol. 1

By Linda Lewin | Go to book overview
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CHAPTER 1
Inheritance As a Legal System

And if law students find stronger systematization and a clearer ex
position in my book than in what they find in that of Gouvêa
Pinto, when, as now, they go about collecting the elements of suc
cession law, then I will not have written a useless work.

Clovis Bevilaqua, Direito das successões (1899) 1

The position of individuals who were illegitimate in Brazilian inheritance law can be apprehended only by acquiring familiarity with a set of key concepts. Those concepts, however, need to be appreciated within a historical context, due to the considerable change imposed on family and inheritance law after 1750. Together with a set of terms articulating the language of the inheritance system, the concepts demonstrate the admirable logic on which Brazil's inheritance system rested. Before approaching the special position that several categories of illegitimate individuals occupied in Luso-Brazilian inheritance, the broad features of that system deserve explanation. In this respect, Jack Goody's notion of “diverging devolution” is very helpful. He has emphasized that inheritance deserves to be seen as a system of devolution by which “rights are transferred to the heir over the life-span of the holder, whether at birth, marriage, or the holder's death.” Rights to goods—property—“diverge” because they are grounded in a European system of kinship that is bilateral or cognatic, meaning that ordinarily property devolves to descendants of both sexes and from female as well as male relatives, in accordance with the rule of “equal shares for all.” In restricted contexts, such as dowry and dower, engendered rules can apply. Moreover, patrimony often devolves prior to the parent's death. Succession and bequests therefore must be considered as part of a more comprehensive set of property transfers from older to younger generations that encompasses matrimonial property as well as gifts inter vivos. 2 Inheritance mechanisms per se, consequently, comprise only one of several ways that property is transferred through generations.

-19-

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