Estate

The mayorazgo was an institution that forms part of civil law and that allows ownership of certain rights or goods to be maintained within a family. Its scope is given by the conditions dictated in its establishment or by the prescriptions of the law; Currently, its validity is limited to titles of nobility.

The mayorazgo was a system of distribution of assets that benefited the eldest of the children, so that the bulk of a family's patrimony was not disseminated, but could only increase. The etymology of the word comes from "major" and "-azgo", a Latin suffix that indicates dignity, position, title, status, rank. The idea is that the eldest son inherited practically all the assets, which could not be divided with the inheritance or sold. In this way, the patrimony that was transmitted to the heir was always the same or increased.

Similar institutions existed in other European countries, under the name of majorat (England, France, Germany), morgadio (Portugal) or ordynacja (Poland).

Creation and regulation

Already in the XIII century, there are some documents according to which the owner of some assets could not dispose of them but had to cede them entirely to the eldest son, but its development is reinforced with Enrique IV of Castile. And it is that: «The monarch, by granting some assets as a fief in exchange for some services, is interested in that these continue to be fulfilled and for this it is necessary that whoever inherits the obligations fully receives the means that enable their fulfillment This clause Referring to the Enrique grants, authentic feudal concessions, it is found in the will of Enrique de Trastámara who, in addition, ordered that such fiefdoms return to the Crown when the direct line was extinguished.

Probably the meaning of this institution was military, since the nobles were in charge of the war and the defense and maintenance of order in their territory and for this they needed stable territories to supply and organize the combat elements. Possibly the decision to create this privilege was also influenced by the historical circumstance of the Reconquest and the need to affirm border property, leaving out as much as possible inheritance disputes and the division of land. The institution also maintained its prestige for presenting general economic advantages in a territory with changing borders and which required the affirmation of economically viable, stable and permanent ventures.

The mayorazgo was more precisely regulated by the Laws of Toro in 1505, under the reign of Juana I of Castile. The Laws consider the mayorazgos that existed prior to its promulgation and those that could be established in the future. Its function was to control the division of a nobleman's assets that produced inheritances and sales.

Although initially it was designed for the nobility, some families of the incipient Castilian bourgeoisie also took advantage of this legal figure.

The creation of a mayorazgo usually began with the linking of a solar or solar house. Sometimes, these ties included a title of nobility, which passed along with the rest of the assets, while all those excluded from the mayorazgo were somehow granted the status of nobility. The institution contemplated the possibility of adding new assets to the link, but the assets already linked could not be alienated or distributed in inheritance.

Heirs of the estate

All assets that were part of the estate were indissolubly inherited by their heir. The conditions for inheriting were set at the time of creating the link and used to include obligations that the heir had to fulfill, among which the most common was the adoption of the link's surname if he did not possess it. The heir was usually the eldest of the male children, although in some cases it could be whichever of the children, male or female, was considered most qualified for the succession. The most frequent case was that the first-born male inherited.

The remaining children could only inherit the free assets that the parents possessed, usually scarce. This caused the second sons to undertake a military or ecclesiastical career, being in practice disinherited and without means of subsistence. The situation of the daughters was not better since they could not make a good marriage without a good dowry, which could only come from the free assets of the parents. The path adopted by many was to enter a convent, although their condition in it was also subject to the contributions made.

This irreversible flight of the children towards the ecclesiastical career had serious consequences when the heirs of the estate died without descendants and it was necessary to resort to more or less distant relatives who were freely graced with an economic improvement.

Decay of the system of mayorazgo in Spain

This system of economic links was criticized in the Report on the Agrarian Law File written by Gaspar Melchor de Jovellanos at the request of the Madrid Economic Society of Friends of the Country, the direct consequence of which was the confiscation of Manuel Godoy in 1798.

The disappearance of the institution of mayorazgo was inserted into the process of Abolition of manors in Spain, being one of its fundamental elements.

Despite its formal suppression, it lasted for some time in some areas through a legal trick, since the law did not provide for inter vivo donations. The holder of the estate gave it to his son as a contribution to his marriage, the son became the new lord and his parents to enjoy the usufruct for life of half of the solar house.

From that moment on, with few exceptions, the subdivisions by inheritance of most of the great Spanish houses caused them to gradually lose their past splendor and power.

The eldership as a legal relationship

The mayorazgo is a link through which the founder, normally by royal concession, limits the mode of transmission of ownership of certain assets and rights, subjecting them to a determined and irreformable succession order that remains unchanged throughout the successive transfers; in such a way that the assets or rights included in said link are inalienable and indivisible from now on and their owner can only use and enjoy their enjoyment (ius utendi and ius fruendi in Roman law) without being allowed to alter their substance or transmit them outside the established order. In certain cases, it is allowed to increase the assets linked with new assets.

This is a dismemberment of the real right of ownership (generically called "property"), by means of which the original owner takes the right to transmit the assets to third parties to the grave forever. In other words, the so-called ius abutendi is taken away from the linked property right, which is the right holder's right to freely transmit, sell or donate it. In such cases, not only is this power eliminated, but the order of succession to be followed is also pre-established, ordinarily altering the common succession rules. This patrimony of affectation was indivisible and not confiscatable, since it was based on the assumption or legal fiction that its owner continued to be the founder.

Despite their remarkable similarity, the mayorazgo and the nobility were not institutions that overlapped each other: there were titles of nobility without links (although they did with a certain modality of the mayorazgo) and a large number of links without titles of nobility, but subsisting as simple señoríos, something more equivalent to a land property of the contemporary age than to a title.

Many legal authors think, because of all this, that it is actually an exceptional easement (in the legal sense of dismemberment of ownership), and that, strictly speaking, the patrimony affected by the relationship of mayorazgo is not transmitted, but only his possession.

Limitations to your institution

The creation of an ancestry did not completely disinherit the rest of the founder's children, since it was not normally tolerated that this regime be imposed on all the goods left behind upon death (that is, on the universality of his patrimony), but only to those who were available to test according to the succession rules; that is, that portion (greater or smaller according to the different civil legal systems) that exceeded the legitimate portion of the forced heirs. However, there were some exceptions in relation to certain privileged lordships, and it cannot be affirmed that they were more than isolated cases.

Some specialists affirm (erroneously, according to others) that civil possession in these cases was also exceptional, as it was directly deferred to the successor named by the rule of mayorazgo without any other external act, such as tradition, because many basic civil regimes Today, the Roman Empire admits that possession of the inheritance is held by the heirs called legitimaries, such as the children with respect to the parents, from the moment of the death of the deceased, without the need for the intervention of any third party or judge for it. Thus, for example, the civil codes of Brazil, Argentina or Paraguay, among others, which maintain the Roman regime of succession in person, above the Germanic and Anglo-Saxon regime of succession in property. Thus, this immediate possession would not be a privileged characteristic of the estate, but a consequence of a certain general conception of law.

Despite its name, the mayorazgo does not necessarily imply preference for male primogeniture, although most of the time, it has this characteristic. As a legal institution, it is characterized by being a patrimony of affectation with its own regime, that is, with a regime other than the general one, provided with a unique succession order and the characteristics of inalienability and indivisibility, which are essential.