Who Got the Cabin?

Cultures and societies have codified estate planning and inheritance laws for millennia. The Romans did it. Their successors in parts of Western Europe, the Germanic tribes, also known as Barbarians, did it. In the multi-century transition from Roman to and through Barbarian hegemony, various “Barbarian” law codes, promulgated between 450 and 750 CE, addressed what property one could leave (bequeath or devise) to another. 

Barbarian rulers, from the Spanish peninsula in the late 5th century to Charlemagne’s Frankish territory in the late 7th century, wrote and promulgated laws. These law codes, collectively referred to as the leges barbarorum, reflect the then-radical steps by Barbarian rulers of committing customary or oral laws to parchment, and of using Latin, the language of the Romans. The codes of Burgundian kings Gundobad and Sigismond date from the late 5th and early 6th centuries, the Salian Frankish codes, from Clovis in 507 to Charlemagne in 802/3, the Anglo-Saxon codes or “dooms”, from Aethelbert in the early 7th century through Alfred, and the Lombard codes, from Rothair in 643 to Aistulf in 750.  The Anglo-Saxons, Burgundians, Salian Franks and Lombards each have distinct histories, cultures, territories, and codes.  But for the most part, their respective codes are more similar to each other in structure and substance than any of them are to late Roman law. While the Codes echo their Roman antecedents in their adoption of written codification, unlike the earlier Roman legal texts, the leges barbarorum express the laws and customs of the barbarian societies.

This article focuses on the Burgundian Code, “the Code”, which more, and more clearly than the other codes, includes specific provisions addressing laws of inheritance. Many of the fundamentals of current estate and probate law in Minnesota can be found in the Code. A spouse, for instance, was entitled to what we might term a life estate in certain types of property. There are similarities between Burgundian protection of assets for the benefit of surviving family members and modern trusts. The rights of second spouses and stepchildren to estates and inheritances are discussed. The provisions discussing intestacy describe and usually prioritize distributions per stirpes. A number of provisions in the Code reiterated one’s ability to give or devise certain property to a chosen beneficiary, rather than one identified or determined by law. Under the Burgundian Code one could do this via a Roman or a Burgundian Will. Finally, if a Burgundian died intestate, without having declared or written a will, the Code describes the heirs to the property.

Different types of property were subject to different rules regarding inheritance. Essentially, there was property that individuals  made the decisions about, and there was property the Code controlled. Burgundians had the authority to devise common property; the fruits of one’s labor; clothing and vestments; the homestead; and “one’s own portion.”¹  The Code, in contrast, dictates the beneficiaries of the “sors” or allotments, lands allotted from Romans, and wedding gifts, two types of property which were not freely alienable. 

For those of us who find the need for two witnesses and a notary to execute a will to be burdensome, we can be thankful that we aren’t Burgundians in the 6th century, where 5-7 qualified witnesses were required for the document to be valid.

The first topic of King Gundobad’s first Burgundian Code allows “a father to give to anyone from the common property or from the produce of his labor.”²  This power to give or sell property is restated throughout the code, giving one “the power of giving or selling [property] to whomever he wishes.”³  Not only were there limits on the types of property one could devise but there were also limits on who one could prevent from receiving property. A parent, for instance, could not disinherit a child. For example, where a father “displayed insubordination” and had not given his son the portion due to the son and transferred property through “illegal written title” a court found for the son, awarding him the property.⁴ 

The Code gave both men and women the specific ability to make a will, in either the Roman way, by legal document, or the Burgundian way, to pronounce one’s intentions in front of qualified witnesses.⁵  Even an unmarried Burgundian girl had the legal ability to make a will. If she didn’t, intestacy laws directed the distribution of her property.⁶ For those of us who find the need for two witnesses and a notary to execute a will to be burdensome, we can be thankful that we aren’t Burgundians in the 6th century, where 5-7 qualified witnesses were required for the document to be valid.⁷ 

If a Burgundian died intestate, the Code gave direction about the distribution of their property. Though it did not include a “Table of Heirship” it did detail the “next owners” of property in the absence of direction from the decedent. For instance, where a son, without any descendants of his own, dies before his father, the son’s portion of his father’s estate returns to his father, but at the father’s death, it must be divided among the father’s other sons.⁸   If a mother leaving daughters and sons dies without a will, her clothing and ornaments go to her surviving daughters, and only to her sons if she had no daughters.⁹  Where a mother survives the father of her children and her children, the lawmakers revise the law later in the Code. In the earlier provision, she is permitted to use her children’s inheritance for her lifetime and at her death it passes to her children’s legal heirs, and she is “commanded to protect the property of her children dying intestate.”¹⁰ In a later provision of the Code, LIII “Of the Inheritance of Sons who, After the Death of Their Father, Die Intestate, While Their Mother Still Survives,” the rule was revised in an example of commentary and decision-making language included in statutory text. This updated provision addresses the problem of extended conflict over property and its valuation, caused by the mother’s possession of the property for her lifetime, then its transfer to the nearest relatives of the son from the father’s side. The distribution is no longer delayed:

“the slowness of acquiring inheritance gives offense, and on the other (hand) the loss of property causes anxiety. Therefore it seems more just that the ...case will not be delayed, but ended. Therefore we order ... since the contrary decrees of the fates often shift under these circumstances, a legal division of the remaining property shall be made on an equal basis immediately between the mother of the deceased son, if there be no daughter, and his nearest relatives… For surely it is more desirable that the cases should terminate immediately to the welfare of the parties concerned rather than that anyone should gain an advantage because of any delay in point of time.” ¹¹

So, who got the cabin? Well, it depends. In many instances, a Burgundian could “give away the cabin” if it was unrestricted property, such as property acquired through “the fruits of their labor” or “common” property. But if the cabin was part of a Roman allotment, then it stayed in the family.

The Burgundian code illustrates some of the ways priorities and values about family and money have, and have not, changed.

Sharon H. Fischlowitz is an estate planning lawyer at Sussman Parkhurst + Fischlowitz. She served on the staff of the Minnesota Justice Foundation, taught Poverty Law at William Mitchell | Mitchell Hamline, and gives CLEs on early medieval barbarian law. (She knits, she hikes, she follows F1 and the Premier League and binges British crime dramas.)

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