"Choosing' partible inheritance: Chilean merchant families, 1795-1825.

In the early spring of 1798 Salvador de Trucios dictated his will before a notary in Santiago, Chile. While enjoying relatively good health, the wealthy Basque merchant must have been nearly seventy years old,(1) and he certainly wanted his last wishes to be known and notarized for the sake of his heirs and all others touched by his estate. In his will Trucios kept a concerned eye on the future accounting and division of his estate as he carefully itemized the business deals he had pending, the dowry and remaining inheritance his wife brought to their marriage, the dowries given to his daughters, and the advances on inheritance made to his sons. To further encourage a harmonious division of his estate, Trucios advised his children to divide their patrimony in a brotherly fashion and without engaging in litigation. What Trucios did not do was to use the options available in the inheritance laws which would have allowed him to favor one or more of his children. Rather, he simply declared that his heirs were his children, who shared equally in his estate.(2) As this article will explain, Salvador de Trucio's last wishes were altogether typical of the merchants of late colonial and Independence Chile.

Trucios died in 1807, and, like many of his male contemporaries, he named his wife, Maria Josefa Salas, as his executor.(3) In the subsequent wills and codicils that Salas wrote, she proudly pointed out that she had quickly and extrajudicially completed the division of her deceased husband's estate within five months of his death, thereby avoiding expense and discord in her family which she described as exemplary in its unity. Like her husband and most testators with substantial wealth, Salas noted in detail any unresolved busines matters, which in this case were related to her roles as her husband's executor and as guardian of her deceased daughter's children. And likewise, she enumerated all the dowries, advances against inheritance, and others items that would affect the division of her estate. Maria Josefa Salas, however, made full use of the inheritance laws in order to bequeath all she possibly could to certain favored children and grandchildren, and while her bequests included grants to males, she overwhelmingly favored her granddaughters and especially her daughters.(4) The wills of Maria Josefa Salas were typical of the women of merchant families in late colonial and Independence Chile.

Historians of colonial Latin America have sometimes assumed, and occasionally argued explicitly, that the legal system of partible inheritance, which in general terms required the equal division of an estate among the heirs, resulte in the "decline" of the fortunes created by wealthy individuals. In the specifi case of the late colonial merchants, David Brading, for example, suggests that the merchants of New Spain saw their fortunes decline due to the laws of partible inheritance, as well as because of the large number of children who shared in estates, and Brading and others suggest that the merchants sought to prevent this fragmentation and erosion of their fortunes.(5)

In her work on the merchants of Buenos Aires, Susan Socolow also states that th requirements of inheritance laws, especially when compounded by the existence o numerous heirs, could destroy the merchant's fortune. Although she tends to see the law as the major culprit in this decline of fortunes, Socolow points out that the law did provide testators with the option of favoring certain heirs with the quinto and tercio of their estates, as will be explained below.(6) Socolow and others, however, regard this legal possibility of favoring heirs as one giving only "slight preference" to an heir, as a very limited legal option, even though about 45 percent of an estate could legally be given to one child.(7)

The purpose of this article is to examine the choices regarding estate division that were made by merchants and their families in late colonial and Independenc Chile (approximately 1795 to 1825). More specifically, I will analyze testators use or non-use of the legal options available that allowed them to favor one or more of their heirs. The central thesis is that the laws of partible inheritanc by themselves did not result in the fragmentation of the merchant's estate; rather, while the law did set the parameters on the division of estates, cultural concepts regarding equity, reward, and affection also played a significant role. The Chilean testators studied here were legally granted, and did make, certain choices about the future of their estates, and many of the testators' choices reinforced in practice the egalitarian concept of partible inheritance, as opposed to giving priority to maintaining the estate intact. In this interplay of law and culture, we will also see that the gender of the testators and heirs was an important variable in estate division.

This analysis of testators' use of their legal options is based on 143 wills, codicils, and powers-of-attorney to make wills (poderes para testar) that were granted by 134 individuals. Of these 134 people, 73 merchants and their male relatives granted 76 of these testamentary instruments, and 61 merchant wives and female relatives granted 67 such documents. Obviously, these testators include a number of individuals who made more than one testamentary document, but these data also include nine couples who granted mutual wills, codicils, or powers-of-attorney. For 21 couples, we have testamentary documents of both husband and wife, and for a number of merchant families, we have documents for numerous family members. For example, the testamentary documents of the family of the aforementioned Salvador de Trucios and Maria Josefa Salas also include nine documents made by their children, sons-in-law, and one granddaughter. Whil these testamentary documents do not constitute the universe of all such documents for all merchants and their family members, they are representative o the more substantial merchants and their families.(8)

As a kingdom belonging to the crown of Castile, colonial Chile was subject to the inheritance laws of Castile.(9) The Castilian system of inheritance is regarded as a system of partible inheritance because, in contrast to systems of primogeniture, all legitimate heirs received a portion of the deceased's estate The Castilian system of partible inheritance, however, was in a sense an intermediate system in that it neither required an absolutely equal division of an estate nor gave free rein to the testator to favor one child.(10) Castilian law demanded that a certain portion of an estate had to be divided equally amon the legitimate heirs but also gave the testator the option to favor certain heirs with a substantial share of his/her property.

Before describing the possibilities of estate division, which is the focus of this article, we need to understand the legal determinants of an individual's estate. First, under Castilian law women, though in many ways still subject to fathers and husbands, did have the right to inherit, own, and bequeath property and female children had the right to share equally in the inheritances of their father and mother. In other words, all legitimate children, male and female, were necessary heirs (heredores forzosos) in the basic division of the estate.(11) If a woman married and received a dowry, it was regarded as an advance on her inheritance, and while her husband could use or manage the dowry it remained the wife's property and was returned to her in the event of her husband's death. The groom could also give his bride a special wedding gift, called the arras, which could not be worth more than ten percent of his wealth. As in the case of the dowry, the groom could administer the arras, but it becam the permanent property of the wife. In addition, the law gave the wife one half of the wealth she and her husband earned during the course of the marriage.(12) So a married woman's estate could consist of her dowry, the arras, half of the community property (her gananciales), and any gifts or bequests given specifically to her from relatives and friends. When her parents died, she woul also receive an inheritance from her mother's estate (the legitima materna) and an inheritance from her father's estate (the legitima paterna).(13)

The estate of the married man consisted of the wealth that he brought to the marriage,(14) one half of the community property (his gananciales), and any gifts or bequests from family or friends, as well as his maternal and paternal legitimas.(15) Unmarried individuals, of course, had only their parental inheritances (including the dowries of nuns and other advances against their inheritances), other bequests or gifts, and whatever other wealth they had accumulated.

When providing for the division of their estates, testators first had to consider their necessary heirs, as dictated by Castilian law. If the testator had legitimate children, they were the necessary heirs. If the testator had grandchildren by a child who had subsequently died, the law required that those grandchildren receive the share that would have gone to their parent. When an individual had no legitimate lineal descendents, his/her parents became the necessary heirs. In the case of testators with no legitimate descendents and no living parents, they could freely bequeath their estates to whomever they wished.(16)

The law, however, did not require the testator to leave his/her entire estate t his/her necessary heirs. Testators could make special bequests (the mejora) fro their quinto and tercio. The quinto (one fifth of the estate) was the portion o the estate from which the expenses for funerals and pious works were deducted.(17) The remaining part of the quinto (remanente del quinto), however, could be freely given to any person or cause that the testator might choose. According to the law, the remaining four fifths of the estate had to be given t the necessary heirs but not necessarily equally since the testator could bequeath one third (the tercio) of that remaining 80 percent to one or more of those necessary heirs.(18) In other words, the testator who had children could give the tercio to just one child or to selected children or grandchildren. In the case in which the testator had no children and the parents were the necessary heirs, the testator could freely bequeath the tercio to whomever he/she desired.(19) The key point here is that the law allowed testators to giv the quinto and the tercio, that is nearly half of the estate, to a single child if the testator so desired.

Before proceeding, it should perhaps be made explicit that wills were merely statements, albeit legal ones, of intent. Although the purpose of this article is in fact to explore the intent of the Chilean testators, the intent of a will might not be fulfilled, for instance if the will contradicted the law, was disputed, or was simply not specific about the details of the division. Just to offer one example, neither of the wills of two major merchants, Francisco de Borja Valdes Garcia-Huidobro and Francisco Bernales Trucios, granted a mejora, special bequest of the quinto or of the tercio. Rather, their heirs were simply to divide their father's estate equally; however, the two sets of heirs settled on two different versions of equal division. Valdes's estate consisted of a number of properties, including a house in Santiago, a small farm, an urban lot movable goods, and a large, valuable farm (chacra) near Santiago, and his eight necessary heirs seemed eager to divide and settle quickly. After literally dividing the valuable chacra into shares, eight hijuelas were constituted out o the total inheritance, which were distributed to the eight heirs by drawing lots, and the estate was settled.(20) In the case of Bernales, after his wife's share was separated from his estate, his property consisted almost entirely of hacienda in the province of Maule. Bernales's eight heirs repeatedly demonstrated affection and generosity toward family members and others, and the decided to divide Bernales's estate without the use of an arbitrator. Bernales' heirs also decided that it would not be easy or advantageous to divide up or sell the hacienda at that time, especially since the prices for land in that region were rising "every day." So they only divided the value of the hacienda on paper, agreed to share its profits, and waited for a better time to divide u their paternal inheritance.(21)

Like Trucios, Valdes, and Bernales, many merchants of late colonial and Independence Chile chose to favor no one, to make no mejora in their wills. In this analysis, the frequency of granting a mejora is assessed first by the broader sub-categories of men and women with necessary heirs, that is individuals who were required to use the quinto and/or the tercio if they wishe to favor certain heirs. The narrower sub-categories of men and women with two o more children are used to evaluate only those testators who were in a position to favor one child or another. As can be seen in Table 1, in contrast to male testators, the wives and the female relatives of the Chilean merchants were mor inclined to grant the mejora; in both sub-categories of testators, women were almost twice as likely to give someone a mejora as men were.

Of all the men and women testators who granted a mejora, nearly everyone made use of the quinto to favor some individual or individuals. The quinto could be given to any person or institution, and although testators gave the quinto to a wide variety of persons, clear patterns regarding the bequests emerge from the testamentary documents. First and more generally, when male and female testator granted the quinto, they clearly favored women in their bequests.(22) Even in the case of testators who made grants of the the quinto to both men and women, women were favored as recipients; in this category one third of the male testators clearly favored women, one fourth gave equally on the TABULAR DATA OMITTED basis of gender, eight percent favored men, and the rest cannot be determined. In contrast to the men who gave the quinto to persons of both genders, women who did so clearly favored women in 70 percent of the cases; 20 percent favored men and women equally, and the last 10 percent cannot be determined.

Table 2

Recipients of the Mejora

                       Mejora to     Mejora to    Mejora to       Mejora to
                       women only    men only     both genders    other (a)

Men who gave the       12 (40%)      2 (7%)       12 (40%)        4 (13%)
quinto (30) (b)

Women who gave the     15 (45%)      4 (12%)      10 (30%)        4 (12%)
quinto (33) (b)

Men who gave            4 (31%)      1 (8%)        7 (54%)        1 (8%)
the tercio (13)

Women who gave         15 (63%)      4 (17%)       5 (21%)        0 (0%)
the tercio (24)

(a) Figures do not always total 100 percent because of rounding.

(b) These numbers are larger than in Table 4 because 3 testators with no
necessary heirs designated the quinto even though they could freely bequeath
their estates.

Regarding testators who gave the quinto to women only, women testators overwhelmingly favored their daughters.(23) In two cases there were no daughter to favor, and the quintos went to a niece and a mother, and in a third case a women with six daughters favored her four single daughters. The rest of the women in this category had children of both genders, and all but two (83 percent) favored one or more of their daughters. The two exceptions gave the quinto to a mother in one case and to a non-related girl the testator had raise in the second.

Men who granted the quinto to women alone gave to a more diverse group of women They, of course, had wives that they could favor, which they did 27 percent of the time, and they had more illegitimate children.(24) Illegitimate daughters were the beneficiaries in 18 percent of the cases in which men favored women only with the quinto. Sisters, female cousins, and unrelated women were also th beneficiaries. Unlike women who favored their daughters over their sons, the me who were in a position to favor their legitimate daughters over their sons did so in only 36 percent of the cases in which women alone were granted the quinto

As can be seen in the tables, the statistical differences between men and women testators were even greater when the bequest of the tercio was in question; as compared to men, women testators were much more inclined to grant the tercio an to give it to women. If we consider only the testators who had two or more children of both genders and who granted the tercio, half of the male testators gave the tercio to daughters only, and the other half divided the tercio betwee sons and daughters in a relatively equal manner; in this same circumstance, 72 percent of female testators gave the tercio to daughters only, and 17 percent gave to both sons and daughters in an equal manner. As regards all testators wh bequeathed the mejora of the tercio to both genders, both male and female TABULAR DATA OMITTED TABULAR DATA OMITTED TABULAR DATA OMITTED testators favore men and women relatively equally. In short, women testators not only used the tercio more often than men, they used it more often to favor women, especially daughters, and when not favoring daughters, they narrowed their giving to a few specific heirs. Men used the tercio less often, gave less to women in general and daughters in particular, and included a wider range of sons and daughters and others of both genders in their bequests of the tercio. The implications an significance of this general pattern will be discussed further in the following sections of the article.

As regards the nature, or content, of the mejoras (both the quinto and the tercio), the majority of the Chilean testators did not bequeath specific possessions to their heirs. Only eight percent of the mejoras included a gift o real estate, and only 14 percent of the mejoras specifically favored an heir with movable property. In granting these two categories of property, male and female testators acted similarly, with women being slightly more inclined to bequeath movable goods, notably jewelry and other personal items that went to their daughters. Thirty-four percent of the mejora grants were for a specific monetary amount. For example, Agustin Antonio Alzerreca, one of the most active Basque merchants of the time, gave mejoras of 500 pesos each to two daughters who were minors. What a person so favored actually received in the final settlement of an estate was another matter. In the case of Alzerreca's daughters, one received her inheritance in cash, while the other received land, debts owed the estate, and a small amount of cash.(25) Finally, 44 percent of the mejora grants were simply general designations of the tercio and the remanente del quinto, whatever they might eventually consist of, to specific heirs. In all likelihood the testators were not more specific about the nature of the mejoras either because they did not know what the mejora would consist o in the final accounting or because they wanted the favored heir or heirs to receive the entire amount of the quinto or the tercio.

Although the bequest of the mejora was inherently an economic act in that it bestowed a financial reward on an heir or heirs and reduced the inheritance of excluded heirs, it was also an act based on affection and concepts of justice. Unfortunately for the historian, most testators explained all too briefly, if they said at all, why they granted a mejora. Nonetheless, their brief comments on their intent give us some indications as to the purpose of the mejora in the minds of the Chilean testators studied here.

First, the mejora was commonly given as a reward for the love shown or services rendered to the testator. The merchant Esteban Cea, for example, singled out hi youngest daughter, giving her one thousand pesos from his quinto as a reward fo her services to him during his long and painful illness.(26) Juan Enrique Rosales, a well-known leader of the Chilean Independence movement, also engaged in trade and allied his family through marriage to major merchant families. In unusual detail his will described how he had educated, supported, and recognize his two illegitimate daughters, Rosario and Antonia, and how these daughters, with their virtuous conduct, had been worthy of the love and esteem that his no deceased wife and other daughters had always professed for Rosario and Antonia. Although his will did not mention the fact, Rosario accompanied her ailing father when he was exiled to the island of Juan Fernandez by the royalist government that reestablished control of Chile in 1814.(27) Juan Enrique Rosale expressed his affection for his illegitimate daughters by giving them the quint of his estate.(28)

Service to the aged and infirm was not an uncommon reason for the granting of the mejora, and women, especially unmarried and younger daughters, often provided these services. Men, however, were also the objects of testators' affections. The Urmeneta family provided late colonial and Independence Chile with three of its major merchants, and the family founder in Chile, the Basque Francisco Javier Urmeneta Legazpi, expressed his sentiments for a variety of people, particularly men, in his will. First, because of the devotion and estee of his wife, Urmeneta granted that should her share of the community property (gananciales) not reach 12,000 pesos, the balance should come out of his quinto In making this grant, Urmeneta also wanted to assure that she had the wealth necessary to maintain herself "with the decency and decorum" befitting her. Urmeneta's cousin and business partner, Tomas Ignacio Urmeneta Guerra, was give 3,000 pesos for the love and fidelity with which he had served Francisco Javier for nine years. Two hundred pesos were bestowed on one Patricio Perez Herrera, probably a servant, as compensation for the sacrifices and loving and constant attention shown Urmeneta during his illness. Urmeneta's final award from his quinto came with conditions. At Urmeneta's request, his nephew Juan Bautista Urmeneta Sabaleta was en route from Spain to Chile, and Francisco Javier wanted to reward his nephew with 500 pesos from the quinto. Juan Bautista had to prove himself, however; he would receive the mejora only after he had been in Chile for one year and Francisco Javier's executors had decided that the immigrant nephew had conducted himself well.(29)

In some cases testators bequeathed a mejora to a favored child or children with the intent that the family home be preserved for other family members. Maria de Rosario Salas, who was blind, chose to give the remanente del quinto and the tercio to her youngest and unmarried daughter. Ana Josefa, as a reward for Ana Josefa's services to her parents. Ana Josefa had wanted to enter the convent, a her two sisters had, but instead remained at home to care for her aging parents Her father, Jose Perez Garcia, rewarded her with the bulk of his tercio, which she could use to enter the convent, marry, or maintain herself as a single person, but he also suggested that in the latter case she could buy the family home. Perez Garcia also wanted to provide that his wife could stay in the famil residence and therefore gave her the remanente del quinto.(30) Margarita Velasco, the widow of Jose Ramirez de Saldana who was perhaps the wealthiest merchant in Chile when he died in 1799, used the mejora to give the family residence to her two minor daughters, while also stipulating that their younger brother could live in the home until such time as he married.(31) And finally, Maria Josefa Salas, sister-in-law of Jose Perez Garcia and widow of Salvador de Trucios, expressed most clearly her desires when she bequeathed the tercio to her two unmarried daughters, Agustina and Rosa, and son Jose, a wealthy merchan in his own right who never married. Salas granted the tercio with the purpose that the three children be adjudicated the family home, and she wanted them to allow her children and grandchildren to live there and asked her three favored children to take care of the others, showing the affection that her children ha for one another. If Jose married or entered the priesthood, however, the tercio went to his two single sisters only.(32)

While overlapping with reasons of affection and family unity, concern for ensuring the financial security of the disadvantaged in society was a major reason that testators granted the mejora. Illegitimate children suffered the social stigma of their birth, as well as the disadvantage of not being necessar heirs of their parents. The parent of an illegitimate child could, however, favor the child with the quinto, and if the parent had no legitimate children, the tercio could be given to illegitimate children as well.(33) Jose de la Vega for example, expressed concern that his illegitimate daughter, a professed nun of the Santa Clara convent, would not have the financial resources to support her religious life. De la Vega had previously given her a dowry and a cell in the convent, but in his will he also gave her the interest on a 1000-peso loan which was to be handled by one of his legitimate daughters and her husband. De la Vega also provided another one thousand pesos for his illegitimate son.(34) Juan Lavina, a native of France, arrived in Chile in 1785, and over the years h gained commercial success, earning a modest fortune and the position of second consul of the merchants' guild. He did not marry until he was approaching old age, but he had had an illegitimate daughter before marrying. At age 63 Lavina was returning to France with his wife and legitimate children, and fearing that death or distance would prevent his return, he provided his illegitimate daughter, who was unmarried, with one thousand pesos from his quinto.(35)

The Chilean testators demonstrated special concern to ensure the financial security of women, who were regarded as being at a disadvantage in life. In colonial Latin American culture the ideal was that women, especially elite women, were to be sheltered and protected from the harsh world, first by their fathers and then by their husbands, and because women did not have the same resources or opportunities as men, women were to be provided for by their kinfolk.(36) As we have seen, the Chilean women studied here were often favored with the mejora, but the testamentary documents expressed special concern for those women without a male protector, namely widowed and especially single women, who might use a mejora to enter a convent or attract a suitable husband. Of all the testators, Domingo Diaz de Salcedo y Munoz expressed most clearly an succinctly this attitude toward women. After professing his equal love and respect for all his children, he stated that, by means of their work and diligence, men could more easily make a living than women could. Women, therefore, lived their lives exposed to "human weaknesses," and Diaz de Salcedo thus believed that it was "just" to bequeath the quinto and the tercio to his two daughters.(37) The family of Francisco Ramon Vicuna y Larrain offers furthe examples of concern for women's financial security. Lis father, Francisco Vicun Ydalgo, favored Francisco Ramon's widowed sister, Josefa, with special bequests because she had suffered greater misfortunes, due to the "events of the times," than had her sister. Vicuna Ydalgo's reference no doubt included the fact that Josefa's husband, Juan Mackenna, was killed by Luis Carrera in a duel in Mendoza, which occurred after the Chilean revolutionaries had fled the reconquering Peruvian forces. Vicuna Ydalgo also granted a mejora to Josefa's daughter and two sons which was to be used for their education.(38) Francisco Ramon's mother-in-law, the Marquesa de Montepio, bequeathed the quinto and tercio to her female children, stating explicitly that she was doing so because of their sex and because of their being "surrounded by numerous family members."(39) One further example of the favoring of widowed daughters comes from the wealthy merchant family of the De la Cruz Bahamondes. Although Bartolina de la Cruz bequeathed the bulk of the mejora to the two daughters who cared for her during her nine years of blindness, she gave a cash amount to two other widowed daughters because the two carried the burden of motherhood and di so in a state of "abandonment." One daughter's husband owed De la Cruz two thousand pesos but at his death he did not even have sufficient wealth to cover his wife's dowry.(40)

It may be noted that there is no apparent correlation between the size of estates and the granting of a mejora; a positive correlation might be expected if wealthy individuals were attempting to prevent the fragmentation of their fortunes. Unfortunately for the historian, wills, codicils, and poderes para testar do not state the values of the estates, but the listing of properties in these documents gives a more vague indication of a person's wealth, and on that basis the propensity to grant a mejora does not seem to differ according to wealth. A more accurate correlation requires the historian's use of the estate settlements, but in the case of the Chilean merchants and their wives, research was limited to the estate settlements of the most successful merchants, thereby disallowing comparison with less wealthy individuals. It is important to note, however, that the size of the estate does not generally explain gender differences in the granting of mejoras; among the most successful merchants and their wives, the wealth of the wives roughly matched or slightly exceeded that of their husbands' estates. This is to say that the wives' choices regarding mejoras were as important as their husbands' in determining the final inheritance that individuals received from their parents, and because testators and especially women testators, tended to favor women, and especially daughters the female children of this group of major merchants often received larger tota inheritances than their male siblings.

When the Chilean testators stated their reasons for granting a mejora, we can clearly see the motivations described above: reward for love and services rendered and the financial security of the disadvantaged, especially women. The majority of testators who granted mejoras, however, did not state their reasons for doing so. We can only assume that they had their reasons, that those reason probably seemed just to those involved, and that in many cases the unstated reasons were similar to the stated ones. The case of the Diaz de Salcedo family offers one example of the assumptions behind the mejora granted to women. In many instances, dissension and conflict characterized this family, and when the aforementioned Domingo Diaz de Salcedo explicitly laid out his reasons for bequeathing the quinto and the tercio to his two daughters, he may have been attempting to prevent another dispute among his children. And indeed he repeatedly advised his children to conduct themselves well and not disgrace and divide the family with litigation.(41) His children, however, were already contesting their mother's will. As their mother, Cruz Diaz Darigrande, lay on her deathbed, she verbally granted her quinto and tercio to her two daughters, Manuela and Petronila. Her son Domingo, however, then convinced his mother to give him her poder para testar, and when the notary arrived the power-of-attorney was done in the daughters' absence and without mention of the mejoras for them. When the daughters realized this and called the notary again, it was too late; Cruz Diaz could no longer speak and died. The oldest daughter, Manuela, sued for the mejora for herself and her sister. While self-interested, Manuela appealed to custom and tradition to make her case. She argued that many mothers give mejoras to their daughters and did so justly and rationally becaus of the troubles, misfortunes, and poverty to which their daughters were subject Manuela went on to say that her mother would never have forgotten her daughters constant and loving services which were worthy of remuneration. In his will, Domingo Diaz de Salcedo expressed support for his deceased wife's intent and hi daughter's rights. Although his son Domingo believed that the mejora was illega because it was not the "expressed will" of his mother, the courts accepted Manuela's arguments and awarded her and her sister the quinto and the tercio of their mother's estate.(42) It is doubtful that the courts would have come to this judgment had not the tradition of favoring women been so pervasive.

The case of Manuela Diaz de Salcedo also suggests a reason that female testator tended to favor other women, particularly their daughters, in their bequests as compared to male testators' bequests. Manuela implied that Chilean women may have been more attuned to the needs and interests of women and well understood the difficulties that women faced. Being sensitive to the financial vulnerability of women, mothers in particular may have sought to ensure their daughters' economic security and therefore favored them with a mejora. This is to say that women made decisions about inheritance according to their own ideas about justice, and, as we have seen, the law gave the option to do so and women used it.(43)

Nevertheless, in slightly over half of the testamentary documents of the Chilea merchants and their family members, no mejora was granted to any heir. In no case did the testators feel compelled to explain why they divided their estate equally when they did so. Presumably, the justice of an equal division was apparent to all involved, and the basic legal notion of partible inheritance reinforced the inclination to give one's heirs equal shares of the inheritance.

In the case of late colonial Buenos Aires, Socolow indicates that although the merchant could have attempted to maintain his estate relatively intact by favoring one son in his will, the tercio was "never assigned to one heir over all others" (Socolow makes no mention of the remanente del quinto). Socolow suggests that one reason for this implied conscious decision to not use the mejora related to merchants' origins. According to Socolow, merchants from northern Spain (specifically Navarre and the Basque provinces) had often experienced poverty when still living there, which was due to inheritance practices that favored the oldest son with the family farm and forced other son off the land. Thus the porteno merchants may have "subconsciously rejected any system which smacked of inequity."(44) According to Heiberg, even though the oldest son in the Basque regions customarily inherited the family farmstead, he had to compensate his siblings, usually in the form of cash or movable goods.(45) Whether compensated or not, the merchants in Buenos Aires may still have regarded the system in practice as inequitable.

In the Chilean case, however, Basque/Navarre origins does not appear to explain why male testators did not bequeath the mejora. Female testators cannot be compared by geographic origins since all but six female testators were born in Chile. And even in the case of men, the sample is small; fourteen (18 percent) of the 76 male testators were natives of the Basque provinces and Navarre. Compared to the 58 percent of all men who did not give a mejora, 64 percent of the Basque/Navarre men did not grant a mejora. When considering only those men who had one or more necessary heirs, 52 percent of all men and 58 percent of th Basque/Navarre men did not grant a mejora. In the case of men with two or more children, the Basque/Navarre men were slightly more inclined to bequeath the mejora (including both the quinto and the tercio); 44 percent of them gave no mejora compared to 50 percent of all men in this category. In other words, the men from the Basque provinces and Navarre did not differ significantly from other men when choosing whether or not to use the mejora.

Whatever the origins of the attitudes, the Chilean testators studied here generally gave priority to the principle of equity in their inheritance practices. Although Castilian law gave them options that could have minimized the division of the estate by favoring one child with the quinto and the tercio (47 percent of the estate before deducting funeral expenses), in no case did a testator give the entire quinto and tercio to a single child with the intent of maintaining the estate.(46) The Chilean testators, and merchants specifically, did not attempt to prevent the fragmentation of their fortunes, nor did their wills express any concern for the economic consequences of estate division. Rather, they were concerned with the economic well-being of all their children, as well as other relatives; they did want to preserve their fortunes but with the purpose that all family members share in it. The testamentary documents convey a pervasive concern for the entire family, as well as a special sympathy for the women. Testators, especially female testators, did use the mejora to favor those deemed deserving of reward and to ensure the financial security of the disadvantaged, especially women. Each child, however, clearly deserved his/her legitima, and most testators chose to give each child his/her fair shar of the patrimony.

The inheritance laws of Castile set the parameters on inheritance practices in late colonial Spanish America but the law also offered options which allowed individuals to make choices regarding the fate of their estates. These legal requirements and options influenced individuals not only at the moment when the made their wills but throughout their lives. Men and women lived with the expectation or hope of receiving an inheritance; they recognized children born out of wedlock; they gave and received advances against inheritance for such purposes as attracting marriage partners and advancing a business; men administered dowries during their years of marriage. Such behaviors were obviously influenced by the relevant inheritance laws. Other laws, of course, governed family life, as well as commerce, government, criminal activity, and s on, and people obeyed the law, and, according to a common theme in the historical literature of colonial Latin America, people often manipulated and circumvented the law. While this article has explored only one aspect of the relationship between law and behavior, it is hoped that the discussion here underlines the need for historians to know the law and take it into account whe explaining the behavior of past peoples.

This article also raises another issue more specific to the subject studied here, an issue that deserves mention, as well as further investigation. Historians' treatments of inheritance in colonial Latin America have often focused on elite men and the fate of their fortunes in subsequent generations. The fate of the family patrimony and the individual inheritances of the next generation also depended, however, on the estates of women. Spouses possessed separate estates, and in the case of the Chilean merchant elite, wives commonly brought substantial wealth to their marriages, which was theirs to bequeath. Moreover, because of the laws of community property and because merchant wives generally outlived their husbands and were their executors, the wives frequentl received their half of the community property during their lifetimes and administered their husbands' estates until they were settled. And if the deceased husband left minor children, which was not uncommon, the wife might administer their children's inheritances for many years. In short, women played a significant role in the fate of the family patrimony. While colonial women have received considerable attention as the passive conduits of family resources, especially as potential marriage partners, colonial women, especiall older and widowed women, were also active administrators and decision makers in matters of inheritance. The study of gender, and particularly its relationship with power, would benefit from further investigation into the ways in which women were both passive and active historical actors and how such roles changed during the individuals' lifetimes, as well as over broader historical periods.

Division of Humanities and Fine Arts De Pere, WI 54115

ENDNOTES

The author would like to thank Susan Deans-Smith, Richard Graham, and two anonymous Journal of Social History readers for their comments and support.

1. While I do not know Trucios's birthdate, we do know that he arrived in Chile in 1745 as a purser on the ship "San Fermin." Juan Ricardo Couyomdjian, "Los magnates chilenos del siglo XVIII," Revista Chilena de Historia y Geografia, no 136 (1968): 315-322; and Sergio Vergara Quiroz, ed., Cartas de mujeres en Chile 1630-1885 (Santiago, 1987), p. 46, n. 6.

2. Will of Salvador de Trucios, Archivo Nacional (hereafter cited AN), Escribanos de Santiago (hereafter ES), vol. 927, pp. 212v-217v.

3. Ibid.

4. Will of Maria Josefa Salas, 1808, AN, Notarios de Santiago (hereafter cited NS), vol. 30, p. 89; Codicil of Maria Josefa Salas, 1809, AN, NS, vol. 30, p. 379; Will of Maria Josefa Salas, 1813, AN, NS, vol. 42, p. 257; and Will of Maria Josefa Salas, 1816, AN, NS, vol. 37, p. 411v.

5. D. A. Brading, Miners and Merchants in Bourbon Mexico, 1763-1810 (Cambridge, 1971), pp. 102-103. See also Catherine Lugar, "Merchants," in Cities and Societ in Colonial Latin America, Louisa Schell Hoberman and Susan Migden Socolow, eds (Albuquerque, 1986), pp. 57, 65-66; Mark A. Burkholder and Lyman L. Johnson, Colonial Latin America (New York, 1990), pp. 167-168; John E. Kicza, "The Great Families of Mexico: Elite Maintenance and Business Practices in Late Colonial Mexico City," Hispanic American Historical Review (hereafter cited HAHR) 62 (1982): 429-457. But see Louisa Schell Hoberman, Mexico's Merchant Elite, 1590-1660: Silver, State, and Society (Durham, NC, 1991), pp. 224-232, who points to the substantial legacies received by heirs. For a Brazilian case in which families favored daughters in the attempt to maintain the family patrimony, see Alida Metcalf, "Families of Planters, Peasants, and Slaves: Strategies for Survival in Santana de Parnaiba, Brazil, 1720-1820" (Dissertation, University of Texas at Austin, 1983). While not addressing the broader question of division and decline of an individual's estate, Arnold Baue indicates that in the specific case of landed estates in eighteenth- and early nineteenth-century Chile, landowners used their legal options (the bequest of the quinto and the tercio, as will be explained below) to maintain their haciendas intact and that such lack of division was required by the economics o the livestock hacienda. Arnold Bauer, Chilean Rural Society from the Spanish Conquest to 1930 (Cambridge, 1975), pp. 20-21, 48.

6. Susan M. Socolow, The Merchants of Buenos Aires 1778-1810: Family and Commerce (New York, 1978), pp. 31, 60, 173.

7. Socolow apparently undervalues the quinto and specifically the tercio becaus she seems to regard "the estate" as the property of both husband and wife, out of which could be granted only one quinto, amounting to ten percent of "the entire estate," and one tercio, amounting to 13.3 percent of "the entire estate (the tercio came from the remaining 80 percent after the deduction of the quinto). Socolow, The Merchants of Buenos Aires, p. 31, p. 205 n. 80. In late colonial Chile, each individual clearly had his/her own estate, which was jealously accounted for, and each individual, even if married could give the quinto and the tercio from his/her own property. The Chilean estate settlements indicate that after the deduction of the deceased's debits from his/her assets (leaving the net estate), the quinto was always deducted first, which meant tha the tercio was one-third of the remaining 80 percent. Hence the quinto and the tercio amounted to 47 percent of the estate, although funeral expenses were always deducted from the quinto, thus reducing the amount that could go to the heirs. See also Richard B. Lindley, Haciendas and Economic Development: Guadalajara, Mexico (Austin, 1983), p. 55.

8. This sample includes at least one document each for thirteen of the 36 major import-export merchants and at least one document each for 21 of the 119 intermediate-level merchants. These categories of merchants are based on the reputational approach and a quantitative analysis that were done for a broader work in progress on the merchants of Chile in the period 1795 to 1825.

9. Castilian inheritance law was based on the compilation and modification of various law codes including the Fuero juzgo, Fuero real, Las siete partidas, an the Leyes de Toro. This last law code was enacted in 1505 and gave special attention to the private laws regarding women. See Eugene Korth and Della Flusche, "Dowry and Inheritance in Colonial Spanish America: Peninsular Law and Chilean Practice," The Americas 43, 4 (April 1987): 395-410. This very useful article offers a detailed and coherent explanation, with illustrative examples, of the inheritance laws and their use. See also Jose Maria Ots Capdequi, Manual de historia del derecho espanol en las Indicts y del derecho propiamente indian (Buenos Aires, 1945); and Asuncion Lavrin and Edith Couturier, "Dowries and Wills: A View of Women's Socioeconomic Roles in Colonial Guadalajara and Puebla 1640-1790," HAHR 59, 2 (May 1979): 280-304. This fine article on the uses of dowries and wills offers less detail on the law itself but wisely suggests that actual practice serves as an important guide to understanding the inheritance system. While the following outline of the inheritance laws is based on the aforementioned sources, it also derives from the wills and estate settlements (particiones de bienes) in the Chilean notarial and judicial archives which demonstrate the practice of the law in Chile. On women and inheritance laws and practices in medieval Castile, particularly the diversity within a basic system of partible inheritance, see Heath Dillard, Daughters of the Reconquest: Women in Castilian Town Society, 1100-1300 (Cambridge, 1984), pp. 26-35, 47-54, 69-70 106-108, 129.

10. For a discussion of various inheritance systems, see Emmanuel Le Roy Ladurie, "A System of Customary Law: Family Structures and Inheritance Customs in Sixteenth-Century France" in Family and Society, Robert Forster and Orest Ranum, eds. (Baltimore, 1976). Ladurie analyzes inheritance systems of "perfect equality," "preference legacy," and intermediate systems in various regions of sixteenth-century France and relates these systems to concerns about lineage an maintaining the household under seigneurial regimes.

11. Korth and Flusche, "Dowry and Inheritance," pp. 397-398; Ots Capdequi, Manual de historia, p. 116.

12. Korth and Flusche, "Dowry and Inheritance," pp. 309-401; Lavrin and Couturier, "Dowries and Wills," pp. 282-284.

13. In the Chilean case, "legitima" was used as the general term for the basic share, or inheritance, of the necessary heirs. In the judicial records "ha de haber" was sometimes used to mean the same thing, but occasionally "ha de haber and always "hijuela" referred to the actual allotment of cash and property that made up the legitima. In other words, the legitima was a monetary value, and th hijuela was the cash or property actually received after the final settlement o the estate.

14. Men sometimes did a formal accounting of their wealth, called a capital de bienes, at the time of marriage, but these seemed to have been done rarely in Chile; I found few of them in the archival records, and wills very seldom referred to the capital de bienes. One litigant in an inheritance case stated that the capital de bienes was very rare unless there was a second marriage (AN Judiciales de Santiago [hereafter cited JS], leg. 307, no. 8). This is not to say that men did not bring wealth to their marriages; estate settlements indicate that many merchants brought wealth to marriage but the accounting was done on a more informal basis.

15. Korth and Flusche, "Dowry and Inheritance," p. 399.

16. Ibid., pp. 398-399; Ots Capdequi, Manual de historia, pp. 114, 116. According to Ots Capdequi, the law did prohibit the naming of certain people as heirs; those included, for example, permanent exiles and people condemned to work in the mines of the Crown, as well as Jews and Moors.

17. Wills often stated that the executor had received separate instructions regarding the testators' desired funeral arrangements, and the wills thus offer minimal information on the subject. The estate settlements of the merchants and their wives, however, indicate that the great majority spent from one to three percent of their estates on funeral expenses and pious works, with a few individuals spending as much as six to seven percent. In other words, for most merchants and their spouses the bulk of the quinto remained available for special bequests or for the inheritances of the necessary heirs.

18. Korth and Flusche,"Dowry and Inheritance," p.398; Lavrin and Couturier,"Dowries and Will," p. 286.

19. Ots Capdequi, Manual de historia, pp. 111-117.

20. AN, JS, leg. 1492, no. 11.

21. AN, JS, leg. 1110, no. 1.

22. Thirteen percent of the male testators and 12 percent of the females gave the quinto to a religious institution or charity or simply to their "soul." Whe the testators bequeathed a chantry (capellania) which designated a specific individual as the recipient, that recipient was regarded as a favored heir for the purpose of this analysis. Most capellanias and many bequests involving real property were accompanied by detailed instructions regarding who was to receive the bequest in the event of the death of the favored heir and those next in line. Some of these instructions of succession followed the custom of mayorazgo or entail, succession, which favored males over females and older children over younger ones, and some created their own lines of succession, often to favor female heirs. To simplify this analysis, I have categorized such bequests according to the first heir to be favored.

23. The women who gave the quinto to both males and females but favored females also overwhelmingly favored daughters.

24. Of the men who gave the quinto to both genders, 25 percent gave the quinto to illegitimate children of both genders.

25. Will of Agustin Antonio Alzerreca, AN, NS, vol. 76, p. 89; Particion of Agustin Antonio Alzerreca, AN, JS, leg. 1069, no. 12.

26. Will of Esteban Cea y Formas, AN, NS, vol. 57, pp. 693-696v.

27. Vicente Perez Rosales, Recuerdos del Pasado (Santiago, n. d.), pp. 7, 55-58

28. Will of Juan Enrique Rosales, AN, NS, vol. 71, pp. 98v-99v.

29. Poder para testar and will of Francisco Javier Urmeneta Legazpi, AN, ES, vol. 925, pp. 159, 182v. Urmeneta Legazpi referred to Tomas Ignacio Urmeneta Guerra (and his brother Julian, who was then in Spain but would later find commercial success in Chile) as his "sobrino", his nephew. All the genealogical evidence, however, indicates that they were cousins.

30. Will of Maria del Rosario Salas, AN, NS, vol. 36, pp. 101-102; Will of Jose Perez Garcia, AN, NS, vol. 22, pp. 527-533. Eugene Korth and Della Flusche, in "Dowry and Inheritance," use the wills of Perez Garcia, a merchant who is probably better known for authoring a history of Chile, to explain the workings of inheritance law and to illustrate the colonial "concern to protect and provide for women". While Perez Garcia's wills clearly demonstrate this concern for women, I would just note that the extensive, detailed bequests and the high number of favored women were not the norm but rather an extreme expression of a tendency. Also, while men commonly trusted their wives to be their executors, Perez Garcia's naming of women in second and third places was unusual. Most men named male relatives and occasionally business associates as the executors succeeding their wives.

31. Will and codicil of Margarita Velasco, AN, JS, leg. 979, nos. 1-2.

32. Will of Maria Josefa Salas, 1808, AN, NS, vol. 30, p. 89; Will of Maria Josefa Salas, 1813, AN, NS, vol. 42, pp. 257-258. Salas also made a third will in December 1816 (AN, NS, vol. 37, pp. 411v-414v) in which she dropped Jose fro this bequest, though he had not married or become a priest, nor had he died. Sh also did not name him as her executor as she had in the earlier wills. It is possible that there had been a falling-out in the family, especially since Jose favored his niece in his last will (1828) as opposed to his sister Tadea in an earlier will (1808), though, of course, Tadea may have died in the interim. The explanation may also be that Salas saw no reason to favor her wealthy son, and once Tadea had her inheritance, Jose preferred to favor his needier niece. However, there may also be a political explanation for Salas's change regarding Jose. Jose de Trucios was sympathetic to the patriots and related to other leading families of the Independence cause (notably, the Larrains), and as of early 1816 the royalist government had sequestered Jose de Trucios's house because he had not paid a forced loan to the government (AN, Contaduria Mayor, 1st series, vol. 1149). When his mother wrote a new will later that year that excluded Jose, she may have been attempting to safeguard her property from any possible government action.

33. Ots Capdequi, Manual de historia, pp. 95-96, 114. The "illegitimate children" referred to here were identified as hijo natural in the records. According to Ots Capdequi, hijo natural referred to the illegitimate children o parents who could have married, and such children could receive a mejora as described in the text. A second category of illegitimate children was the hijo espurio, the child of adultery, incest, and other prohibited relations, who would thus rarely be identified as such in the testamentary documents. The specific circumstances of the spurious child's parentage had some effect on the application of inheritance laws, but in most cases the hijo espurio could only receive a bequest of the quinto. For further details on the law and children born out of wedlock, see Ors Capdequi, Manual de historia. See also the recent article by Linda Lewin, "Natural and Spurious Children in Brazilian Inheritance Law from Colony to Empire: A Methodological Essay," The Americas 48, 3 (January 1992): 351-396, which raises important issues and offers excellent guidelines for historians investigating illegitimacy.

34. Will of Jose de la Vega, AN, NS, vol. 46, pp. 385-389.

35. AN, NS, vol. 55, p. 61v; AN, Real Audiencia, vol. 2834, pza. 11.

36. On the subject of attitudes toward women, see Asuncion Lavrin, "In Search o the Colonial Woman in Mexico: The Seventeenth and Eighteenth Centuries" and Johanna S. R. Mendelson, "The Feminine Press: The View of Women in the Colonial Journals of Spanish America, 1790-1810" in Asuncion Lavrin, Ed., Latin American Women: Historical Perspectives (Westport, CT, 1978); Burkholder and Johnson, Colonial Latin America, pp. 200-208; Asuncion Lavrin, "Female Religious" in Cities and Society, pp. 165-195; Susan Migden Socolow, "Women and Crime: Buenos Aires, 1757-1797" and A. J. R. Russell-Wood, "Women and Society in Colonial Brazil" in Readings in Latin American History, Vol. 1, The Formative Centuries, Peter J. Bakewell, John J. Johnson, and Meredith D. Dodge, eds. (Durham, NC, 1985).

37. AN, NS, vol. 73, pp. 463-476v. In addition to the two favored daughters (on single and one widowed), Diaz de Salcedo also had three sons and a daughter who was a nun. Unlike Francisco Vicuna Ydalgo who emphasized the misfortunes of his daughter Josefa as a widow of a patriot leader, Domingo Diaz de Salcedo's will never mentioned the fact that his daughter Manuela had married and was widowed, nor did Manuela's testimony in the litigation over her inheritance. This does not mean that her widowhood had not influenced her parents' bequests, but durin the Spanish Reconquest of Chile, Manuela had married Ildefonse Elorriaga, a leading figure in the royalist armies. Elorriaga, a Basque immigrant, had joine the first Peruvian expedition to Chile, continued to lead the royalist military cause, and died at the famous battle of Chacabuco which marked the defeat of th royalists in Chile. Since Domingo Diaz de Salcedo's right to citizenship, and thus the validity of his will, was being questioned due to his political loyalties, and since Manuela sought the favor of the courts in her case, the presumption may have been that it was better not to draw attention to Manuela's deceased husband. Church of Jesus Christ of Latter-Day Saints Family History Library, Archivo de la Parroquia de el Sagrario, Santiago de Chile, Matrimonios 1802-1827, Microfilm no. 0774542; Fernando Campos Harriet, Los defensores del Rey, 2nd ed. (Santiago, 1976), pp. 69-79.

38. Will of Francisco Vicuna Ydalgo, AN, NS, vol. 57, pp. 84v-89v.

39. Will of Antonia Boza Irarrazaval, AN, NS, vol. 36, p. 42.

40. Will of Bartolina de la Cruz, AN, NS, vol. 55, p. 227v.

41. Will of Domingo Diaz de Salcedo y Munoz, AN, NS, vol. 73, pp. 463-476v.

42. Particion of Domingo Diaz de Salcedo y Munoz, AN, JS, leg. 307, no. 8.

43. For a similar case of women's empathy for other women and the role of personalism in matters of inheritance, in the context of late eighteenth- and nineteenth-century Virginia, see Suzanne Lebsock, The Free Women of Petersburg: Status and Culture in a Southern Town, 1784-1860 (New York, 1984), pp. 77-79, 112-145.

44. Socolow, Merchants of Buenos Aires, pp. 31-32. See also Edith Couturier who while ambiguous on the requirements of the law vis-a-vis the testators choosing among its options, indicates that the use of the mejora was infrequent in seventeenth- and eighteenth-century Mexico, especially outside of Mexico City. "Women and the Family in Eighteenth-Century Mexico: Law and Practice," Journal of Family History, 10, 3 (Fall 1985): 294-304.

45. Marianne Heiberg, The Making of the Basque Nation (Cambridge, 1989), p. 30.

46. Only two women, the aforementioned Maria del Rosario Salas and Isabel Antunez, who was the wife of Anselmo de la Cruz, gave the quinto and the tercio to a single person, and both gave to daughters for their services to their mothers. Will of Isabel Antunez, AN, JS, leg. 1162, no. 4.