AN A -CHAMPAIGN
AGRICULTURAL EXPERIMENT STATION BULLETIN 604
WHAT WE CAN LEARN FROM
THEIR EFFECTS ON FARMS
, r.u'tural Experiment Stations of Illinois,
I icna, Iowa, Kansas, Kentucky, Michigan,
'mesota, Missouri, Nebraska, North Dakota,
1 >, South Dakota, and Wisconsin, and the
Department of Agriculture, and the Farm
: Nation, cooperating
NORTH CENTRAL REGIONAL PUBLICATION 27
For nearly two decades the agricultural experiment stations and often
the U. S. Department of Agriculture and the Farm Foundation have co-
operated in studying matters relating to the ownership of farms in the
Midwest. During the course of these studies, it became clear that some of
the customs and inheritance laws of other countries were influencing those
prevailing in the Midwest. The North Central Land Tenure Research Com-
mittee therefore assembled information about foreign land-transfer prac-
tices, particularly those of Europe, to see what problems these practices
had created and how, if at all, such problems had been solved.
Information collected by committee members was given to Professor
Charles L. Stewart who, in turn, combined it with the material he had
gathered and put the manuscript in its final form.
The following members served on the committee during the develop-
ment of this publication.
Noble Clark, Associate Director, Agricultural Experiment Station, University
of Wisconsin, Madison, Wisconsin
Illinois Charles L. Stewart, University of Illinois
Indiana Julian H. Atkinson, Purdue University
Iowa John F. Timmons, Iowa State College
Kansas Wilfred H. Pine, Kansas State College
Kentucky John H. Bondurant, University of Kentucky
Michigan Elton B. Hill, Michigan State University
Minnesota .... Philip M. Raup, University of Minnesota
Missouri Frank Miller, University of Missouri
Nebraska Howard W. Ottoson, University of Nebraska
North Dakota. .Sigurd R. Stangeland, North Dakota Agricultural College
Ohio H. Russell Moore, Ohio State University
South Dakota. . Loyd Glover, South Dakota State College
Wisconsin . . . .Raymond J. Penn, University of Wisconsin
U. S. DEPARTMENT OF AGRICULTURE COOPERATOR
Production Economics Research Branch, Agricultural Research Service
Buis T. Inman
FARM FOUNDATION COOPERATORS
Joseph Ackerman and Howard G. Diesslin, Chicago
MEMBERS OF SUBCOMMITTEE ON SUCCESSION ON FARMS
Illinois Charles L. Stewart, University of Illinois
Iowa John F. Timmons, Iowa State College
Kentucky John H. Bondurant, University of Kentucky
Michigan Elton B. Hill, Michigan State University
Minnesota . . . .Philip M. Raup, University of Minnesota
Wisconsin . . . .Raymond J. Penn, University of Wisconsin
Farm Foundation. . . .Joseph Ackerman
Production Economics Research Branch, Agricultural Research Service,
U. S. Department of Agriculture. .Walter Chryst and Marshall D. Harris
FORMER MEMBERS OF SUBCOMMITTEE ON SUCCESSION ON FARMS
Kansas Harold W. Howe, Kansas State College
Nebraska Morris J. Anderson, University of Nebraska
South Dakota. .Gabriel Lundy and Max Myers, South Dakota State College
Wisconsin . . . .Kenneth H. Parsons, University of Wisconsin
Urbana, Illinois December, 1956
COUNTRIES IN WHICH HEIRS RECEIVE EQUAL PORTIONS
OF FARM REAL ESTATE 5
Pre-Communist China 13
COUNTRIES IN WHICH EXCEPTIONAL EFFORTS HAVE
BEEN MADE TO PRESERVE FARMS FROM
BRIEF COMMENTS ON OTHER COUNTRIES 21
GLOSSARY . , . 30
FARM INHERITANCE LAWS IN OTHER COUNTRIES
IN ALL STATES OF THE NORTH CENTRAL REGION and, in fact, in all
states but Louisiana, owners of property have almost complete free-
dom in deciding how to pass on their land and to whom. Some prefer
to have their farms divided equally among their heirs; others prefer
to leave their farms undivided and transfer the farms to single heirs;
and still others divide their farms unequally among their heirs.
If an owner dies without leaving a will, the statutory laws of the
state dictate how the property must be passed and to whom.
Whether farms are transferred by gift, will, sale, or by laws gov-
erning the descent of property, there is much to gain from reviewing
the inheritance laws prevailing in other countries. European and
Asian farm families have faced the problem of the transfer of
property from generation to generation for many more years than
we have here in the United States. By recognizing the impact their
customs and inheritance laws have had upon their farms, farm produc-
tion, and farm families, we can better see where our own customs and
inheritance laws are good or bad, and where they are leading us.
COUNTRIES IN WHICH HEIRS RECEIVE EQUAL
PORTIONS OF FARM REAL ESTATE
The idea that property belongs to all members of a family rather
than to any one of them prevails in most of Latin America and in
many European and Asian countries, not to mention our own state of
Louisiana. This idea, expressed in customs and inheritance laws, has
done much to divide farms into smaller and smaller properties.
In this section, the customs and inheritance laws of representative
countries Brazil, France, and China are examined in order to
show how they act to subdivide farm property.
For definition of many of the legal terms used in this publica-
tion and for a diagram of the relationship of heirs to the de-
ceased, see pages 30 and 31.
6 Bulletin 604; Regional Publication 27 [December,
Equal sharing among heirs tends to be compulsory in most Latin-
American countries, of which Brazil is selected as representative. 1
When an owner of an estate dies without leaving a will, the prop-
erty is disposed of by law according to the following order (see
1. To the descendants. 2
2. To the ascendants.
3. To the spouse.
4. To the collateral relatives.
5. To the state, the federal district, or the Union when there are
no descendants, ascendants, spouse, or collateral relatives.
Legitimate children receive equal portions of the property, but
children who are adopted, lawfully acknowledged, or legitimated re-
ceive only a portion half of that which they would have received had
they been legitimate. Only when there are no legitimate children do
children of other status receive a portion equal to that which they
would have received had they been legitimate. If a child dies before
the intestate, descendants of that child receive his portion.
In Brazil the freedom of the willmaker is limited. A testator who
has descendants or ascendants entitled to succession cannot dispose
of more than half his property to someone else, for by law half the
estate must go to the descendants or, when there are none, to the
There are two kinds of heirs to be distinguished then in these
inheritance laws: legitimate heirs who are always entitled to at least
half the estate of the deceased, and necessary heirs who are designated
by wills and who are entitled to no more than half the estate when
there are legitimate heirs. Although necessary heirs can be disinherited
in certain instances, legitimate heirs can never be disinherited.
Whether the estate is testate or intestate, the law requires that
1 For further details, see The Civil Code of Brazil, translated by Joseph
Wheless (Thomas Law Book Company, St. Louis, Mo., 1920), Articles 1,572 to
2 The attempt has been made to translate the Latin of unfamiliar legal terms
into familiar English equivalents. Legal terms have been retained only when they
suggest a concept for which detailed explanation would be too lengthy or repeti-
tious for expository purposes.
7956J Farm Inheritance Laws Abroad 7
maximum equality, with respect to the value, nature, and quality of
the property, be observed in dividing it among heirs. The real estate
that falls to more than one heir and that cannot be readily divided
must be sold at public auction and the price of it divided among the
heirs, unless one or more heirs require that the property be adjudicated
to them and they compensate the other heirs.
There is little in the code of Brazil to prevent heirs from
subdividing property that is left them either by will or by law. Neither
do there appear to be any safeguards against fragmentation the
result of giving heirs segments of a farm, often scattered parcels.
Because Brazil is so large and virgin and much of it is under-
populated, the effects of subdivision and fragmentation have been felt
less widely than in some Old World countries. In France, where these
processes have been going on for centuries, the effects are keenly felt.
The basic code
If a French property owner dies and leaves no will, his property
is disposed of by statutory laws according to the following order: 1
1. If the intestate leaves children, they share equally in the estate,
without regard to sex or age. If a child dies before the intestate,
that child's descendants share equally in his portion. Only those
natural children who have been lawfully acknowledged are entitled
to inherit from their parents. Should the deceased leave both lawfully
acknowledged children and legitimate children, the share of the
former equals half that of the latter. If there are no legitimate
descendants but there are ascendants, brothers or sisters, or legitimate
descendants of brothers or sisters, the share of lawfully acknowledged
children is three-fourths of what it would be had they been legiti-
mate. When the deceased parent leaves no legitimate descendant,
ascendant, brother, or sister, or descendant of brother or sister, law-
fully acknowledged children divide the entire estate.
2. If the intestate leaves no descendants, no brother, no sister,
and no descendant of brother or sister, his property goes to his as-
cendants half to the paternal line and half to the maternal line.
1 For more information about French inheritance laws, see Articles 718-892
in The French Civil Code, translated by Henry Cachard (Lecram Press, Paris,
8 Bulletin 604; Regional Publication 27 [December,
An ascendant nearer in degree to the intestate in one line excludes
all others of that line. Ascendants of the same line and the same
degree of relationship share the property equally. If the intestate
leaves parents and brothers or sisters, or descendants of deceased
brothers and sisters, half his property goes to his parents and half
goes to his brothers and sisters, or to their descendants. If the intestate
leaves only one parent, that parent receives one-quarter of the estate
and the brothers and sisters or their descendants receive three-
3. Should the intestate leave neither parents nor descendants, the
brothers and sisters or their descendants share the entire property.
4. If the intestate and his brothers and sisters are all children of
one marriage, the brothers and sisters share equally; if half brothers
and half sisters, they receive a share equal to half that they would
have received had they been full brothers and full sisters.
5. Collateral relatives beyond the sixth degree do not inherit,
with the exception of the descendants of a brother or sister of the
desceased. When the deceased is not able to make a will or is under
legal restraint, collateral relatives up to the twelfth degree inherit.
The spouse has the right of usufruct in a portion of the estate
1. One-quarter when the deceased leaves children born of their
2. A portion equal to the smallest portion assigned to a legiti-
mate child but not to exceed one-quarter if the deceased has children
born of a previous marriage.
3. One-half if the intestate leaves lawfully acknowledged children
or descendants of such, or brothers and sisters or descendants of such,
4. The entire estate if the intestate leaves only relatives beyond
the sixth degree of relationship.
5. The husband or wife can exercise his or her right only against
the property which the deceased has not disposed of by gift or will.
Each heir may claim his share of personal and real property in
kind, and is responsible for the debts of the succession death duties,
as well as other liabilities in proportion to the share each inherits.
If a majority of the heirs agree that a sale is necessary to meet these
7956J Farm /nher/fance Laws Abroad 9
debts, the personal property may be sold publicly. If the real estate
cannot be divided conveniently, it may be sold and the proceeds
These inheritance laws, while enforced only on intestate property,
also have the force of custom, so that almost every testator leaves
equal portions of his estate to his children.
Gifts of property and transfers by will are restricted in the fol-
1. Any provision requiring the heir to pass on his inheritance to
a specified third party is void.
2. Gifts and legacies cannot exceed half the property if the will-
maker leaves a legitimate child at his death; one-third if he leaves
two children; one-fourth if he leaves three or more children. If there
are no children but there are ascendants in both the paternal and
maternal line, gifts and legacies cannot exceed one-half, or, if there
are ascendants in only one line, three-quarters. Only when there are
no descendants or ascendants may gifts and legacies exhaust all the
Impact of inheritance laws on farm property in France
Because equal sharing among co-heirs of intestate property is
compulsory and equal sharing of testate property is customary, farm
property has become more and more subdivided. In one parish of
the Loiret, to quote one authority, "6,867 acres of land have been
divided . . . into 48,000 parcels, some of which are less than 120
square yards in extent. In Savoy, one farm of 26 acres comprises
275 parcels. . . .' n
To make matters worse, farmland is divided, not across proper-
ties, but along the roads that serve them, which results in a large
number of long, narrow strips of land being held by many owners.
In extreme instances, these strips may be only six feet wide and
several hundred feet long (see next page).
But even fragmentation is not the end of it. According to another
authority, "since the first World War, use of horse-drawn cultivators,
and the resulting cultivation furrows, has led to serious erosion." 2
1 J. C. Abbott, "The Regrouping of Holdings in France," Farm Economist,
April, 1949, page 58, footnote 1.
2 W. C. Lowdermilk, Tracing Land Use Across Ancient Boundaries (Soil
Conservation Service, U. S. Department of Agriculture, 1940), page 44.
Bulletin 604; Regional Publication 27 [December,
Inconveniences of Subdivision
Plots of land operated by a farmer whose
own farm is in a neighboring community.
Isolated meadows that are too small to
make a pasture.
Scattered plots that are too small and
1. Loss of time in transportation, seed-
ing, and cropping.
2. Tiring and wearing out of teams
3. Loss in fertilizers and crops.
Isolated parcels of land make it necessary
for the farmer to:
1. Use the same rotation as his neigh-
2. Plow and reap at about the same
time as his neighbors.
How far subdivision had gone in one French community. Inheritance was not
the sole cause of these very small tracts, but it was mainly responsible for them.
(This and the map on the next page are from a publication of the Service du
Genie Rural, Section du Remembrement, Paris, 1956; English translation by
C. L. Stewart.)
Farm Inheritance Laws Abroad
Advantages of Regrouping
Regrouping pastures into simple geomet-
rically shaped tracts permits the use of
machines and storage of crops at proper
Regrouping isolated parcels into plots that
border on roads permits free access and
freedom of rotation choice.
Regrouping small plots
into larger parcels per-
mits the practical use of
large machinery and re-
sults in savings in ferti-
lizers and crops. Larger
tracts also have a higher
Regrouping remote plots
almost too small to be
cultivated into larger
parcels results in a
larger plowed area.
Regrouping plots so that
they border on the nat-
ural working area of a
farmer from a neighbor-
ing community who op-
How the situation shown on the map on the opposite page was improved
through regrouping. The efforts of the government of France to counteract
excessive subdivision through consolidation are like those of many other
1 2 Bulletin 604; Regional Publication 27 /"December,
And in some localities in France, these factors have combined to re-
duce farm output by about 30 percent.
The total effect of subdivision and fragmentation has been well
summed up in the following statement:
"In certain extreme cases, fragmentation has led to what can only
be described as a veritable pulverization of the holdings which pre-
sents the cultivator with a situation in which cultivation is impossi-
ble and often results in the reversion to waste of at least the poorer
and more distant plots. One may, therefore, say that the whole agri-
cultural area of France suffers from fragmentation to a greater or
lesser degree." 1
As farm labor became scarcer in France and more use was made
of machinery, the disadvantages of small, scattered holdings became
keenly felt, not the least of which was the fact that an owner rarely
had enough land to leave each of his heirs an adequate farm. Never-
theless, some heirs still prefer dividing an inherited farm, however
small, rather than owning it alone under a heavy mortgage - in-
curred from having to reimburse the co-heirs for their share of the
Modifications of the basic code in France
Beginning in 1938, two steps were taken to combat this excessive
subdivision of farmland public programs designed to consolidate
farms and legal procedures to modify the basic code. 2 Two main
ends were accomplished by the latter. The first was to declare
that farm properties below a certain value were indivisible. In 1938,
this minimum value, including equipment, implements, and livestock,
was 200,000 francs. Subsequently, due to the decline in value of the
franc, this figure was raised.
The second end accomplished was to permit requests that farm
properties remain undivided, even though they were valued above
the specified amount. Those entitled to make these requests are the
spouse, who has an equity in the farm and resides on it, or any heir
1 From National Study No. 2, "Consolidation of Agricultural Holdings in
France" in The Consolidation of Fragmented Agricultural Holdings (F.A.O. Agri-
cultural Studies No. 11, Sept., 1950, Washington, D. C.), page 58.
2 For some modifications of the basic code in recent decades, see Michel
Cepede, "Family Farm in France," Family Farm Policy, edited by Joseph Acker-
man and Marshall Harris (University of Chicago Press, Chicago, 1947), pages
1956] Farm Inheritance Laws Abroad 13
(even despite opposition by co-heirs) if the deceased has left children
under legal age. A farm may be declared indivisible for 5 years, and
the declaration renewed until the death of the spouse or the coming
of age of the youngest child.
The cost to the public of France in reconsolidating scattered
holdings of farmland has been heavy, but even heavier has been the
burden to farmers who were faced with two bleak choices: to con-
tinue struggling with their fragmented parcels or to adjust to a con-
solidated farm, equivalent to those parcels.
The farm problems that France has had to face are far more in-
tensified in Asia, where the processes of subdivision and fragmenta-
tion have gone on for thousands of years.
Pre-Communist China 1
When a Chinese married, his bride became part of his parents'
family and moved in with them. Not infrequently, friction led to a
desire for independence on the part of the married son. When this
occurred, he was given, through the services of a mediator (usually
a maternal uncle), title to his share of the farm. This share was de-
termined by dividing the father's property into equal shares, depend-
ing upon how many sons he had. The oldest son received his due of
an extra share and the father retained a share large enough to sup-
port his family and to pay for the wedding expenses of unmarried
daughters and sons. An unmarried son did not receive his share,
however, but continued to live with his parents. If one of the parents
died before he married, the son was obliged to support the surviving
parent. When both parents died, the son then received his share as
well as his parents' share.
If there was only one son in the family, he would request division
from his parents only under the most serious circumstances, inasmuch
as he was in line to receive all their property upon their death.
This process of division was seldom complete. The father had
considerable influence over his sons, even if they were married and
1 For more information about customs in pre-communist China, See H. T.
Fei, Peasant Life in China (Oxford University Press, New York, 1945) ; H. T. Fei
and C. I. Chang, Earthbound China (University of Chicago Press, Chicago,
1945) ; and C. Y. Tang, An Economic Study of Chinese Agriculture, a Thesis (no
publisher given, 1924).
14 Bulletin 604; Regional Publication 27 [December,
had split with the family. Filial piety and the fear of displeasing the
spirits of the ancestors were strong influences.
Since the standard of living of the Chinese farmers depended
almost entirely on the amount of land they owned, much of their
activity was aimed at either acquiring more land or keeping that
which they owned. The usual way of acquiring land was by inher-
itance which, in most parts of China, was through the male line. When
inheritance was by descent through the female line, it was owing to
the fact that the deceased parents had no sons.
Because traditional laws and customs led to equal division of
farmland among sons (except for the additional share that went to
the eldest son), and because sons, in this dense population, were
plentiful, subdivision became excessive.
Nor did the Chinese stop at subdivision. Like the French, they
fragmented farms in an effort to give each son an equal share of
each quality of land. Thus, when there were many sons, each would
have small separate fields. Because of this, there was great waste of
labor. Machinery or animal power could not be used efficiently on
the scattered, irregularly shaped fields. Capital, too, was used waste-
fully, since expenses for farm buildings, machinery, and work animals
were proportionately higher for small farms than for large ones.
Moreover, the many lanes and driveways required by these small,
scattered holdings resulted in much needed land being wasted. And
friction inevitably developed among adjoining owners over bound-
aries or water rights.
Because holders of small fields could not respond to changes in
agricultural practice, such as the use of machinery, and because pro-
duction decreased as subdivision and fragmentation became excessive,
farmers found their struggle for existence made even more severe.
COUNTRIES IN WHICH EXCEPTIONAL EFFORTS HAVE BEEN
MADE TO PRESERVE FARMS FROM SUBDIVISION
Some countries, among which Norway is most noteworthy, have
had no major problems of subdivision, for their customs and inher-
itance laws simply have failed to create these problems. Other coun-
tries, like Sweden and Germany under the National Socialist Party,
recognized where subdivision was leading them and took exceptional
1956] Farm Inheritance Laws Abroad 15
measures to halt the process and to keep their farms large and
Two legal institutions are principally responsible for protecting
Norwegian farms from subdivision the Aasetesret and the Odelsret,
The Aasetesret is the right of the oldest son to take over the family
farm after the death of his father. Should the oldest son waive this
right, the next oldest son is entitled to assume it. If there are no sons,
the oldest daughter inherits the property.
Only if the farm is large enough ( what constitutes a minimum size
varies from locality to locality) can the testator have it divided among
his heirs. Even in this instance, the first heir may claim half the
Whether the first heir receives the entire property or a part of it,
he must pay the other heirs for their share of the estate at the price
set by the testator. If the testator failed to set a price, the heir may pay
for the estate at no less than 70 percent and no more than 90 percent
of its market value. Regardless of who inherits the farm, the wife
holds it in joint tenancy.
The Odelsret gives a farmer or any member of his family the right
to buy back property he has owned for at least 20 years at an officially
determined price. During the depression between the two World Wars,
such repurchase could be made within 5 years after the time the
property was sold; at present, such repurchase must be made within
3 years after the time of sale.
In countries in which manpower has been plentiful in relation to
available farmland, the pressure toward farm enlargement has been
less than in newer countries where manpower has been scarce. Norway
is one of the older countries that has forestalled the tendencies toward
excessive subdivision of farm holdings. Though causing some farm
families to migrate to cities and to foreign countries, inheritance
policies of countries that have opposed excessive subdivision have ap-
parently eased matters for present-day farmers.
Under the Swiss Civil Code, 1 heirs share intestate property
equally. The order of the heirs is:
1 The Swiss Civil Code has been translated by Ivy Williams (Oxford Univer-
sity Press, H. Milford, Oxford, England, 1925).
16 Bulletin 604; Regional Publication 27 [December,
1. The children of the intestate. If one of the children dies before
the deceased, the descendants of that child receive his share. Illegiti-
mate children on the mother's side have the same right to inherit
property as if they were legitimate. Illegitimate children on the
father's side have the right to inherit property only when their father
lawfully acknowledges them. This right is limited, however, to a
portion half of that which they would have received had they been
the father's legitimate children.
2. If the deceased leaves no descendants, the parents take equal
shares of the property. If one of the parents dies before the deceased,
the descendants of the parents receive equal shares. If there are
descendants of the parents in only one line, the entire estate goes to
3. If there are no descendants, parents, or descendants of parents,
equal shares of the property go to the grandparents. If either of the
grandparents is dead, the descendants of the dead grandparent are
entitled to that grandparent's share.
4. Great grandparents have usufruct in the share of the inher-
itance which their descendants would have received had they sur-
vived the deceased. If neither great grandparent is alive, great uncles
and great aunts have the same privilege of usufruct.
5. The spouse, when there are surviving descendants, can choose
to take usufruct in half the estate or absolute title to one-quarter of
the estate. When there are no descendants, but there are parents or
their descendants, the spouse takes one-quarter of the estate and
usufruct in the other three-quarters. When there are only grand-
parents of their descendants, the spouse takes half the property and
usufruct in the other half. If none of these survive, the spouse has
absolute title to the entire estate.
A willmaker has complete freedom in transferring property only
when he has no descendants, parents, brothers, sisters, or spouse. If
any of these survive him, each is entitled to his legal share of the
estate as follows:
1 Descendants share in three-quarters of the inheritance they
would have received had there been no will.
2. If there are no descendants, parents share in half the inher-
itance they would have received had there been no will.
J956J Farm Inheritance Laws Abroad 17
3. If there are neither descendants nor parents, brothers and
sisters share in one-quarter of the inheritance they would have re-
ceived had there been no will.
4. If there is one or more other legal heirs, the spouse takes the
whole statutory portion. If the spouse is the sole statutory heir, the
portion is one-half.
In the absence of a will, the statutory heirs may decide among
themselves how to divide the inheritance. If the heirs are unable to
agree, one of them may request that a probate authority determine
how the inheritance should be divided. The probate authority usually
directs that no farm shall be cut up into areas smaller than that con-
sidered feasible for agriculture in the immediate area.
The value of a farm is based on its earning capacity rather than on
its sale value. If an heir who receives land sells it within 10 years at
a higher price than that at which it was evaluated, his co-heirs may
claim a share of the profit made on the sale. The co-heirs, however,
have claim to profits resulting only from fortuitous circumstances
the discovery of minerals, for example and no claim to profits
resulting from agricultural improvements.
Measures fo offsef excessive subdivision in Switzerland
Since 1912, when the Swiss Civil Code went into effect, the aim
has been to prevent excessive subdivision of farmland. If, for ex-
ample, an estate includes a farm and one of the heirs declares him-
self ready and capable of managing it, the entire farm, so long as
it forms an economic unit, must be allotted to him. An isolated parcel
of land that would be impracticable to operate along with the main
farm is regarded by the courts as not belonging to the farm. When
several capable heirs wish to take over a farm and the farm admits
of two or more independent farms, the question is submitted to the
Court decision is based on four factors:
1. The heir who wishes to live on the farm and work it himself
has preference over those heirs who desire to sell the farm.
2. A son who has lived longest on the farm has preference over
3. Sons have preference over daughters.
4. The customs prevailing in the immediate area must be re-
1 8 Bulletin 604; Regional Publication 27 [ December,
The Swiss Civil Code, then, tends to maintain farm properties
undivided. This tendency is desirable because many Swiss farms are
so highly specialized and so dependent on well-bred herds and special
equipment and buildings that subdivision would have serious con-
sequences. For this reason there is the so-called "brother's and sister's
value" by which an heir can take over the property of his parents
at 75 percent of the appraised value. Here, as in a few other coun-
tries, the fact is recognized that an heir may become so overobligated
to his parents or co-heirs if he buys an entire farm from them that he
may be restricted in his efforts \o use his capital and labor and may
suffer income and property loss.
On February 20, 1947, the Allied Control Council published
Law No. 45, otherwise known as "Repeal of Legislation on Heredi-
tary Farms and Enactment of Other Provisions Regulating Agri-
cultural and Forest Lands." This law restored the laws pertaining
to the inheritance of land that had been repealed or suspended on
October 1, 1933, by the National Socialist Party.
Transfer of farm property under the National Socialist Party
The federal farm hereditary law, which the National Socialist
Party made effective on October 1, 1933, had a threefold purpose:
to reinforce the economic and social status of farmers; to keep farm
property from being split up; and to prevent excessive agricultural
indebtedness. 1 Farms coming under the provisions of this law and
about three-fourths of them did had to be no smaller than eight
hectares, or about 20 acres, and no larger than 125 hectares, or
about 300 acres.
Any new hereditary holding, or Erbhof, was subject neither to
1 For more information regarding inheritance laws involving farm property,
see Constantin von Dietze, ed., Die Vererbung des laendlichen Grundbesitzes in
der Nachkriegszeit (Duncker and Humblot, Munich and Leipzig, 1930) ; J. K.
Galbraith, "Hereditary Land in the Third Reich," Quarterly Journal of Eco-
nomics, 53, 2 (May, 1939), 465-476; Leo Drescher, "The New German Inher-
itance Law for Agriculture," Journal of Farm Economics, 16, 1 (Jan., 1934),
149-151; H. W. Spiegel, Land Tenure Policies at Home and Abroad (University
of North Carolina Press, Chapel Hill, N. C., 1941); and Articles 1922-2385 in
The German Civil Code, translated by Chung H. Wang (Stevens and Sons, Ltd.,
1956] Farm Inheritance Laws Abroad 19
sale, mortgaging, foreclosure, or division. An order of succession was
established that could not be modified by the testator. Succession was
arranged so that only one heir could inherit the Erbhof. Other heirs
could inherit property that did not include farm, farm buildings, or
The order of succession was fixed as follows :
1. The sons of the farmer or their sons and grandsons.
2. Father of the farmer.
3. Brothers of the farmer or their sons and grandsons.
4. Daughters of the farmer or their sons and grandsons.
5. Sisters of the farmer or their sons and grandsons.
If the principal heir already owned an Erbhof, he was entitled
to receive the inheritance only if he gave his own farm to the next
heir in line. If the inheritance involved more than one Erbhof, each
heir was entitled to choose one farm after the principal heir had
The law also provided that co-heirs who were not of age had to
be kept on the farm and educated until they became of age. More-
over, they were to be completely outfitted when they left, if the
financial condition of the principal heir permitted; and if, through
no fault of their own, they were unable to support themselves, they
were to be supported on the farm.
Transfer of property under the Allied Control Council
Under the Allied Control Council, any area of land that had be-
come an Erbhof became subject again to the general laws regarding
ordinary real estate. Provisions were made, however, to allow zone
commanders, in their respective zones, to "enact legislation amend-
ing or repealing any legislation revised or otherwise put into force
by the present law."
The order of succession, as prescribed by the revived German
Civil Code, is as follows:
1. Descendants of the deceased. Children of a deceased descend-
ant share his portion.
2. Parents of the deceased and their descendants.
3. Grandparents and their descendants.
4. Great grandparents and their descendants.
5. Remoter ascendants of the deceased and their descendants.
20 Bulletin 604; Regional Publication 27 [December,
If there are several heirs in the same succession, the estate be-
comes their common property to be divided among them equally.
The spouse of an intestate receives one-fourth of the estate if there
are descendants, and half the estate if there are no descendants but
other heirs. If there are no relatives of the first or second degree, the
spouse takes the whole inheritance.
The willmaker can name his heirs, but if a person entitled to
succession is excluded, he can demand his compulsory portion. This
portion equals half that portion he would have inherited had there
been no will. In such cases, the portion is given free of estate
The only time a descendant can be deprived of his "compulsory
portion" is when he has made an attempt against the life of the
testator or persons in the immediate family of the testator, when
leading a dishonorable or immoral life contrary to the testator's
wishes, or when he has failed to maintain the testator according to
the system called Altenteil, or old folks' share.
"Altenteil" as restored by the Allied Control Council and as
curtailed by the National Socialist Party
Altenteil 1 is a system for maintaining a farmer and his wife after
they have transferred their farm to an heir of their choosing. It
takes the form of a contract between the farmer and his heir, and re-
quires the heir to provide the farmer and his wife with living quarters,
food, allowances, and certain other privileges, including a garden plot,
in exchange for the transfer of the farm to the heir before the testator's
death. Occasionally cash payments are made to the farmer and his
wife to enable them to live in town.
The Altenteil contract also requires the heir to pay for the prop-
erty. This payment is divided among the other heirs. The price the
heir pays is based on the past price of the farm rather than on its
present market value; the extent of the liabilities involved; and the
1 This system is detailed by H. W. Spiegel in "The Altenteil : German
Farmers' Old Age Security," Rural Sociology 4 (June, 1939), pages 203-218.
Some localities in the North Central Region have arrangements that resemble
Altenteil. See "Bonds of Maintenance" in Keeping the Farm in the Family, by
Kenneth H. Parsons and Eliot Waples (Wis. Agr. Exp. Sta. Res. Bui. 157, Sept.,
1945), pages 6-8, and "Eastern Wisconsin Avoids Tenancy," in What's New in
Farm Science, compiled by Noble Clark and Niemen Hoveland (Wis. Agr. Exp.
Sta. Bui. 461, Dec., 1953), pages 27-29.
7 956J Farm Inheritance Laws Abroad 21
desire of the farmer and his wife not to overburden the heir who has
to support them.
Quite often, to obtain the price for the farm and to support the
farmer and his wife, the heir has to mortgage the property. This
proves to be a heavy burden to a small farm. For this reason the Na-
tional Socialist Party severely curtailed the rights of farmers and their
wives retiring under Altenteil. They were allowed room and board,
but no cash allowance unless the farm could bear it. Neither were
they allowed to keep any portion of the land. And in transferring their
property, neither they nor the co-heirs were allowed payment. Also,
if a farmer became too old to farm efficiently, he could be forced to
retire and cede his property to an heir.
At no time was Altenteil popular among retiring farmers. In fact,
a German folk saying has it that a golden chair awaits one in heaven
who retires by Altenteil without repenting it, and that no one has
ever sat in that chair.
BRIEF COMMENTS ON OTHER COUNTRIES
The customs and inheritance laws of the countries appearing here
are treated very sketchily and for the sole purpose of indicating how
they affect farm property.
Before Alsace-Lorraine was taken over by the French after World
War I, it had inheritance laws similar to those of Switzerland (see
page 15 of this bulletin). Only after considerable difficulty, the Alsace-
Lorrainers obtained permission from the French government to retain
the Swiss-type laws in regard to the transfer of property.
Intestate property passes to heirs according to the following order:
descendants of the deceased, or their descendants, whether legitimate or
natural; to the ascendants, whether legitimate or natural; to the spouse;
and to collateral relatives within the sixth degree. The legitimate chil-
dren of the deceased, whether of one or more marriages, share equal
portions of the property, as do natural children.
If a spouse survives the deceased, she is entitled to a share of the
property equal to that of any one of the children. If ascendants and a
spouse are left, the spouse participates with ascendants in the division
of the property.
22 Bulletin 604; Regional Publication 27 [December,
If the property threatens to be divided at below its appraised value,
each of the heirs has the right to demand the sale of that property by
public auction and, at that auction, to buy the property for an amount
greater than that at which it was appraised so long as he is the high-
The amount of property an owner may transfer by gift or will is
limited, depending upon the number of his children and whether he has
ascendants. If he has one child, he may dispose of half his estate, but
the other half is the legal reserve of his child. If he has two children,
two-thirds of the estate constitutes their legal reserve. If he has three
or more children, three-fourths of the estate constitutes their legal re-
serve. If he has no children but ascendants in both lines, half the estate
must be reserved for them.
If the deceased during his lifetime gave property to an heir, that
heir must restore the value of the gift to the estate at the time the estate
is settled, unless it was stipulated by the deceased that the gift was not
to be restored.
No legitimate child may be omitted in the distribution of property,
and the spouse assumes a life interest in a portion of the property.
In 1900 and again in 1924, laws were passed in favor of leaving small
farms undivided until all the children had come of age. At that time,
and by agreement among the heirs in the family council, 1 one of the
heirs can take possession of all the land by paying the other heirs for
Those Belgian farmers who own little land face a difficult problem
in dividing their property among their children a situation that be-
comes quite serious when there are many children. This problem is
usually solved by the members of the family assuming joint ownership
of the farm.
In most features the provinces of Canada have provisions for descent
and distribution not greatly different from those found in midwestern
states. The freedom of the willmaker and of the executors to carry out
the bequests is least where older French customs have yielded least to
1 The family council is a folk feature that has been incorporated into Belgian
law. When a guardian has to be appointed, for example, the duty falls to the
7 956J Farm Inheritance Laws Abroad 23
In Quebec if an intestate leaves descendants and a spouse ("con-
sort"), the spouse takes a third and the child or children two thirds.
If there is no spouse, children take all. If there are no children, the
spouse takes all, but only if there are no ascendants or collateral relatives
privileged under customs tracing to early French influence; if there are
such privileged relatives, the ascendants take a third and the collaterals
take a third.
Dower for the surviving spouse has a limited place in most Canadian
provinces. In Nova Scotia, if there are descendants, the spouse receives
dower. In Manitoba the spouse may elect to take a third of the net
estate as her dower, if in addition to the value of the homestead which the
spouse has, that person has not been left at least a third of the estate,
or if provision for $100,000 in property or $6,000 in yearly income has
not been made.
In Ontario and Prince Edward Island, there are fixed charges in
favor of the widow. In Ontario this may be as much as $5,000 and is in
addition to her distributive share. The fixed charge in Prince Edward
Island is $8,000.
The Danish Land Settlement Act of 1934 provides that an owner of
a farm may transfer his holding to any of his children whom he deems
able to farm it. If he has no children, the holder is free to dispose of his
property only when there are no government loans on it. The successor,
however, must show that he is competent to farm the holding. No land
under 20 hectares can be divided.
In England the testator has complete freedom in transferring prop-
erty, except that he must provide for dependents under the Family
Provision Act passed in 1938. This law gives dependents the right to
apply for maintenance from the estate of the deceased. The court ad-
judges whether such maintenance should be granted and, if so, to what
extent. If maintenance is allowed, any provision in the will opposed to
maintenance is overridden.
If the property is intestate, the spouse receives an absolute right to
all personal chattels; money to the extent of 1,000 as a first charge
upon the estate; and a life interest in half the real estate if there are
children. If there are no children, the spouse receives a life interest in
the entire estate. Children share equally in all real property to which
the spouse is not entitled.
24 Bulletin 604; Regional Publication 27 [December,
In Hindu families, land was usually held under some form of joint
ownership by families. According to one branch of Hindu law, the father
and sons held the land in common until the father's death, at which
time the land passed to the sons by right of survival. According to an-
other branch of Hindu law, the property, at the father's death, passed
to those heirs deemed best fitted to carry out proper religious rites for
In Mohammedan families, the father usually held the property alone,
and only at his death did the land pass to the sons. At that time they
divided the land equally, even to taking a like portion of each type of
land. Because of India's dense population, no worse example of damage
done by fragmentation can be cited. In certain rural areas of India,
there are plots of land only a few feet long and a few feet wide.
Programs aimed at reconsolidating farms are now in effect in many
of these farm-fragmented regions in an effort to increase agricultural
production and raise the standard of rural living.
The Italian Civil Code, drawn up in 1918, accepted the principle of
transferring farms in their entirety to a single heir. Along with the farm
went the escort goods equipment, livestock, and buildings. The heir
who received the farm had to be deemed willing and able to farm it and
able to pay the other heirs for their shares.
If several heirs wanted the farm, the owner chose that heir who was
operating the farm or who could operate it alone or with his family.
If several heirs were satisfying these conditions, the direct male descend-
ant was chosen. If there were several direct male descendants, all of
whom qualified, the heir who had farmed the land before or who had
the most children was selected.
If the principal heir could not repay the co-heirs for their share, the
farm was awarded to the co-heirs, provided they agreed to operate it
There has been persistent contradiction between the Civil Code of
Japan and the way farm real estate has been passed by inheritance. The
Civil Code has long provided for equal sharing of property among heirs,
but both before and after land reform farm families have practiced
In five Japanese communities studied in 1954 by the International
] 956J Farm Inheritance Laws Abroad 25
Christian University in Tokyo, only 1 to 4 percent of the farmers re-
ported that they expected to divide their property equally; 5 to 11 per-
cent expected the land to go to whichever son was interested in farming;
and about 75 percent expected the land to go to the eldest son. On the
average, one eldest son in ten families gives up his inheritance rights.
Inheritance laws in this country are based largely on equal sharing
and "compulsory portions." In older villages, heirs divide property not
by size but by value. Even in areas where land value is high, farms tend
to be split up among heirs.
All children are entitled to equal shares of intestate property. Even
by a will, the share of any child cannot be less than one-fourth of what
he would have received by statutory law. Legislation in 1949 prevented
the splitting up of farms by sale, but did not otherwise affect inheritance
In areas along the Friesian coast, however, farms tend to remain
undivided. After the death of the father, the farm is transferred to one
of his sons, usually the oldest. The other children have to be compensated
for their shares in the farm. If the will so specifies, children also have
the right to continue to live on the farm a procedure that is quite
customary for the area.
Slavic lands prior to control by Soviet Union
Czechoslovakia. Holdings transferred by will had to pass to single
heirs who had the ability to cultivate the land properly.
Estonia. In the richer southern areas, the farm was usually trans-
ferred to a single heir; in the eastern part, the farm was divided among
all the heirs.
Lithuania. At the death of the farmer, the estate became the un-
divided property of the heirs. The spouse inherited one-fourth of the
estate. The heirs could share the estate by common agreement or apply
to the courts for determination of their individual shares. One or more
heirs could retain control of the land, so long as the co-heirs were
Yugoslavia. The Yugoslavs retained the patriarchal family longer
than any other Slavic people. As many as 20 to 80 persons, all related
by blood, lived together under the leadership of the patriarch and
worked the family farm communally. This formed the basis of a self-
sustaining economy and made the family economically independent. All
property was owned jointly, and no one individual could own land or
26 Bulletin 604; Regional Publication 27 [December,
buildings exclusively. Inheritance as we know the term simply did
Only in the province of Slovenia was the custom observed of leaving
the farm to a single heir usually one of the sons who compensated the
Union of South Africa
Persons of European descent in the Union of South Africa are sub-
ject to the Roman Dutch law system. Marriage may be in "community
of property" or not. Where marriage is not in community of property,
the spouse of an intestate gets merely a child's share of the estate or 600,
whichever is greater. Where husband and wife have community of
property, the spouse takes half of the joint estate. In addition the spouse
gets a child's share of the other half, or else an amount which, when
added to the half, makes a total value of 600, whichever is the greater.
Regardless of the number of minor children, the spouse receives a
fixed minimum amount of value, but not necessarily in cash. Wills may
be set aside, if necessary, to fully protect the spouse's interest.
There has been a tendency in Sweden to avoid dividing a farm when
division would make that farm incomplete. What constitutes a complete
farm has long been a matter for legal determination.
When there is only enough land to constitute a complete farm, the
heirs appear in court to see whether one or more of them want to buy,
and are competent to buy, the interests of the others. The oldest son
receives no legal concessions. For this reason, parents usually transfer
their farm property to the oldest son before they die.
In the lowlands of Sweden the tradition has long existed that the
farm should pass from one generation to the next in its entirety. One
reason for this is that these regions had been the stronghold of noble
estates, the owners of which practiced primogeniture and entail. It is
not unlikely that farmers in these regions pass on their farms in their
entirety in imitation of the nobles. Another explanation may lie in the
fact that copyhold farms of family size used to be quite numerous
in these regions. The tenants enjoyed virtual ownership, but were pre-
vented by their landlords from dividing the holdings.
I 956J Farm Inheritance Laws Abroad 27
Now that we have examined briefly the customs and inheritance
laws of other countries, and noted their effects upon farms and farm-
ers, we can proceed to a summary examination of our own prevailing
customs and inheritance laws.
In the Midwest and, for that matter, in almost the whole of the
United States, an owner has practically unlimited freedom in trans-
ferring property. While alive, for example, he can deed the property
outright to an heir or heirs; share the land with a co-owner or co-
owners; put the property into joint tenancy; or as in the case of
trusts transfer the property to a person for a certain period on con-
dition that he, in turn, transfer that property to a second designated
person at the end of that period.
Farmers in the United States also have unlimited freedom in mak-
ing gifts to prospective heirs a prerogative that, exercised at least
three years before their death, enables them to furnish their children
with money, land, or equipment with no inheritance or estate taxes
added to any gift tax paid. Such gifts also enable farmers to reduce
their income taxes as well as probate and administrative costs and
inheritance taxes on their estates after their death. Both the husband
and the wife have gift-tax exemptions amounting to no less than
$30,000 and can therefore make gifts jointly of at least $60,000 be-
fore they incur gift taxes. 1 Any gift of $3,000 or less by an individual
or $6,000 or less by a married couple to any one person over a period
of one year has no effect on the lifetime exemption and is not subject
to tax. Farmers in most of the United States also have the freedom,
either by gift, will, or sale, to transfer the underground resources of
their farms to one person and the farmland itself to another.
The wishes of an owner are still respected after death. As long
as a testator leaves a valid will, he can be sure that his property will
be treated as he has specified - left undivided, divided, or sold. A
willmaker, for example, can provide that an heir, fitted by training
and interest for the farm, be given the opportunity to buy the
home farm from the co-heirs at a price below its appraised value.
1 These are federal, not state, laws. For more details concerning these laws,
see Inheritance and Gift Taxes on Illinois Farm Property, by N. G. P. Krausz
(111. Ext. Cir. 728), Jan., 1956.
28 Bulletin 604; Regional Publication 27 [December,
Or, if the willmaker feels that the heir would be too heavily burdened
by acquiring the farm in this way and, therefore, unable to utilize
the farm to advantage for many years, he can write an "option-to-
buy" clause into his will. Such a clause enables the heir to purchase
all of the farm piece by piece as he becomes financially equipped to
do so, and does not oblige him to buy the farm outright, to his finan-
cial detriment. 1
Avoiding division of farmland by such methods and yet manag-
ing to satisfy all heirs is of even greater importance when livestock
rather than cash-grain farms are involved. Dividing a dairy farm,
for example, with its specialized buildings, equipment, and herds can
wipe out the achievement of a lifetime in the space it takes to pro-
bate a will and administer an estate.
Fortunately for agriculture in the Midwest, owners and heirs of
farm property have generally used with good judgment their freedom
in transferring farm property. For whether by terms of a will or by
the decisions of heirs, the farm tends to be preserved as an undivided
unit either under the management of one of the heirs or that of an
unrelated tenant. In midwestern states, as in most other states, the
surviving spouse may decide to take dower, whether or not there is a
will. Even when farmers fail to specify their wishes in a will and die
intestate, leaving the transfer of their property to the laws governing
descent, administrators, probate officials, and statutory heirs seek, in
the main, to prevent physical division of the farm property.
Thus, division of farms by inheritance appears more often in
principle than in fact on the county record books rather than by
fences, so to speak. Nevertheless, there are counterexamples to be
found in nearly every farming area of the Midwest. In a single sec-
tion (640 acres) of a southern Illinois county, for instance, there are
nine separate tracts in the west half and thirteen separate tracts in
the east half and this in a county in which farms of at least quarter
sections are operated far more profitably (see illustration on next
page ) . Such subdivision is dangerously similar to conditions we have
observed in such other countries as France (see page 10).
1 More details concerning this arrangement can be found in Farm Transfers
Within Families by Revisable-Price Contract, Payments in Crops, and Will With
Option to Buy, by C. L. Stewart (111. Ext. Cir. 744), May, 1955. See also North
Central Regional Publication 18 (Illinois Circular 680), "Family Farm-Transfer
Farm Inheritance Laws Abroad
All in all, then, owners of property in the United States enjoy a
freedom in gift- and will-making, not to mention that of sale, that is
not excelled by any other country in the world. In the past they and
their heirs, with a few exceptions, have used excellent judgment in
preserving the farm undivided. The only problem now is whether
present owners and heirs will continue to exercise that kind of judg-
ment and strive to keep their farms intact.
The above illustration shows that division of
farms into small tracts takes place in our own
Middle West. The above section of 640 acres in
a southern Illinois county is divided into 22
30 Bulletin 604; Regional Publication 27 [December,
Ascendant. A person to whom one is related in the ascending line one's
parents, grandparents, and great grandparents.
Co-heir. One of several to whom property, real or personal, descends; does
not necessarily imply equal sharing of property.
Collateral relatives. Those descended from the same common ancestor but not
from one another; those in a line oblique or collateral to the direct line,
such as cousins, aunts, uncles, brothers, sisters, nephews, and nieces.
Compulsory portion. The minimum amount of property that must be trans-
ferred to an heir whether by will or by law.
Copyhold. A specific type of ownership right in land resting upon particular
local customs growing out of feudalism. Historically it was a grant made
subject to the will of a manorial baron.
Descendant. A person to whom one is related in the descending line one's
children, grandchildren, great grandchildren, etc.
Descent. Succession to the ownership of an estate by inheritance or by any act
of law as distinguished from "purchase."
Dower. The widow or widower's life interest in a certain portion of the
real property of the deceased.
Entail. To settle, as lands, inalienably on a person and his descendants.
Inheritance. Property which one has by descent, as heir to another, or which
he may transmit to another, as his heir.
Intestate. A person who dies without leaving a will; or property the disposition
of which is not governed by a will.
Lawfully acknowledged child. Born out of wedlock, but parentage acknowl-
edged in court.
Legitimate child. Born in wedlock.
Legitimated child. Born out of wedlock, but made legitimate by the subsequent
marriage of the parents and the lawful acknowledgment of the child.
Primogeniture. An exclusive right of inheritance belonging to the firstborn.
Probate court. The court that establishes the validity of "the last will and
testament" and sees that the wishes of the testator in regard to property
are carried out. When there is no will left by an owner of property, the
court sees that the property is transferred according to the laws of descent.
Property, real and personal. The chief distinction between real and personal
property is that real property is relatively immovable. The land and the
improvements permanently attached to it are regarded as real property.
Spouse. Wife or husband.
Succession. The transfer of property according to the laws governing the
descent of property.
Testament. The act by which anyone, in conformity with the law, provides
for the disposal, in whole or in part, of his property after his death.
Testate. A person who dies with a will; or property the disposition of which
is governed by a will.
Testator. One who leaves a will or testament in force at his death.
Usufruct. The right to draw profit, utility, and advantage from property with-
out holding title to that property.
Will. See Testament.
Farm Inheritance Laws Abroad
Relationship of heirs to the deceased.
Nephews and Nieces
For several years the agricultural experiment stations of the
North Central Region have cooperated in studying problems
relating to ownership of farms. This report is one of a series
of publications about the results of the studies. Other North
Central Regional Publications on the subject include:
Improving Farm Tenure in the Midwest: Problems and Recom-
mended Policies. Reg. Pub. 2 (III. Agr. Exp. Sta. Bui. 502). 1944.
Farm Land Prices in the Midwest. -Reg. Pub. 1 1 (Mich. Special Bui.
Farm Ownership in the Midwest. Reg. Pub. 13 (Iowa Res. Bui. 361).
Can You Own Your Own Farm? A Discussion of Farm Ownership
Conditions in the Midwest. Reg. Pub. 14 (Ky. Or. 65). 1949.
Family Farm-Operating Agreements. Reg. Pub. 17 (Mich. Special
Bui. 368). 1951.
Family Farm-Transfer Arrangements. Reg. Pub. 18 (III. Agr. Ext.
Cir. 680). 1951.
Improving Land Credit Arrangements in the Midwest. Reg. Pub. 19
(Purdue Agr. Sta. Bui. 551). 1950.
For information about any of the above publications, get in
touch with the agricultural experiment station in any one of the
states in the region. Copies of some are still available.
9M 12-56 61006
UNIVERSITY OF ILLINOIS-URBAN*